ML030720308

Tennessee Valley Authoritys Reply to the Staffs Findings of Fact and Conclusions of Law

ML030720308
Person / Time
Site:	Browns Ferry, Watts Bar, Sequoyah
Issue date:	03/07/2003
From:	Marquand B Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
Byrdsong A T
References
+adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA 99-234, RAS 6016
Download: ML030720308 (163)

Text

I Ieo I a UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD DOCKETED IUS NRC 2003 MAR I I AM 1I: 12 OFFICE 'I Tar SECIETAR'Y NULLMAKtINGS AND ADJUDICATIONS STAFF 1)

ASLBP No. 01-791-01 -CivP-EA 99-234 IN THE MATTER OF TENNESSEE VALLEY AUTHORITY (Watts Bar Nuclear Plant, Unit 1; Sequoyah Nuclear Plant, Units 1 & 2; Browns Ferry Nuclear Plant, Units 1, 2 & 3)

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Docket Nos. 50-390-CivP; 50-327-CivP; 50-328-CivP; 50-259-CivP; 50-260-CivP; 50-296-CivP ASLBP No. 01-791-01-CivP EA 99-234 TENNESSEE VALLEY AUTHORITY'S REPLY TO THE STAFF'S FINDINGS OF FACT AND CONCLUSIONS OF LAW Maureen H. Dunn General Counsel Thomas F. Fine Assistant General Counsel Brent R. Marquand Senior Litigation Attorney Of Counsel David A. Repka, Esq.

John E. Slater Senior Litigation Attorney Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902-140 1 Telephone 865-632-4251 Attorneys for Tennessee Valley Authority

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TABLE OF CONTENTS Page AUTHORITIES CITED........................................

iv I.

INTRODUCTION........................................

1 II. THE EVIDENCE OF RECORD.

5

1. Fiser's Employment with TVA.........................................

5

2. McArthur's Employment with TVA 29

3. McGrath's Employment with TVA......................................

30

4. Grover's Employment with TVA 32

5. Fiser's Asserted Protected Activities 36

a. Diesel generator fuel storage tanks.........................................

36

b. November 1991 NSRB meeting........................................

37

c. The letter to Senator Sasser........................................

40

d. Fiser's 1993 DOL complaint........................................

43

e. Fiser's 1996 DOL complaint........................................

46

6. Knowledge of Protected Activities 50

7. Adverse Actions Against Fiser......................................

53

8. Causal Connection Between Protected Activities and Adverse Actions......................................

56

a. Disparate treatment.................................................................. 56

b. Temporal proximity between protected activities and adverse actions..............

........................ 61

9. Pretext........................................

62 i

a. Preselection of Harvey................................................

62

b. Failure to follow procedures.

65

c. Biased selection process

................................................ 69 C. Kent's Statement Regarding Fiser's DOL Activities 76

10. Witness Credibility

.......................... 77

a. McGrath................................................

77

b. McArthur................................................

79

c. Kent................................................

83

d. Boyles................................................

87

e. Grover.................................................

89 III. CONCLUSIONS OF LAW 92 A.

The NRC's Authority Over Whistleblower Retaliation Claims Is Not in Issue 92 B.

Federal Discrimination Case Law Establishes the Paradigm to Be Used Under Section 50.7..................

.. 93 C.

The Standard of Proof in a Dual Motive Case Is Irrelevant to this Proceeding........................................

94 D.

This Proceeding Does Not Involve the NRC's Complete and Accurate Information Requirement........................................ 94 E.

Fiser Did Not Engage in the Protected Activities He Claimed, and the Protected Activities in Which He Engaged Were Insignificant........................................ 95 F.

The Adverse Actions Fiser Incurred Were a Result of a Legitimate Reorganization Not Motivated by Discrimination 98 ii

G. The Alleged Discriminatory Officials Had Limited or No Knowledge of Fiser's Protected Activities at the Time of the Relevant Decisions.........................................

99 H.

The Staff Did Not Carry Its Burden To Prove a Causal Connection Between Fiser's Protected Activities and the Alleged Adverse Actions....................................

107

1. Fiser was not subject to disparate treatment by the alleged discriminating officials.......................................

107

2. There is no temporal proximity between Fiser's protected activities and the adverse actions.................................

109 I.

TVA Presented Legitimate Nondiscriminatory Reasons for the Adverse Actions..................

................... 112 J.

The Staff Did Not Carry Its Burden To Prove that TVA's Nondiscriminatory Reasons Were a Pretext for Discrimination.......................................

115

1. Harvey was not preselected for the PWR Chemistry Program Manager position...............

....................... 115

2. TVA followed its selection practices......................................

117

3. TVA's legitimate reasons for the adverse actions were not proven to be a pretext for discrimination.............

........... 121

4. The selection process was not intended to discriminate against Fiser..............

........................ 123 K.

Kent's Statement Regarding Fiser's DOL Activities Did Not Violate Section 50.7 nor Is It a Subject of the NOV.....................

........................ 128 IV. CONCLUSION

............................................. 131 CERTIFICATE OF SERVICE 132 iii

AUTHORITIES CITED Cases Page Barnes v. Southwest Forest Indus., Inc.,

814 F.2d 607 (I1th Cir. 1987)............................................

124 Bell v. United States, 854 F.2d 881 (6th Cir. 1988)............................................

113 Benzies v. Illinois Dep't of Mental Health & Dev. Disability, 810 F.2d 146 (7th Cir. 1987)............................................

93 Brochu v. City of Riviera Beach, 304 F.3d 1144 (11th Cir. 2002)............................................

130 Brungart v. BellSouth Telecomms., Inc.,

231 F.3d 791 (11th Cir. 2000)........................................ 101-02, 103, 104, 106 Calhoun v. Bailar, 626 F.2d 145 (9th Cir. 1980)............................................

35-36 Chappell v. GTE Prods. Corp.,

803 F.2d 261 (6th Cir. 1986)............................................

124 Clark County Sch. Dist. v. Breeden, 532 U.S. 268 (2001).....................

....................... 106, 110, 111, 112 EEOC v. Avery Dennison Corp.,

104 F.3d 858 (6th Cir. 1997)............................................

99 Earley v. Champion Int'l Corp.,

907 F.2d 1077 (11th Cir. 1990)............................................

124 Earwood v. Dart Container Corp., 93-STA-0016, (Sec'y Dec. 7, 1994)............................................

128-29 Edmund v. Midamerican Energy Co.,

299 F.3d 679 (8th Cir. 2002)............................................

119 Fenton v. HiSAN, Inc.,

174 F.3d 827 (6th Cir. 1999).....................

99, 100, 104, 106 iv

Cases Page Gale v. Ocean Imaging, No. 97-ERA-38 (ARB July 31, 2002)................................

120 Goostree v. Tennessee, 796 F.2d 854 (6th Cir. 1986)................................

115-16 Gray v. Toshiba Am. Consumer Prods., Inc.,

263 F.3d 595 (6th Cir. 2001)................................

93 Griggs v. Duke Power Co.,

401 U.S. 424 (1971)................................

129 Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999)................................

110 Hayes v. Potter, 310 F.3d 979 (7th Cir. 2002)................................

101 Hill v. TVA, 87-ERA-23 (Sec'y Apr. 21, 1994 aff'd, 65 F.3d 133 (6th Cir. 1995)................................

17 Hollins v. Atlantic Co.,

188 F.3d 652 (6th Cir. 1999)................................

98 Jackson v. City of Columbus, 194 F.3d 737 (6th Cir. 1999)................................

98 Jocher v. TVA, 94-ERA-24 (ALJ July 31, 1996)................................

17, 106 Klockv. TVA, 95-ERA-20 (ALJ Sept. 29, 1995)................................

106 Lubetsky v. Applied Card Sys., Inc.,

296 F.3d 1301 (1lth Cir. 2002)................................

101, 112 Maarouf v. Walker Mfg. Co.,

210 F.3d 750 (7th Cir. 2000)................................

101 Majewski v. Automatic Data Processing, Inc.,

274 F.3d 1106 (6th Cir. 2001).............

................... 107, 118-19, 121 v

Cases Page Marshall v. Western Grain Co.,

838 F.2d 1165 (11th Cir. 1988)..................................

121 Miller v. TVA, 97-ERA-2 (ARB Sept. 29, 1998) aff'd, 191 F.3d 452 (table) (6th Cir. 1999)..............

.................... 120 Mitchell v. Toledo Hosp.,

964 F.2d 577 (6th Cir. 1992)..................................

107, 121 Mulhall v. Ashcroft, 287 F.3d 543 (6th Cir. 2002)..................................

99, 100-01 Nat'l R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061 (2002)..................................

94 Pensyl v. Catalytic, Inc.

83-ERA-2 (Sec'y Jan. 13, 1983)..................................

96 Pesterfield v. TVA, 941 F.2d 437 (6th Cir. 1991)...........

....................... 119, 121, 128

• Peterson v. Dialysis Clinic, Inc.,

No. 96-6093, 1997 U.S. App. LEXIS 26254 (6th Cir. Sept. 8, 1997)..................................

112 Prebilich-Holland v. Gaylord Entertainment Co.,

297 F.3d 438 (6th Cir. 2002)...........

....................... 106, 111, 112 Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133 (2000)..................................

93, 94 Sartain v. Bechtel Contructors Corp.,

87-ERA-37 (Sec'y Feb. 22, 1991)..................................

97 Silvera v. Orange County Sch. Bd.,

244 F.3d 1253 (1lth Cir. 2001)..................................

102, 103, 104, 106 Smith v. Catalytic, Inc.,

86-ERA-12 (Sec'y May 28, 1986)..................................

96 vi

Cases Page Smith v. Chrysler Corp.,

155 F.3d 799 (6th Cir.1988).................................

119, 121 Smith v. TVA, 90-ERA-12 (Sec'y Apr. 30, 1992).................................

128-29 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).................................

93, 94 Stockdill v. Catalytic, Indus. Maintenance Co.,

90-ERA-43 (Sec'y Jan. 24, 1996).................................

96

• TVA v. Frady, 134 F.3d 372 (table), No. 96-3831 1998 WL 25003 (6th Cir. Jan. 12, 1998).................................

110, 114-15 United States v. Recio, 123 S. Ct. 819 (2003).................................

95

• Warren v. Ohio Dep 't of Pub. Safety, No. 00-3560, 2001 U.S. App. LEXIS 21664 (6th Cir. Oct. 3, 2001)..................................

110

• Williams v. Rumsfeld, No. 01-4016, 2002 U. S. App. LEXIS 16524 (3d Cir. Aug. 13, 2002).................................

120 Wilson v. Bechtel Constr., Inc.,

86-ERA-34 (Sec'y Feb. 9, 1988).................................

97 Federal Statues:

10 C.F.R. § 10.57 (2002)................................. 1, 5, 92, 93, 94, 96, 97, 128, 130 10 C.F.R. § 10.59 (2002)..................................

94, 95 Miscellaneous:

United States Nuclear Regulatory Commission, Independent Review Team, Report of Review (Mar. 12, 1999).................................

130

• Copies of these cases are contained in the addendum hereto.

vii

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD IN THE MATTER OF

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Docket Nos. 50-390-CivP;

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50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY

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50-259-CivP; 50-260-CivP;

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50-296-CivP

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(Watts Bar Nuclear Plant, Unit 1;

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ASLBP No. 01-791-01-CivP Sequoyah Nuclear Plant, Units 1 & 2;

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Browns Ferry Nuclear Plant,

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EA 99-234 Units 1, 2, & 3)

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TENNESSEE VALLEY AUTHORITY'S REPLY TO THE STAFF'S FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION x,-.

This is in reply to the Staff's Findings of Fact and Conclusions of Law (hereinafter "SF&C") and is submitted in accordance with the Board's October 24, 2002, and February 20, 2003, orders establishing a briefing schedule.' TVA disagrees with the Staff's proposed conclusions (¶¶ 4.1-4.9) and a large number of its proposed findings of fact and conclusions of law (¶¶ 2.1-3.143). Rather than detail every mistake and omission in every line of the Staff's submission, we think TVA's reply can best assist the Board by focusing on the principal areas of disagreement.

1.

The Staff acknowledges that the key issue in this proceeding is whether TVA violated 10 C.F.R. § 50.7 (2002) "as set forth in the Notice of Violation" 1

TVA's Findings and Conclusions will be referred to as "TVAF&C ¶ _

Joint Exhibits will be referred to herein as "JX_"; TVA Exhibits will be referred to as "TVAX__"; and Staff Exhibits will be referred to as "SX_." Exhibit pages will be referred to by the Bates Number where so marked. Citations to the transcript of the prehearing conferences and the hearing will appear as " [witness] p. _,

1. _."

1

(SF&C ¶¶ 1.3, 1.6). Despite acknowledging that the Notice of Violation (NOV) defines their case, the Staff now asserts a new theory-that Fiser engaged in protected activity not identified in the NOV and that such protected activity motivated McGrath and McArthur to take adverse action against Fiser. The Staff has now come forward with new claims of protected activity because it is apparent from the evidence that the nuclear safety concerns referenced in the NOV were discovered and documented by others and no one has ever associated Fiser with raising such concerns. Further, the Staff continues to offer only speculation that McGrath was aware of Fiser's 1993 DOL complaint.

2.

The Staff's new claims of protected activity by Fiser include (1) a 1989 issue regarding sampling of the diesel generator fuel storage tanks, (2) an issue regarding daily trending, (3) an August 16, 1993, letter to Senator Sasser (SX29), and (4) Fiser's 1996 DOL complaint. The Staff's case is now premised on these being the matters that, somehow, motivated McGrath and McArthur to retaliate. The Staff has urged the Board to engage in rank speculation that McGrath or McArthur were aware of Fiser's involvement in the issue regarding sampling of the diesel generator fuel storage tanks and the Sasser letter. As to the trending issue, the Staff would have the Board assume that what was only a minor issue was the basis for McGrath and McArthur to carry on a five-year vendetta. Further, the Staff would have the Board rule that Fiser's refusal to even consider trending was protected activity, although it did not involve the raising of any nuclear safety concern, any violation of the Atomic Energy Act (AEA),

NRC regulations, or TVA's licensing requirements. Instead, it was nothing more than a refusal by Fiser to even consider how to improve plant performance, safety, and efficiency on the basis of burdensomeness and inconvenience. In short, the Staff has offered no reason why McGrath or McArthur would be motivated to discriminate against Fiser.

3.

Now, for the first time, the Staff contends that TVA discriminated against Fiser for filing his 1996 DOL complaint. This contention demonstrates the 2

paucity of the Staff's case. Having failed to offer any evidence that Fiser actually identified or documented any safety concerns, or that McGrath or McArthur were carrying a retaliatory grudge for years, the Staff asserts that Fiser was discriminated against in 1996 for filing his 1996 DOL complaint. Aside from the fact that the NOV is not based on that contention, that theory is chronologically impossible. Because the complaint was not filed until June 25, 1996 (SX37), many of the actions affecting Fiser had already been decided-the decision to post the positions for competition, the decision to eliminate the three Chemistry and Environmental Program Manager positions, the decision not to transfer Harvey to Sequoyah, and the decision to place McArthur in the RadChem Manager position. It was impossible for those events to have been undertaken in retaliation for Fiser's 1996 DOL complaint since they had already transpired by the time his complaint was filed.

4.

Even if the Board were to find protected activity, the Board would still need to find a causal nexus between Fiser's protected activity and adverse action.

The Staff's case asserts that McGrath and McArthur are the individuals who made the discriminating decisions that adversely affected Fiser ("We're only trying to deal with the [protected activities] that have an impact on McArthur and McGrath, because they're the ones that made the decisions in '96" (Dambly p. 4397, 11. 5-10)). Therefore, these are the two individuals that the Board must find to have been motivated to retaliate and to have taken the adverse action. However, the Staff's inferences of motivation and retaliation strain logic and credulity. For example, the Staff ignores undisputed and uncontroverted evidence that several of the decisions that adversely affected Fiser were made by other individuals who are not alleged to have had a discriminatory animus toward Fiser. Likewise, the Staff presented no evidence that McGrath was aware of Fiser's 1993 DOL complaint, the issue regarding the diesel generation fuel storage tanks, or the Sasser letter.

3

5.

The Staff asserts that Fiser was treated disparately from McArthur.

However, the Staff ignores the fact that the same decisions were made with respect to Fiser as literally everyone else in his organization. The Staff is choosing a faulty basis for comparison; McArthur's position was an exception, while Fiser's was not. The Staff also ignores the fact that the decisions respecting Fiser and McArthur were made using the same process. Further, they ignore the fact that the decision with respect to McArthur was obviously not made by him and there is no evidence that it was made by McGrath. Thus, it cannot be asserted that McArthur or McGrath, as the alleged discriminating officials, made disparate decisions as to how Fiser should be treated.

6.

The Staff would have the Board find Fiser and Grover to be com-pletely credible despite their open hostility toward TVA and the numerous matters as to which their testimony was evasive or demonstrably incorrect.

7.

The Staff would also have the Board disregard much of the testimony by witnesses favorable to TVA. The Staff offers no rationale for ignoring much of their testimony. As to other testimony, the Staff takes small excerpts out of context to create the illusion of an inconsistency.

8.

The Staff's theory of discrimination in this case is inherently contradictory; it names McGrath and McArthur, but in fact assumes and requires a plot involving so many people that the theory is not even remotely plausible. The Staff would have the Board adopt a complex plan executed over a lengthy period of time and involving numerous conspirators. The record is devoid of any evidence of collusion and that theory would therefore require the Board to make such findings, based only on speculation. Adoption of such a conspiracy theory would require the Board to reject TVA's simple explanation of the processes used and the good-faith decisions that were made. This is the explanation supported by the weight of the record evidence.

9.

In total, the evidence strongly supports TVA's contention that McGrath and McArthur were dedicated nuclear professionals who were not, in any part 4

or in any way, motivated to retaliate against Fiser due to his raising nuclear safety concerns or his engaging in any protected activity. McGrath and McArthur followed applicable processes and appropriately utilized human resources personnel to assist with the necessary decisions. The Staff's attempt to infer retaliatory motives, based on Fiser's distorted world-view, Grover's biased observations, and other perfectly normal and explainable variations and subjectivities that enter any human resource process, cannot withstand any reasonable, objective, and credible analysis. Section 50.7 should not be stretched to support such an approach.

II. THE EVIDENCE OF RECORD In this section, we will respond to the Staff's characterization of the evidence. To assist the Board, we will attempt to follow the Staff's organizational format.

1. Fiser's Employment with TVA The Staff's discussion (SF&C ¶¶ 2.13-2.28) of Fiser's TVA employment while he worked at Sequoyah paints over the fact that Fiser was viewed as ineffective by management. His performance was often evaluated as merely adequate, only one step above inadequate. In a nuclear plant environment with high, and increasing expec-tations, "adequate" is unacceptable (McArthur p.1412 1. 23-p. 1413, 1. 5). Similar criticisms of Fiser's performance at Sequoyah were expressed from 1989 through 1992.

Throughout the hearing, Fiser refused to acknowledge that he had any prior notice that his management was dissatisfied with his performance (see e.g., Fiser

p. 2408, 1. 18-p. 2409, 1. 19). He also refused to acknowledge that his management held him accountable for failing to identify and resolve problems with the Sequoyah Chemistry program. It is clear, however, that there were longstanding criticisms of 5

Sequoyah Chemistry and that management held Fiser responsible. Fiser' s testimony that he was unaware of management's dissatisfaction with his performance as Sequoyah Chemistry manager was not credible and replete with obfuscations and excuses. Despite his denial of such knowledge, Fiser's actions and testimony show that if he was not well aware, then he was in serious denial.

Fiser's removal from Sequoyah Chemistry in 1992 and his 1993 RIF are not the basis for the NOV. However, we understand that the Staff, like Fiser, attributes his employment difficulties in that timeframe to his engagement in the protected activity cited in the NOV. It is TVA's position that those adverse actions were undertaken solely for nondiscriminatory reasons and decided by individuals other than McGrath and McArthur. Thus, those actions are relevant to refute the Staff's contention that they formed a discriminatory animus in 1992-93 which was purportedly directed at Fiser. There is no evidence based on events in 1992-93 that would tend to show a grudge or retaliatory animus on the part of McGrath or McArthur that would then lie dormant-according to the Staff's theory-until 1996.

Fiser received two earlier performance reviews which included criticisms of his lack of aggressiveness, that he had not improved as much as expected, that earlier weaknesses still persisted, and that the performance of the Chemistry group was not acceptable (JX30; Fiser p. 2432, 1. l1-p. 2434, 1. 9; JX31; Fiser p. 2435, 11. 1-19).

Although the decision to remove Fiser as Sequoyah Chemistry Manager was not made based on those service reviews, the reviews are nonetheless significant for two reasons.

First, they contained the same types of criticisms which Jack Wilson and Beecken had of Fiser. Second, Fiser either disagreed with the evaluations or had excuses for the criticisms (Fiser p. 2434, 11. 8-9; p. 2437, 11. 6-1 1). He tried to explain his low evaluation by claiming that "you start out low with these [reviewers] until you can demonstrate yourself' (Fiser p. 2436, 1. 19-p. 2437, 1. 4). He next claimed that one of his reviews as the Sequoyah Chemistry Manager was low because the plant manager 6

unfairly held him responsible for INPO findings (Fiser p. 2438, 1. 12-p. 2439, 1. 17).

This is the same theme and the same excuses that are woven throughout Fiser' s 1993 DOL complaint and his removal as Sequoyah Chemistry Manager. That theme and Fiser's excuses have nothing to do with his purported identification of safety issues or with retaliation. The theory that arose in 1996, developed in the NOV, and still being revised today by the Staff-that the retaliatory animus arose in this timeframe-is a revisionist view with no basis in the evidence. At bottom, it was simply a matter of being held accountable (unfairly according to Fiser):

A.

I was held responsible for those [adverse findings by INPO]

by Steve Smith, even though I looked him in the eye and said, Steve, this data had already been sent before I ever took the job.

And there is nothing I could do about it, because essentially once the data was sent it could not be recalled.

And he held me personally responsible for the findings that existed before I ever took the job. And he was very upset about that.

Q.

So you are saying Mr. Smith unfairly held you responsible for some problem he perceived in the chemistry organization?

A.

That is correct [Fiser p. 2439, 11. 4-17].

A.

... I was personally held responsible for problems by Mr. Smith.

Q.

And so what you are telling us today is that it was unfair for Mr. Smith to hold you responsible for the problems in chemistry back in 1989?

A.

I looked at him and I told him -

Q.

Can you answer the question yes or no?

A.

Yes.

Q.

Yes, it was unfair?

A.

Yes, it was unfair [Fiser p. 2440, 1. 20-p. 2441, 1. 5].

Fiser received a performance appraisal in 1991 that covered the period of time he was assigned to outage management (JX32). Similar to the criticisms in his earlier reviews and similar to the later criticisms by Jack Wilson and Beecken, that 7

performance appraisal was critical of Fiser for not using the authority of his position effectively and noted his difficulty in influencing plant personnel to get work done (JX32; Fiser p. 2448, 1. 16-p. 2449, 1. 2; p. 2454, 1. 14-p. 2456, 1. 23).

Fiser's 1992 performance appraisal contains similar criticisms regarding his weakness as a manager and indicates that he had difficulties in managing his subordinates and that improvement had not taken place (JX33, Fiser p. 2465, I. 10-

p. 2468, 1. 13).

In his 1993 DOL complaint and at the hearing in this proceeding, Fiser tried to show the unfairness of holding him responsible for certain problems that arose in Sequoyah Chemistry. The Staff, like Fiser, argues it was unfair because he did not retain his Chemistry Manager duties while temporarily assigned to Outage Management (SF&C ¶ 2.16). Fiser, of course, made that assertion to escape responsibility for any problems that arose during that time. There are two problems with Fiser's claim of nonresponsibility. First, it is at odds with the expectation of the plant manager at the time. Beecken, who was the plant manager while Fiser was in Outage Management, testified that he expected Fiser to maintain oversight over chemistry (Beecken p. 4860,

1. 19-p. 4862, 1. 3). Second, Beecken was critical of long-term problems that should have been discovered and resolved earlier.

Fiser's testimony that he never had an "inkling" that Sequoyah Plant Management was dissatisfied with his performance as Sequoyah Chemistry Manager is not credible. The Staff relies (SF&C ¶ 2.20) on Fiser's claim that, after he learned of the decision to send him to Corporate Chemistry, he inititated a casual stairwell conversation with Jack Wilson and Beecken in which they told him he had done well and should use the rotation "to broaden his horizons" (Fiser p. 1028, 11. 2-4). However, that simplistic version ignores four things. One, sending someone to a different position with a sendoff of "broaden your horizon" is frequently an euphemism for "find another job."

Two, given Fiser's penchant for ignoring criticism, he would not have heard any 8

criticism, even if directly stated. Three, given the nature of the convers ation, a chance meeting in the stairwell as the parties were going about other business, it is unlikely that Jack Wilson or Beecken would have had a formal discussion with Fiser at that point detailing the shortcomings of Sequoyah Chemistry and Fiser's performance. Finally, when interviewed by TVA's OIG on February 3, 1994, relatively close in time to the alleged conversation, Beecken said he "had not been happy with Fiser's performance" at Sequoyah (JX26 at 1). Although he did not specifically remember having a conversation in the stairwell, Beecken said it was possible that he told Fiser that he had done a good job "'but there are a lot of problems in the Chemistry Program and here is a good offer for you to go downtown - a good career move'" (id.).

The circumstances of Fiser's stairwell conversation with Jack Wilson and Beecken further demonstrate that Fiser was well-aware of criticisms of his performance.

Although he denied thinking that they were upset with him, his purpose in the conversation was "to make sure they weren't upset with [him]" (Fiser p. 2411, 11. 6-16).

He admitted that they told him that going to the corporate job was an opportunity to "broaden [his] horizons," but he denied that they may have been suggesting that he should find something else to do (Fiser p. 2416, II. 1-16). Fiser's own testimony about the reason for the rotation also shows that he knew that management was dissatisfied with his inability to fix the problems in Sequoyah Chemistry. At the time leading up to the rotation, Fiser was aware that Jocher, the Corporate Chemistry Manager, had raised a "litany" of criticisms about Sequoyah Chemistry (Fiser p. 2412, 1. 14-p. 2414, 1. 13).

He also admitted that he heard from a number of sources that Jocher's criticisms caused people to question whether Sequoyah Chemistry was out of control, and therefore Jocher was sent to the plant to fix the problems (Fiser p. 2630, 1. I-p. 2632, 1. 1). Fiser admitted that he was told at that time (Fiser p. 2411, 1. 23-p.2412, 1. 11; p. 2414,

11. 14-24) that his rotation with Jocher was initiated because plant management wanted to see if Jocher could fix the problems since "he did appear to be a go-getter" (Fiser 9

p. 2415, 11. 8-9). However, in the same breath, Fiser denied having even "an inkling" that Jocher was brought to Sequoyah "to fix the problems" (Fiser p. 2422, 11. 15-19).

Fiser's refusal to admit the reason for his removal from Sequoyah Chemistry is further exemplified by his 1992 performance appraisal. On September 8, 1992, Fiser signed, as having received, a service review indicating that he had been removed from Sequoyah because it needed a new approach to solving its chemistry problems (JX33). Fiser admitted he was "dumbfounded" when he received the perfor-mance review firsthand from McArthur (Fiser p. 2428, 1. 21-p. 2429, 1. 5). However, he quickly recovered and repeatedly denied that it raised any question in his mind about whether Sequoyah management felt they needed somebody else to solve the problems in chemistry.

Q.

Do you see the second sentence that says: Sequoyah needs a different approach to solving problems in chemistry, and the rotation was initiated to face that issue?

A.

That is correct.

Q.

When you saw that, did that not raise an inkling, in your mind, that Sequoyah thought they needed somebody else to resolve problems at Sequoyah company?

A.

I see Dr. Wilson McArthur's signature on here as the one who typed, or who prepared this. And I would see that as his assessment, not as Sequoyah's.

Q.

So you still, at that point in time, you didn't understand that Sequoyah thought they had problems that they needed to have somebody else to fix?

A.

I understood this to be Dr. McArthur's appraisal of me. My appraisals at Sequoyah are already a documented issue that we have already gone over. This is Dr. McArthur, this is not Sequoyah. Do you see that?

Q.

Mr. Fiser, do you deny that when you read this, that it raised a question in your mind as to Sequoyah's view of your abilities to address the chemistry problems at Sequoyah?

A.

I see this as Dr. McArthur's assessment.

Q.

Can you answer the question?

10

A.

The answer to the question is no, I see this as Dr. McArthur's assessment.

Q.

My question was, do you deny, you are saying you do not deny it?

A.

Repeat the question.

Q.

My question was, do you deny that this raised a question in your mind as to whether Sequoyah management felt that they needed somebody else to solve the Sequoyah chemistry program?

A.

I deny that, I say it is Dr. McArthur's.

Q.

Do you deny that he had, or do you claim, assert that he had no basis for making that statement?

A.

By his own words that is in fact the truth. Where he, himself said, if you ask me to prove this, I can't. I have no basis for it. But that is [what] I [was] led to believe, that chemistry problems at Sequoyah are being blamed on Gary Fiser. And boy, if you ask me to prove that I would have no basis on which to do it [Fiser

p. 2430, 1. I1-p. 2432, 1. 6].

Fiser also testified that he was unaware, at the time of his rotation to Corporate Chemistry, that his supervisor, Pat Lydon, was dissatisfied with his perform-ance (Fiser p. 2416, 1. 17-p. 2417, 1. 11). Lydon was interviewed by TVA's OIG in 1993 about the reasons for Fiser and Jocher's rotation. The OIG's record of interview indicates that Lydon described Sequoyah's chemistry program as "'unbelievably bad"'

with "all kinds of long-standing problems" (TVAX122 at 3). Lydon further indicated that "Bynum and Beecken wanted Lydon to fire Fiser because he was not competent" and that "due to the problems at SQN," Bynum and Beecken "directed Jocher to replace Gary L. Fiser, former Manager Chemistry, SQN, in February 1992" (id.). By November of 1995, Fiser had read Lydon's OIG interview, indicating his dissatisfaction with Fiser's performance, because Fiser sent it to NRC's Office of Investigations in 1995 (TVAX122 at 1; Fiser p. 2418, 1. 6-p. 2419, 1. 12; p. 2424, U. 7-11). However, even at the hearing, Fiser continued to deny that Lydon was critical of him (Fiser p. 2416,

1. 17-p. 2417, 1. 11). Although Lydon "described the SQN's chemistry program as

'unbelievably bad"' (TVAX122 at 3), Fiser denied in his testimony that the "program" was bad (Fiser p. 2420, 1. 11-p. 2421, 1. 21) and that he did "not know for sure what 11

he [Lydon] is referring to here" (id. p. 2421, 11. 20-21). Instead, Fiser maintained that there were only some "equipment problems" that "had to do with the outdated equipment" for which "the chemistry upgrade project was an initiative to get those long standing issues fixed" (Fiser p. 2420, 1. 20-p. 2421, 1. 3; p. 2421, 1. 13-p. 2422, 1. 2).

Fiser denied that Lydon thought he was removed from Sequoyah because of problems in chemistry or that Bynum and Beecken thought he was not competent (Fiser p. 2424,

1. 12-p. 2426, 1. 2).

Although Fiser read the record of Lydon's interview (Fiser p. 2424, II. 7-11), he totally dismissed his supervisor's view (Fiser p. 2424, 1. 23-p. 2426, 1. 2;

p. 2427, 1. 7-p. 2428, 1. 20). Fiser claimed that Jack Wilson and Beecken had told him in the alleged stairwell conversation "personally that they are proud of the job I have done" (Fiser p. 2427, 11. 14-21). Based on that alleged statement, Fiser admitted that he made a "judgment" to "factor away" what Lydon said about his performance (Fiser p.

2427, 11. 22-25; p. 2428, 11. 8-9) "because it was in direct conflict with first-hand information" and he did not "know where the guy got the infornation" (Fiser p. 2428, II. 3-15). However, Lydon's version of Fiser's removal from Sequoyah Chemistry was not in conflict with what Jack Wilson and Beecken supposedly said. Fiser's version of an undocumented, unrecorded, casual conversation with Jack Wilson and Beecken that occurred in a chance meeting in a stairwell, possibly sometime in February-March 1992, is irrelevant. The fact of the matter is that, in conversations recorded by Fiser, both Jack Wilson and Beecken candidly told Fiser that he was viewed as ineffective and was being held responsible for the problems with Sequoyah Chemistry (JX27 at 36, 50-58).

According to Fiser's "Sequence of Events" (JX27), those conversations with Jack Wilson and Beecken occurred on November 21 and December 9, 1992, respectively, at least eight months after the purported stairwell conversation.2 Although the quality of 2

Given that Fiser was told by both Jack Wilson and Beecken on November 21 and December 9, 1992, that he was being held responsible for the problems with the 12

the recordings is not good, Jack Wilson and Beecken both made it clear that together they made the decision to remove Fiser. There is also no suggestion in the recordings that they removed Fiser at the behest of McArthur or McGrath or that he was removed for his involvement in any protected activity, for raising any nuclear safety issue, or for contacting the NRC. Instead, they told him in no uncertain terms that he was seen as being an ineffective manager of a broken Sequoyah Chemistry program. If there were ever to be any smoking gun evidence of discrimination, it should be apparent in candid one-on-one closed-door conversations. However, Fiser's surreptitious tape recordings of those conversations conclusively demonstrate that he was removed as Sequoyah Chemistry Manager for legitimate nondiscriminatory reasons, that Jack Wilson and Beecken were the decisionmakers, and that it was not done at the behest of McArthur or McGrath.

The Staff attempts to downplay Fiser's difficulties while serving as Acting Corporate Chemistry Manager (SF&C ¶ 2.22). In fact, McArthur testified that due to Fiser's ineffectiveness as a manager, he could not enlist the cooperation of his subordinates, he played favorites among his staff, he failed to meet deadlines, he was not motivated to accept and to solve problems, he had difficulties communicating with his site counterparts, and he was not making an effort to develop his knowledge of BWR or secondary chemistry or industry developments (McArthur p. 1557, 1. 12-p. 1559,

1. 24).

The Staff asserts (SF&C ¶ 2.27) what it claims was said in a conversation between Fiser and Bill Lagegren on November 23, 1992, in an attempt to infer that he was removed as Sequoyah Chemistry Manager for ulterior motives. The Staff provides no citation to the transcript of the hearing to support what was allegedly said. Although Fiser admitted having tape recorded Lagegren (Fiser p. 2512, 11. 11-17), we are not

(... continued) Sequoyah Chemistry program, it is perplexing why he chose to claim ignorance of management's dissatisfaction with his performance.

13

aware of any testimony as to what was said. Nor was the recording of the conversation introduced into evidence. Instead, the Staff relies only on Joint Exhibit 27 for its account of that conversation. That is wholly inappropriate. There was considerable debate at the hearing about that exhibit and whether it could be considered as anything other than a guide in considering the tape recordings (e.g., Fiser p. 1076, II. 4-13).

Moreover, at the hearing, the Staff represented to the Board that it would introduce the recordings to which it intended to have Fiser testify about and that the other recordings were not relevant (Fiser p. 1075, 11. 11-16). Based on that representation, the Staff is estopped from attempting to rely on this or other conversations about which there was no testimony and as to which it did not introduce the recordings.

The Staff glosses over (SF&C ¶ 2.28) the reasons that Beecken told Fiser he did not want him to return as Sequoyah Chemistry Manager. However, the Staff admits that the "conversation was diametrically opposed" to what Beecken told Fiser in the earlier stairwell conversation: Since Beecken's reasons for not wanting Fiser to return were discussed at length in our main brief (TVF&C at ¶¶ 3.13-3.26) and the stairwell conversation was discussed above we will not repeat them here. The Staff s assertion does insinuate some nefarious reason for Beecken's change of heart. However, Beecken made it clear that he moved Fiser out of Sequoyah Chemistry because of the problems in that area and because Fiser did not appear to have the drive to manage the operation (Beecken p. 4799, 1. 14-p. 4803, 1. 4). Beecken further testified that over time as he became more aware of the depth of the problems, he became convinced that Fiser was not the right person for the job (Beecken p. 4804, 1. 6-p. 4806, 1. 16).

Beecken's testimony at the hearing was entirely consistent with the reasons he gave Fiser in December 1992 (see JX27 at 50-58).

The Staff also notes that in that conversation, "Fiser explained to Beecken that he had not been in charge of the SQN Chemistry program for a year and a half' (SF&C at ¶ 2.28). That is vintage Fiser. Fiser could not understand that as the 14

Chemistry Manager, not only the day-to-day affairs but also matters which had a long-term effect on the program were his responsibility. Instead, he claimed that it was not on his watch, it was beyond his control, and he did not have the resources (Beecken

p. 4811, 1. 18-p. 4812, 1. 5). However, Beecken believed the problems were long term in nature and should have been addressed while Fiser was in charge of Sequoyah Chemistry (Beecken p. 4805, 11. 12-21).

How effective has their training been, how critical have they been of their manpower, this has just has [sic] been going on for a long time...

I think a lot of the stuff was there" (JX27 at 52).

[M]y issue is, is the training cyclic?

You don't forget that, that's what I mean... just a real fundamental, you've got following procedure problems down there, you've got the work ethic issue, I've got people that ask fundamental questions, and they are supposed to be RLA's... [I]t [fundamental knowledge] doesn't decay! Even with Jocher and his adjunct professors couldn't screw that up that quick (JX27 at 54).

Training is not something you can take a week before hand, or month before hand, and make sure that he can pass?

[W]here [] did all the knowledge go?

Every time I turn around, my perception is, every time they turn around in chemistry, I hear another world of garbage (JX27 at 55).

The perception I've got is that chemistry is broken, in my mind, but it is not one of these things that happens... Jocher didn't come in and break it. It was broken, weak, struggling (JX27 at 56).

Here's the fundamental question, that Gary had to have known about it, or it wasn't fixed. Now that training issue, that's not an overnight (JX27 at 56).

15

[Y]ou know where it's coming from [ ], this [ ] didn't transpire over night. A lot of inherent weaknesses that were here that were here [sic],

that weren't properly dealt with? (JX27 at 57).

The Staff attempts (SF&C ¶ 2.29) to create an inconsistency, when there in fact is not, about Fiser's removal as Acting Corporate Chemistry Manager. As McArthur testified at the hearing, he made the decision to remove Fiser from the Acting Corporate Chemistry Manager position in November 1992 because he was an ineffective manager.

The Staff then refers to a tape recorded conversation to suggest that McArthur "intimated that it was Bynum and Keuter" who made the decision. That is not accurate, it is not an inconsistency, and it does not reflect on McArthur's credibility. First, in the conversation cited by the Staff, McArthur clearly said that he had checked with Keuter and Bynum but it was his decision to remove Fiser:

One thing we need to do is someone is going to have to lead the organization, and I think right now the chemistry organization, you need to spend time either finding out what you are going to do within the company or looking for a job or something like that. I believe, and we need to discuss this, I believe we ought to take you out of that position, and put you in as a Project Manager, and put Sam Harvey or Chandra or somebody in there acting until Bill comes back. I really believe this will make sense to give you time to do something, because right now it is not effective... because I don't think you have the backing that you need to get it done. I'm talking about management and everything. That's my belief [JX27 at 15].3 As the Staff admits (SF&C ¶ 2.199), McArthur is very "nonconfron-tational" (¶ 2.199) and his management style is to be "supportive," and to "build" his subordinates, so that they are "having success in their career" (McArthur p. 1552,

11. 3-20). Consistent with his management style, and wanting to continue to have a good working relationship, McArthur was not confrontational with Fiser. However, it would be an unwarranted stretch to conclude that this personality trait makes McArthur any less credible or that his real motivation either in 1992-93 or 1996 was retaliatory.

3 Emphasis added unless otherwise noted.

16

The Staff asserts that (SF&C ¶ 2.30) McArthur designated Sam Harvey as the Acting Corporate Chemistry Manager because "Harvey spent most of his time working with PWR's." That is not supported by the record. McArthur testified his reason was that he felt Harvey "was the most qualified person" and "the most effective person for that position" (McArthur p. 1424, 11. 12-19), while Fiser "was an ineffective manager" (McArthur p. 1424, 1. 22-p. 1425, 1. 1).

The Staff improperly asserts (SF&C ¶ 2.31) that Jocher "was terminated by Bynum for engaging in protected activities." The record in this case, including Staff's citation, does not support that claim. The Staff also cites a decision by an Administrative Law Judge (AU) in Jocher v. TVA, 94-ERA-24 (July 31, 1996), for that proposition.

Since that case was ultimately settled (ARB June 24, 1996), the ALU decision is totally lacking in any precedential value (Hill v. TVA, 87-ERA-23, at 3 n.4) (Sec'y Apr. 21, 1994) ("ALJ recommended decisions in ERA cases are simply that and have no precedential value unless explicitly adopted by the Secretary."), aff'd, 65 F.3d 1331 (6th Cir. 1995)). Because the Jocher case is totally collateral to this case, it is inappropriate, as the Staff well knows, to attempt to litigate those issues here.

The Staff also insinuates (SF&C ¶ 2.31) that Bynum intended to cause Fiser's RIF in 1993 when he "cut the head count of McArthur's organization" "after being informed that McArthur had a position available for Fiser." First, the Staff s record citations do not support a conclusion that Bynum's decision was based on knowl-edge of where Fiser was in the organization. The record also does not show that he made the decision "after being informed" that the headcount to be eliminated could have been made available to create a position for Fiser. Second, even if Bynum had made a decision to eliminate a position knowing that it could affect Fiser, there is no evidence that such a decision was made for discriminatory reasons. On the contrary, as the Senior Vice President of Nuclear Operations, Bynum's subordinates, including Jack Wilson, Beecken, McArthur, and Keuter, would have provided him with input about Fiser's 17

performance both as the Sequoyah Chemistry Manager and in Corporate Chemistry.

There is no evidence that Bynum's decision to cut the corporate headcount was based on discriminatory reasons, and it is wholly inappropriate to make a finding based solely on such speculation. It is the Staff's burden to prove discrimination and speculation does not meet that burden. Third, as discussed earlier, Fiser's employment difficulties in 1992-93 were occasioned by persons other than McGrath and McArthur and for reasons not related to his asserted protected activity. The fact that Bynum made the decision to reduce headcount refutes any notion that McGrath and McArthur were involved in some four-year vendetta motivated by discriminatory animus.

The Staff attempts to paint (SF&C ¶ 2.32) a sinister picture based on the agreement to rotate Fiser to corporate (JX43). It is true, as the Staff asserts, that the rotation agreement itself did not give Sequoyah management "the right to refuse to take Fiser back." But the agreement did not tie management's hands from improving its Sequoyah Chemistry organization. The purpose of the agreement was so that everyone understood that the rotation was temporary and that Fiser's official position was still at Sequoyah. 4 As everyone knows, there is no guarantee of a government job. Therefore, the agreement did not preclude Sequoyah management from determining that it needed to reorganize its Chemistry organization and create a new position to manage the department, or that it needed a more effective manager for the Chemistry organization.

The Staff misstates (SF&C ¶ 2.33) the circumstances surrounding Fiser receiving a notice assigning him to ETP in 1993. The Staff asserts that at the time Fiser "was not currently occupying the SQN Chemistry Manager position." That is not correct. Fiser's official position was still the Sequoyah Chemistry Manager, although he 4

As discussed throughout the hearing and as further explained below, an employee's official position is the point of reference during a RIF. The fact that the employee may be serving in a different capacity or may have assumed different responsibilities does not change the employee's official position and is irrelevant in a RIF.

18

was assigned duties as a Program Manager in Corporate Chemistry-that was the point of the rotation agreement (JX43). The Staff further claims, in reliance on Fiser' s testimony, that "SQN still had a Chemistry Manager position in its organization." That is also incorrect-it is beyond dispute that the Sequoyah Chemistry organization had been moved out from under the Operations Manager and consolidated with Radiological Control under Charles Kent who eliminated the Chemistry Manager position in February 1993. Indeed, the TVA OIG found that Kent, with the approval of Beecken, the Plant Manager, and Fenech, the Sequoyah Site Vice President, created a new organization without a Chemistry Manager position (SX177, ex. 17 at 23). It was not until some time later that Bynum approved a different organizational structure which included a different position, also entitled Chemistry Manager (id.; SX12). Because Fiser had worked in Corporate Chemistry for more than a year, it caused confusion among the managers as to what his official position in fact was. Therefore, when management made the decision to cut headcount in Corporate Chemistry, they assumed that Fiser, as part of the Corporate organization, would be impacted and therefore asked TVAN's Corporate Human Resources to handle the paperwork (SX177, ex. 17 at 22-29). The TVA OIG "investigation revealed that there was miscommunication and misunderstanding among managers concerning Fiser's RIF; specifically, whether Fiser was being Rifd from a Corporate Program Manager position" (id., ex. 17 at 24). Thus, HR prepared the proper paperwork to RIF Fiser from his Sequoyah Chemistry Manager position which had been eliminated by Kent, with the approval of Fenech and Bynum. Meanwhile, corporate management was operating under the mistaken belief that Fiser was being RiFed from a Corporate Chemistry position which was also being eliminated.

The Staff incorrectly states (SF&C ¶ 2.34) that "Fiser pursued jobs within TVA while he was in the ETP." Kent had discussions with Fiser about the Technical 19

Support Supervision position and the new Sequoyah Chemistry Manager position.5 Inexplicably, Fiser did not apply for the Technical Support Supervisor's position although it was at the same level as the Program Manager position in which he had been working.

Nor, as explained below, did Fiser pursue the new Sequoyah Chemistry Manager position.

The Staff, relying on Fiser's distorted view of events, claims (SF&C

¶ 2.35) that "Kent offered Fiser the [Chemistry Manager] position." In fact, Kent denied making such an offer and Human Resources confirmed that Kent had no authority to make such an offer to Fiser (SX177, ex. 17 at 31-32). As the Staff has pointed out, TVA policy required vacant positions to be advertised for competitive selection. Further, Kent's testimony is consistent with usual TVA selection policies-his discussion with Fiser was only to solicit his interest in a job for which there were a lack of qualified candidates, he was aware of the requirement of advertising for competitive selection, and he was aware that employees assigned to ETP should be considered for vacant positions.

Kent's request to Fiser to report to Sequoyah ready to work was in keeping with TVAN's use of surplused employees assigned to ETP to perform temporary assignments (SX177, ex. 17 at 32). Indeed the TVA OIG found that "Kent talked with Fiser about the possibility of Fiser coming out to help Kent on loan from ETP" (id.).

The Staff is correct (SF&C ¶ 2.36) that McArthur advised Kent against having Fiser as the new Sequoyah Chemistry Manager because he had not been effective in the old Chemistry Manager job. Far from showing a discriminatory animus against 5

The new Chemistry Manager position was at a higher grade level, had a different reporting relationship, and different accountabilities than the position Fiser had held.

The Staff has not argued that Fiser had a right to the new Chemistry Manager position on the basis that the two positions were on the same competitive level. Given the differences in pay grade, organizational structure, reporting relationships, and accountabilities, they could not in good faith do so. Instead, they have attempted to obfuscate the facts by referring only to the title "Chemistry Manager" and by relying on Fiser's biased assertions that his job had not been eliminated.

20

Fiser, that confirms the view widely held by management that Fiser had been ineffective as a manager. The Staff's view (SF&C ¶ 2.38) that person(s) at a higher level than Kent objected to Fiser in the position of Sequoyah Chemistry Manager is also consistent with management's view of Fiser as an ineffective manager. The fact that management viewed Fiser as ineffective and did not want Fiser in the job further dispels any notion that McGrath directed Fiser's removal as Sequoyah Chemistry Superintendent in 1992 for discriminatory reasons.

The Staff wrongly insinuates (SF&C ¶ 2.39) that McArthur warned Fiser that TVA might retaliate against him if he went to court against TVA. However, it is clear that McArthur was not threatening Fiser with retaliation by TVA. Instead, the context of the conversation shows that Fiser was contemplating suing TVA and finding a job elsewhere when McArthur indicated that his outside job prospects could be affected since "a lot of companies will not hire you if you have a legal history" (JX27 at 80).

The Staffs recitation (SF&C ¶ 2.40) of facts about Fiser's 1993 RIF is disingenuous and misleading. Fiser received a RIF notice because the position he held as Sequoyah Chemistry Manager, PG-9, was eliminated (JX60). The announcement of the reorganization of Sequoyah Chemistry and the elimination of Fiser's position occurred on January 27, 1993 (TVAX12 at EE000079). The Staff insinuates that Fiser's job con-tinued in existence-" [a]t the time this termination letter was issued, there was a Chemistry Manager position at SQN." This is misleading. A position called "Chemistry Manager" was created in the new Sequoyah Radiological Control and Chemistry organization. As discussed previously, that position was at a different grade level, was a part of a different organization, had different reporting relationships, and had different accountabilities. Accordingly, it was on a different competitive level than Fiser's old Sequoyah job and he did not have a right to it. TVA's OIG investigation of the issues arising out of Fiser's 1993 DOL complaint found that Fiser's "position of Manager, Chemistry, PG-9, SQN was eliminated in a reorganization and he was being 21

Rif d. It was the only position in the competitive level and area" (SX177, ex. 17 at 24). The OIG in fact found that Fenech, the Sequoyah Site Vice Presi dent, "gave Kent permission to implement an organization without a Chemistry Manager and at the time Fiser was Rif d there was definitely not going to be a Chemistry Manager at SQN" (SX177, ex. 17 at 23).

The Staff engages in an exercise in semantics (SF&C ¶ 2.41) when it states that "Fiser identified a number of safety and management concerns at TVA." Fiser "identified" those issues only in the sense that they are stated in the August 16, 1993, letter to Sasser (SX29). Those issues were already "identified" in the sense of being discovered, and already "identified" in the sense of being documented, long before the Sasser letter. As discussed in our main brief, there is no evidence that McArthur or McGrath saw the Sasser letter (TVAF&C ¶ 4.31). There is also no evidence that they were aware of any connection Fiser may have had with a problem with emergency diesel generator storage tanks. Relying on the Sasser letter, the Staff asserts that "Fiser specifically stated in this letter that he and Jocher had a disagreement with SQN Site Vice President Jack Wilson regarding the three hour time limit to take a reactor coolant sample from PASS" (SF&C ¶ 2.41). That claim is not supported by the record, and an examination of Fiser's testimony on the matter shows how the Staff is trying to misrepresent the facts. Fiser admitted that the issue was between Jack Wilson and Jocher. Despite the attempt of Staff counsel to insert Fiser into the dispute, there is no evidence that he ever voiced his opinion or was otherwise involved:

Q.

Was there some sort of dispute about this requirement?

A.

There was some dispute about it. That dispute, as I recall, was really between Bill Jocher and the site vice-president, Mr. Jack Wilson. And the dispute was about this three-hour thing. There was some disagreement there between Bill and--and the site vice-president.

Q.

Now, in that disagreement, which side did you fall on in the dispute?

22

A.

I was of the opinion that once the decision is made to get a sample and we are instructed, the clock starts now.

Q.

What action did you take?

Q.

Did you contact anyone to determine when the clock should start running?

A.

Oh, yes. As matter of fact, I--I'm trying to remember. I can't--I do not think I was in on that conversation. But as I recall, Mr. Jocher was trying to get information from NRC to resolve the--a dispute that existed between he and Jack Wilson [Fiser

p. 1142, 11. 1-12; 1. 23-p. 1143, 1. 12].

What the Staff fails to mention is that McGrath considered Fiser and Jocher to be the managers who had failed to address the NSRB's concerns with PASS.

The Staff misrepresents the facts (SF&C ¶ 2.42) regarding a problem with a radiation monitor setpoint. According to the Staff, Beecken retaliated against Fiser "because he and the employees under his supervision found, documented, reported, and fixed the preexisting problem with the radiation monitor." This is simply false. It is undisputed that Fiser was in Corporate Chemistry when the issue was discovered, documented, and reported, not by Fiser or anyone in Sequoyah Chemistry, but by a work control manager (Ritchie p. 4692, 1. 11-p. 4693, 1. 9; TVAX129 at FI1 12). In the letter to Sasser, Fiser complained about the fact that Beecken "told [Fiser] he was being held responsible for... [t]he containment radiation monitor setpoint LER," even though the "erroneous evaluation was performed fully five years before Fiser accepted employment with TVA" (SX29 at CB000133, 134).6 Fiser has never understood the difference between being held accountable for not finding and fixing problems as opposed to being retaliated against for discovering problems. Now it seems as though the Staff has lapsed into that error as well. As shown by the Licensee Event Report (LER), TVA reported to 6

Similarly in his 1993 DOL complaint, Fiser complained about being held responsible by Beecken for the failure to find the error in the setpoint which was made "before I accepted employment with TVA" (SX34 at AJ000135).

23

the NRC that it "had opportunities in order to catch the setpoint changes or catch the problem with the radiation monitor, and did not" (Ritchie p. 4695, 11. 18-21). Some of those opportunities occurred while Fiser was Sequoyah Chemistry Manager (Ritchie

p. 4696, 1. 1-p. 4700, 1. 4; TVAX129 at FI000117-118). TVA had no reason to retaliate against Fiser for raising a problem; the problem was already raised and well-understood. Rather, TVA had an obligation to hold managers accountable who fail to timely identify and resolve issues, particularly when there were clear opportunities to do so.

The Staff overstates the facts (SF&C ¶ 2.43) once again in asserting that the TVA-OIG "threatened a charge of insubordination if Fiser continued to refuse" to be interviewed by the OIG. In fact, the OIG told Senator Sasser that "we may recommend charging Fiser with insubordination" (SX30 at AJ000665). There is no evidence that the OIG "threatened" Fiser; in fact, there is no evidence that the OIG communicated such a recommendation to either Fiser or management.

The Staff's discussion of Fiser's 1993 DOL complaint (SF&C ¶ 2.46) implies that he was discriminated against for identifying the technical issues stated in that complaint. TVA does not dispute that the act of filing that complaint constituted protected activity by Fiser. However, it is clear from evidence in the record that Fiser was not retaliated against for discovering, documenting, or voicing any of the issues referred to in his complaint. Instead, it is clear that Fiser did not discover, document, or voice any concern about the radiation monitor setpoints or the filter change-out scenarios-he was not in Sequoyah Chemistry at the time. Fiser's only concern with that issue was that Beecken held him responsible for not discovering those problems. As to the problem with PASS, Fiser and Jocher had been dilatory in addressing the concern raised by the NSRB. The disagreement with the interpretation of the NRC requirement was, as Fiser admitted, between Jocher and Jack Wilson. Further, Fiser had no involvement in the exercises to determine the ability of the technicians to meet the 24

PASS requirements since they were conducted by Jocher while Fiser was downtown in Corporate Chemistry.

As noted previously, Fiser was surplused and then RIFed from the Sequoyah Chemistry Manager position. Contrary to the Staff's contention (SF&C

¶ 2.47), a new position was created. Because the new position was at a different pay grade, with a different reporting relationship and different responsibilities, it was in fact a different job on a different competitive level (SX 177, ex. 17 at 24). Although Fiser has asserted that Kent offered him that job, that did not happen and such an offer was beyond Kent's authority in any event. Finally, Fiser raised the issue to Kent as to whether upper management might have objections to selecting him for that position, not the other way around. This, of course was in fact the case because Fiser was viewed as an ineffective manager.

It is important to note that the Staff concedes (SF&C ¶ 2.50) the legitimacy of the determination that the position Fiser held in 1994, PG-8 Chemistry Program Manager, was not on the same competitive level as the new PG-8 Chemistry and Environmental Protection Program Manager position created in the 1994 reorganization. Since those position descriptions were not sufficiently interchangeable, they were on different competitive levels and the new positions were posted for competition in accordance with TVA policy. Fiser did not file a complaint in 1994 but chose to file one in 1996. Fiser's reasons for not filing a complaint in 1994, according to the Staff, were that the new positions and the reorganization appeared to be legitimate and no one involved with his 1993 DOL complaint was involved in the selection process.

However, this explanation of differences between 1994 and 1996 is nonsensical.

First, at the hearing, Fiser admitted participating in drafting the new position descriptions in 1996 and he admitted that dividing the work between a PWR and a BWR Chemistry Program Manager was reasonable. He also knew in 1996 that the environmental responsibilities had been handled by other members of the department and 25

that many of those functions would no longer be performed in the Corporate Staff. In short, he understood that there were general organizational changes occurring in 1996 to justify the new position descriptions. He did not provide any basis to disagree with the legitimacy of the 1996 organizational approach. As to the 1994 selection process, Ben Easley was the Human Resources facilitator and Fiser could not have known prior to the interviews that McArthur, who had a conflict on that particular day, would not be on the board. Likewise, when Fiser threatened Ed Boyles with the filing of a DOL complaint on June 10, 1996, it had not even been announced that McArthur would be the RadChem Manager. Moreover, when Fiser mailed his 1996 DOL complaint on June 25, 1996, the selection review board (SRB) had not even been constituted and Fiser would have had no way to know the SRB participants. Thus, the only difference between the 1994 and 1996 reorganizations apparent to Fiser was that in 1996, Fiser knew that there were going to be fewer positions and that at least one of the incumbents could not be selected for a new position. It is therefore a reasonable inference that the real reason Fiser filed a complaint in 1996, unlike in 1994, is that he suspected he might not be selected in 1996 since he would have assumed that Harvey and Chandra were stronger candidates than he.

The arguments presented by Fiser and the Staff again crumble under close scrutiny.

The Staff admits (SF&C ¶ 2.52) the legitimacy of the Chemistry and Environmental Program Manager position descriptions created in 1994. It was known from the inception that each incumbent would not be performing all of the listed responsibilities but the intent was to eventually do so. That fact did not make the position descriptions either inaccurate or invalid. Since they were not void in 1994, they could not be ignored in 1996 when it came time to assign employees to competitive levels.

The Staff's view (SF&C I¶ 2.54-2.56) of the 1996 reorganization is also incredibly myopic. The Staff ignores the fact that all of TVAN was undergoing a reorganization dictated from the top. That reorganization included budgetary goals, 26

headcount reductions, and functional goals for the corporate organizations. Although McGrath gave Grover specific direction for his organization, Grover resisted making the required changes. As part of the reorganization of Operations Support, a large number of positions were eliminated and some new positions were created. With the exception of the RadChem Manager position in which McArthur was placed, all of the other new jobs were advertised for competition. The Staff ignores the fact that the planning for the reorganization occurred over eight months and involved efforts by all of the employees who reported directly to McGrath. It also involved individual employees such as Fiser, Harvey, and Chandra who were asked to draft the new Chemistry Program Manager position descriptions, while McGrath had no such involvement. These simple facts disprove any contention that McGrath created the new Chemistry Program Manager positions in an effort to discriminate against Fiser.

The Staff incorrectly asserts (SF&C ¶ 2.57) that "[a]fter McGrath announced that the Chemistry positions in the new organization would be posted for competition, Fiser went to speak with Ben Easley in HR." In fact, Fiser's threat to file a DOL complaint was not prompted by McGrath's announcement of the reorganization.

To the contrary, Fiser threatened Ben Easley and Ed Boyles with a DOL complaint on June 10, a week before the reorganization was announced, and three days before the jobs were posted (SX37 at 1, 5). It is beyond cavil that Fiser threatened to file a DOL complaint in order to influence the decision whether to post the jobs.

The Staff concedes (SF&C ¶ 2.58) that Boyles urged Fiser to apply for the new position. He did so because Fiser had indicated to Boyles, as he had to Harvey and others, that he was considering taking the severance package and leaving TVA. When Boyles told Fiser of the decision to post the job, Boyles also informed him that the new position was different than the Chemistry and Environmental Protection Program Manager position which Fiser then occupied. Boyles did not compare the new job to the 27

Chemistry Program Manager position in which Fiser was placed as a result of the settlement agreement as the Staff asserts (SF&C ¶ 2.58).

An SRB was conducted on July 18, 1996, to interview candidates for all five of the new positions to be supervised by McArthur (SF&C ¶ 2.59). However, the Staff fails to note that Fiser filed his DOL complaint on June 25, 1996, knowing that TVA management, including the members of the SRB, could learn of it prior to the selections or even before the interviews. Fiser could have avoided any possibility of tainting the selection process by waiting until after the selections to file his complaint, or he could have filed his complaint but asked DOL to keep it confidential until after the selection process was completed. Not only did Fiser file his complaint before the SRB conducted its interviews, but, just in case management was not aware of it, he ensured that management and the SRB were made aware by telling both Grover and Kent (Grover

p. 3682, 1. 12-p. 3688, 1. 16; SX135 (Kent) p. 115, 1. 15-p. 116, 1. 13). Thus, Fiser attempted to influence both the decision to post the jobs and the selection process by threatening to file a DOL complaint, by filing a complaint, and then by publicizing the filing of the complaint.

According to the Staff (SF&C ¶ 2.60), Fiser resigned from TVA because he did not want to risk losing his severance pay if he chose not to accept a lower paying position if such a job was offered to him by TVA. That is not credible. At nearly the same time, Fiser turned down an offer of a PWR Chemistry Program Manager position, supposedly because it was not guaranteed for any length of time (SF&C ¶ 2.61). This excuse also is a post hoc rationalization.

In fact, prior to the selection taking place, Fiser let it be known that he was not interested in continuing his TVA employment and was considering taking the enhanced severance package and working full time in his sign business. Further, Fiser had never been guaranteed tenure in any TVA job. Therefore, the offer to Fiser of a PWR Chemistry Program manager position by Phil Reynolds had as much guaranteed 28

tenure as the same job for which Fiser had not been selected. In fact, it is undisputed that Fiser had more seniority than Harvey, so that had he accepted the job, he would have been assured that his employment was more secure than Harvey's. The Staff's explanation is just one more example of arguments that stretch the facts and strain credulity. Instead, it is more logical to conclude that Fiser did what he told Harvey he intended to do-"take the year's salary and leave" TVA (TVAX26 at AB 940, ¶ 5), and as to his DOL complaint, he told Harvey that he "knew how the system worked and that he was going to take advantage of it" (TVAX5 at CC000055, ¶ 5). Based on his conversation with Fiser, Harvey was left with the impression that "Fiser purposely did not prepare for and address the review board with his best effort" because he intended "to put on a show to get what he wanted, which was to get out of TVA with as much money as possible" (TVAX26 at AB000940, ¶ 6). Harvey concluded that Fiser filed his "DOL complaint prior to the jobs being posted in order to obtain financial gain and to manipulate the system for this end, as he had originally stated" (TVAX26 at AB000940,

¶ 5).

2. McArthur's Employment with TVA The Staff acknowledges (SF&C ¶¶ 2.66-2.67) that John Maciejewski attempted to restructure the management of Corporate Technical Support in 1994.

However, the Staff's version of that reorganization is skewed. The testimony does not support the Staff's assertion that "the Technical Programs Manager position, which was a PG-SR position, was eliminated." Although the Staff admits that Sorrell was placed in the Corporate RadChem Manager position on an acting basis, the Staff fails to mention that TVAN HR later determined that the two positions (Technical Programs Manager and Corporate RadChem Manager) were essentially the same. The Staff also states that "McArthur became the RadCon Manager," but fails to mention that he was not placed in it as a result of a selection or that official paperwork recognizing that change was never 29

issued by TVAN HR. In short, it appears that Maciejewski reassigned McArthur and Sorrell, but because he did not follow TVA procedures, he did not successfully effectuate changes to either McArthur's or Sorrell's official positions. Thus, McArthur's official position of record continued to be Technical Programs Manager, just as Fiser's official position in 1993 was Sequoyah Chemistry Manager, although he was working as Corporate Chemistry Program Manager.

In contrast to McArthur being put into the RadCon Manager position in 1994 without a selection and with no paperwork, the Staff concedes (SF&C ¶ 2.84) that in 1994 Grover went through a selection process and there was official paperwork, including a position description, reflecting his selection for Chemistry and Environmental Manager. The difference in the way Grover and McArthur were treated in 1994 (SF&C

¶ 2.84), further underscores that Maciejewski's assignment of McArthur as RadCon Manager was not in accordance with established TVA process and that McArthur's official position remained Manager of Technical Programs.

The Staff's account (SF&C ¶ 2.68) of the 1996 reorganization is incomplete. It is undisputed that as a result of McArthur questioning McGrath about why he had to bid on what he viewed as his job-the RadChem Manager position-McGrath asked Boyles in HR to look into the matter. Boyles later informed McGrath that McArthur had a right to the job and that it should not be posted. HR did not explain the basis for the decision to McGrath.

3. McGrath's Employment with TVA The Staff concedes (SF&C ¶¶ 2.71-2.73) that McGrath's first interaction with Fiser was in McGrath's capacity as Chairman of the NSRB-McGrath's previous TVA positions had been at Watts Bar and Corporate.

Although the Staff admits (SF&C ¶ 2.75) that budgetary reductions were a factor in the 1996 reorganization, they ignore that the directions to reorganize Corporate 30

along functional lines had been the subject of planning since the fall of 1995 (McGrath

p. 431, 1. 20-p. 433, 1. 16). The Staff, relying on testimony by Grover, wrongly asserts that McGrath's instructions to his subordinates did not give guidance about when to make budget cuts (SF&C ¶ 2.77). On the contrary, McGrath did not suggest that his subordinates propose the minimum-instead, he directed them to take the first logical step toward achieving the organization that was functionally needed to support the sites and to arrive at the full 40 percent reduction as soon as possible (McGrath, p. 437, 11. 20-25).

Likewise, Kingsley's directive to McGrath was to reorganize to support a steady state operation to support five operating reactors and to do so as soon as possible (McGrath

p. 822, 1. 22-p. 824, l. 9). McGrath was also of the opinion that in a reorganization it was better to tell the employees what was happening and to get on with it, rather than stretch reductions out over a period of years. Further, given TVA' s policy at the time, employees who were surplused then would have the opportunity to be assigned to Services and to find another TVA job or to receive an enhanced severance package (McGrath p. 439, 1. 6-p. 440, 1. 8).

Grover's proposal did not meet McGrath's directions. He proposed a number of generic jobs rather than providing for specific positions to handle the functions which were the responsibility of corporate. Further, Grover's proposal did not provide for any real reductions. The final organizational configuration included a PWR and a BWR Chemistry Program Manager position. The Staff incorrectly asserts (SF&C ¶ 2.78) that the result of that configuration was that one of the three incumbent Chemistry and Environmental Protection Program Managers would lose his position in the organization.

This does not correctly characterize the reorganization or the process. In fact, the positions of all three incumbents were eliminated. The two new Chemistry Program Managers were advertised and available to anyone to apply for. It was not a given that two or even one of the incumbents would be selected.

31

The Staff argues (SF&C ¶ 2.79) about which organizations were subject to 40 percent reductions in 1996. Given the small size of each of the departments in Operations Support, comparisons are meaningless. Moreover, the Staff's citation to percentage reductions is misleading. In fact, it was the combined Chemistry and Environmental staff that was reduced by 40 percent according to the exhibit relied upon by the Staff (SX128). However, as shown by Staff Exhibit 130, the personnel performing chemistry functions were reduced by 25 percent (Fiser) while the personnel performing environmental protection functions were reduced by 100 percent (D. Nida). Finally, whether the organization would have met the short-term minimal reduction if it had not been cut to three instead of two Chemistry Program Managers, is irrelevant. McGrath had been directed to reorganize along functional lines and to reach that final organizational configuration as soon as possible. He was not directed to do it by taking baby steps. Moreover, Kingsley's, McGrath's, and Reynolds' philosophy was to get it over with and to not keep employees in suspense for a period of years. The Staff's argument simply invites the Board to second-guess the business judgment of the managers who were entrusted with designing the organization. While they certainly could have redesigned the organization in any number of configurations, the question is not whether they could have done it differently or even better; rather, the question is was the decision made in order to discriminate against Fiser. There is simply no evidence that the reorganization was directed to do so.

4. Grover's Employment with TVA The Staff concedes (SF&C ¶ 2.83) that after the settlement of Fiser's 1993 DOL complaint in 1994, McArthur was instrumental in placing Fiser in Corporate Chemistry and in McArthur's chain of command. Although the Staff contends that McArthur was involved in discriminating against Fiser in 1996, based on earlier protected activities, McArthur's actions in 1994 are hardly the acts of a person motivated to 32

discriminate. Moreover, the fact that Fiser was in McArthur' s chain of command in 1994 is inconsistent with the Staff's theory that McArthur did not have an opportunity to discriminate against Fiser until 1996.

The Staff asserts (SF&C a 2.88) that McGrath combined the Chemistry and Environmental Manager position and the RadCon Manager position into a single RadChem Manager position. That statement displays the Staff's fundamental misunder-standing of TVA's personnel system. As shown by the very testimony relied upon by the Staff, the two positions were not combined, they were eliminated (McGrath p. 479,

1. 25-p. 480, 1. 9). Sorrell had been serving in an acting capacity as the RadChem Manager, but had retired (id.).

The Staff asserts (SF&C ¶ 2.88) that Grover told McGrath he was interested in applying for the RadChem Manager position. The Staff also asserts (SF&C

¶ 2.89) that Grover "simultaneously" pursued the RadChem Manager position and an assignment to INPO. Those assertions squarely conflict with McGrath' s testimony, that if Grover had made an issue of it, McGrath would have remembered it (McGrath p. 520,

11. 16-25). The Staff's assertions are also inconsistent with Grover's actions. After Grover's proposed organization that included a chemistry manager position, presumably intended for himself, was rejected by McGrath, and knowing that McArthur was eminently more qualified than he for the RadChem Manager position, Grover asked McGrath in April 1996 for the rotational assignment to INPO (McGrath p. 520, 1. 22-

p. 521, 1. 17; TVAX31 at 5). Grover admitted that he requested to go to INPO because he knew his job was being eliminated and was concerned that McArthur would get the RadChem Manager job (Grover p. 2027, 1. 14-p. 2028, 1. 22). In contrast, Grover did not ask about the RadChem Manager position before June 17, 1996 (id. p. 2025, 11. 8-16), by which time the decision had already been made that McArthur had a right to the job. Grover's testimony on the subject was inconsistent and evasive. Grover testified that he did not learn that McArthur would be the RadChem Manager until the "timeframe 33

when Tom McGrath made the announcement" at the all-hands meeting and McGrath informed Grover "right before the [all-hands] meeting" which in fact occurred on June 17, 1996. Grover also admitted that he did not meet with McGrath and tell him that he was interested in the RadChem Manager position until after McGrath made the announcement at the all-hands meeting (Grover p. 2025, 11. 8-16). Grover even admitted that he did not complain about not being allowed to apply for the RadChem Manager position until July 1996 (Grover p. 2030, 11. 10-15).

While Grover may not have liked what Boyles and Reynolds told him about why the RadChem Manager's position was not posted, the reasons they gave him did not conflict as the Staff asserts (SF&C ¶ 2.91). Boyles testified that McArthur was placed in the job in accordance with TVA procedures because the new job was so similar to the job he had held, which was his last official position, that he was entitled to it (SX135 (Boyles)

p. 42, 1. 17-p. 43, 1. 22). Neither Boyles nor Reynolds testified that they told Grover that it had not been done properly or offered to post the position (Reynolds, p. 3537

11. 13-17).

The Staff's claim (SF&C ¶ 2.92) that Reynolds agreed to send Grover to INPO because of his complaint about not posting the RadChem Manager position is not supported by the record. Grover had asked McGrath orally about going to INPO at least as early as April 1996. After McGrath made inquiries and got preliminary approvals, Grover sent a formal written request in April 1996 (TVAX31 at 5). Thus, the decision had already tentatively been made to send Grover to INPO nearly three months before he met with Boyles and Reynolds in July 1996.

The Staff sets forth (SF&C ¶ 2.93) the dates that Grover provided testimony on statements related to Fiser's 1996 DOL complaint. The Staffs assertion that TVA counsel represented Grover at his January 29, 1998, deposition is false. Grover specifically testified that TVA did not represent him (SX54 at 72, 11. 12-14). As the Staff 34

concedes, TVA did not represent him when he was interviewed by NRC Ol in December 1998 because his statements were contrary to what TVA viewed the facts to be.

The Staff, relying upon SX180, has argued that the TVA OIG did not begin investigating Grover for wrongdoing until July 1998 and he therefore could not have been biased when he gave his earlier statements. The Staff is wrong on two counts.

First, Grover had to have been aware of the allegations long before the 1998 memorandum which is SX180. The OIG received allegations of Grover's misuse of TVA property for his personal use on May 1, 1997 (TVAX150). The allegations were also documented and circulated within the TVAN Corporate Chemistry organization at least as early as November 1997 (TVAX151 at BD000029). Second, Grover was also biased against TVA, and specifically he was biased against McGrath, McArthur, Boyles, and Reynolds, because of what happened to him in the 1996 reorganization. During the planning of the reorganization, Grover refused to propose an organizational structure that met the instructions he was given by his management apparently out of concern for his job. Further, he attempted to subvert the reorganization by directing his subordinates to lobby against reducing the size of the organization. Ultimately, of course, his job was eliminated in the reorganization and Grover hinted at the possibility of filing an EEO complaint. Not only was Grover disgruntled, but the source of his disgruntlement is the same reduction and reorganization that was the subject of Fiser's DOL complaint.

Grover's testimony was clearly subject to bias since his testimony would obviously be colored by the position he was taking in the tribulations with respect to his own employment.

The conclusions of the TVA OIG investigation were admitted on the subject of bias, and should also be considered as reflecting on Grover's credibility.

"[S]trict rules of evidence do not apply in the administrative context.... Indeed, the Administrative Procedure Act provides that 'Any oral or documentary evidence may be received, but every agency shall as a matter of policy provide for the exclusion of 35

irrelevant, immaterial, or unduly repetitious evidence"' (Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980) (emphasis in original). As the Board is well aware, "there [is]

no administrative rule of automatic exclusion for hearsay evidence, but the only limit to the admissibility of hearsay evidence is that it bear satisfactorily indicia of reliability" (id.). The admissibility of hearsay evidence is of course "the classic exception to strict rules of evidence in the administrative context" (id.). Thus, just as hearsay evidence is admissible in this proceeding, the OIG's investigation is likewise admissible in this proceeding as it reflects on Grover's credibility. In this case the OIG found that Grover had converted a substantial amount of government property to his personal use. Those findings were inherently reliable in that the Staff has stipulated that they were based on telephone records and other documentary evidence which was not disputed by Grover (JX66). Under those circumstances, those findings are reliable and should be considered by the Board since they are very relevant to Grover's credibility.

5.

Fiser's Asserted Protected Activities

a.

Diesel generator fuel storage tanks The Staff's spin (SF&C ¶¶ 2.94-2.98) on the issue about the diesel generator fuel storage tanks is simply wrong. As pointed out in TVA's posthearing findings (TVAF&C at 56, ¶ 4.32), neither Fiser nor the Staff identified this as a protected activity until January 24, 2002. At the hearing, Fiser testified that he " found" the issue, "reported it," and "filled out" the paperwork documenting its existence (Fiser

p. 2749, 11. 10-22; p. 1146, II. 4-13). As pointed out in TVA's findings (TVAF&C at 57, ¶ 4.34), none of that was true. Moreover, according to Fiser, he was told by Ron Fortenberry that an unnamed person had questioned whether he should be subject to disciplinary action (Fiser p. 1147, 11. 4-12). There is no evidence of who may have raised the subject nor was there any evidence that Fiser was in fact disciplined.

36

Burzynski did explain why someone in Sequoyah management could have questioned whether disciplinary action against Fiser would have been appropriate as to that problem. According to Burzynski, Fiser's failure to identify the issue during the surveillance review or at any time the procedure was being modified could have provided a basis for disciplinary action (Burzynski p. 4909, 1. I1-p. 4910; 1. 16). The Staff attempts to deflect that potential criticism by pointing to testimony that the surveillance review was complete by May 1988 (SF&C ¶ 2.97), which Staff counsel asserted in cross-examination was before Fiser became Sequoyah Chemistry Manager (Burzynski

p. 4925, 1. 24-p. 4926, 1. 8). However, Staff counsel's assertion is not evidence and, in fact, Fiser became Chemistry Manager in April 1988 (JX22 at GG000417; Burzynski

p. 4907, 1. 18-p. 4908, 1. 9), before plant startup, and before two revisions (revisions 12 and 13) to the procedure, which failed to discover the problem (TVAX128 at FI000082-83; Burzynski p. 4908, 1. 11-p. 4909, 1. 10; p. 4903, 1. 18-p. 4904, 1. 12).

The Staff would have the Board find that Fiser got "in trouble for engaging in protected activity by documenting a problem" (SF&C ¶ 2.98). However, despite Fiser's claim that he "found," "reported," and "filled out" the documents, he did not do so, and despite the Staffs asserted finding that Fiser got "in trouble," no disciplinary action was ever taken. In fact, the only evidence of "trouble" is Fiser's testimony that he was told that an unnamed person raised the issue. Given Fiser's "mistaken" testimony about finding, reporting, and documenting the issue, his testimony is not entitled to any weight.

b.

November 1991 NSRB meeting The Staff's discussion (SF&C ¶¶ 2.99-2.108) of Fiser's refusal to consider the NSRB's request for trending is replete with misstatements and misunderstands the law. The Staff cites (SF&C ¶ 2.101) Fiser's testimony that the "computers... were inoperable" so that trend plots were not generated. The Staff 37

further asserts that Ritchie testified that the Sequoyah Chemistry program was "experiencing a technical difficulty." These assertions are simply false-Ritchie, who was temporarily in charge of Sequoyah Chemistry while Fiser was in Outage Management, did not testify that the computers were inoperable. He was specifically asked if there were "problems associated" with the trending program at Sequoyah.

Instead, he said that the daily trending plot "got to be such a large burden on the staff, that we cut back to putting those plots out once a week instead of once a day" (Ritchie p.

4719, 1. 14-p. 4720, 1. 11).

The Staff continues to rely (SF&C ¶ 2.102) on Fiser's testimony that "Peterson and McGrath again demanded that Fiser draft a procedure requiring the daily generation of trend plots." The Staff asserts (SF&C ¶ 2.103) that Fiser imagined the possibility of a computer breaking and placing the Chemistry program in violation.

However, no one else testified that such a discussion ever took place. Fiser's testimony is entitled to no credence. McGrath, McArthur, and Ritchie, who were all present at the meeting, denied that a demand for such a procedure was made. Further, as McGrath pointed out, if the NSRB had felt strongly about an issue, it would have been specifically set forth in the NSRB minutes, which it was not. Also, the Staff is unable to point to any testimony in any of the contemporaneous statements taken by the TVA OIG that support Fiser's belated claim that the NSRB "demanded that Fiser draft a procedure."

Moreover, the Staff's argument that Fiser engaged in protected activity by refusing to do trending (SF&C ¶¶ 2.103-2.105) reflects a misunderstanding of the law.

As shown in TVA's findings (TVAF&C ¶¶ 4.28-4.29), an individual's inability to meet an employer's legitimate expectations is not protected activity. Asking or even directing Fiser to perform daily trending would not have violated the AEA, ERA, NRC requirements, or TVA's license and his refusal to do so would therefore in no way have been protected activity. Management is entitled to establish performance expectations.

So long as those expectations are legal, an employee may not object that they are 38

onerous and thereby claim to have engaged in protected activity. Management is also entitled to adopt procedures. The argument that a possible failure to meet that procedure would create a violation is an excuse, not protected activity.

Finally, the Staff materially misstates the testimony (SF&C ¶ 2.108) when it asserts that McGrath told McArthur that Fiser "should be removed from that position," that McGrath left the NSRB meeting "saying that he would discuss Fiser with Beecken," and that McGrath said "Fiser should be removed from his position as SQN Chemistry Manager." Each of those assertions is a misrepresentation of the record. A year after the NSRB meeting in which the issue of trending was discussed, Fiser tape recorded a November 16, 1992, conversation with McArthur. McArthur said McGrath told him "we have a Chemistry Manager at Sequoyah that is not effective" (JX27 at 23) and "'[wie can't have this guy in the Sequoyah chemistry position'" (id. at 22).

Although McGrath's opinion of Fiser's performance as ineffective was the same opinion as other members of management, he did not say as the Staff has represented that Fiser "should be removed." As McGrath, McArthur, and Beecken all testified, the NSRB did not give opinions to management about the performance of individual managers-McGrath's opinion was expressed only to McArthur and thus kept within the NSRB.

Nor does the record support the Staff's assertion that McGrath left the NSRB meeting, "saying that he would discuss Fiser with Beecken" (SF&C ¶ 2.108). The document relied upon by the Staff (JX24 at 1) says only that McGrath "went to speak with Rob Beecken." As Chairman of the NSRB, it was McGrath's job to communicate the shortcomings in the Sequoyah Chemistry program to Beecken, the plant manager. Both Beecken and McGrath denied that McGrath told Beecken of problems with Fiser's performance. There is no indication that McGrath's opinion was based on anything other than legitimate concern that the SQN Chemistry program had numerous problems-many of which are reflected in the NSRB meeting minutes. Even if McGrath 39

had expressed his opinion about Fiser's performance to management, it would not matter since that opinion was not based on Fiser's protected activity.

c.

The letter to Senator Sasser TVA does not dispute that Fiser and two other TVAN employees-William Jocher and David Matthews-sent a letter to then Senator James Sasser on August 16, 1993, claiming the existence of an alleged "repressive management structure within TVA's Nuclear Power Agency" (SF&C ¶ 2.109; SX29 at CB000130). Fiser, Jocher, and Matthews also sent courtesy copies of the Sasser letter to the Chairman of the NRC and the NRC's Office of Allegations (SX29 at 7). However, they did not send a courtesy copy of the Sasser letter to McGrath, McArthur, or to any other TVA employees (id.).

Staff asserts that "Fiser informed Sasser of problems he encountered with being involved in the identification and resolution of certain problems in the SQN Chemistry Program" (SF&C ¶ 2.109). However, contrary to the Staff s assertion, Fiser simply was not "involved in the identification" of any of the alleged "problems" listed on page 4 of the Sasser letter. As the evidence in this case shows, when an employee identifies or raises a safety-related problem, that problem is documented in a SCAR or similar document reflecting the name of the person so identifying the person who raised the issue (e.g., TVAX146). But the Staff presented no documentary evidence at the hearing that Fiser was the person who "reported/documented safety related problems in his capacity as Chemistry and Environmental Superintendent from 1988 to 1991 at SQN" (SX29 at CB000132). For example, Fiser claimed in the Sasser letter that he identified safety "[p]roblems with the emergency diesel generator seven day storage tank recirculation system" (id. at CB000133). The evidence shows, however, that TVA's Licensing organization determined it was a problem and recommended that Chemistry write a SCAR (Burzynski p. 4872, 11. 22-24). Licensing also requested Chemistry to be 40

prepared to explain how it had missed the problem during the recent review of the surveillance instructions (Burzynski p. 4872, 1i. 4-13; p. 4874, 11. 11-20). Fiser did not initiate or approve the SCAR, and there is no indication on the document that he had any responsibility for issuing or approving it (TVAX146; Burzynski p. 4879, 1. 21-p. 4881,

1. 5).

Of equal significance, Fiser misrepresented in the Sasser letter that he identified safety-related problems regarding radmonitor set points, the filter change-out scenario, and the NRC three-hour requirement for conducting post-accident sampling analysis (PASS) (id. at AJ000135-36). However, TVA presented undisputed evidence that Fiser did not identify or document any of these concerns (TVAF&C ¶¶ 4.12-4.19).

Fiser reiterated this misrepresentation in his 1993 DOL complaint (SX34).

Senator Sasser referred Fiser's, Jocher's, and Matthews' letter (SX29) to TVA OIG for response to the allegations raised therein (SF&C ¶ 2.110; SX30 at AJ667). However, Senator Sasser did not send a courtesy copy of his referral to McGrath, McArthur, or to any other TVA employees (SX30 at AJ667). The OIG provided three responses to Senator Sasser (SX30, 32, 33), but did not send copies of the responses to McGrath or McArthur (id.). Nevertheless, the Staff seeks to have the Board draw the inference that McGrath had knowledge of the Sasser letter (SX29) because the OIG sent blind copies of the three responses (SX30, SX32, SX33) to Oliver D. Kingsley, who was then the Chief Nuclear Officer and the person to whom McGrath directly reported (SF&C ¶ 2.110).

An inference that McGrath was informed of the Sasser letter would be erroneous and finds no basis in the record. Staff failed to present even a single piece of evidence suggesting that Kingsley even read any of the three responses, much less informed McGrath of their content. Instead, Kingsley, or his staff, farmed out the OIG responses, along with the Sasser letter, to the appropriate TVAN department to investigate and address the technical allegations raised in the Sasser letter. In this case, 41

the record is undisputed that the allegations raised in the Sasser letter were referred to TVA's Concerns Resolution Staff (CRS) (SX31), not to McGrath or the NSRB.

Moreover, Staff presented no evidence that CRS coordinated its investigation of, and response to, the allegations in the Sasser letter with McGrath.7 The Staff also seeks (SF&C ¶ 2.111) to have the Board draw the inference that McArthur had knowledge that Fiser was one of the authors of the Sas ser letter (SX29) because, "[o]n September 22, 1993, a member of the Concerns Resolution Staff sent a memorandum [SX31] to McArthur requesting a response to a number of the technical issues raised in the Sasser letter and in Jocher's DOL complaint." 8 Such an inference is impermissible and erroneous in light of undisputed, contrary evidence.

While the memorandum states that "these alleged issues" referred to the CRS were contained "in a letter from United States Senator Jim Sasser to Inspector General Hinshaw dated August 24, 1993" (SX31 at BG000288), it does not mention Fiser, Jocher, or Matthews as the persons who raised "these alleged issues" (id.).

The memorandum does not even mention Fiser's, Jocher's, and Matthews' August 16, 1993, letter (SX29) as the reason for the "letter from United States Senator Jim Sasser" to TVA (SX31 at BG000288). Further, the memorandum does not refer to the positions of the persons bringing the "alleged issues" to the attention of Senator Sasser (id.).

Instead, "the five additional technical issues...

regarding the Sequoyah Nuclear Plant chemistry program" were listed and McArthur was requested to "provide [his] response 7

In fact, the record shows that CRS was tasked with evaluating the technical issues in the Sasser letter and requested a response from McArthur (SX31). Kingsley, as the CNO, was not in a position to personally pursue each issue on everything with his name on it. It is logical to assume that CRS, which was looking at the issues in the Sasser letter, would have requested a response from McGrath, if one had been necessary. Since there is no evidence that such a request was made, it would be an error to assume that he was made aware of the Sasser letter.

8 SX31 is a September 22, 1993, memorandum from CRS to McArthur. A copy of the memorandum was not sent to McGrath (SX31 at BG000289).

42

to these issues for inclusion in the subject CRS file (id.). McArthur testified that he was unaware of, and had never seen the Sasser letter prior to preparing for his December 2001 deposition in this proceeding (TVAF&C ¶ 4.31).

d.

Fiser's 1993 DOL complaint The Staff's characterization (SF&C ¶¶ 2.112-2.123) of Fiser's 1993 DOL complaint is misleading. The Staff asserts that Fiser "identified" a number of concerns in his complaint and the Sasser letter. Fiser "identified" those concerns only in the sense that they are restated in his DOL complaint and the Sasser letter. He did not discover them, report them, or document them. As to the three issues discussed (SF&C I¶ 2.113-2.115), it is undisputed that Fiser was not present when the issues were found, reported, or documented.

There is no evidence to support the Staff's assertion (SF&C ¶ 2.118) that Fiser tape recorded conversations to "support his complaint." In fact, circumstances suggest otherwise. Although a significant issue in his complaint was an allegation that Kent "offered him the Chemistry Manager position at SQN" (SF&C ¶ 2.116), he did not even bother to tape record that conversation. There are also no tape recordings that show that Fiser was attempting to raise or resolve any nuclear safety concern. Rather than showing Fiser's pursuit of safety or management's discriminatory motive, Fiser's recordings of conversations with McArthur, Beecken, Jack Wilson, and Kent show that management was holding him responsible for problems with Sequoyah Chemistry, that he was regarded as an ineffective manager, and that he sought to avoid accountability.

The Staff claims (SF&C ¶ 2.118) that Fiser made the "Sequence of Events" (JX27) from tape recordings, "notes from his day Planner, and his memory."

Although requested to do so, Fiser never produced any day planner notes that support any nonrecorded entry.

43

The Staff s claim (SF&C ¶ 2.118) that the "sequence of events was attached to Fiser's 1993 DOL complaint" is patently false.9 His complaint and the documents that were attached to it constitute 14 pages and are in the record as Exhibit 2 to NRC 01's Report of Investigation (SX177). The "Sequence of Events" (JX27) was a separate document attached as Exhibit 19 to NRC OI's report. According to Exhibit 18 to the report, the "Sequence of Events" was furnished to NRC OI on February 1, 1995.

There is a 10-page discourse in the record about what constituted Fiser's 1993 DOL complaint (Grover p. 3694, 1. 24-p. 3705, 1. 18). During that discussion, Staff counsel admitted that the "Sequence of Events" was provided by Fiser during the investigations by TVA OIG and NRC 01 of the complaint (Grover p. 3701, 1. 24-p. 3702, 1. 9). By the end of the discussion it was clear that Staff counsel had conceded to the Board that

"[t]he sequence of events was not included with the complaint, it came up later as a result of further investigation and interaction" (Grover p. 3704, 11. 3-9). Staff's representation to the contrary in the proposed findings (SF&C ¶ 2.118) is inaccurate and disingenuous.

Staff also misrepresents (SF&C ¶ 2.119) the basis under which Fiser provided copies of his tape recordings to the OIG. According to the Staff, the OIG agreed not to "release the tapes without Fiser's prior approval." As explained by G. Donald Hickman, TVA's Acting Inspector General, the OIG cannot guarantee confidentiality and does not do so (Hickman p. 4171, 1. 17-p. 4172, 1.5; p. 4180,

11. 10-20; p. 4182, 11. 7-21).

As noted by the Staff, the OIG felt compelled to release the tapes to TVA OGC for use in litigation prior to the 1994 reorganization. According to Fiser, he was 9

The Staff makes the assertion to justify the sloppy language in the Staff's September 20, 1999, letter and the summary of the OI report stating that McGrath and McArthur "were named as culpable parties in [Fiser'sl 1993 DOL complaint" (JX44 at AB0003, 07). As discussed in TVA's main brief (TVAF&C ¶¶ 1.3, 1.6, 1.7),

that assertion was wrong and based on the Staff s failure to investigate the basic facts.

44

concerned that knowledge of the tapes could be detrimental to his TVA career. Even though Fiser claimed to have known that both Easley and McArthur had seen transcripts of the tapes (Fiser p. 2282, 11. 17-24), he saw no reason to file a DOL complaint in 1994.10 The fact that both McArthur and Easley knew of the tapes in 1994, but took no action against Fiser is further evidence that they did not act against him with a discriminatory animus in 1996.

McArthur did not act with a discriminatory animus towards Fiser because of his having surreptitiously tape recorded conversations. McArthur testified that he did not take any action against Fiser or tell Grover that he should do so (McArthur p. 1586,

11. 4-15). Staff attempts to argue (SF&C ¶ 2.122) that McArthur's testimony was in conflict, because his personal opinion was that taping was very offensive. However, there is no conflict in these two points. Indeed, it is disingenuous of the Staff to pretend that McArthur should have thought well of the taping. In contrast, it is undisputed that McArthur was advised not to take any action against Fiser because of the taping (McArthur p. 1586, 1. 4-p. 1587, 1. 13), and there is no evidence that, having received that advice, he acted contrary to it. The crucial matter is that Fiser worked in McArthur's organization in 1994 and McArthur took no adverse action against him then.

The fact that he did not do so then refutes the Staffs argument that his animus was so strong that he took discriminatory action against Fiser in 1996.

Far from discriminating against Fiser, McArthur supported his exercise of protected activity, while Grover actively discouraged it. As discussed in TVA's findings (TVAF&C ¶¶ 5.4-5.5), it was Grover who suggested to Fiser that he should "keep [his]

mouth shut" or "not be selected for this new job" (Fiser p. 2765, 1i. 1-11; p. 4291,

1. 20-p. 4292, 1. 3). On the other hand, McArthur told Fiser "that he still felt that [he]

10 Fiser's concern about McArthur and Easley knowing of the tapes prior to the 1994 reorganization is a further reason to discredit his explanation for filing a DOL complaint in 1996, but not filing one in 1994 (see above at 25-26).

45

should continue talking with the reporter and stick with the truth" (TVAX 135; Fiser

p. 4292, 1. 7-p. 4293, 1. 15).

The Staff claims (SF&C ¶ 2.123) that McArthur discussed Fiser's tape recording with the site RadChem Managers. That is irrelevant to any issue in this proceeding. First, there is no suggestion in the NOV or elsewhere, and certainly no evidence, that anyone acted against Fiser because of his tape recording. Second, there is no evidence that anyone suggested taking action against Fiser for doing so. Third, there is nothing untoward about alerting other managers that their conversations may be tape recorded surreptitiously. Fourth, Grover's vague testimony about the taping being "common knowledge" and something that was "mentioned in the context of casual comments, casual conversation" (Grover p. 1850, 1. 22-p. 1851, 1. 8) is not entitled to much, if any, weight. Fifth, Grover and Fiser' s testimony about Fiser being asked to leave a RadChem Manager's meeting is in conflict and neither is entitled to any credence. According to Grover, McArthur asked Fiser to leave (Grover p. 1856, 1. 18-

p. 1857, 1. 9), while Fiser testified that McArthur was not even there (Fiser p. 2314, 1.

20-p. 2315, 1. 4). Further, both Kent and Corey testified that when the RadChem managers discussed sensitive issues that were not yet public, they excused other attendees, a fact which the Staff does not attempt to dispute (SF&C ¶ 2.123).

e. Fiser's 1996 DOL complaint Staff claims (SF&C ¶ 2.124) that "[o]n June 17, 1996, McGrath announced at an all-hands meeting that, as part of the reorganization of Operations Support, PWR and BWR Chemistry positions would be advertised for competition."

Staff's timeline is incorrect. The PWR and BWR positions, as well as the three other positions in RadChem, were advertised for competition on June 13, 1996, four days before McGrath's all-hands meeting (JX21 at GG000356, 364, 372, 380, 390). Staff also incorrectly implies that McGrath made the decision to advertise the PWR and BWR 46

positions for competition. To the contrary, HR made the decision that the PWR and BWR positions had to be advertised in accordance with applicable TVA policy (Easley

p. 1284, 1. 12-p. 1285, 1. 11; SX135 (Boyles) p. 36, 1. 13-p. 38, 1. 1). The evidence is undisputed that HR is responsible for determining whether a newly created position must be advertised under applicable TVA policy (Fogleman p. 5358, 1. 12-p. 5359, 1.

9; p. 5414, 1. 6-p. 5415, 1. 5). Specifically, in this case, Easley, the HR Consultant with responsibility for the Radiological Control and Chemistry and Environmental organizations, and Boyles, the TVAN Corporate HR Manager, testified that they evaluated the position descriptions (PD) for the PWR and BWR jobs and determined that these positions were required to be advertised consistent with applicable TVA policy (Easley p. 1284, 1. 12-p. 1285, 1. 11; SX135 (Boyles) p. 36, 1. 13-p. 38, 1. 1). There is no evidence that McGrath had any involvement in their determination or attempted to inference their decision.

Staff is correct that Fiser questioned the posting of the PWR Chemistry position, claiming that "the posting of the Chemistry Manager positions violated the settlement agreement from his 1993 DOL complaint" (SF&C ¶ 2.124). In an attempt to influence the decision whether to post the job, he threatened to file a new DOL complaint "if the Chemistry Manager positions were advertised for competition" (id.).

Despite the fact HR had previously decided to advertise these positions (see JX21 at GG000356, 364), HR decided to reevaluate that decision, in light of Fiser's claim that he was entitled to the PWR Chemistry Manager position under the 1993 settlement agreement and his threat to file a DOL complaint (SF&C ¶¶ 2.124, 2.125; TVAF&C

¶7.8).

The Staff effectively concedes that after Fiser questioned the posting of the Chemistry Program Manager positions, McGrath did not make the decision to post the jobs. As part of HR's reevaluation, Staff concedes that "Easley contacted Kathy Welch in Labor Relations for assistance in interpreting the 1994 settlement agreement to 47

determine if the agreement entitled Fiser to the new Chemistry position" (SF&C

¶ 2.126; Welch p. 342, 1. 10-p. 343, 1. 2; p. 356, 1. 4-8). The fact that HR sought such advice is further evidence that there was no discriminatory animus in the decision to post the job. Staff also concedes that Welch reviewed the agreement and concluded that Fiser was not entitled to the new Chemistry position under the 1994 settlement agreement (SF&C ¶ 2.126; Welch p. 344, 11. 2-22; p. 356, 11. 4-8; SX1 66 at 1). Staff further concedes that, to ensure that her interpretation was correct, 'Welch then consulted Brent Marquand in the TVA OGC after she completed her review of the settlement agreement" (SF&C ¶ 2.126). OGC concurred in Welch's interpretation that "posting the PWR Chemistry Manager position would not violate the 1994 settlement agreement" (SF&C ¶ 2.127). Given the opinions of Labor Relations and OGC, HR did not knuckle under to Fiser's threat and stood by its initial decision and posted the VPA for the PWR Chemistry positions on June 13, 1996 (JX21 at GG000356, 364). Fiser then filed a DOL complaint on June 25, 1996 (SX37; SF&C ¶ 2.127).

The Staff's characterization (SF&C ¶ 2.126) of Kathy Welch's review of the 1994 settlement agreement of Fiser's 1993 DOL complaint misstates the facts. Welch was asked to review the settlement agreement to determine if it " guaranteed [Fiser] him a position for any length of time at TVA" (Welch p. 342, 11. 21-24). She was not asked to determine if HR could post the job; she "was just asked to interpret the settlement agreement" (Welch p. 351, 11. 7-10). Although the Staff is well aware that Welch's review was limited to that narrow question of interpretation of the settlement agreement, the Staff has incorrectly represented (SF&C ¶ 2.126) that Welch was determining "if the agreement entitled Fiser to the new Chemistry position." They then try to fault her for "fail[ing] to determine whether the position granted to Fiser in the settlement agreement was the same position that Operations Support was posting for competition" (id.). That issue was clearly beyond the scope of the review she had been asked to perform. Furthermore, Welch's testimony is clear that she is "not an expert in that area 48

of classification and competitive levels" and that it was up to Easley and Boyles to determine whether to post the job (Welch p. 351, 1. 20-p. 352, 1. 6).

The Staff disagrees with Labor Relations' and OGC's interpretation of the settlement agreement because "[t]he settlement agreement itself was silent as to how long Fiser was entitled to the Corporate Chemistry Program Manager position he was granted in the settlement agreement" (SF&C ¶ 2.126). The Staff's reading is not consistent with the evidence. When the PWR Chemistry position was advertised on June 13, 1996, Fiser was not even in "the Corporate Chemistry Program Manager position he was granted in the settlement agreement." Shortly after being placed in the Chemistry Program Manager position pursuant to the settlement agreement (SF&C ¶ 2.48), Fiser applied, and was selected, for the position of Chemistry and Environmental Protection Program Manager (SF&C ¶ 2.52; Welch p. 355, 1I. 10-19;).11 He remained in the Chemistry and Environmental Protection Program Manager position until the 1996 reorganization. Therefore, any argument about how long he was entitled to remain in the position awarded by the settlement agreement had become moot.

Moreover, the terms regarding the extent of TVA' s obligation regarding the placement of Fiser in a Corporate Chemistry Manager position are unambiguous. In this regard, the agreement obligated TVA only to "select Mr. Fiser for the position of Program Manager, Technical Support... retroactive to October 4, 1993" (JX34 at 2).

Staff concedes that, "[a]s part of the settlement agreement," TVA placed Fiser in "a PG-8 Chemistry Program Manager position in the Corporate Chemistry Organization" (SF&C ¶ 2.48). However, the settlement agreement does not contain any term or 11 The settlement agreement was entered into on April 5, 1994 (JX34 at 1). In accordance with the agreement, TVA selected Fiser "for the position of Program Manager, Technical Support, PG-8, in Chattanooga... retroactive to October 4, 1993 (id. at 2). Six months later, however, Fiser applied, and was selected, for the position of Chemistry and Environmental Protection Senior Program Manager on October 17, 1994 (SX43).

49

condition obligating TVA to retain Fiser in the position for any length of time or to place Fiser in any future position other than the Program Manager position in which he was placed in April 1994 under the agreement. In short, after the placement in April 1994, Fiser would be treated as any other employee-free to move to other positions, but also subject to organizational changes.

6.

Knowledge of Protected Activities The Staff asserts (SF&C ¶ 2.128) that McArthur somehow became aware of Fiser's involvement with the issue about the diesel generator fuel storage tanks because he was asked to investigate and report on various issues raised in the Sasser letter.

Although McArthur was sent a list (SX31) of the concerns set out in the Sasser letter, there is no evidence that he saw the Sasser letter. Further, the extent of McArthur's investigation of the concerns was not a bottom-up review, but was limited to whether the issue was in the corrective action process-"[flor issues that have already been documented in a corrective action program, please provide the status" (SX 31). The concern file was closed after it was determined that " [a]ll issues had been previously identified and were being resolved" (TVAX57 at BG000275).

In addition, there was no basis to attribute the issue to Fiser in any way that could lead to a retaliatory motive. The fact that Fiser was mentioned as the Event Manager to implement the corrective action for the diesel fuel tank issue (TVAX 147 at F1000258, 000262) proves nothing material to a discrimination claim. Would the Staff have the Board assume that McArthur formed a discriminatory animus against Fiser for being assigned to resolve an issue, when the corrective action report itself shows that Don Amos and Don Adams (the Sequoyah Chemistry personnel) raised the issue in the report?

TVAX146 at FI000248. Would the Staff also have the Board assume that McArthur discriminated against the other persons whose names appear on the corrective action document? The document cited by the Staff (TVAX 147) contains, by our count, the 50

names of more than 20 other people. Besides Fiser, the document shows that at least six other Sequoyah Chemistry personnel were involved in the issue: Don Adams, Don Amos, Rob Richie, John Rose, Ben Hartman, and Scott Gary (TVAX147 at F1000277, 309, 310, 313, 315). In this context, the Staff's argument is simply unbelievable.

The Staff's view (SF&C ¶ 2.129) of the Chemistry program's inadequate trending is inaccurate. The testimony at the hearing was that daily trending was helpful to safe and efficient plant operation. Fiser never said "that he could not institute" daily trending; instead he refused to do so (i.e., he would not do so). Both Kent and Richie testified that Sequoyah Chemistry does trending on a daily basis, seven days a week.

The Staff's adoption (SF&C ¶ 2.129) of Fiser's contention that "such a procedure would place SQN at risk for further procedural violations" is nonsensical. As mentioned above, the adoption of almost any procedure carries the risk that there may be a violation of the procedure at some point in time. However, the risk of some potential procedural violation is not a violation of AEA, the ERA, or NRC regulations and it is not a justification for refusing to even consider adopting desirable safety and operational procedures. Instead, the solution is to seek adequate resources, provide sufficient training, and to write clear and reasonable procedures.

The Staff misstates (SF&C ¶ 2.130) McArthur's awareness of the Sasser letter. He was aware of the issues because they were itemized in a memorandum sent to him by TVA's CRS (SX3 1). However, the memorandum did not forward a copy of the Sasser letter. Thus, while he was certainly informed of the issues, McArthur did not know that Fiser had also signed the letter. The Staff displays a deep misunderstanding of how large organizations work when it insists that McGrath must have known of the letter because Oliver Kingsley "was notified of the letter" (SF&C ¶ 2.130). Copies of the OIG's responses were addressed to Kingsley. But there is no evidence that Kingsley was personally notified of the letter or the responses, and there certainly is no evidence that Kingsley in turn apprised McGrath. Obviously, in a large nuclear organization such as 51

TVAN, every letter addressed to the Chief Nuclear Officer is not read by him. Common sense dictates that staff members are used to route mail to appropriate destinations. That was obviously done here as evidenced by the fact that the CRS was looking into technical issues although a copy of the letter was not addressed to them (SX3 1). In fact, the Staff's own exhibit shows the routing of one of the OIG responses to the Sasser letter and McGrath's initials are not included among the list of addresses in the upper right corner (SX33). The Staff also argues that, because the letter includes a statement that Jocher identified to NRSB a material false statement, McGrath must have known of the letter.

Again, the Staff would have the Board assume the existence of evidence which simply does not exist. If a copy had been sent to McGrath, it was incumbent upon the Staff to provide the Board with an appropriate file copy. If the NSRB investigated the issues raised in the Sasser letter, the Staff had the burden to prove that such an investigation occurred. The Staff did not do so and cannot meet its burden of proof by supposition.

The Staff argues that McGrath must have known of the letter because he frequently worked with McArthur on the NSRB. That proves nothing. As discussed, there is no evidence that McArthur saw the Sasser letter. Further, McArthur was asked to review the technical issues (as discussed above) in his capacity as Manager of Technical Programs, not because he was on the NSRB. There was no reason for McArthur to go out of his way to discuss issues that were already in the corrective action process with McGrath. At botttom, the Staff would have the Board assume that McGrath saw the letter based on pure speculation. That is improper.

The Staff has come forward (SF&C ¶ 2.132) with yet another theory of discrimination-one not contained in the NOV or any of the Staff's discovery responses. Now for the first time, the Staff suggests that McGrath and McArthur may have discriminated against Fiser because they "were both aware that Fiser filed a DOL complaint prior to the interviews and selection for the PWR Chemistry Manager position"-the 1996 DOL complaint. TVA does not dispute that they became aware 52

of Fiser's June 25, 1996, DOL complaint (SX37) shortly after it was filed. Further, TVA does not dispute that the filing of that complaint constituted protected activity by Fiser. TVA has always said that McGrath was unaware of any protected activity by Fiser until June 1996 when he threatened to file a DOL complaint. However, there is a major flaw in the Staff's contention that Fiser was discriminated against because of his 1996 complaint. The decision to reorganize Operations Support, the decision to have two Chemistry Program Managers, the decision to post the jobs, the decision not to transfer Harvey, and the decision to place McArthur in the RadChem Manager position were all made before Fiser filed his 1996 DOL complaint and before he threatened to do so. Since the Staff is now reduced to arguing that McGrath was aware of Fiser's protected activity because he knew of the 1996 DOL complaint, it is clear that the actions the Staff had been claiming were discriminatory were not, in fact, motivated by discriminatory reasons.

7.

Adverse Actions Against Fiser As discussed above (at 26-29), the Staff s view of the 1996 reorganization is inaccurate. The Staff continues to argue about the Chemistry and Environmental Program Manager position descriptions. However, even the Staff concedes that the jobs were created in 1994 with the knowledge that some of the incumbents would be performing chemistry duties while others were performing environmental duties (SF&C

¶¶ 2.136, 2.170). Those jobs were legitimately created in 1994. A position description is not rendered inaccurate by virtue of the fact that the employee does not perform all of the responsibilities described therein (Boyles p. 3946, 1. 18-p. 3947, 1. 18). Even in 1996, two of the other Chemistry and Environmental Protection employees were performing primarily environmental duties-Diedra Nida and Tresha Landers (Grover

p. 1889, 1. 14-p. 1890, 1. 19).

53

The Staffs argument that HR should not have used the existing position descriptions to determine whether jobs should be posted (SF&C ¶ 2.136) is contrary to common sense and the evidence about the process TVA uses. First, it is undisputed that HR uses existing position descriptions and does not rewrite position descriptions in anticipation of a RIF (Boyles p. 3752, 1. 14-p. 3753, 1. 1,2). Second, if HR were to engage in rewriting position descriptions in anticipation of a RIF, it would invite boatloads of complaints that TVA had changed position descriptions to affect the outcome of a RIF (Reynolds p. 3519, 1. 24-p. 3520, 1. 14; p. 3527, 1. 9-p. 3528,

1. 19; Fogleman p. 5416, 11. 10-25; p. 5603, 1. 22-p. 5606, 1. 24).

The Staff's contention (SF&C ¶ 2.136) that "it was necessary for McGrath to manufacture different position descriptions in order to eliminate Fiser" is ludicrous. The record is clear that McGrath had nothing to do with rewriting the position descriptions (McGrath p. 471, 1. 20-p. 472, 1. 4) and HR made the competitive level determination that required the jobs to be posted (Boyles p. 3750,

11. 15-18; p. 3753, 11. 8-12; Fogleman p. 5358, 1. 10-p. 5359, 1. 9; p. 5414, 1. 6-

p. 5415, 1. 5). Thus, for the Staffs contention to be correct, the persons who wrote the position descriptions and HR all had to be in league with the scheme to eliminate Fiser, an adverse action which the Staff attributes to McGrath. The Staff goes on to prove the ridiculousness of its contention by stating that "McGrath had all of the positions in the Operations Support organization rewritten so as to require everyone other than McArthur to compete for positions in the new organization, thus circumventing the mandatory RIF procedures" (SF&C ¶ 2.136, n. 11). Thus, the Staffs theory would require the Board to find that the entire reorganization of Operations Support was driven by a scheme to discriminate against Fiser. There is simply no evidence to support such a claim.

Indeed, the evidence showed that a TVAN-wide reorganization was underway in 1996 and that literally hundreds of other positions were eliminated and the incumbents were surplused or RIFed (TVAX83-96, 109, 110). The Staff' s preposterous theory of 54

discrimination must be compared with the simpler explanation that the reorganization which eliminated Fiser's job was accomplished for the reasons stated by TVA. Fiser was treated just like the more than 30 other employees in Operations Support whose jobs were also eliminated (TVAX56) and whose positions were determined by HR to be on a different competitive level than any of the new positions (TVAX55; Boyles p. 4009, ii. 1-22; p. 4010, 1. 9-p. 4012, 1. 12).

The Staff's view (SF&C ¶ 2.137) of how the SRB should be constituted is wrong. The Staff says that the SRB did not include the person most familiar with Fiser's most recent work but did include persons familiar with the other candidates. As the record shows, the SRB process is not a popularity contest (McGrath p. 554, 1. 19-

p. 555, 1. 7) nor is it a medieval tournament where competitors are represented by "champions" (SF&C ¶ 3.73). The Staff would seemingly require an SRB procedure that would be completely impractical in the real world. TVA considered its SRB procedure to actually be more fair and objective than having one selecting official make all the decisions (Corey p. 2947, 1. 19-p. 2949, 1. 17). Under TVAN's SRB approach all of the members are supposed to consider what the candidate presents at the interview, and not consider their personal views of the candidate's past performance. The Staff is also critical that the questions did not specifically focus on primary chemistry, Fiser's strength. As the evidence showed, none of the questions were unfair and there was plenty of opportunity in answering the questions for Fiser to highlight his strengths.

Moreover, to the extent the SRB and McArthur were interested in answers on secondary chemistry this was not unreasonable or indicative of any retaliatory intent. It is clear from the record that the subject of secondary chemistry was the area presenting the greatest problems to TVAN. See TVAF&C ¶¶ 9.28-9.33.

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8. Causal Connection Between Protected Activities and Adverse Actions

a. Disparate treatment The Staff's proposed findings disagree (SF&C ¶¶ 2.138-2.152) with TVAN HR's interpretation and application of two of TVA's policies during the 1996 reorganization-Business Practice (BP) 102 (Management and Specialist Selection Process) and TVA's Personnel Manual Instruction. BP-102 established a standardized selection process requiring all vacant permanent PG-1 through senior management and specialist positions to be posted and advertised for at least seven days prior to being filled (SF&C ¶ 2.138; JX63 at 1; SX122 (Westbrook) p. 32, 11. 19-24). TVA's Personnel Manual Instruction contains TVA's procedures for conducting a RIF, specifically, as pertinent to this case, setting forth "the requirements for determining the competitive level of existing and new positions" (SF&C ¶ 2.139). Staff concedes that "TVA has implemented Office of Personnel Management (hereinafter 'OPM') RIF regulations through this personnel manual" (id.). As the TVA's Personnel Manual Instruction directs, competitive level "determinations must be based solely on the content of accurate, up-to-date job descriptions" (id. ¶ 2.140). If the old and new jobs are not interchangeable, then the new job must be posted for competition (SX135 (Boyles) p. 32,

1. 5-p. 33, 1. 14; JX65 at 14-15; JX63 at BF000850).

Staff does not claim, nor did it present any evidence, that either McGrath or McArthur subjected Fiser to disparate treatment with respect to the determination that the PD of record for the Chemistry and Environmental Protection Program Managers was not interchangeable with the PDs for the new PWR and BWR Chemistry Program Manager jobs, thus requiring that the new PWR and BWR Chemistry Program Manager positions be posted. Rather, Staff concedes that that determination was made by TVAN HR. In particular, Human Resource Consultant Ben G. Easley made the decision that the 56

PWR and BWR Chemistry Program Manager positions had to be posted (SF&C

¶¶ 2.142, 2.144). Easley testified that he compared the old and new PDs and determined, based on his standard, that the PDs for the new PWR and BWR Chemistry Program Manager positions "differed by more than 35 percent, and therefore had to be posted for competition" (SF&C ¶ 2.142). This decision affected all of the incumbents equally.

Staff argues that HR misapplied TVA's Personnel Manual Instruction in concluding that the new PWR and BWR Chemistry Manager positions had to be advertised for competition. As evidence for this assertion, Staff points out that "Fiser, Grover, Harvey and each of the RadChem Managers testified that the three incumbent Chemistry and Environmental Protection Program Managers performed 95 percent chemistry duties and at most 5 percent environmental duties" (SF&C ¶ 2.145). In other words, Staff contends that the interchangeability determination should have been based on a comparison of the actual duties performed by Chemistry and Environmental Protection Program Managers to the duties stated in the PDs for the PWR and BWR Chemistry Manager position. While that may be the way Staff might have made the interchangeability determination, the undisputed evidence unambiguously shows that that is not the way TVA makes that determination. As explained earlier, TVA presented unchallenged evidence that HR using TVA's Personnel Manual Instruction, does not, and did not here, compare the duties actually performed by the employee in hi s or her old job to the stated duties of the new position to determine interchangeability (TVAF&C

¶ 2.17). Rather, HR compares the duties stated in the most recent official PD to the stated duties in the PD for the new job (id.). Moreover, TVA's interpretation is consistent with OPM requirements and TVA has applied that standard in cases before the Merit Systems Protection Board (MSPB) (TVAF&C ¶¶ 2.18, 7.3). Similarly, MSPB has determined in other cases before it that TVA's method of determining interchange-ability comports with the applicable OPM regulations (TVAF&C 11 8.6-8.8).

57

Even if HR misapplied or misinterpreted TVA's Personnel Manual, Fiser was not subjected to disparate treatment. To the contrary, in the 1996 reorganization, HR made every competitive level determination in the very same manner (TVAF&C

¶ 8.11). Staff presented no proof that HR compared any employee's actual duties, rather than the duties stated in his or her last official PD of record, to the duties stated in the PD for the applicable new position. Fiser was treated no differently than any other employee during the 1996 reorganization.

Despite the fact that HR applied the same interchangeability test to make the competitive level determination for every new job in the 1996 reorganization (Boyles

p. 3750, 1i. 15-18; p. 3753, 11. 8-12; p. 4015, 1. 18-p. 4016, 1. 25; p. 4017, 1. 24-

p. 4018, 1. 8;Fogleman p. 5358, 1. 10-p. 5359, 1. 9; p. 5414, 1. 6-p. 5415, 1. 5), Staff suggests that HR's decision to place McArthur in the RadChem Manager position without posting it was inconsistent with requiring Fiser to compete for the PWR Chemistry Program Manager position (SF&C ¶¶ 2.146-2.148). Staff's argument overlooks the obvious-that application of the same test to numerous new positions could, as in this case, yield different results as to some of those positions. Specifical-ly, in this case, McArthur's situation was the only exception, as all other positions were determined not to be interchangeable (TVAF&C ¶ 8.11). In its proposed findings, Staff does not point to any evidence, because there is none in the record, that TVA inconsistently applied its interpretation of its interchangeability standard. Nor does the Staff explain how Fiser was treated any differently than the other Operations Support employees who also had to compete for new jobs because HR had determined that their old jobs were not interchangeable with the new positions.

Staff does, however, contend that McGrath, not HR, made the decision not to post the RadChem Manager position into which McArthur was placed (SF&C

¶ 2.148). For this contention, Staff relies on some of Easley's testimony that he disagreed with the decision to place McArthur into the RadChem Manager position and 58

"that McGrath made the decision to place McArthur in the RadChem Manager position" (SF&C ¶ 2.148). A closer inspection of Easley's testimony, however, shows that Easley did not testify that McGrath was responsible for making that decision. Specifically, Easley testified that "I think" (not that he knew for sure) that "originally it [the decision]

came from Mr. Tom McGrath" (Easley p. 1203, 1. 7). TVA acknowledges that Easley disagreed with the decision; however, the evidence is undisputed that Boyles, with the concurrence of his supervisor, made the decision that McArthur had a right to the RadChem Manager job (TVAF&C ¶ 8.2), and McGrath's only role in the matter was that he referred McArthur's concern of whether he had a right to the RadChem Manager position to HR (id. ¶¶ 8.1-8.2).

In addition, Staff asserts that "TVA could have used th[e] waiver criteria

[contained in SX152] to place Grover, an African-American, into the RadChem Manager position without posting it for competition" (SF&C ¶ 2.149). This is nothing more than a cheap trick to color this proceeding with irrelevant matter. First, this proceeding is not a Title VII race or sex discrimination case (TVAF&C ¶ 1.0). Second, the NOV does not charge TVA with allegedly taking unlawful action against Grover with regard to TVA's waiver procedures (JX47). Third, as explained in TVA's proposed findings and conclusions (TVAF&C ¶ 8.13), the waiver procedures simply were not applicable to Grover, even if relevant in this case, "because the RadChem Manager position was not a vacant position subject to the posting requirements," a prerequisite for the application of the waiver procedures (SX152 at 1). Fourth, as explained in TVA's proposed findings and conclusions (TVAF&C ¶ 8.12), Grover and McArthur were not similarly situated in that they held different positions at the time the competitive level determination for the RadChem Manager position was made. And finally, there is no evidence whatsoever that TVA refused to apply the waiver to benefit Grover in order to retaliate against Fiser.

Had Grover been the RadChem Manager, Staff speculates that "he would have controlled the selection process for the PWR Chemistry Program Manager position, 59

including choosing who would serve on the SRB and drafting the interview questions" and therefore "the failure to allow Grover to compete for the RadChem Manager position had a predictable direct effect on the selection process, and on Fiser' s nonselection" (SF&C ¶ 2.150). This is rank speculation. Beyond Staff's unsupported assertions, had the RadChem Manager position been required to be posted, the record contains no evidence that Grover would have been selected (for example, over McArthur). Had Grover been selected RadChem Manager, the record contains no evidence that Fiser would have been recommended by an SRB that was hand picked by Grover. And had Grover been selected RadChem Manager, the record does not contain any evidence that Harvey would not have been selected for the PWR Chemistry Program Manager position.

Lastly, Staff contends that it would have concluded that McArthur's former Technical Programs Manager position and the RadChem Manager position were not interchangeable and thus the RadChem Manager position should have been posted (SF&C ¶I 2.151-2.152). As explained at length in TVA's proposed findings and con-clusions, HR concluded differently when it compared the PD for the Technical Manager position with the PD for the RadChem Manager position (see TVAF&C ¶¶ 8.3-8.9).

While Staff disagrees with HR's conclusion, it fails to point to any evidence disputing that HR applied the same factors and used the same process to make the competitive level determinations for the RadChem Manager and PWR Chemistry Manager positions (see SF&C ¶¶ 2.151-2.152). Nor does Staff show that Fiser ever expressed an interest in the RadChem Manager position or how Fiser was subjected to disparate treatment when McArthur was placed in that job.

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b. Temporal proximity between protected activities and adverse actions Staff claims (SF&C ¶ 2.153) that "Fiser engaged in protected activities during 1989 (emergency diesel generator fuel oil storage tank problem), 1991 (NSRB trending issue), 1993 (Sasser letter and DOL complaint), and 1996 (DOL complaint)."

On its face, assuming that they are protected activities, the record shows, with the exception of the 1996 DOL complaint, a lack of temporal proximity between the dates of each of these activities and the decision that the PWR Chemistry Manager position would be posted for competition and Fiser's July 1996 nonselection.

First, with the exception of Fiser's 1996 DOL complaint, the lengthy period between each of these activities and the posting of the PWR Chemistry Manager position and Fiser's nonselection in 1996 negates any inference of causation based on temporal proximity. Staff does not dispute that fact. As to Fiser's 1996 DOL complaint, the record is undisputed that HR had determined to post the PWR Chemistry Manager position before Fiser made his threat to file a complaint. Discrimination is chronologically impossible when the purported discriminatory act occurs prior to the claimed protected activity.1 2 Second, as previously shown by TVA, Fiser did not engage in protected activities in 1989 and 1991. He did not identify, document, or otherwise raise the emergency diesel generator fuel oil storage tank problem (TVAF&C ¶¶ 4.32-4.37). Nor did Staff present any evidence showing that Fiser identified, documented, or otherwise raised data trending at Sequoyah as a safety concern. Instead, he refused to provide the 12 HR's decision to advertise the PWR Chemistry Program Manager position put in motion the other requirements of BP-102, including requiring McArthur to cull the list of candidates, empanelling an SRB to interview the short list of qualified candidates, drafting interview questions (JX63), the SRB interviews of the candidates, and SRB's recommendation of the candidate with the highest score for selection (id.; SX135 (Westbrook) p. 79, 1. 17-p. 80, 1. 4; Corey p. 2854, 11. 7-16).

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data trending information because of the perceived difficulty and the administrative inconvenience to him (TVAF&C ¶ 4.28).

Third, McGrath had no prior knowledge of either the Sasser letter or Fiser's 1993 DOL complaint (TVAF&C ¶¶ 4.31, 4.40). He had not seen a copy of the Sasser letter until he began preparing for his November 2001 deposition (McGrath

p. 415, 1. 8-p. 416, 1. 2). Without such knowledge, temporal proximity, even if pre-sent, is irrelevant. Nevertheless, Staff relies on the testimony of Grover that "McGrath made some general negative comments about Fiser" around the time McGrath became Acting General Manager of Operations Support in October 1995 (SF&C ¶ 2.154).

Under the circumstances, if McGrath had made such comments, which TVA denies, Grover's testimony does not give rise to any inference that the comments were made in response to the Sasser letter or the 1993 DOL complaint because McGrath was unaware of those activities at the time.

Fourth, McArthur had no prior knowledge of the authors of the Sasser letter. He had not seen a copy of the Sasser letter until he began preparing for his December 2001 deposition (McArthur p. 1445, 1. 23-p. 1446, 1. 10). Without prior knowledge, temporal proximity, even if present, is irrelevant. As to Fiser's 1993 DOL complaint, while McArthur was aware of it, Staff did not present any evidence sug-gesting that McArthur was critical of Fiser's filing of the complaint. In fact, Fiser identified McArthur in the 1993 DOL complaint as an ally (SX34 at AJ000134).

9. Pretext

a. Preselection of Harvey Staff contends that Harvey was preselected for the PWR Chemistry Program Manager position based on two unrelated events in the spring of 1996. This assertion is not supported by the evidence (see TVAF&C b¶ 9.44-9.48).

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First, Staff asserts (SF&C ¶ 2.158) that "Kent, the SQN RadChem Manager, initiated a request with Grover that Harvey be transferred permanently to the SQN Chemistry organization." This contention is inconsistent with the evidence. As set forth in TVA's proposed findings and conclusions, Grover, not Kent, initiated a discussion about possibly transferring Harvey to Sequoyah because a transfer would help in possibly saving someone's job in Corporate (TVAF&C ¶ 9.48). Had Kent sought the transfer of Harvey to Sequoyah, assuming it was permissible under applicable TVA policy and federal regulations, it seems only logical that Kent would have contacted McGrath, the person who would have had to agree to the proposed transfer. But the record contains no evidence that Kent ever called McGrath to inquire about the pos-sibility (id.).

Instead, Grover approached McGrath about the possibility of transferring Harvey to Sequoyah (SF&C ¶ 2.159). In response to Grover's inquiry, McGrath consulted HR (McGrath p. 830, ii. 8-16; p. 831, 11. 1-7). Contrary to Staff's contention that McGrath told Grover that he "opposed the transfer because he wanted to keep Harvey's expertise in Corporate" (SF&C ¶ 2.159), HR instructed McGrath that neither Harvey nor his position could be transferred to Sequoyah consistent with TVA's HR procedures that implement OPM regulations (TVAF&C ¶ 9.48). The Staff asserts that "Grover informed Kent and Harvey that McGrath would not approve the transfer" (SF&C ¶ 2.160). That assertion is not supported by the Staff's citation to "tr. p. 3623,

1. 25," nor is such a conclusion credible because there was no transfer to approve or disapprove (TVAF&C ¶ 9.48).13 The fact that McGrath told Grover that a transfer could not be done consistent with TVA's rules, is borne out by Fiser's own day planner 13 Nor did Sequoyah Chemistry have a vacancy which it had been approved to fill (SX135 (Kent) p. 107, 11. 3-1 1). Had there been an approved vacancy, TVA policy would have required it to have been posted for competitive selection (McGrath p. 827,

1. 22-p. 828, 1. 14; p. 830, II. 8-16).

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note in which Grover told him that "Sam's job was up in the air" because "they were probably trying to do something illegal" (TVAX 120).

The Staff urges the Board to infer that Harvey had been preselected based on a single telephone conversation between Harvey and Voeller, the Watts Bar Chemistry Manager, in early June 1996 in which Harvey told Voeller that he would be working a lot closer with him in the future (SF&C ¶¶ 2.160-2.163). Such an inference is impermissible and unsupported by the record. Harvey explained that he made the telephone call because of confidence, and possibly some arrogance, that he was the most qualified candidate for the position (TVAF&C ¶ 9.46). Two Fiser allies-Cox and Voeller-agreed with Harvey, testifying that Harvey had better technical abilities than Fiser (Voeller p. 3314, 1. 18-p. 3315, 1. 25; p. 3331, 1. 21-p. 3332, 1. 22). Fiser also testified that Harvey's technical abilities were superior to his (Fiser p. 4261, 1. 4-

p. 4264, 1. 3). Harvey denied that McGrath, McArthur, or anyone else ever told him that he would be selected for the PWR Chemistry Program Manager position (TVAF&C

¶ 9.46). Of greater significance, Staff failed to present any evidence that McGrath or McArthur advised Harvey that he would be selected for the PWR Chemistry Program Manager position. With no evidence that McGrath or McArthur ever told Harvey that he would be selected, Staff's inference of preselection is unreasonable.

Other evidence supports this conclusion. Voeller testified that Harvey did not tell him that McGrath or McArthur had told him that he would be the person selected as the PWR Chemistry Program Manager (TVAF&C ¶ 9.45). Voeller further testified that Harvey was speculating that he would be selected for the position since the transfer to Sequoyah did not go through (id.). Moreover, Grover made similar boastful comments that Corporate would keep only two people-Chandra and himself-in Corporate Chemistry (TVAF&C ¶ 9.47). This was no indication that Grover and Chandra had been preselected, just like Harvey's comments did not reflect that he had been preselected.

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The evidence also shows that the purpose of Harvey's telephone call was misconstrued due to Voeller's failure to report to Fiser the complete conversation he had with Harvey. Harvey testified at the hearing that he told Voeller that he would be working a lot closer with him in the future, or "not at all" (Harvey p. 4978, II. 11-20;

p. 5037, 11. 6-19; TVAF&C ¶ 9.46). But Voeller omitted the "not at all" portion of the conversation (Harvey p. 4979, 11. 5-13; TVAF&C ¶ 9.46). Voeller's omission of this key portion of the conversation is explained by the existence of "tension' and "dislike" in their professional relationship and Voeller's preference for Fiser over Harvey for the PWR Chemistry Program Manager position (TVAF&C ¶ 9.45).14

b. Failure to follow procedures Staff claims that TVA failed to follow two policies-TVA's Personnel Manual Instruction (JX65) and BP-102 (JX63)-"which governed the reorganization of Operations Support in 1996" (SF&C ¶ 2.164), and such failure evidences pretext for discrimination (SF&C ¶¶ 2.164-2.171). The evidence is to the contrary.

In the NOV to TVA, the NRC identifies McGrath and McArthur as the alleged discriminating officials (JX47 at AB000021-22). Consistent with that theory, the NRC also issued individual NOVs to McGrath and McArthur (JX48; JX49). Despite the fact that McGrath and McArthur are the alleged discriminating officials, Staff fails to point to any proof that either McGrath or McArthur made the competitive level determinations regarding the new positions created in the reorganization of Operations 14 Contrary to Staff's implication that "Voeller took notes of both conversations with Harvey in his Day Planner" as a matter of course (SF&C ¶ 2.162), Voeller did not initially record the June 3, 1996, telephone conversation until Grover urged him to do so on June 7, 1996 (Voeller p. 3321, 11. 10-23; JX36). In accordance with Grover's request, Voeller also recorded notes of his June 10, 1996, telephone conversation with Harvey (JX36). Oddly, Voeller failed to include any notes of his June 7 conversation with Grover (JX36). Nor did he record any notes from his meeting with Fiser during which he informed Fiser of the telephone conversation that he had with Harvey.

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Support in 1996. Nor did Staff point to any evidence that either McGrath or McArthur assisted in making such determinations. Instead, HR was responsible for applying the policy set out in TVA's Personnel Manual Instruction to make the competitive level determinations (Boyles p. 3750, ii. 15-18; p. 3753, Ii. 8-12; p. 4015, 1. 18-p. 4016,

1. 25; p. 4017, 1. 24-p. 4018, 1. 8;Fogleman p. 5358, 1. 10-p. 5359, 1. 9; p. 5414,

1. 6-p. 5415, 1. 5).

In its argument that TVA failed to follow procedures, the Staff merely repackages and, repeats its "disparate treatment" argument. The Staff asserts that HR failed to follow the dictates of TVA's Personnel Manual Instruction when it determined that McArthur had a right to the RadChem Manager position because HR did not use up-to-date job descriptions in making the competitive level determinations (SF&C ¶¶ 2.166-2.169). Staff obviously misses the point. As TVA established at the hearing, HR interprets TVA's Personnel Manual Instruction as requiring it to use the last official PD of record to make competitive level determinations (TVAF&C ¶¶ 8.3, 8.6-8.8). As the evidence shows, HR compared McArthur's last official PD of record, which was for his Manager of Technical Programs position, with the PD for the new RadChem Manager position and concluded that the two PDs were interchangeable (id. ¶ 8.3). The MSPB has determined that this approach is consistent with its precedents and applicable OPM regulations (TVAF&C ¶¶ 7.3, 8.6-8.7). TVA did not update or issue a new PD to McArthur because TVA does not conduct job audits prior to or during a reorganization to update, rewrite, or issue new PDs (TVAF&C ¶¶ 8.9). TVA has chosen not to do so because performing pre-RIF job audits are fraught with the possibility of manipulation and unfairness (Reynolds p. 3421, 1. 13-p. 3422, 1. 2; 3519, 1. 24-p. 3520, 1. 14;

p. 3527, 1. 9-p. 3528, 1. 19; Fogleman p. 5416, 11. 10-25; p. 5603, 1. 22-p. 5606,

1. 24).

Staff also asserts that HR failed to follow the dictates of TVA's Personnel Manual Instruction when it determined that the PWR and BWR Chemistry Program 66

Manager positions were not interchangeable with the Chemistry and Environmental Protection Program Manager position because HR did not use up-to-date job descriptions (SF&C ¶ 2.170). Like in the case of the RadChem Manager, HR made its competitive level determinations for these positions by comparing the PDs for the PWR and BWR Chemistry Program Manager positions with the last official PDs of record for the Chemistry and Environmental Protection Program Manager positions (Easley p. 1284,

1. 12-p. 1285, 1. 11; SX135 (Boyles) p. 36, 1. 13-p. 38, 1. 1). HR applied TVA's Personnel Manual Instruction exactly the same in both cases.

As to the competitive level determinations regarding McArthur and Fiser, Staff fails to acknowledge the evidence that TVA applies the same standard-comparing the most recent official PD of record with the PD of the new job-irrespective of actual duties performed in the old job (SF&C ¶I 2.169, 2.170). As a result of this failure, Staff does not respond to, or rebut, TVA's undisputed presentation of evidence that it has consistently applied this same standard and did not deviate from that practice in this case (Boyles p. 4014, 1. 23-p. 4015, 1. 12; p. 4017, 11. 1-23). In short, Staff fails to show how Fiser's situation differed from how TVA applied and interpreted the Personnel Manual Instruction in the past. TVA showed that there was no difference (id.).

As to BP-102, Staff contends that McArthur, as the selecting manager for the PWR Chemistry Program Manager position, failed to follow the requirements of BP-102 in that he allegedly failed to consider all relevant information (SF&C ¶ 2.171).

Staff relies on McArthur's purported testimony at his PEC "that he relied solely upon the results of the SRB interviews in making the selections for the Chemistry Program Manager positions" (id.). This is a complete misstatement of McArthur's PEC testimony. Specifically, McArthur testified that HR provided him with the selection package that he reviewed before convening the SRB to ensure that those candidates 67

referred to the SRB were qualified for the PWR Chemistry Program Manager position (SX134 (McArthur) p. 24, 11. 3-16).15 His testimony is clear and unambiguous:

MR. DAMBLY: Dr. McArthur, before you leave this, after the Review Board that you watched but didn't participate in when they did the ranking, what in addition to that, if anything, did you consider in reaching your decisions?

MR. McARTHUR: Well, they are all qualified. From my standpoint, HR provided me with a comparison sheet to make sure that all individuals met the educational requirements, years of experience and those kind of things, and that meant to me these people were qualified to bid for the job, and so I accepted that information and the next part was how they handled themselves for the Selection Review Board [id.].

At the PEC, counsel asked McArthur did he "go back [after the SRB recommendation]

and look at anything" (id. p. 24, 1. 18). At that point in the process, McArthur respon-ded that he "took the Review Board's [recommendation]" (id. p. 24, 1. 20). This is entirely consistent with BP-102. The record also shows that selecting managers rarely decide not to accept SRB recommendations (Fogleman p. 5467, 11. 3-10). While the selecting manager can review candidates' qualifications a second time after the SRB recommendation if he chooses, this subsequent review would in most cases be redundant unless something comes to light after the first review but before the SRB interviews the candidates and makes it recommendation.

For different reasons, TVA joins Staff in urging the Board in "credit[ing]

McArthur's version as presented at the PEC" (SF&C ¶ 2.171). His testimony there is fully consistent with his hearing testimony that he reviewed all relevant information, 15 As the evidence shows, the selection package contains all the relevant information-spreadsheet, applications, and the candidates' PHRs containing past performance reviews and other information pertinent to past work performance-that the selecting manager would need to judge and determine the qualifications of the respective candidates (JX63 at 1; SX 122 (Westbrook dep.) p. 32, 1. 24-p. 33, 1. 3; p. 39, 11. 3-14). In this case, six candidates applied and McArthur culled the list to three candidates-Fiser, Harvey, and Chandra (JX21 at GG000212; McArthur p. 1498,

1. 17-p. 1499, 1. 7).

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determined the top qualified candidates, and referred a short list of candidates to the SRB to be interviewed (McArthur p. 1498, 1. 17-p. 1499, 1. 7; JX21 at GG000212).

c. Biased selection process Staff claims that the selection process was biased against Fiser in four different respects: (1) that Fiser did not have a representative or advocate on the SRB (SF&C ¶¶ 2.172-2.175); (2) that McArthur drafted interview questions slanted in favor of the candidate-Harvey-with secondary chemistry expertise (id. ¶ 2.176); (3) that the SRB members were provided no guidance (except for a rating scale of 1 to 10) on how to rate the candidates (id. ¶ 2.177); and (4) that McArthur excluded from consideration information concerning Harvey's interpersonal skills (id. ¶¶ 2.179-2.185).16 The evidence does not support Staff's claim of bias in the selection process. The evidence also does not support any claim that Fiser's nonselection was motivated by protected activity.

First, as discussed above, a selection is neither a popularity contest nor a jousting contest with the SRB members serving as advocates for the candidates (McGrath

p. 554, 1. 19-p. 555, 1. 7). As those witnesses who have served as selecting managers testified, the duty of the members of an SRB is limited to rating the candidates' responses to interview questions and recommending for selection that candidate with the highest cumulative score (e.g., Corey p. 2851, 1. 16-p. 2852, 1. 14). The responsibility and purpose of an SRB are clearly spelled out in BP-102-TVAN's established 16 The Staff complains (SF&C ¶ 2.178) that Kent "did not consider problems that his staff identified with Harvey's interpersonal skills" in his discussions about the pos-sibility of transferring Harvey to Sequoyah. This bit of information is irrelevant for three reasons. First, Kent is not identified in any of the NOVs as an alleged discrimina-ting official (JX47; JX48; JX49). Second, Grover, not Kent, initiated the discussions with regard to the possibility of transferring Harvey to Sequoyah (Harvey p. 4977,

1. 16-p. 4978, 1. 5; McGrath p. 544, 1. 22-p. 545, 1. 13). Third, it is not the role of the SRB to consider anything other than the candidates' answers to the questions posed by the SRB.

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standardized selection procedure. SRB's "are to conduct interviews using structured job-related selection criteria developed by the [selecting] supervisor of the position being filled" and then to "feedback to the [selecting] supervisor of the vacant position on the results of their interviews" (JX63 at 2). The evidence is undisputed that knowledge of the candidates' past work history and performance plays no role in the SRB process (Corey p. 2947, 11. 6-18).

Staff apparently labors under the impression that SRB members should be advocates of the candidates based on McArthur's initial preference for an SRB comprised of the three site RadChem Managers-Charles Kent from Sequoyah, Jack Cox from Watts Bar, and John Corey from Browns Ferry-to conduct interviews and make recommendations for the five Corporate RadChem Staff positions (McGrath p. 551,

1. 16-p. 552, 1. 16; McArthur p. 1494, 11. 12-23; SF&C ¶ 2.172) which was concurred in by McGrath and TVAN HR (id.). Harvey primarily provided support to Sequoyah; Fiser primarily provided support to Watts Bar; and Chandra primarily provided support to Browns Ferry (SF&C ¶ 2.172). As explained by Corey, who recommended the idea to McArthur, the rationale for this proposal was that the site RadChem organizations would be the customers of the Corporate RadChem staff and that as the site RadChem Managers with responsibility for chemistry, radiological control, and radwaste functions at the plants, they would have the best insight as to the support needed by the site RadChem organizations from the corporate organization (Corey p. 2873, 1. 23-p. 2874,

1. 10; McArthur p. 1494, 11. 12-23). The rationale was not to provide advocates or personal champions for each candidate.

Any belief that having the three site RadChem Managers serve on the SRB was to ensure that each of the candidates for the PWR Chemistry Program Manager position had a representative or advocate on the SRB is belied by the fact that the decision to have the site RadChem Managers serve on the SRB was made before the June 25, 1996, closing date of the vacant position announcements (VPA) (JX21 70

at GG000364). As a result, McArthur was unaware of the identity of the candidates at the time of his decision. Nor does Staff account for the fact that the same SRB was empanelled to interview numerous other candidates for the four other positions being considered by the SRB or explain how those candidates could also all have personal advocates (McArthur p. 1493, 1. 21-p. 1494, 1. 2; JX21 at GG000356, 372, 380, 390).

Staff correctly points out that several days before the SRB was to convene, Cox informed McArthur that he would be unable to participate because of a scheduling conflict (SF&C ¶ 2.173; TVAF&C ¶ 9.17). Contrary to Staff's position, however, McArthur's decision to replace Cox, rather than reschedule the SRB interviews, was not made out of bias against Fiser (SF&C ¶¶ 2.173, 2.174). While Cox stated that he might have been able to participate if the interviews had been rescheduled (id. ¶ 2.173; Cox

p. 1758, 11. 16-21),17 McArthur concluded that it was not feasible on such short notice to reschedule the SRB for all five Corporate RadChem positions because of the difficulties in coordinating the schedules of the ten candidates, three site RadChem managers, the HR Consultant, and himself (TVAF&C ¶ 9.17; JX21 at GG000221).

Staff did not present any evidence that McArthur could have easily rescheduled these 15 people for some other date. Indeed, in its filing, Staff does not even challenge TVA's evidence, including Cox's own testimony, that it would have been "extremely difficult" rescheduling 15 people for some new date (Cox p. 1769, 11. 18-19; TVAF&C ¶ 9.17).

The evidence shows that McArthur's decision to replace Cox, rather than reschedule the interviews, was a prudent and reasonable business decision. Certainly, obtaining the services of a qualified and suitable replacement was less difficult and disruptive than the 17 However, the evidence strongly suggests otherwise. This is so, as explained in TVA's proposed findings and conclusions, because Cox had a standing conflict that would in all likelihood have precluded him from serving on the SRB for the five Corporate RadChem positions (TVAF&C ¶ 9.18). This standing conflict would have made it difficult for Cox to serve on the SRB even if it was to start first thing in the morning on a rescheduled date (Cox p. 1770, 1. 21-p. 1771, 1. 9).

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inconvenience of rescheduling 15 people. The logical and reasonable inference to be drawn is that McArthur was a practical manager; not that he was out to retaliate against Fiser.

McArthur selected Heyward Rogers as Cox's replacement (SF&C

¶ 2.173; TVAF&C ¶ 9.23). TVA presented substantial evidence showing Rogers was qualified to serve on the SRB and to judge the candidates (TVAF&C ¶ 9.24-9.26).

In its filing, Staff does not point to any evidence, because there is none, disputing Rogers' qualifications to serve on the SRB.

Second, Staff claims that the interview questions for the PWR Chemistry Program Manager position were slanted against Fiser because "[n]one of the technical questions focused specifically on primary chemistry, which was Fiser's main area of expertise" (SF&C ¶ 2.176). Instead, Staff argues that the interview questions were slanted in favor of Harvey because the technical questions "focused specifically on secondary chemistry, which was Harvey's area of expertise" (id.). The evidence does not support this claim. Staff's contention relies on the incorrect assumption that the PWR Chemistry Program Manager is responsible for both primary and secondary chemistry technical support to Watts Bar and Sequoyah-TVA's PWR plants. To the contrary, as explained in TVA's proposed findings and conclusions, the PWR Chemistry Program Manager is only responsible for providing secondary chemistry technical support (TVAF&C ¶ 9.29). The PD for the PWR Chemistry Program Manager position, which Fiser helped to draft, clearly and unambiguously provides that the responsibility of the incumbent of this position is secondary chemistry (TVAF&C ¶ 9.29; TVAX55 at BF001339-40). Primary chemistry is not even mentioned in that PWR Chemistry Program Manager PD (id.). On the other hand, providing technical support for primary chemistry to Browns Ferry (TVA's BWR plant) and Watts Bar and Sequoyah (TVA's PWR plants) is the responsibility of the BWR Chemistry Program Manager (TVAF&C ¶ 9.30; TVAX55 at BF001272). However, Fiser chose not to apply 72

for the BWR Chemistry Program Manager position which was the position that "focused" on "Fiser's main area of expertise" (SF&C ¶ 2.176).

This evidence belies any claim that the interview questions were slanted against Fiser. The candidate selected for the PWR Chemistry Program Manager position would have no primary chemistry responsibilities and thus it was not unreasonable or unfair that none of the technical questions focused on primary chemistry. The technical questions were properly focused on those duties-secondary chemistry-which the incumbent of this position is asked to perform.

Even if the incumbent of the PWR Chemistry Program Manager position was a back up on some primary chemistry responsibilities, Staff failed to present evidence that supports a claim that the interview questions were slanted. This is so because primary chemistry, as even Fiser admitted, was not much of a co ncern and was under control at TVA's PWR plants in the summer of 1996 (Fiser p. 2400, 11. 16-22; Goetcheus p. 5079, 11. 5-7). As the evidence shows, TVA reasonably included technical questions pertaining only to secondary chemistry because secondary chemistry is the more difficult area to maintain properly and was then currently receiving attention at TVA and throughout the industry due to its impact on steam generator integrity and longevity (Goetcheus p. 5108, 1. 1-p. 5110, 1. 2). The replacement costs for steam generators are in the hundreds of millions of dollars (id. p. 5079, 11. 19-22). In addition, the testimony is undisputed that the questions were fair and that it was reasonable to expect the selectee for the PWR Chemistry Program Manager to know the answers to the technical questions about secondary chemistry (Cox p. 1778, 1. i-p. 1780, 1. 6; Goetcheus p. 5108, 1. 1-p. 5110, 1. 2).

Third, Staff's claim (SF&C ¶ 2.177) that the selection process was biased against Fiser because the SRB members were provided no guidance (except for a rating scale of 1 to 10) on how to rate the candidates finds no support in the record. This assertion is self-contradictory because on the one hand, Staff concedes that all the 73

candidates were treated the same (i.e., judged without guidance), and on the other hand, charges that the failure to provide guidance somehow subjected Fiser to disparate treat-ment as to how the interview questions were rated. Staff cannot have it both ways. If Fiser was treated the-same as the other candidates, as Staff concedes, this similar treat-ment, by operation of simple logic, negates the possibility that Fiser was subjected to disparate treatment. The evidence further shows that selecting managers in past selec-tions have not provided guidance to SRB members on how to evaluate the candidates on the scale of 1 to 10 (JX63; Rogers p. 5201, 1. 25-p. 5202, 1. 10). Likewise, McArthur provided no guidance, benchmarks, or checklists on scoring Fiser's, Harvey's, and Chandra's responses to the questions (Corey p. 2880, 1. 24-p. 2881, 1. 6; p. 2922,

1. 25-p. 2923, 1. 15; Kent p. 3144, 11. 10-25; Rogers p. 5210, 1. 1-p. 5211, 1. 10).

Just like other SRB members in previous selections, McArthur left it up to Corey, Kent, and Rogers to use their professional judgment to rate Fiser's, Harvey's, and Chandra's responses on the 1 to 10 scale (Corey p. 2900, 1. 18-p. 2901, 1. 1, p. 2923, 11. 6-19; Kent p. 3144, ii. 10-25; p. 3146, 1. 16-p. 3147, 1. 2; Rogers p. 5172, 11. 2-23; p. 5199,

1. 22-p. 5200, 1. 7, 5209, 11. 1-16). Common sense and experience also indicate that this is not an unusual or atypical situation in hiring or selection processes.

Fourth, Staff asserts that the selection process was biased against Fiser because "McArthur also excluded key and relevant information about Harvey's people skills from consideration in the selection process" (SF&C ¶ 2.179). Staff specifically argues that McArthur should have considered the harassment allegations made against Harvey by Tresha Landers (SF&C ¶¶ 2.179-2.185). However, Staff presented no evidence to support this contention. In fact, Staff acknowledges that 'Landers decided that she did not wish to pursue a formal harassment complaint against Harvey" (id.

¶ 2.184). Of more importance, prior to her decision not to pursue a formal complaint, Landers' allegations had not been verified (Harvey p. 5005, 11. 1-5). Further, the evidence shows that Harvey had been appropriately coached, supporting the view that the 74

incident could be appropriately left in the past. To the extent the Staff is suggesting that the SRB should have considered such information, such a contention is in the teeth of the SRB process whereby the SRB considers the candidates' answers to questions, not past job history.

The evidence shows that Landers complained to Grover and later to Easley about Harvey's purported harassment and intimidation (SF&C ¶ 2.181-2.182).

After Landers made the complaint, Staff is correct that "Grover, McArthur, Boyles and Easley held a meeting with Harvey to discuss his behavior towards Landers" (id.

¶ 2.183). During this meeting, Harvey testified that he was never provided any specific incidents of alleged harassment or intimidation, except that he removed some binder bins from Landers' cubicle without permission (Harvey p. 5001, 11. 5-16).18 Harvey acknowledged that he took the binder bins and would, and later did, apologize to Landers for this incident (id. p. 5001, 11. 17-25; TVAX152; SF&C ¶ 2.183). Later, Grover prepared a memorandum documenting the meeting in which, among other things, he "deemed" Harvey's behavior "inappropriate and insensitive" and that Harvey "agreed to exhibit better behavior toward Ms. Landers and to take Employee Sensitive Training in the near future" (SX67). The memorandum corroborates Harvey's hearing testimony that, other than the June 12, 1996, incident regarding the binder bins, he was not provided specific details of the other incidents of alleged harassment or intimidation in that such incidents "were" only "discussed in general with Mr. Harvey" (SX67).

McArthur properly chose not to consider Landers' complaint of alleged harassment in the selection process. Harvey denied the charges that he harassed and intimidated Landers and also requested an investigation (TVAX152; Harvey p. 5004,

11. 13-25). Despite Harvey's request for an investigation, none was conducted either 18 Harvey first became aware of the specific allegations in December 2001 when Staff inquired about them during his deposition (Harvey p. 5002, 11. 2-9), some of which are detailed by Staff (SF&C ¶¶ 2.179-2.180).

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before or after Landers decided not to pursue her complaint (Harvey p. 5005, 11. 1-5).

The record contains absolutely no evidence that Landers' claims were substantiated by some other means before the conclusion of the selection process or, for that matter, at any time thereafter (id.). Staff's insistence that McArthur should have considered unsubstantiated allegations, in the face of a request for an investigation by the accused, runs counter to the principle that a person is presumed innocent until proven guilty. It also runs counter to the notion that individuals, once made aware of a concern, can grow and improve based on the experience. It would have been inappropriate for McArthur to have considered mere unproven allegations.

C. Kent's Statement Regarding Fiser's DOL Activities TVA agrees with Staff that Kent, after a Peer Team meeting and before the SRB was to begin interviewing candidates for the PWR Chemistry Program Manager position, advised McArthur that, as a result of Fiser's 1996 DOL complaint, "he

'thought it would be best' if McArthur did not actively participate in the SRB" (SF&C

¶ 2.186), including "not be[ing] a voting member" (SF&C ¶ 2.191). As Staff states (SF&C ¶ 2.187), Fiser told Kent about the 1996 DOL complaint "and mentioned that McArthur was involved with the complaint." TVA further agrees with Staff that "Kent concluded that because McArthur had been involved with both the 1996 complaint and the earlier complaint, that he [McArthur] should not participate in the SRB in order to remove any perception of a problem with McArthur's objectiveness" (SF&C ¶ 2.187).19 The record is undisputed that McArthur accepted the advice and did not participate in the SRB process (Corey p. 2881, ii. 23-24; Rogers p. 5178, 1. 17-p. 5179, 1. 8; SF&C

¶ 2.191).

19 Kent's comment was directed to McArthur; however, as stated by Staff, it was overheard by Corey and Cox, who both thought it was a reference to Fiser's earlier 1993 DOL complaint (SF&C ¶ 2.188; TVAF&C ¶ 9.51). Corey was an SRB member. Cox, of course, had a conflict and did not participate in the selection process.

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The content and nature of Kent's counsel to McArthur was cautionary, not invidious. This is borne out by Cox, a Fiser ally, who heard Kent's comment to McArthur. Cox testified that Kent "was recommending to Mr. McArthur that he not participate and not ask any of the questions and that sort of thing, and it was strictly from the standpoint of making sure that there was nothing even perceived to be inappropriate as part of the selection" (SX135 (Cox) p. 138, 1. 24-p. 139, 1. 4).

Despite the cautionary nature of the advice and McArthur's decision not to participate in the SRB process, Staff relies on the fact that "McArthur was still the final decision-maker" as the basis for the inference that McArthur was nevertheless "influenced by Fiser's complaint" (SF&C ¶ 2.191). This inference is impermissible and inconsistent with the evidence. It is undisputed that, with knowledge of Fiser's filing of the 1996 DOL complaint, McArthur, as the selecting supervisor, reviewed the selection package provided by HR and selected Fiser, Harvey, and Chandra as the qualified candidates who would be interviewed for the PWR Chemistry Program Manager position (McArthur p. 1498, 1. 17-p. 1499, 1. 7; JX21 at GG000212). Moreover, having no participation in the SRB process, McArthur simply chose to accept the SRB' s recom-mendation (JX21 at GG000212), which is a virtually universal practice adhered to by selecting supervisors at TVA (Fogleman p. 5467, 11. 3-10). In fact, McArthur' s reliance on the SRB was an effective way for him to avoid even the appearance of tainting the selection.

10. Witness Credibility

a. McGrath The Staff attacks McGrath's credibility (SF&C ¶ 2.193) claiming that his testimony did not agree with others that trending was an important issue at an NSRB meeting. The Staff incorrectly claims that "McGrath is the only person present at the meeting who testified in this manner." The transcript pages cited by the Staff belie their 77

contention. McGrath's testimony was that "there was no meeting that I was in where data trending was a big issue with me" (McGrath p. 395, 11. 7-13). In fact, McArthur testified:

Q.

And do you recall what were the major issues discussed?

A.

PASS was a major issue, unreleased monitoring (sic) were probably the two major issues. And we had some trending concern, trending analysis that were kind of a secondary issue [McArthur, p. 1400,

11. 6-11].

Richie's testimony was that it was an issue between Fiser on the one hand and Jocher and Peterson on the other hand (Richie p. 4703, 1. 5-p. 4707, 1. 3). Nor did Richie testify that the NSRB requested Fiser to institute a trending procedure as asserted by the Staff. Although the Staff claims that McArthur said that McGrath was upset about trending, the testimony cited shows that McArthur was not clear about whether it was Peterson or McGrath (McArthur, p. 1409, 1i. 10-18).

The Staff's argument (¶ 2.194) that the NSRB minutes show that trending was a significant issue is simply wrong. The key issue as stated in the minutes was that the sheer number of problems that were not being addressed could potentially impact on plant chemistry control. As McGrath testified, trending, in and of itself, was not even significant enough to warrant being designated as an action item.

The Staff also argues with McGrath' s testimony that he was unaware of the Sasser letter. Although there is no evidence that a copy was ever sent to him, the Staff would have the Board suppose that a copy was sent to him, and then further suppose that McGrath lied about it. That type of wishful thinking cannot be the basis for a finding that the Staff has carried its burden of proof.

The Staff argues (SF&C ¶ 2.198) that McGrath should not have allowed McArthur and Kent to participate in the SRB because a review of Fiser's 1993 DOL "complaint and the investigation" would have shown that they should not have been involved in the selection. However, McGrath never saw the 1993 DOL complaint or the 78

investigation. The Staff's argument that McGrath was not credible because he would have drawn a different conclusion had he seen documents, which it is undisputed that he did not, is incredible.

At bottom, the Staffs attack on McGrath's testimony reflects nothing more than the Staff's disagreement with McGrath's testimony. Throughout his testimony, McGrath was professional, dignified, consistent, and logical. He did not attempt to avoid answering questions or embellish his testimony, as did Fiser. Nor did he demonstrate any axe to grind or display open hostility, in clear contrast to Fiser.

b. McArthur The Staff also attacks McArthur's credibility (SF&C ¶¶ 2.199-2.207),

complaining that he was "nonconfrontational" by nature (SF&C ¶ 2.199). However, nonconfrontational demeanor does not render a witness noncredible. The Staff attacks McArthur for not supporting Fiser in 1993 for the SQN Chemistry Manager job, and says he "lied to Fiser when he said he would support him in finding a new position" (id).

That argument is specious. McArthur did tell Fiser he would support him, but it is obvious that McArthur could not support Fiser for a job he could not do, which the Staff so much as admits. "McArthur had the right to give a negative opinion regarding Fiser to Kent" (id.) about his past performance as Sequoyah Chemistry Manager. It does not follow that McArthur's testimony in this case must now be completely discounted.

The Staff also faults (SF&C ¶ 2.200) McArthur's testimony about Fiser's surreptitious tape recording and claims it is internally inconsistent. McArthur's testimony that he was not uncomfortable being taped is not in the least inconsistent with his personal opinion that such taping was offensive. On the one hand, he was not uncomfortable because he said he was an honest person. On the other hand, he thought the taping was not very professional. These two views can exist side by side very easily.

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Staff also attempts to create a conflict in McArthur' s testimony that Cox expressed a preference for Fiser (SF&C ¶¶ 2.201-2.204). Both McArthur and McGrath were clear that McArthur reported Cox's expressed preference at the same time that he reported Cox's unavailability to serve on the SRB. The day of the SRB, Cox again expressed his view on Fiser to Kent and Corey. The Staff seeks to confuse the fact that Cox made two statements on two different days; instead the Staff paints it as one statement the day of the SRB. In fact, Cox's testimony shows that he raised the issue of his opinion about Fiser.

Q.

The morning of the interviews, did you have a peer team meeting?

A.

Yes.

Q.

At some point, either during this meeting or during a break or afterwards, did you make a comment about Mr. Fiser' s performance to the other rad chem managers?

A.

Yes, I did.

Q.

What was the comment?

A.

Told them that since I was not going to be able to participate in the board, that I just wanted to let them know that Mr. Fiser performed very well for us, that we were pleased with performance and I just wanted to make sure that that was considered [Cox p. 1760, 11. 11-25]

Q.

Did you have any discussions with Mr. Voeller about his opinion of the candidates for the position?

A.

Yes.

Q.

And did you have more than one conversation with him?

A.

Ongoing conversations, yes.

Q.

Numerous conversations with him?

A.

Yes.

Q.

And did Mr. Voeller express an opinion as to who he thought would be a good fit or the best person for the job?

A.

From the perspective of Watts Bar, he thought it was probably Mr. Fiser, because he was most familiar with our procedures.

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Q.

And these conversations that you had with Mr. Voeller occurred before you indicated to Dr. McArthur that you could not participate in the SRB.

A.

Yes.

Q.

And then at some point after these conversations with Mr. Voeller is when you indicated to Dr. McArthur that you could not participate is that correct?

A.

That's correct.

Q.

And at the time or at some point in time - I think you testified that between the time of the peer time meeting and the beginning of the SRB with respect to these 1996 positions, you then put in for what it's worth, your opinion as to the selections, is that correct?

A.

Correct [Cox p. 1773, 1. I-p. 1774, 1. 19].

The Staff attempts to make much out of McArthur's reporting of Cox's preference for Fiser. However, both McArthur and McGrath said the statement was unimportant since Cox was unavailable in any event. In the very portion of the transcript cited by the Staff (McArthur p. 1615, II. 8-19), McArthur testified " [i]t turns out that didn't make any difference because he wasn't going to be on it anyway." No inference should be drawn from the lack of action regarding the statement, since the issue was simply mooted by Cox's unavailability, and did not require any action.

The Staff argues (SF&C ¶ 2.203) that McArthur's concern over Cox's preference for Fiser is not different than the fact that "Kent was predisposed to want Harvey" because he had asked about having him transferred to Sequoyah. However, this argument does not support a theory that McArthur is not credible. In McArthur's view, it seemed that Cox "had preselected Gary before we had the selection review board" (McArthur p. 1616, 11. 3-13). On the other hand, Kent had not expressed any opinion about selecting Harvey for the Chemistry Program Manager job. While Kent did express some interest in having Harvey at Sequoyah, he was not interested enough to telephone McGrath or to send a memo making a formal request to have him transferred.

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The Staff argues that McArthur failed to take any action regarding Kent' s reference to Fiser's DOL complaint (SF&C ¶ 2.204). First, that issue is simply irrelevant to credibility. Second, McArthur did indicate to Kent that it was not an appropriate topic and changed the subject. Third, because it is undisputed that the statement was not pejorative, but intended to be of benefit to Fiser, no action was required to "ensure that the statement did not adversely affect the selection process" (id.). Fourth, there is no similarity between Cox and Kent's statements. McArthur was concerned that Cox's statement indicated that he may not be an appropriate member for the SRB since he may have preselected Fiser. On the other hand, Kent's comment was a caution to be fair to avoid even the appearance of a bias.

The Staff attempts to create an inconsistency (SF&C ¶ 2.205) in McArthur's testimony based on loose questioning at the PEC by Staff counsel.

McArthur testified that after receiving the SRB's recommendation he looked at the whole package, as he always did, before accepting the SRB input as his own decision (McArthur p. 1521, 1. 17-p. 1522, 1. 4; p. 1525, 11. 8-18). The Staff insists that the fact that McArthur did not disclose that last review at the PEC makes his testimony incredible. McArthur said that he "did both"; he took the SRB's input and he reviewed the information (McArthur p. 1526, 11. 3-14). Had the Staff wanted more specific answers at the PEC, they could have asked more specific follow-up questions, especially given that they were all well aware that McArthur was very ill the day of the PEC due to chemotherapy treatments he was undergoing at the time.20 In fact, McArthur' s memory of the events from 1993-1999 was very sharp given that he was battling cancer and undergoing treatments during much of that time (id.; McArthur p. 1637, 1. 12-17;

p. 1429, ii. 5-16; JX27 at 78).

20 McArthur even joked at the PEC about his inability to stay focused due to his illness, "I've asked [Mark Burzynski] to be here and [he] knows all the facts that I' m going to relate today; and I tend to wander sometimes, so he's here to slug me if I wander too much" (SX134 (McArthur) at 5, 11. 15-18).

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The Staff's disagreement (SF&C ¶ 2.206) with McArthur's assessment of Fiser's and Harvey's experience is entitled to no weight and it certainly does not impact on McArthur's credibility. First, the Staffs disagreement with what McArthur thought was important does not make McArthur's testimony any less credible. That is a major flaw in the Staffs analysis of his proceeding. The fact that TVA could have done things differently or even, in hindsight, better is not evidence of discrimination or even lack of credibility. And second, the Staff is only quibbling with the fact that McArthur evaluated Fiser's and Harvey's work history to determine if they had management experience in the relevant area. It is clear that McArthur was looking not only for the length of experience but also at the quality of experience (McArthur p. 1653, 1. 13-

p. 1660, 1. 17).

The Staff's argument (SF&C ¶ 2.207) about INPO evaluations misses the mark. As Beecken pointed out, the remark in Fiser's FY1992 performance appraisal (JX33) was about an INPO assist visit; it did not cover the 1993 INPO evaluation which occurred shortly after the appraisal was issued. Further, the Staff mischaracterizes McArthur's testimony that "you couldn't attribute that to his time frame there. Part of it,... So you couldn't attribute all those successes to him." (McArthur p. 1555,

11. 13-20). In management's view, Fiser was responsible for the problems noted in the later INPO evaluation because, as Beecken explained to him, they were long term in nature and had not occurred overnight.

c. Kent The Staff "challengers] the credibility of Kent in two areas, both related to the attempted transfer of Harvey to a position at SQN" (SF&C ¶ 2.208). As to the first, Staff asserts that "Kent gave contradictory information regarding the existence of a vacancy at SQN" in 1996 (SF&C ¶ 2.209) and that "there is sufficient evidence in the record to conclude that Kent believed in 1996 that he had a vacant Chemistry position 83

into which Harvey could have been transferred" (SF&C ¶ 2.212). On the basis of "the relevant factor" of what Kent purportedly believed in 1996, Staff urges that the Board should resolve the conflict and "concludejj that SQN did have a vacant Chemistry position into which Harvey could have been transferred had McGrath not obstructed the transfer" (id.).

Even assuming the existence of a conflict between Kent's earlier and later statements as to what Kent believed in 1996, resolving that conflict is a fruitless exercise because, contrary to Staff's position, it is irrelevant as to whether he believed that he had a vacancy in 1996. To the contrary, McGrath is the alleged discriminating official identified in the NOV, and the relevant inquiry here is what McGrath believed and did with regard to this issue in 1996. The evidence is undisputed that McGrath knew that under HR rules Harvey could not be transferred to Sequoyah regardless of whether there was a vacant position in the Chemistry organization at Sequoyah in 1996. In response to an inquiry from Grover about the possibility of such a transfer, McGrath confirmed with TVAN HR that neither Harvey nor his position could be transferred to Sequoyah consistent with TVA's HR procedures that implement OPM regulations (McGrath

p. 830, 11. 8-16; p. 831, 11. 1-7). In fact, HR informed him that, in order for such a transfer to work, the entire function-all three Program Manager positions-would have to be transferred from the corporate organization to the three different sites (McGrath

p. 828, 1. 15-p. 829, 1. 8; p. 833, II. 2-13; SX135 (Boyles) p. 107, 1. 20-p. 108,

1. 14).

In any event, Kent's hearing testimony is entirely consistent. Staff argues that, on direct examination, Kent first "admitted that he had a vacancy in the Chemistry organization that had been vacated by an individual who had left to work at Carolina Power & Light," but later in his direct examination Kent purportedly contradicted himself when he "also denied having a vacant position on his organizational chart into 84

which Harvey could have transferred" (SF&C ¶ 2.209).21 Staff s contention that these two statements are contradictory reflects its fundamental misunderstanding of TVA's policies for filling vacant positions. During Kent's direct examination, counsel for Staff failed to ask Kent whether he believed in 1996 that Harvey could be transferred to Sequoyah consistent with TVA's HR procedures that implement OPM regulations.

Despite this failure on counsel's part, Kent testified truthfully that, while Fender's old position remained unfilled during the relevant time period, this was not a position-as HR confirmed-into which Harvey could have been transferred consistent with TVA's HR procedures that implement OPM regulations (McGrath p. 828, 1. 15-p. 829, 1. 8;

p. 833, ii. 2-13; SX135 (Boyles) p. 107, 1. 20-p. 108, 1. 14). Having a vacant position resulting from the resignation of an employee does not automatically vest that employee's manager with the right to fill that position. That manager must obtain the approval of management to do so (Corey p. 2853, ii. 3-15). In this case, Kent had not even sought approval to replace Fender (SX74 (Kent dep.) p. 120, 1. 25-p. 121, 1. 3; SX135 (Kent) p. 107, 11. 3-11). Therefore, Kent was correct that he did not have a vacant position into which he could have transferred Harvey (even if such a tranfer would have been consistent with TVA policy).

Because Harvey could not have been transferred to Sequoyah consistent with applicable TVA policy, the only option available was for Kent to post the position vacated by Fender (McGrath p. 827, 1. 22-p. 828, 1. 14; p. 830, ii. 8-16). If Kent had obtained approval to post the position left vacant by Fender's resignation, Kent could have advertised the position and selected Harvey, if he was the best qualified applicant (id.). However, as stated above, Sequoyah Chemistry did not have a vacancy which it 21 Bruce Fender was the person who left Sequoyah Chemistry for a position at Carolina Power & Light (SX74 p. 113, ii. 1-19). Fender's former position in Sequoyah Chemistry was Technical Support Manager (id. p. 117, 1. 23-p. 118, 1. 6).

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had been approved to fill and Kent never even pursued the possibility (SX135 (Kent)

p. 107, 1i. 3-11).

Second, Staff also questions Kent's credibility because "[t]here is also conflicting evidence regarding who initiated the attempted transfer of Harvey to SQN" (SF&C ¶ 2.213). Similar to Staff's first attack on Kent's credibility, the fact Kent first recalled that he, instead of Grover, initiated discussions about the possibility of trans-ferring Harvey to Sequoyah is not relevant. Again, McGrath is the alleged discrimina-ting official identified in the NOV, and the relevant inquiry on this point is whether McGrath initiated the discussions or blocked a transfer for retaliatory reasons. The evidence is undisputed that McGrath did not seek to have Harvey or any of the other candidates for the PWR Chemistry Program Manager position transferred to Sequoyah or any of the sites (McGrath p. 544, 1. 22-p. 545, 1. 13; Harvey p. 4977, 1. 16-

p. 4978, 1. 5). As stated, above, Grover approached McGrath about the idea of a possible transfer of Harvey. McGrath then consulted HR who advised him that neither Harvey nor his position could be transferred to Sequoyah consistent with TVA's HR policy or OPM regulations (McGrath p. 830, 11. 8-16; p. 831, II. 1-7). After that, the matter was dropped.

Moreover, the evidence is consistent that Grover, not Sequoyah management, was the impetus in attempting to get Harvey transferred to Sequoyah because a transfer was consistent with Grover's philosophy of saving someone's job in Corporate (Harvey p. 4977, 1. 16-p. 4978, 1. 5; McGrath p. 544, 1. 22-p. 545, 1. 13).

In fact, Sequoyah's interest in the transfer was so low that no one from Sequoyah even called McGrath to inquire about the possibility (SX74 (Kent dep.) p. 115, II. 3-15; McGrath p. 544, 1. 22-p. 545, 1. 13).

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d. Boyles The Staff argues that Boyles is not credible because the Staff disagrees with the decision to place McArthur into the RadChem Manager position (SF&C

¶¶ 2.216-2.220). The Staff claims that Boyles "has told a number of different stories" (SF&C ¶ 2.217). The Staff's disagreement with Boyles is nothing but that: a disagreement regarding implementing TVA procedures with respect to what Boyles characterized as an odd ball "problem" case (Boyles p. 3861, 1. 17-p. 3862, 1. 1;

p. 3864, 1. 21-p. 3865, 1. 13; p. 3905, 11. 1-16)). The Staff's allegation of changing stories reflects a very demanding and judgmental approach regarding a witness who has testified many times on events that occurred many years ago.

Over the past six years, Boyles has had to explain the decision regarding the RadChem Manager position several times to different people with different levels of understanding. However, Boyles has always explained that the process used to make the decision was to review McArthur's 1990 position description, and the RadChem Manager position description (Boyles p. 3888, 1. 12-p. 3889, 1. 20; SX133 (Boyles) at 22-23; SX4; SX6 at 8, 21-22). As he explained, he and Easley compared job descriptions to determine whether to post jobs, although they did not typically use the terminology in TVA's personnel manual instructions (Boyles p. 3888, 1. 14-p. 3889,

1. 20). In making those determinations, HR followed the guidance received from Labor Relations and OGC to use official job descriptions even where they were out of date (Boyles p. 3895, 1. 20-p. 3896, 1. 12).

Throughout this proceeding, it seems that the Staffs procedure is to get a witness to offer testimony four, five, or six times, and then argue that the witness is untruthful because they describe the same process differently. The Staff would have the Board focus on the semantic differences in Boyles' testimonies. However, the evidence is irrefutable (which the Staff does not even discuss) that shows that Boyles documented 87

the process used to make the determination to place McArthur in the RadChem Manager position. A document prepared in 1996, and which includes Boyles handwritten note, shows that Boyles looked at the scope of the responsibilities of the job when "McArthur was appointed Manager, Technical Programs, Operations Services, from 12/20/90 to 8/10/94," the fact that there was a reorganization in 1994 and an individual served over RadChem Chemistry on a temporary/rotational basis, and finally the 1996 reorganization of Technical Support during which the RadChem Manager job was established (JX21 at GG000210). The document goes on to look at the scope of the responsibilities of that job (id.). That was the working document Boyles and Easley used for discussions and which Boyles relied on to make the "determination that Wilson McArthur had rights to the radcon chemistry manager position" (Boyles p. 4071, 1. 20-p. 4073, 1. 2).

The Staff wants to quibble over the details as to that determination (SF&C

¶ 2.220). TVA does not dispute that Boyles' determination was a judgment call and it is possible that others might have decided the matter differently. However, if Boyles made a mistake, that would be irrelevant to whether the decision to post the Chemistry Program Manager position was motivated by an intent to discriminate against Fiser.

First, the Staff's official position is that it does not make any contention regarding whether the Chemistry Program Manager position should have been posted or was interchangeable with the Chemistry and Environmental Protection Program manager position (TVAX1 13 at 7, Staff's Answer to Interrogatory No. 9). Second, Boyles, with the concurrence of Reynolds, made the decision to place McArthur in the position (SX135 (Boyles) p. 42, 1. 17-p. 43, 1. 22; McGrath p. 732, 11. 8-18) and the Staff does not contend and there is no evidence that he did so for any reason other than the one he stated. Third, there is no evidence that McGrath influenced him to make that decision.

Fourth, HR used the same process, a comparison of position descriptions, to determine that the new Chemistry Program Manager position should be advertised (SX135 (Boyles)

p. 42, 1. 17-p. 43, 1. 22; McGrath p. 505, 1. 18 -p. 506, 1. 24).

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e. Grover The Staff argues (SF&C ¶¶ 2.221-2.227) for Grover's credibility.

Although Grover's credibility and bias is addressed above (at 26-27, 33-36, 45, 46, TVAF&C ¶¶ 5.4, 5.5), one additional point needs to be made. The Staff's argument about Grover's credibility is premised on the purported consistency of Grover's various statements. However, they are not consistent. Grover has changed his testimony and may have done so based on discussions with Staff counsel. At his January 29, 1998, deposition, Grover testified that if the job description is changed by " 15 percent of the original position description, then you're required to post the position and rehire - and rehire in, you know, bid it and rehire in" (SX52 p. 60, 11. 18-21). Then at Grover's December 14, 2001, deposition, he testified that "HR had a policy of using a certain percentage. I believe it was thirty, thirty five percent. If the job description changed by more than that, then the requirement was - or, the policy was that it had to be posted and advertised" (SX54 p. 21, 1i. 1-5). Grover admitted that prior to the deposition he met with Staff counsel, Euchner and Dambly, for about two hours (SX54 p. 15, 11. 3-15).

He then admitted that the percentage was a subject of conversation.

Q.

Was that [the percentage change] a subject of discussion between you and Mrs. Euchner and Mr. Dambly on December 2nd was the significance of changing position descriptions?

A.

That was one of the questions they brought up.

Q.

Did you discuss with them the standard that HR used for changing position descriptions as to whether or not they need to be advertised?

A.

Yes.

Q.

Was there a discussion about the percentage?

A.

Yes [SX54 p. 22, 1. 21-p. 23, 1. 7].

When he was confronted with the fact that he had changed his testimony from his January 29, 1998, deposition, Grover claimed not to "recall the exact percentage" and that "we followed what the policy was with HR" (SX54 p. 26, II. 4-14).

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Although he had previously admitted discussing the percentage with Staff counsel, he then tried to deny having the discussion, but then was forced to admit that they had in fact discussed it.

Q.

Was that a topic of discussion A.

We -- I mean, it wasn't Q.

Was it brought up?

A.

Yeah. We talked about it, yeah. But they didn't suggest any --

I mean, we just talked about it and I thought I recalled it was something significant, thirty, thirty five percent. I don't remember what the exact was--the percentage was at the time [SX54 p. 26, 11.

20-21].

Grover was then asked if Staff counsel had told him of the testimony of other witnesses.

Q.

Did they tell you what the testimony had been by any other witnesses with respect to what that degree of significance would be?

A.

No.

Q.

Was there any discussion of Ben Easley in your conversation with them?

A.

I don't recall us talking about Ben Easley [SX54 p. 28, 11. 2-8].

As the record shows, Easley was the only witness who testified that if a position description was changed by thirty five percent or more, the job had to be posted (Easley p. 1285, 11. 12-18).22 Then after denying that he had any discussion about Easley, Grover admitted that Easley and his involvement in the process were discussed with Staff counsel.

Q.

Ben Easley's name never came up?

A.

Like I said, I don't recall. It may have come up as far as we were -

-he was the HR person at the time I think. His name did come up, because we talked about that process with the interviews, you

• know, the job description, who was involved with the process of setting up the selection boards and that sort of thing. So his name did come up [SX54 p. 28, 11. 9-16].

22 This testimony was despite the written TVA instruction that did not contain such a numerical standard (JX 67).

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At the hearing in this proceeding, after having been caught changing his testimony during his depositions, Grover changed his testimony back.

Q.

Do you know whether TVA has a policy on that [changing job descriptions] or had at the time?

A.

Yes.

Q.

What is that policy?

A.

That if the position description changed by a certain percentage, I believe it is 15, 20 percent, thereabouts, somewhere in that vicinity, it required, there was a requirement to post that position

[Grover p. 1884, 1. 18 - p. 1885, 1. 2].

Q.

Were you required to compete for the new position that was created?

A.

Yes we - the procedure, the human resources procedure at the time, as I recall, required that if a change in organization, or change in job functions exceeded a certain percentage, 15, 20 percent, then we were required to - and that was reflected in the job descriptions associated job descriptions It was a requirement that all of the positions have to be vacated, and individuals that met the qualifications were allowed, an opportunity to apply, and interview for that position [Grover p. 1824, 11. 2-14].

When Grover was confronted with the fact that he had asserted in his most recent deposition that the percent was thirty or thirty five, he claimed he had made it clear that he did not remember the exact percentage.

A.

Well, as I said yesterday, I said I don't remember the exact percentage. It could have been 15, 20, 30 percent, I don't remember exactly. It is in my deposition, whatever that percentage was, that is what I recalled at the time [Grover p. 2112, 11. 3-7].

Grover kept backing up until he claimed not to know the percentage, that it was HR's policy, that HR made the determination, and he followed HR' s direction (Grover p. 2117, 11. 1-22). This is but one example of Grover's evasiveness, argumen-tativeness, and lack of credibility.

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III.

CONCLUSIONS OF LAW A. The NRC's Authority Over Whistleblower Retaliation Claims Is Not in Issue.

The Staff has a long discussion (SF&C ¶¶ 3.1-3.6) of the NRC's authority to issue 10 C.F.R. § 50.7. TVA does not dispute that authority, and it is not an issue in this case. Likewise there is no issue in this case with respect to Section 211 of the ERA and the activities protected by Section 50.7 (SF&C ¶¶ 3.7-3.9).

TVA does disagree with the Staff's position as to the appropriate source of law by which to interpret Section 50.7. As pointed out in TVA's findings (TVAF&C

¶ 13.3), Section 50.7 implements Section 210 of the ERA, the predecessor to Section 211, and it is the authority by which Section 50.7 was issued. The NRC is not free to change the interpretation of its regulation on an ad hoc basis; it must do so in an administrative rulemaking in accordance with the Administrative Procedures Act.

Section 50.7 must therefore be interpreted consistently with the former Section 210, except insofar as it has been amended to include activity protected by Section 211.23 The Staff confuses specific intent with ignorance of the law (SF&C

¶ 3.13, n.23). TVA agrees that ignorance of the law (i.e., ignorance of the existence of Section 50.7 or its requirements) is not a defense. However a violation does require specific intent on the part of the alleged discriminating official. Stated another way, the Staff has the burden to prove that a supervisor was motivated to taking an adverse action because of the employee's protected activity. Knowledge of the law is not required, but proof of motivation is required. Motivation is central to Section 50.7 which prohibits adverse action "because of" protected activity.

23 Similarly the NRC is not free to interpret Section 50.7 so as to adopt changes made to Title VII by the Civil Rights Act of 1991 (CRA), as the Staff urges (SF&C

¶ 3.12).

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B. Federal Discrimination Case Law Establishes the Paradigm to Be Used Under Section 50.7.

TVA and the Staff are in agreement as to the analytical framework of a prima facie case to be applied in this proceeding (SF&C ¶¶ 3.14-3.17).24 In Attachment Two to their findings and conclusions, Staff responded to Judge Young's request (Judge Young p. 4442, 1. 9-p. 4446, 1. 13) to the parties to brief the issue of whether the Board is compelled to make a finding of discrimination if it determines that "neither one of your [Staff's or TVA's] versions is correct" (id. p. 4446,

1. 9). TVA briefed this issue in paragraph 15.10 of its proposed findings and conclusions.

Staff argues that, " [i]f the Board disbelieves TVA's stated nondiscriminatory basis, then the only option for the Board is to make a finding of intentional discrimination" (Attachment Two at 3). Staff simply misreads the applicable law. To the contrary, even if TVA' s reasons for its actions were incorrect, that would not establish that they were pretexts for discrimination. The law has long been established (by the case identified by Judge Young) that even though an employer' s reasons may not be correct, a judgment against the employer is not comp elled-the plaintiff still must show that "intentional discrimination caused the employer to take some unfavorable action." Benzies v. Illinois Dep't of Mental Health & Dev. Disability, 810 F.2d 146, 48 (7th Cir. 1987). Benzies specifically noted that a "public employer may feel bound to offer explanations that are acceptable under a civil service system" as opposed to "personal or political favoritism, a grudge, random conduct, [or] an error" (id.). The Seventh Circuit was prescient in that the Supreme Court's decisions in St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993) and Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000), have only reaffirmed the principle that "it is not 24 Because the relevant paradigm predates Section 211, the Staff has the burden to prove "but for" causation, not that discrimination simply played a part in the decision.

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enough to disbelieve the employer, rather than the factfinder must believe the plaintiff's explanation of discrimination." Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 599-600 (6th Cir. 2001).

The Sixth Circuit's decision in Gray thus negates Staff's argument that that, "[a]fter Reeves," the Board is compelled to make a finding of discrimination if it determines that TVA's stated is incorrect. Similarly, Staff's contention that the principle enunciated in Benzies is "completely foreclosed in an NRC proceeding" because of the complete and accurate information requirement in 10 C.F.R. § 10.59 (2002) finds no support in the text of 10 C.F.R. § 10.57. As the Supreme Court recently held, in con-struing a statute or regulation "the most salient source for guidance is the statutory [or regulatory] text." Nat'l R.R. Passenger Corp. v. Morgan, 122 S. Ct. 2061, 2070 (2002). A review of the plain language of 10 C.F.R. § 10.59 reveals nothing that supports Staffs position. Rather, this is a discrimination case brought under 10 C.F.R.

§ 10.57 and governed by the principles enunciated in McDonnell Douglas as refined by St. Mary's Honor Ozr. and Reeves.

C. The Standard of Proof in a Dual Motive Case Is Irrelevant to this Proceeding.

The Staff's discussion of standards in a dual motive case is irrelevant to this case since there is no evidence that discrimination was a motivating factor. This is not a dual motive case. Further the Staffs reliance on the CRA and Section 211 is irrelevant for the reasons set forth in TVA's findings (TVAF&C ¶¶ 13.3, 13.4).

D. This Proceeding Does Not Involve the NRC's Complete and Accurate Information Requirement.

The Staff's position (SF&C ¶¶ 3.24-3.25) with respect to 10 C.F.R.

§ 50.9 is irrelevant in this proceeding. This is not a proceeding for an alleged violation of Section 50.9 and TVA is not asserting any claims or defenses inconsistent with 94

information it has previously provided or been required to provide. The fact that a fuller version of the facts has been developed following months of depositions and many weeks of hearing, than in a few hours at a Predecisional Enforcement Conference is not surprising and cannot realistically or naturally be viewed as a Section 50.9 violation.

We would also note that because of the requirements of Section 50.9, the information provided by TVA should be entitled to greater weight and credence than that provided by nonlicensee or employee personnel, i.e., Fiser, Grover, Easley, or even Staff.

In this case, Staff continues to rely upon the false testimony of Fiser that he identified, reported, and documented a number of safety concerns in the face of undis-puted evidence that he did not identify, report, or document such concerns (TVAF&C

¶¶ 4.12-4.19, 4.32-4.37). In addition, as described below, Staff advocates legal arguments that are directly contrary to controlling Sixth Circuit law and other legal and factual arguments that are chronologically impossible. And Staff continues to adopt theories in this proceeding-that are not contained in the NOV. While Staff talks about TVA's Section 50.9 obligations, Staff ignores that it has an obligation to provide complete and accurate information to the Board. See United States v. Recio, 123 S. Ct. 819, 824 (2003) ("The prosecutor, like the defendant, should be required to turn square corners.") (STEVENS, J., dissenting).

E. Fiser Did Not Engage in the Protected Activities He Claimed and the Protected Activitites in Which He Did Engage Were Insignificant.

By filing a DOL complaint in 1993 and 1996 and by sending copies of the Sasser letter to the NRC, Fiser engaged in protected activity. However, as discussed previously, Fiser did not engage in protected activity with respect to most of the matters stated in his DOL complaints or the Sasser letter. At the time the issues stated in his 95

DOL complaints or the Sasser letter first arose, Fiser did not engage in conduct within Section 50.7(a)(1)(i), since he did not " [p]rovid[ ]... information about alleged violations."

The Staff incorrectly asserts (SF&C ¶ 3.31) that Fiser's refusal to do trending is within the protection of Section 50.7(a)(1)(ii) for "[rlefusing to engage in any practice made unlawful" under the AEA or ERA. It was not protected activity.

Trending is not illegal, requiring daily trending is not illegal, and a procedure requiring trending is not illegal. Moreover, Fiser's disagreement with the need or efficacy of trending is also irrelevant. "If NRC regulations permit companies to achieve compliance by several different means, management has the prerogative to choose the means it considers appropriate" Pensyl v. Catalytic, Inc., 83-ERA-2, at 5 (Sec'y Jan. 13, 1983).

Fiser's alleged concern that he might fail and therefore cause a violation does not excuse his performance.

The law is clear that even where an employee has a reasonable concern of a violation, after the employer explains that no violation exists, the employee's refusal to work is no longer protected. Of course, Fiser did not even allege a present violation, only the possibility that he might be unable to copy at some point in the future. See, e.g., Stockdill v. Catalytic Indus. Maintenance Co., 90-ERA-43 (Sec'y Jan. 24, 1996),

in which the Secretary of Labor held that the complainant's initial concerns about wearing a dust mask lost their protection after the employer adequately responded to the concerns. As stated in Pensyl v. Catalytic, Inc., 83-ERA-2:

A worker has a right to refuse to work when he has a good faith, reasonable belief that working conditions are unsafe or unhealthful.

Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience.... Refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials and government inspectors, if appropriate, and, if found safe, adequately explained to the employee [at 4-5].

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See also Sartain v. Bechtel Constructors Corp., 87-ERA-37, slip op. at 7-10 (Sec'y Feb. 22, 1991); Wilson v. Bechtel Constr., Inc., 86-ERA-34, slip op. at 9-11 (Sec'y Feb. 9, 1988); Smith v. Catalytic, Inc., 86-ERA-12, slip op. at 3 (Sec'y May 28, 1986).

Actual safety is not the issue; the issue is whether the employee had a reasonable, good faith belief that conditions were unsafe, and whether the employer provided sufficient information to dispel these concerns and adequately explained the safety issues raised.

If the employer is in full compliance with NRC regulations, and that fact as well as the reasons are adequately explained to employees, the refusal to work loses its protection under the ERA.

The cases cited by the Staff (SF&C ¶ 3.32) are inapposite. Those cases were decided under the "opposition" clause in Title VII and are totally irrelevant to whether Fiser refused to engage in a practice made unlawful under the ERA or the AEA (10 C.F.R. 50.7(a)(1)(ii)). Title VII's "opposition" clause is unlike a "refusal to work" under Section 50.7. As explained above, an employee's refusal to work loses its protected character after the employer explains that no violation exists.

The Staff misrepresents (SF&C ¶ 3.30) that Fiser engaged in protected activity with his involvement in "identification and resolution" of problems with the diesel generator fuel storage tanks. As discussed above, he was not involved in finding, raising, or documenting the issue. Although he was involved in the resolution of the issue, that is simply irrelevant here. First, the Staff conflates his involvement in the resolution with "his role in this issue" (id.). The two are not the same. If someone was considering discipline against Fiser when the issue was first raised as he testified, it was because of his failure to find the issue not because of his involvement later as the event manager. Second, this particular issue which arose in 1989 is irrelevant to this proceeding - it was not cited in the NOV by the Staff as a basis for the alleged discrimination. Third, there was no evidence that McArthur or McGrath were ever aware of the issue or Fiser's limited involvement. McGrath did not work at Sequoyah 97

and McArthur was not even employed by TVA when the issue arose. They clearly were not parties to the discussion of disciplining Fiser for failing to find the issue.

Finally, the Staff misstates (SF&C ¶ 3.35) TVA's position as to the Sasser letter and Fiser's 1993 DOL compliant. We have never denied, and do acknowledge, that both of Fiser's DOL complaints and the Sasser letter were themselves protected activities. TVA's position is that there was no retaliation by McGrath and McArthur for these limited protected activities. However, Fiser's involvement with the issues stated in those documents was not protected activity. Nor is there any evidence that those issues motivated McGrath or McArthur to later retaliate. We also acknowledge that echoing issues that have been discovered and documented by others could constitute protected activity. Thus, Fiser's recounting of issues in the Sasser letter and in his 1993 DOL complaint that had already been resolved was protected. However, the Staff misses a crucial point - lack of motive. Why would successful nuclear managers whose careers had been devoted to nuclear safety be motivated to discriminate against Fiser for simply parroting issues that had already been raised, resolved, and passed into history?

F. The Adverse Actions Fiser Incurred Were A Result of a Legitimate Reorganization, Not Motivated by Discrimination.

The Staff misunderstands (SF&C ¶ 3.37) the concept of adverse action as it relates to federal employment. A competitive level determination is not by itself an adverse action. See Hollins v. Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999) (An adverse employment action "might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation."); Jackson v. City of Columbus, 194 F.3d 737, 752 (6th Cir. 1999) (listing as examples of adverse employment action: "a termination 98

of employment, a change in salary, demotion, loss of benefits, decreased work hours, or significantly diminished material responsibilities"). Had Reynolds not offered Fiser a Chemistry Program Manager position (TVAF&C ¶¶ 10.1-10.5), Fiser would have been subject to two adverse actions, the elimination of the position he occupied and his nonselection for the Chemistry Program Manager position. Fiser refused to accept the offer and resigned and was thus not subject to an adverse action (id.).

G. The Alleged Discriminatory Officials Had Limited or No Knowledge of Fiser's Protected Activities at the Time of the Relevant Decisions.

The essence of Staff's case, as expressed in the NOVs (to TVA, McArthur, and McGrath), is that McGrath and McArthur retaliated against Fiser for engaging in protected activities (JX47; JX48; JX49). Under the prevailing Sixth Circuit law, which is applicable to this case, to establish a claim of retaliation, Staff must prove that 1) Fiser engaged in protected activity; 2) TVA had knowledge of Fiser' s protected activity; 3) TVA subsequently took adverse employment action against Fiser; and

4) there is a causal connection between Fiser's protected conduct and the adverse employment action. Mulhall v. Ashcroft, 287 F.3d 543, 551 (6th Cir. 2002); Fenton v.

HiSAN, Inc., 174 F.3d 827, 831 (6th Cir. 1999); EEOC v. AveryDennison Corp.,

104 F.3d 858, 860 (6th Cir. 1997).

Staff acknowledges that it must demonstrate that TVA "had knowledge of

[Fiser's] protected activity" (SF&C ¶ 3.39). Staff contends, however, that it "is not required to prove actual knowledge" to satisfy this element of the claim of retaliation (id.). Instead, Staff asserts that that "constructive knowledge" or "[gleneral corporate knowledge of the complainant's protected activity is sufficient to establish that defendant had knowledge" (id.).

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Staff's position is directly contrary to the law in the Sixth Circuit requiring, as a matter of law, that a complainant must prove that the alleged retaliating official had actual knowledge of his or her protected activity before the challenged per-sonnel action occurred. Fenton, a case in which the company was aware of plaintiff's protected activity-complaining about sexual harassment by a coworker-but the two managers responsible for her subsequent transfer to "B" shift were unaware of the protected activity, is directly in point. In affirming the district court's grant of summary judgment where the plaintiff failed to produce evidence sufficient to establish that the individuals charged with taking the challenged adverse employment action were aware of the protected activity, the Sixth Circuit held that:

To satisfy the second prong, plaintiff must show that the defendant knew of her exercise of this protected activity. Although Fenton met with Rice and Don Turner, Rice's supervisor and the plant superintendent, she is unable to produce any evidence that the relevant management decision-makers who moved her to the "B" shift-Rebecca Shenk and Jon Miller-knew of her complaints about Brown when they decided to transfer her. Shenk testified that she was not informed of plaintiff's complaints until Brown himself mentioned them to her on October 7, 1996. According to Miller's testimony, he and Shenk decided either on September 30 or October 1, 1996, that plaintiff was sufficiently prepared to leave the "A" shift on which she was being trained and that she was to be transferred to the "B" shift [174 F.3d at 832].

Mulhall, a case in which the corporate employer knew of plaintiff' s protected activity (being listed as a witness in an EEO proceeding) but the two individuals responsible for prompting plaintiff's reassignment did not, is also directly in point. In concluding that the district court was correct that plaintiff failed to produce evidence sufficient to establish that the individuals charged with taking the challenged adverse employment action were aware of the protected activity, the Sixth Circuit held that:

In sum, the district court did not err in concluding that Mulhall has failed to produce evidence sufficient to establish that the officials taking the adverse employment action knew of his protected activity.

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Mulhall has not produced direct or circumstantial evidence that Metcalfe and Ray knew that he was listed as a witness by Henderson prior to the drafting and sending of the letter to Muhall's JCPD supervisors. Nor has he produced evidence from which one could reasonably infer that Metcalfe and/or Ray knew of his protected activities. A reasonable jury could not find retaliation on these facts, and thus summary judgment was proper [287 F.3d at 554].

See also Hayes v. Potter, 310 F.3d 979, 982-983 (7th C ir. 2002) ("[I]n a retaliation case, it is not enough that the decisionmaker should have known about a discrimination complaint; the decisionmaker must have had actual knowledge of the complaint for her decision to be retaliatory."); Lubetsky v. Applied Card Sys., Inc. 296 F.3d 1301, 1306 (11th Cir. 2002) ("Therefore, when we evaluate a charge of disparate treatment employment discrimination, we must focus on the actual knowledge and actions of the decision-maker."); Maarouf v. Walker Mfg. Co., 210 F.3d 750, 755 (7th Cir. 2000)

("The critical issue here, however, is whether the person who made the decision to terminate his employment was aware of the discrimination allegations at the time, because absent such knowledge Maarouf lacks a causal link between the termination and the complaint of discrimination.").

In a corporate setting (like at TVA), the Eleventh Circuit explained that the law mandates that the alleged discriminating official must have actual knowledge, as opposed to constructive knowledge or general corporate knowledge, of the complainant's protected conduct because the corporation itself does not make the decisions to take adverse employment actions. See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 800 (11th Cir. 2000):

Brungart also argues that even if the decision maker did not have knowledge of the protected conduct, knowledge should be "imputed" to the corporation where other corporate officials or supervisors had knowledge of it. That position is, of course, foreclosed by our Clover decision, because the defendant in that case was a corporation. Even if the Clover decision did not exist, we would not be persuaded to adopt Brungart's imputed knowledge theory. The BellSouth corporation itself did not actually make the decision to take the adverse employment action; Nelson made that decision, albeit on the corporation' s behalf. Because 101

Nelson did not know of the protected conduct, he could not have taken that action on the corporation's behalf because of the protected conduct.

This is another way of saying that the fact the employer is a corporation does not relieve a plaintiff of the burden of showing a causal connection between the protected conduct and the decision to take the adverse employment action.

In its proposed findings (SF&C ¶ 2.153), Staff claims that " Fiser engaged in protected activities during 1989 (emergency diesel generator fuel oil storage tanks problem), 1991 (NSRB trending issue), 1993 (Sasser letter and DOL complaint), and 1996 (DOL complaint)." Because "the problem with the diesel generator fuel oil storage tanks was a significant event at SQN" and "identified to TVA Corporate and each of the three plant sites" in 1989, Staff urged the Board "to impute corporate knowledge of the diesel generator fuel oil issue and SQN Chemistry's involvement in the corrective action process on that problem" to McGrath and McArthur (SF&C ¶ 3.40). The law is clear, however, that imputed knowledge is not actual knowledge. As the court held in Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1262 (1lth Cir. 2001), "imputing the knowledge" of others to the alleged discriminating official or officials is "error, because it equates constructive knowledge with actual intent." Silvera goes on to hold that:

Even assuming the Board that fired Silvera in 1996 was composed of exactly the same members as the Board that had hired him fourteen years earlier-which is unlikely-if the Board had no actual knowledge of Silvera's two arrests from the 1970's when it hired him in 1982, it did not actually know of those arrests at that time, and all the imputing in the world is not going to change that fact. Discrimination is about actual knowledge, and real intent, not constructive knowledge, and assumed intent. See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 800 (11th Cir.2000) (for purposes of Family and Medical Leave Act retaliation claim, knowledge of employee's protected conduct could not be imputed to decision maker from other corporate officials or supervisors who had knowledge of it); Pressley v. Haeger, 977 F.2d 295, 297 (7th Cir. 1992)

(stating, in employment discrimination case, that " [r]acial discrimination is an intentional wrong. An empty head means no discrimination. There is no 'constructive intent,' and constructive knowledge does not show actual intent.") [244 F.3d at 1262].

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Even if Fiser found and reported the diesel generator fuel storage tank problem, which he did not,25 Staff failed to present any evidence that either McGrath or McArthur had actual knowledge that Fiser found and reported that problem. In fact, McArthur first became a TVA employee in corporate TVAN in 1990 (SF&C ¶ 2.62).

As to McGrath, while he was a TVA employee at that time, he was not in a position at Sequoyah in 1989 (SF&C ¶I 2.70-2.73) and had no interaction with Fiser until 1991 (SF&C ¶ 2.73). McGrath's and McArthur's lack of actual knowledge of Fiser purportedly finding and reporting diesel generator fuel storage tank problem cannot be overcome simply because other "corporate officials or supervisors" might have "had knowledge of it." Brungart, 231 F.3d at 800; Silvera, 244 F.3d at 1262.

As to the trending issue, Staff asserts that "both McArthur and McGrath had actual knowledge that Fiser had refused to institute a trending procedure because he believed it would result in a procedural violation" (SF&C ¶ 3.42). As shown in TVA's findings, however, Fiser's refusal to consider trending was not protected activity (TVAF&C ¶¶ 4.29-4.30). It did not involve the raising of any nuclear safety concern, any violation of the AEA, NRC regulations, or TVA's licensing requirements. Nor does Staff cite to any law that trending or requiring trending is illegal. Fiser's alleged concern that he might fail and therefore cause a violation does not excuse his performance. While McGrath and McArthur had knowledge of Fiser' s refusal to consider improving plant performance, safety, and efficiency through trending, they did 25 Fiser did not initiate or approve the SCAR, and there is no indication on the document that he had any responsibility for issuing or approving it (TVAX146; Burzynski p. 4879, 1. 21-p. 4881, 1. 5). Rather, the issue came to TVA as an operating experience that had happened at another utility; it was sent from the Sequoyah licensing organization to Sequoyah Chemistry to review; and Licensing determined it was a problem and recommended that Chemistry write a SCAR and requested Chemistry to be prepared to explain how it had missed the problem during the recent review of the surveillance instructions (TVAF&C ¶ 4.34).

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not have knowledge that Fiser had engaged in protected activity because his refusal was not protected activity as a matter of law.

Neither McGrath nor McArthur had knowledge of the Sasser letter.

Despite this fact, Staff speculates that McGrath could have learned of the Sasser letter because of the nature of some of the allegations and that the three responses to the Sasser letter were sent to his supervisor, Kingsley (SF&C ¶ 3.44).26 Similarly, Staff speculates that McArthur could have learned of the Fiser letter because he was asked to investigate some of the issues raised in the Sasser letter (SF&C ¶¶ 3.41, 3.43). But Staff did not show that he was provided a copy of the letter or any of the responses thereto. Nor was he told that Fiser raised the issues he was asked to investigate. Unsupported speculation about the Sasser letter does not meet the Staff's burden to prove the knowledge prong of the cause of action for retaliation. Fenton, 174 F.3d at 832; Brungart, 231 F.3d at 800; Silvera, 244 F.3d at 1262.

The evidence is also undisputed that McGrath was unaware of Fiser' s 1993 DOL complaint until Fiser threatened to file a new DOL complaint in June 1996, and he did not actually see the 1993 DOL complaint until 1999 (TVAF&C ¶ 1.6).

Again, Staff asks the Board to impute knowledge of Fiser' s 1993 DOL complaint to McGrath from other TVA officials-McArthur, Corey, and Kent-who were aware of Fiser's filing of that complaint (SF&C ¶ 3.45). The lack of evidence that McGrath had actual knowledge of the 1993 DOL complaint precludes a finding that McGrath had the requisite knowledge to establish a claim that he took action against Fiser due to his filing of the 1993 DOL complaint. See Fenton, 174 F.3d at 832; Brungart, 23 1 F.3d at 800; Silvera, 244 F.3d at 1262.

26 Without any evidentiary support, Staff also speculates that McArthur had knowledge of the Sasser letter by virtue of his position as "a subcommittee chairman under McGrath" (SF&C ¶ 3.44). The undisputed evidence is to the contrary.

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On the other hand, McArthur had actual knowledge of Fiser' s 1993 DOL complaint (JX24; SF&C ¶ 3.45). That complaint, however, does not name McArthur as an alleged discriminating official or culpable party (SX34 at 1). Instead, Fiser specifically acknowledged and conceded in his DOL complaint that McArthur was supportive and was "very dismayed about the decision to place [him] in ETP, and expressed [his] disagreement with this decision publicly and in front of witnesses" (id.).

The fact that Fiser did not accuse McArthur of any wrongdoing in 1993 negates any inference that McArthur harbored animosity toward Fiser for three years.

TVA agrees with Staff that both McGrath and M cArthur were aware of Fiser's 1996 DOL complaint "prior to the interviews for the Chemistry Program Manager positions" (SF&C ¶ 3.45). This fact does not end the inquiry as to whether McGrath and McArthur had the requisite knowledge to discriminate against Fiser due to his filing of the 1996 DOL complaint. To the contrary, the evidence is undisputed that Fiser had not filed the 1996 complaint before the pertinent decisions had been made that led to empanelling the SRB. The decisions (to reorganize TVAN in general and Operations Support in general; to eliminate the old Chemistry and Environmental Protection Program Manager positions and to replace them with the PWR and BWR Chemistry Program Manager positions; and to post the PWR and BWR positions because they were not interchangeable with the Chemistry and Environmental Protection Program Manager positions) were all made before Fiser filed the 1996 DOL complaint.

These decisions, especially the decision to post the PWR and BWR jobs, initiated the process in BP-102 under which the top candidates-including Fiser-for these and the other Operations Support positions would be interviewed by an SRB. The law in the Sixth Circuit is clear that where the process for the challenged personnel action had been initiated prior to the alleged discriminating official's knowledge of the protected activity-or in this case before the protected conduct occurred-the requirement of actual 105

knowledge cannot be met as a matter of law. See Prebilich-Holland v. Gaylord Entertainment Co., 297 F.3d 438, 444 (6th Cir. 2002):

Prebilich has offered no evidence whatsoever that the decision-makers at WSM had actual knowledge of her pregnancy at the time they made the decision to discharge her. Prebilich concedes that she does not know when that decision was made, and Padgett's testimony that he initiated the process on November 20, 1997, four days before he learned of Prebilich's pregnancy, is unrefuted.

The Supreme Court agrees. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (holding employee was not retaliated against as a matter of labor where "there is no indication that Rice [the alleged retaliating official] even knew about the right-to-sue letter when she proposed transferring respondent").

Finally, the Staff makes the outrageous argument that the Board should impute knowledge of Fiser's protected activities to McGrath and McArthur because alleged discriminating officials in other cases unrelated to this proceeding were determined to have knowledge of the complainants' protected activities (SF&C

¶ 3.46).27 Such a suggestion is contrary to the applicable case law (Fenton, 174 F.3d at 832; Brungart, 231 F.3d at 800; Silvera, 244 F.3d at 1262) and emphasizes the Staff's lack of faith in its weak evidence that Fiser was retaliated against for engaging in protected activity. Like so much of the Staff's case, the Staff throws in an assortment of facts, assumptions, and strained arguments to support its retaliation theory. However, when viewed closely, the various elements of the Staff's case do not bear scrutiny.

When viewed together, they create a theory that defies reason, logic, and the law. This amalgam is insufficient to meet the Staff's burden of proof.

27 Two of the cases, Jocher v. TVA, 94-ERA-24 (ALJ July 31, 1996) and Klock v.

TVA, 95-ERA-20 (ALJ Sept. 29, 1995), involved only ALJ decisions which have no precedential value as discussed above at 17.

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H. The Staff Did Not Carry Its Burden To Prove a Causal Connection Between Fiser's Protected Activities and the Alleged Adverse Actions.

TVA agrees with Staff that a " [c]ausal nexus between the complainant's protected activity and the adverse action can be demonstrated through the use of circumstantial evidence" (SF&C ¶ 3.47). TVA disagrees, however, that Fiser was treated less favorably than other similarly situated employees or that there is temporal proximity between Fiser's protected activity and the decisions to post the PWR Chemistry Program Manager position and his nonselection for that job (id.).

1. Fiser was not subject to disparate treatment by the alleged discriminating officials.

Staff correctly states the law that "[t]he disparate treatment theory of discrimination requires the complainant to show that the defendant employer treated a similarly situated employee differently" (SF&C ¶ 3.49), and, in addition, the difference in treatment must be due to the complainant's protected status. But Staff fails to cite any Sixth Circuit case for the proposition that "[a]n employee need not be similarly situated in all respects, but 'must be similarly situated in all material respects'" (id.), and Staff provides several examples-again not citing to Sixth Circuit cases-where courts deter-mined that persons outside the plaintiffs protected status were considered to be compa-rable even though they were not similarly situated in all respects (SF&C ¶¶ 3.50, 3.51).

The law in the Sixth Circuit is clear. In determining whether employees are similarly situated, the Sixth Circuit requires that the "plaintiff must show that the

'comparables' are similarly-situated in all respects." Mitchell v. Toledo Hosp.,

964 F.2d 577, 583 (6th Cir. 1992) (emphasis in original); Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001).

Staff has zeroed in on McArthur as the only employee that is purportedly similarly situated to Fiser (SF&C ¶¶ 3.53-3.54). TVA agrees with Staff that McArthur 107

is similarly situated to Fiser even under the Mitchell standard in that "he was subject to the same reorganization as Fiser, the same individuals who made the decisions with regard to posting the Chemistry Program Manager positions also made the decision not to post the RadChem Manager position, and those individuals testified that they applied the same selection policy [in] making the determination to post the Chemistry positions as they applied to the determination not to post the RadChem Manager position" (id.

¶ 3.54). The fact that the decision with respect to McArthur was different is not proof that Fiser was subject to disparate treatment. The decision was made using the some process, but reached a different result based on different facts. Moreover, the evidence is undisputed that numerous other employees also were similarly situated to Fiser. Staff ignores the evidence that, in addition to the PWR and BWR Chemistry Program Manager positions, HR also determined that all of the other new positions in Operations Support, including the positions in RadChem-Rad Control (Programmatic); Rad Control (Tech Support); and Radwaste/Environmental Protection-had to be posted pursuant to the same process-TVA's Personnel Manual Instruction. HR followed the process in determining whether the PWR and BWR Chemistry Program Manager positions as well as all of the other Operations Support jobs, had to be posted (TVA55; Boyles p. 4011, 1. 16-p. 4012 1. 7). Staff further ignores the evidence that HR used the same policy to determine whether all of the other positions in the rest of TVAN Corporate had to be posted pursuant to TVA's Personnel Manual Instruction (Boyles

p. 4014, 1. 1-p. 4015, 1. 12). As discussed previously, if any case was an exception it was McArthur's, not Fiser's, and in McArthur's case, only the result was different, not the process followed.

Besides TVAN Corporate, contrary to Staff's contention (SF&C ¶ 3.56),

Fiser was similarly situated to the hundreds of other employees throughout TVAN who were subject to the 1996 reorganization and whose former positions had been determined by HR not to be interchangeable with the new positions that were created during the 108

1996 reorganization (TVAX83-96, 109-10; Boyles p. 4017, 11. 1-23). Pursuant to the same policy-TVA's Personnel Manual Instruction-that HR applied in determining that the PWR and BWR Chemistry Program Manager positions had to be posted, HR compared the most recent PDs of record for these hundreds of TVAN employees to the PDs of the new positions that were created during the 1996 reorganization and determined that the new jobs were not interchangeable and thus had to be posted for competition (Boyles p. 4014, 1. 23-p. 4015, 1. 13; p. 4015, 1. 12-p. 4017, 1. 23). As a result, these employees-like Fiser-had to compete for continued employment at TVA, and those employees who were not fortunate enough to be selected were given the option-like Fiser-to be assigned to the TVA Services organization or resign with incentives (Boyles p. 4012, 1. 1-p. 4013, 1. 3).

Of more critical importance, Staff did not present any evidence that either McGrath or McArthur made any of the competitive level determinations during the 1996 reorganization. Nor does Staff point to any evidence (because there is none) that suggests that either McGrath or McArthur might have influenced any of the competitive level determinations. HR made all such determinations (Reynolds p. 3421, 1. 13-

p. 3422, 1. 2; Boyles p. 3750, II. 15-18; p. 3753, II. 8-12; p. 4015, 1. 18-p. 4016,

1. 25; p. 4017, 1. 24-p. 4018, 1. 8; Fogleman p. 5358, 1. 10-p. 5359, 1. 9; p. 5414,

1. 6-p. 5415, 1. 5). Staff fails to explain the relevance of evidence, under Staff's theory, that Fiser was the subject of disparate treatment by someone other than the alleged discriminating officials. Nor does Staff cite to any cases to suppo rt this odd theory.

2. There is no temporal proximity between Fiser's protected activities and the adverse actions.

TVA agrees with Staff that " [t]emporal proximity between protected activity and an adverse action may permit an inference that the protected activity was the 109

likely reason for the adverse action" (SF&C ¶ 3.59) when coupled with "other direct or compelling circumstantial evidence." Warren v. Ohio Dep 't of Pub. Safety, No. 00-3560, 2001 U.S. App. LEXIS 21664, at **11 (6th Cir. 2001); TVA v. Frady, 134 F.3d 372 (table), No. 96-3831, 1998 WL 25003, at **5 (6th Cir. Jan. 12, 1998);

Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999). But, as the Supreme Court holds, "the temporal proximity must be 'very close'" (Breeden, 532 U.S. at 273), and by "very close," the Supreme Court cites as examples two cases in which a time period between three and four months was "insufficient" for a temporal proximity inference to be drawn. Id.

Temporal proximity does not exist in this case. Staff asserts that "Fiser engaged in protected activities during 1989 (emergency diesel generator fuel oil storage tanks problem), 1991 (NSRB trending issue), 1993 (Sasser letter and DOL complaint),

and 1996 (DOL complaint)" (SF&C ¶ 2.153). In paragraph 3.64, Staff states that the 1996 competitive level determination is the adverse action "which resulted first in Fiser being required to compete for a position and then which resulted in his nonselection for that position." The gap between Fiser's purported protected conduct (in 1989, 1991, and 1993) and the purported adverse action (HR's competitive level determination in 1996) ranges from three to seven years. This gap far exceeds the " very close" relationship between protected activity and adverse action the Supreme Court contemplated as necessary before an inference of causation might be drawn based on temporal proximity.

Breeden, 532 U.S. at 273. And contrary to Staffs contention (SF&C ¶¶ 3.59-3.60), the Supreme Court did hold in Breeden that a gap of 20 months in and of itself negates an inference of causation between the protected activity and adverse action. The Court held that " [a[ction taken (as here) 20 months later suggests, by itself, no causality at all."

532 U.S. at 274.

Fiser filed his second DOL complaint on June 25, 1996 (SX37; SF&C

¶ 3.65), and he was not selected for the PWR Chemistry Program Manager job on 110

July 18, 1996 (JX21 at GG000212; SF&C ¶ 3.65). This three-week period between protected activity and adverse action does not constitute temporal proximity and there is no inference of causation. This is so because Fiser had not filed the 1996 complaint before the decisions had been made to reorganize TVAN in general and Operations Support in general; to eliminate the old Chemistry and Environmental Protection Pro-gram Manager positions and to replace them with the PWR and BWR Chemistry Program Manager positions; and to post the PWR and BWR positions because they were not interchangeable with the Chemistry and Environmental Protection Program Manager positions. Indeed, Staff concedes that Fiser did not threaten to file a complaint until after HR had made the decision that the PWR Chemistry Manager position should be posted (SF&C ¶¶ 2.57, 2.124). Where the process for the challenged personnel action had been initiated before the protected conduct occurred, there is no causation, as a matter of law, between the protected activity and adverse action. See Breeden, 532 U.S. at 272

("proceeding along lines previously contemplated, though not yet definitely determined, is no evidence whatever of causality"); Prebilich-Holland, 297 F.3d at 444. Moreover, the evidence is clear that the selection process that was used gave Fiser every opportunity to impress three individuals, other than the alleged discriminatory officials, of his capabilities and qualifications for the job, and that those three individuals all voted against him. In this context, an inference of retaliation based on temporal proximately is unwarranted.

Despite the lack of temporal proximity, Staff contends that "there was a valid reason why the retaliatory action was not taken sooner than 1996" (SF&C

¶ 3.64). "Prior to that time," Staff argues that "neither McArthur nor McGrath had the opportunity to eliminate Fiser's position or terminate him" and "upon becoming Fiser's first and second line supervisors," they "immediately took action which resulted first in Fiser being required to compete for a position and then which resulted in his nonselection for that position" (SF&C ¶ 3.64). This theory is spurious from the start 111

because neither McGrath nor McArthur made any of the competitive level determinations during the 1996 reorganization that led to the decision to post jobs, including the PWR and BWR Chemistry Program Manager positions. To the contrary, HR made all such determinations (Boyles p. 3750, ii. 15-18; p. 3753, 11. 8-12; p. 4015, 1. 18-p. 4016,

1. 25; p. 4017, 1. 24-p. 4018, 1. 8; Fogleman p. 5358, 1. 10-p. 5359, 1. 9; p. 5414,

1. 6-p. 5415, 1. 5). Second, we are unaware of any cases that suspend the time for measuring temporal proximity until the alleged discriminating official is ensconced in a position to take adverse action against the complainant.

This theory fails for a third reason. McGrath was unaware of any of Fiser's purported protected activities prior to Fiser's threat to file a DOL complaint over the posting of the Chemistry position in June 1996. This lack of knowledge negates motivation and causation as a matter of law. See Breeden, 532 U.S. at 273; Prebilich-Holland, 297 F.3d at 444; Lubetsky, 296 F.3d at 1306; Peterson v. Dialysis Clinic, Inc.,

No. 96-6093, 1997 U.S. App. LEXIS 26254, at *8 (6th Cir. Sept. 8, 1997). And, except for Fiser's 1993 DOL complaint, McArthur was unaware of Fiser's purported protected activities. His lack of knowledge similarly negates motivation and causation as a matter of law. As to the 1993 DOL complaint, Fiser's own words in that complaint blunt any argument that McArthur was motivated to discriminate against him. McArthur was supportive and was "very dismayed about the decision to place [him] in ETP, and expressed [his] disagreement with this decision publicly and in front of witnesses" (SX34 at 1).

I. TVA Presented Legitimate Nondiscriminatory Reasons for the Adverse Actions.

The Staff's arguments about Dr. Peters' analysis show a fundamental misunderstanding of statistics. The purpose of Dr. Peters' work was to evaluate the likelihood of a negative bias against Fiser because of having engaged in protected 112

activity, not, as the Staff claims (SF&C ¶ 3.69) to demonstrate that Fiser's protected activity had no impact on his nonselection. Simply put, Dr. Peters did not approach the issue with a preconceived notion.

The Staff continues to make an issue (SF&C ¶ 3.70) about what they call the "championing effect." This homegrown ternh (advanced only by Staff counsel) attempts to characterize Corey and Kent as biased, when there was no evidence that they were. Indeed, the most reasonable conclusion to be drawn from Dr. Peters' analysis is that they were not. Further, since Rogers' relative rating of Fiser was lower than Corey's or Kent's, it is not reasonable to conclude that they were "championing" Chandra or Harvey. Further, the Staff presented no psychometric evidence, only supposition, to support their supposed claim of "championing."

The Staff argues (SF&C ¶ 3.72) that Dr. Peters stated that he could not draw a statistical conclusion that Corey or Kent did not give Fiser the lowest score because of his protected activities. In fact, Dr. Peters testified he could not draw a "definitivel" conclusion (Peters p. 4585, 11. 5-6). In any event, the Staff's argument is misleading. The purpose of Dr. Peters' analysis was to look at the probability that knowledge of protected activity was a cause of Fiser's nonselection. His conclusion was that it was probable that protected activity did not negatively bias the results, but by definition he could not definitively conclude that it did not. This does not mean that his analysis should be disregarded; on the contrary, it defeats the Staff's case. The Staff has the burden of proof to show that Fiser's protected activity was more likely than not the cause of his nonselection. The standard, "more likely than not," is simply a statement of probability. See Bell v. U.S., 854 F.2d 881, 889 (6th Cir. 1988). Where, as here, the data shows that it is highly probable that knowledge of protected activity was not a factor, the Staff cannot meet its burden of proof. TVA does not have the burden, as the Staff seems to think, to conclusively prove that protected activity was not a factor.

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The Staff s argument (SF&C ¶ 3.72) that Corey and Kent controlled the outcome of the selection is spurious. In any interview panel of three, any two raters comprise 67 percent of the ratings. One cannot summarily conclude from this truism that Corey and Kent "controlled the outcome of the interviews" as part of a plot to retaliate against Fiser. The Staff's arguments are simply hypotheses with no substance.

Dr. Peters' analysis provides strong statistical evidence that the most logical explanation for the scores is simply that Harvey and Chandra did very well in the interviews (Peters

p. 4614, II. 10-20). Given the testimony throughout the case regarding Chandra's and Harvey's technical capabilities, this should not be surprising to anyone. Fiser certainly expected that result as evidenced by his threat to file a DOL complaint if he was required to compete with Harvey and Chandra and the fact that he filed his DOL complaint after the jobs were posted but before the interviews occurred.

Dr. Peters' conclusion that Fiser's protected activity did not negatively bias the interview results against Fiser is supported by the Sixth Circuit case law.

TVA v. Frady, 134 F.3d 372 (table), No. 96-3831, 1998 WL 25003 (6th Cir. Jan. 12, 1998), a case remarkably similar to this one on this point in which one of the two members of each of the selection committees-a union representative-had no reason (like Rogers here) to discriminate against Frady and who scored Frady "at about the same level" as the other candidates. Id. at **5. The Sixth Circuit determined that the union representatives' rating of Frady was "significant" and "compelling evidence that the TVA representatives were not biased by Plaintiff['s] protected activity." Id. The court stated that:

We also note that one of the two decision makers on each selection committee was a union representative, rather than a representative of TVA. Frady never alleged, and the Secretary [of Labor] never found, that the [sic] there was any reason why the union representatives would discriminate against Frady. Thus, it is significant that the TVA and union representatives ranked Frady at about the same level, as he concedes (J.A.

at 487). This appears to us to be compelling evidence that the TVA representatives were not biased by Plaintiffs protected activity.

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Moreover, the fact that the union representatives gave Plaintiff a relatively low ranking indicates that they too believed there was a legitimate reason for not selecting him [id. at **5].

The evidence here is more "significant" and "compelling" because Rogers had no knowledge of Fiser's protected activity and scored him lower than the other two candidates. In this case, as in Frady, "the fact that [Rogers] gave [Fiser] a relatively low ranking indicates that [Rogers] too believed there was a legitimate reason for not selecting [Fiser]. Id. at **5. And that legitimate reason is that Fiser failed to perform as well as Harvey and Chandra in his interview for the PWR Chemistry Program Manager position.

The Staff continues to misunderstand (SF&C ¶ 3.76) the purpose of evidence regarding Fiser's performance. TVA introduced evidence about his perform-ance at Sequoyah to explain his removal as Sequoyah Chemistry Manager and as Acting Corporate Chemistry Manager. His performance was not relevant to the elimination of his job as Chemistry and Environmental Protection Manager, and no one testified that his past performance was considered by the SRB. However, the purpose of the SRB using job-related questions is to select a person who is likely to be a good performer in the future. The record supports the conclusion that the SRB performed their duties and made their selection in a reasonable, professional, nonarbitrary, and nonretaliatory manner.

J. The Staff Did Not Carry Its Burden To Prove that TVA's Nondiscriminatory Reasons Were a Pretext for Discrimination.

1. Harvey was not preselected for the PWR Chemistry Program Manager position.

Staff reiterates its claim that Harvey was preselected for the PWR Chemistry Manager position (SF&C ¶ 3.80) and, quoting Goostree v. Tennessee, 115

796 F.2d 854, 861 (6th Cir. 1986), further asserts that " [e]vidence of preselection operates to discredit the employer's proffered explanation for its employment decision" (SF&C ¶ 3.79). As shown above and in TVA's findings (TVAF&C ¶¶ 9.44-9.48), this claim is unsupported by the evidence.

In addition to what has already been said, only two brief points are necessary. First, Staff asserts that preselection is indicated here because Kent initiated the attempt to transfer Harvey to Sequoyah (SF&C ¶I 3.80-3.81). The evidence, how-ever, is that Grover initiated discussions about the possibility of transferring Harvey to Sequoyah, not Kent, because Grover was admittedly interested in saving the jobs of his subordinates (TVAF&C ¶ 9.48). In fact, it was Grover who discussed this matter with McGrath, the person who would have had to authorize the proposed transfer (SF&C

¶ 2.159). McGrath consulted HR (McGrath p. 830, ii. 8-16; p. 831, 1i. 1-7), but was instructed that neither Harvey nor his position could be transferred to Sequoyah consistent with TVA's HR procedures that implement OPM regulations (TVAF&C

¶ 9.48). The idea of transferring Harvey to Sequoyah was not even of enough interest to Kent for him to pick up a telephone and call McGrath about it.

Second, Staff argues that Harvey had been preselected based on a tele-phone conversation between Harvey and Voeller in which Harvey told Voeller that he would be working a lot closer with him, or not at all, in the future. A sinister inference based on this slim evidence is impermissible and unsupported by the record. Harvey expressed his confidence, and possibly some arrogance as he concedes, that he was the most qualified candidate for the position (TVAF&C ¶ 9.46). It is simply unreasonable to infer preselection from a candidate's boast. Indeed the testimony of Fiser and his allies, as well as the SRB interview results, proved that Harvey was correct in his assessment about being the most qualified candidate for the PWR Chemistry Program Manager position. In addition, Staff offered no evidence that McGrath or McArthur advised Harvey that he would be selected for the PWR Chemistry Program Manager position or 116

that Harvey informed Voeller that McGrath or McArthur had told him that he would be the person selected as the PWR Chemistry Program Manager (id.). The Staff again is guilty of trying to create something from nothing.

2. TVA followed its selection practices.

Staff asserts that "TVA failed to follow its selection procedures during the 1996 reorganization of Operations Support" (SF&C ¶ 3.88) and that this failure may "constitute evidence of discriminatory animus" (id. ¶ 3.87). While Staff identifies two policies (TVA's Personnel Manual Instruction and BP-102 (id. ¶ 3.88), Staff claims that TVA failed to follow the Personnel Manual Instruction when HR determined that McArthur had rights to the RadChem Manager position and again when HR determined that.the PWR and BWR Chemistry Program Manager positions should be posted for competition (SF&C ¶¶ 3.88-3.99).

Despite the fact that McGrath and McArthur are the alleged discriminating officials (JX47; JX48; JX49), there is no proof that either McGrath or McArthur made the competitive level determinations regarding the new positions created in the reorganization of Operations Support in 1996. Nor is there any evidence that either McGrath or McArthur assisted in making such determinations. As the evidence shows, HR, not the alleged discriminating officials-McGrath and McArthur-made the competitive level determinations regarding RadChem Manager and the PWR and BWR Chemistry Program Manager positions (Reynolds p. 3421, 1. 13-p. 3422, 1. 2; Boyles

p. 3750, 11. 15-18; p. 3753, 11. 8-12; p. 4015, 1. 18-p. 4016, 1. 25; p. 4017, 1. 24-

p. 4018, 1. 8;Fogleman p. 5358, 1. 10-p. 5359, 1. 9; p. 5414, 1. 6-p. 5415, 1. 5). This undisputed evidence precludes Staff s argument of pretext because it cannot show, as a matter of law, discriminatory motivation and intent on the part of McGrath and McArthur based on actions and decisions they did not undertake or make.

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As shown in TVA's findings (TVAF&C ¶¶ 8.3, 8.5-8.8), McArthur had a right to the RadChem Manager position because HR determined his most recent PD of record (the 1990 Technical Manager position) was interchangeable with the newly created RadChem Manager position description. While Staff argues that HR should have used an up-to-date job description for McArthur in making its competitive level determination (SF&C ¶ 3.93), that is only their opinion. The record shows that TVAN HR has always interpreted TVA's Personnel Manual Instruction as requiring it to use the last official PD of record to make competitive level determinations (see TVAF&C

¶¶ 8.3, 8.5-8.8). HR has relied on, and continues to rely on, MSPB decisions approving of TVA's policy of using the most recent official PD of record in determining the interchangeability of newly created positions and old positions eliminated in reorganizations (TVAF&C ¶ 8.8), as well as counsel from TVA's OGC to HR that its use of the most recent official PD of record in determining the interchangeability of newly created positions and old positions eliminated in reorganizations is the correct interpretation of the Personnel Manual Instruction (Boyles p. 3791, 1. 10-p. 3792, 1. 5).

Using that interpretation, HR compared McArthur's most recent official PD of record, which was for his Manager of Technical Programs position, with the PD for the new RadChem Manager position and concluded that the two PDs were interchangeable (TVAF&C ¶ 8.3).

Clearly, HR's reliance on MSPB decisions, as it interprets them, and counsel and advice from Labor Relations and OGC, evidences an "honest belief" that such determination comported with TVA's Personnel Manual Instruction and applicable OPM regulations (Majewski, 274 F.3d at 1117). The evidence thus negates the theory that TVA failed to follow procedures. It did follow its procedures in accordance with the way it interprets and applies them. And, even if Staff is correct that HR could have interpreted the Personnel Manual Instruction differently, the law in the Sixth Circuit holds that Staff's disagreement with HR's "honest business judgment regarding [the 118

placement of McArthur in the RadChem Manager position] does not create sufficient evi-dence of pretext in the face of the substantial evidence that [HR] had a reasonable basis" for placing McArthur in that position. Id. As the Sixth Circuit explains:

This court has adopted an "honest belief" rule with regard to an employer's proffered reason for discharging an employee. Smith v.

Chrysler Corp., 155 F.3d 799, 806-07 (6th Cir.1988). Under this rule, as long as an employer has an honest belief in its proffered nondis-criminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect [Majewski, 174 F.3d at 1117].

Accord Smith v. Chrysler Corp., 155 F.3d 799, 806-09 (6th Cir. 1998); Pesterfield v.

TVA, 941 F.2d 437, 443-44 (6th Cir. 1991).

In addition to its disagreement with HR's decision to use McArthur's most recent PD of record to compare to the PD of the new RadChem Manager position, Staff engages in second-guessing in that it would have the Board conclude that the two PDs were not interchangeable (SF&C ¶¶ 3.91-3.92). It does not matter whether the Staff believes that HR's competitive level determination regarding the RadChem Manager position was ill-advised, ill-informed, unwise, unfair, or flat-out wrong. The law is firmly established that courts in Title VII cases, and the Board in this case, are to decide issues of discrimination. They do not sit as super personnel departments to pass on the wisdom or fairness of business decisions.2 8 See Edmund v. Midamerican Energy Co.,

299 F.3d 679, 685-86 (8th Cir. 2002):

Employers are free to make employment decisions based upon mistaken evaluations, personal conflicts between employees, or even unsound business practices. Federal courts do not sit as "super personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination."

28 Similarly, this is a role that the NRC does not have, and one, as a matter of policy and expertise, it should not relish.

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Miller v. TVA, 1997-ERA-2, at 7 (ARB Sept. 29, 1998), aff'd, 191 F.3d 452 (table)

(6th Cir. 1999). ("Our jurisdiction is limited to determining whether Miller's discharge was based on her protected activities, not whether her discharge was unreasonable or erroneous for other reasons."); Gale v. Ocean Imaging, No. 97-ERA-38, at 13 (ARB July 31, 2002) ("'We [courts] do not sit as a super-personnel department that reexamines an entity's business decisions"').

The bottom line here is (whether right or wrong in Staff's eyes) the decision whether to post jobs for competition was made in accordance with established TVA practices. And, as recognized by the case law, conducting a RIF in accordance with established procedure is strong evidence that discrimination has not occurred. See, e.g., Williams v. Rumsfeld, No. 01-4016, 2002 U. S. App. Lexis 16524, at **5 (3d Cir.

Aug. 13, 2002). The Staff has come forward with no evidence that these decisions were made even in part with an intent to discriminate against Fiser. Neither McGrath nor McArthur, the alleged discriminating officials, were involved in those decisions.

Furthermore, although the Staff questions the correctness of the decision not to post the RadChem Manager position, whether or not it was posted had no effect on Fiser' s position.29 Even if the decision to post the RadChem Manager position was incorrect, it was no more than a difference of opinion or even a mistake on the part of individuals other than those charged with the violation. Neither McGrath nor McArthur-the alleged discriminating officials-were involved in those decisions. This is not evidence that McGrath's and McArthur's reasons were a pretext to discriminate against Fiser.

This brings us to the PWR Chemistry Program Manager position. The Staff contends (SF&C ¶ 3.96) that "TVA also violated the Personnel Manual Instruction when making the competitive level determination for the Chemistry Program Manager 29 The Staff might just as well have focused on some other purported procedure violation somewhere in the TVA organization, and then claimed that Fiser was treated disparately because he was handled in accordance with procedures.

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positions." Staff also claims (as it did for the RadChem Manager position) that TVA should have used up-to-date PDs for the Chemistry and Environmental Protection Program Manager positions to compare to the PDs for the new PWR and BWR Chemistry Program Manager positions. As in the case of the RadChem Manager position, HR made the competitive level determination using the Chemistry and Environmental Protection Program Manager's most recent PDs of record to compare to the PDs for the new PWR and BWR Chemistry Program Manager positions. While Staff might disagree with HR's decision in using the most recent PDs of record or its determination that new PWR and BWR positions had to posted, HR's decisions were rooted "in the face of substantial evidence that [HR] had a reasonable basis" and an "honest belief" for using the most recent PDs of record or its deciding that new PWR and BWR positions had to posted. Majewski, 274 F.3d at 1116-17; Smith, 155 F.3d at 806-09; Pesterfield, 941 F.2d at 443-44.

HR uniformly uses the most recent PD of record to compare to the newly created position to make its competitive level determinations. As the evidence shows, HR does not conduct a pre-RIF audit to update PDs. HR treated Fiser and McArthur no differently than any other employees with regard to competitive level determinations.

The law is well settled that no inference of disparate treatment can be inferred from this application of TVA policy because it applies equally to all of the employees involved in HR's competitive level determinations. Mitchell v. Toledo Hosp., 964 F.2d at 583-84; Marshall v. Western Grain Co., 838 F.2d 1165, 1167-68 (11th Cir. 1988).

3. TVA's legitimate reasons for the adverse actions were not proven to be a pretext for discrimination.

The Staff presents (SF&C ¶¶ 3.102-3.112) a number of arguments why the reasons given by TVA are a pretext for discrimination. Those arguments disprove discrimination against Fiser. The Staff's arguments focus on the assertion that Fiser was 121

subject to disparate treatment because McArthur was placed in the RadChem Manager position without competition. However, as the Staff admits, the decisions were made by Boyles who is not alleged to have discriminated against Fiser. Thus, even if Boyles determination was mistaken, it would not be relevant to show that Fiser was discriminated against by McGrath or McArthur.

Additionally, the Staff continues to misunderstand the issues in this proceeding. It is not about:

• whether TVA correctly interprets OPM regulations;

• whether HR should use up-to-date job descriptions in conducting aRIF;

• whether HR should look at more than job descriptions in determining competitive levels;

• whether SRBs should be constituted based on the board members' acquaintance with the past performance of the candidates;

• whether HR made a mistake in determining not to post the RadChem Manager position;

• whether it was fair to hold Fiser responsible for SQN chemistry problems.

The case is about whether McGrath and McArthur retaliated against Fiser for raising safety issues. The "evidence" on these matters does not satisfy the Staff's burden of proof.

The Staff misrepresents (SF&C ¶¶ 3.111-3.112) the evidence as regards TVA's personnel records. Staff asserts that "Reynolds and Sewell testified that the PHR is not the governing personnel system" and "that the information in the HRIS governs" (id. ¶ 3.111). That was not Reynold's or Sewell's testimony. They testified that HRIS is a computer listing personnel actions, such as pay matters (Reynolds p. 3349, 11. 1-17; Sewell p. 4483, 1. 17-p. 4484, 1. 19; p. 4489, 11. 2-9), but that the PHR contains the controlling or official documents and information as to the employee's official position (Sewell p. 4451, 1. 4-p. 4452, 1. 19).

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4. The selection process was not intended to discriminate against Fiser.

The Staff continues to misunderstand (SF&C ¶¶ 3.3113-3.123) the nature of this proceeding. The Staff has made a number of arguments about how the selection process could have been changed so as to better favor Fiser, all under the rubric of making it "fair and impartial" (SF&C ¶ 3.113). That is not the issue. The only issue as to the selection process is whether it was structured or used with a discriminatory motive.

The Staff initially challenges (SF&C ¶ 3.114 & n. 39) the decision not "to reschedule the SRB so that Cox could attend" and questions "why Cox could not share the SRB duties with another individual." There was no evidence that the decision not to reschedule was based on a desire to discriminate against Fiser. Even Cox admitted that it would have been difficult to reschedule McArthur, the SRB members, the 10 candidates, and the HR facilitator. He also admitted that the reason McArthur told him he preferred not to reschedule was the difficulty associated with rescheduling (Cox

p. 1769 1. 13-p. 1770 1. 4; p. 1758 1. 16-p. 1759 1. 1). The Staff misrepresents that Cox testified "that he could have attended the SRB had it started first thing in the morning or had been rescheduled for a different time" (SF&C ¶ 3.114). Cox did not testify "that he could have attended," instead he testified that he "asked [McArthur] if it was a possibility that they could be done" starting in the morning or split over two days (Cox p. 1758, ii. 16-21). However, he indicated that because of his farm, he had a standing conflict every day and that "even starting at 7:00 or 8:00 in the morning" it would have been difficult for him to sit on the board (Cox p. 1758, 11. 10-15; p. 1770, 1.

12-p. 1772, 1. 2). As to the Staff's contention that Cox could have shared the SRB duties with another individual, even Cox testified that it was not "typical[ ]" and "I wouldn't do one that way anyway, because you want continuity with the same individual" (Cox p. 1759, 11. 2-8).

123

The Staff's arguments about the need to have Cox on the SRB because he "was the RadChem Manager most familiar with Fiser's most recent work at the sites" (SF&C ¶ 3.114), would change the nature of the SRB process. As explained previously (at 68), the SRB is to consider a candidate's current answers to a slate of questions and does not consider the candidate's past performance. The Staff's misunderstanding is similar to Fiser's misunderstanding of the role of the SRB:

Q.

I get the impression from what you are saying that you thought the decision would be made based on who the interviewers were sort of rooting for, voting for, not on the sort of neutral judgment on the answering of the questions. What made you feel that way?

A.

Just based on the numerous favorable comments that Mr. Cox had offered on my behalf in the past, and I felt like he would be a good representative for the work and the job that I had performed at Watts Bar over the preceding two years. And with [Mr. Rogers] there, although he is a fine man, he did not have that knowledge, he could not stand up and say, vouch for my job performance adequately over the past two years, whereas Mr. Cox could have.

Q.

So you understood the interview process to be looking at your past, rather than concentrating on your current answers to the questions that you were asked?

A.

I would look at it as both [Fiser p. 2398, 1. 6-p. 2399, 1. 2]

That, however, was simply not the process. TVA was not required to change its process to consider Fiser's past performance just because he had filed a DOL complaint, and TVA is not liable for using its normal SRB process. Further, it is not evidence of a motive to discriminate that TVA could have changed its normal process to tilt the table in favor of Fiser, but did not do so. The law in the Sixth Circuit and elsewhere simply does not sanction the granting of such a special favor to Fiser.

Chappell v. GTE Prods. Corp., 803 F.2d 261, 266-68 (6th Cir. 1986); Barnes v.

Southwest Forest Indus., Inc., 814 F.2d 607, 610 (11th Cir. 1987); Earley v. Champion Int'l Corp., 907 F.2d 1077, 1083 (11th Cir. 1990).

124

According to the Staff, Cox should have been on the SRB so that each of the three SRB members would have been familiar with the recent work of a different candidate. Using that same logic, it would have been impossible for a single SRB to have conducted the five RadChem selections. The selection for the PWR Chemistry Program Manager position was unique in that all three candidates were incumbents with the same position description and had been assigned to each of TVA's three different operating nuclear sites. However, the candidates for the BWR Chemistry Program Manager and the Radwaste/Environmental Protection positions included John Traynor (JX 23 at GG000632) who was a Project Manager in Project Management and Controls (JX 23 at GG000680). Would the Staff have the SRB reconstituted for those selections to include someone familiar with his work? Likewise, the candidates for the Tech Support (Radcon) and the Programmatic (Radcon) positions included John Lobdell (JX 23 at GG000632). Would the Staff argue that yet a different SRB should have been constituted to include someone familiar with his work at the Environmental Radiological Monitoring and Instrumentation Laboratory (JX 23 at GG000726)? The bottom line is that under TVAN's process, SRB members do not consider past performance and do not act as advocates for individual candidates. The Staff's argument that TVA should have changed its normal process to benefit Fiser is an argument that he should have received special treatment, not an argument that he was discriminated against.

Based on an untutored review of the SRB scores, the Staff argues (SF&C

¶ 3.115) that Kent and Corey were biased in favor of Harvey and Chandra, respectively.

There are at least three reasons why this argument is without merit. First, all three SRB members scored Harvey and Chandra so closely that it is meaningless to try to draw conclusions that any of the reviewers was biased as between Harvey and Chandra.

Second, the Staff's conclusions, based on eyeballing the raw scores, have no evidentiary support. Third, it is inconceivable that the Staff has the temerity to argue that the scores show a bias, in light of the Staff's arguments about an actual statistical analysis of the 125

scores performed by Dr. Peters (SF&C ¶¶ 3.69-3.74). The Staff's argument that Kent and Corey were biased in favor of Harvey and Chandra because they had "worked directly at their sites[s]" (SF&C ¶ 3.115) is only supposition and does not provide a basis to find that they were not impartial, let alone a basis to find intentional discrimination.

The Staff so much as admits (SF&C ¶ 3.116) that Fiser did not present himself well before the SRB. Although TVA thinks the evidence shows that Fiser did not intend to be selected and intended to leave TVA, the Staff speculates that Fiser had a defeatist attitude and was displaying his "disappoint[ment]." In fact, even Fiser admitted that he displayed an attitude toward the SRB when, as he was leaving, he asked,

"[w]here is Jack Cox, I wish Jack Cox had been here" (Fiser p. 2404, 1.19-p. 2405, 1.2). He even acknowledged that his comment would have left an impression on the SRB:

Q.

When you asked them that question what did you think--what impression do you think that would create in the interviewers?

A.

The only impression that I think it would have left is, guys I don't think this is entirely fair, to be conducting the interviews with the RADCHEM manager of Sequoyah present, the RADC HEM manager of Browns Ferry present, and the RADCHEM manager of Watts Bar not present. I think it would have been better if they had just backed it off a couple of days, it would have been easy

[Fiser p. 2405, 1.17-p. 2406, 1.4].

Regardless of whether Fiser's poor presentation to the SRB was deliberate or the result of a defeatist attitude, there is no question he did not present well, as opposed to the SRB scoring him unfairly. The Staffs argument seems to be that, even though Fiser's presentation was scored fairly by the SRB, discrimination can be found since Fiser caused his own nonselection because he assumed the process was not fair. That is simply not proof of intentional discrimination by TVA. This case is about whether TVA intentionally discriminated against Fiser, not whether he caused his own nonselection.

126

The Staff misstates (SF&C ¶ 3.117) TVA's position regarding Cox's comment about his predisposition in favor of Fiser. Although Cox made a comment indicating that he was predisposed towards Fiser, because of his unavailability to serve on the SRB, there was no need to pursue that issue (McGrath p. 839, 11.19-23; McArthur

p. 1615, 11.16-19). Contrary to the Staff's assertions, TVA did not take the position that Cox would have been excluded from the SRB in any event and does not suggest that the reason that McArthur failed to reschedule the interviews was because of Cox's comment.

The Staff misstates (SF&C ¶ 3.118) when Cox made the comment indicating his predisposition towards Fiser. While he may have stated it to Kent and Corey just before the SRB convened, he made a similar comment to McArthur days before. There is no dispute that McArthur reported the comment to McGrath at the same time he told him of Cox's unavailability to serve on the SRB; a conversation which happened at least several days before the SRB. The Staff's argument about whether McArthur and Kent should have been allowed to serve on the SRB is addressed previously (see above at 78 and TVAF&C ¶ 9.48). The Staff's argument (SF&C

¶ 3.119) about the fairness of the questions asked by the SRB was addressed previously (above at 72-73; TVAF&C ¶i 9.29-9.33).

The Staff continues to misstate (SF&C ¶¶ 3.120-3.122) the role of the SRB when it argues about whether Harvey's interpersonal skills should have been considered by the SRB. As previously discussed (above at 68), the SRB's function is to consider the candidate's answers to the slate of job-related questions. It is no more a function of the SRB to consider the allegations against Harvey than it was to consider Fiser's subpar performance as Sequoyah Chemistry Manager. Likewise, it was not appropriate for McArthur to consider those allegations in making his decision. As discussed previously (TVAF&C ¶ 9.47), those allegations were denied by Harvey, had not been investigated, and were withdrawn. There was also some question at the time, 127

and even now, that Fiser ahd Grover sought to have sexual harassment charges filed against Harvey immediately prior to the selections. See above at 74-76.

The Staff has simply not proven that the selection process was changed or used in order to discriminate against Fiser.

K. Kent's Statement Regarding Fiser's DOL Activities Did Not Violate Section 50.7 nor Is It a Subject of the NOV.

Prior to the start of the interviews for the PWR Chemistry Program Manager position, Kent advised McArthur that, because of Fiser's 1996 DOL complaint implicating him, he should not participate in the SRB (SF&C ¶¶ 2.186, 2.191)

"to remove any perception of a problem with McArthur's objectiveness" (SF&C

¶ 2.187). McArthur accepted the advice and did not participate in the SRB process (Corey p. 2881, Il. 23-24; Rogers p. 5178, 1. 17-p. 5179, 1. 8; SF&C ¶ 2.191). Cox and Corey overheard Kent's advice to McArthur (SF&C ¶ 2.188).

Despite the cautionary content and nature of Kent's advice and counsel to McArthur, Staff relies on Earwood v. Dart Container Corp., 93-STA-0016 (Sec'y Dec. 7, 1994), for the proposition that Kent's comment was a per se violation of the employee protection provisions of 10 C.F.R. § 50.7 (SF&C ¶ 3.11). This case, how-ever, is wholly unlike Earwood. In that case, the Secretary of Labor found that the employer made "improper references" (at 3) to the complainant and that there was "direct evidence that Dart acted with a retaliatory motive toward Complainant based on the STAA complaint he filed against them" (at 2). The Secretary distinguished Smith v.

TVA, 90-ERA-12 (Sec'y Apr. 30, 1992), on the ground that the "alleged blacklist" in that case "did not contain 'language or instructions detrimental to Complainant' and was not used for a discriminatory purpose" (at 3 n. 1). Thus, instead of standing for the proposition that mere mention of protected activity is a per se violation, Earwood underscores that, for reference to protected activity to be improper, there must be 128

"discriminatory purpose" or "retaliatory motive" with "language or instructions detrimental to the Complainant."

The Secretary of Labor recognized in both Earwood and Smith v. TVA that proof of "discriminatory purpose" or intent is necessary under Supreme Court and Sixth Circuit precedents. See Griggs v. Duke Power Co., 401 U.S. 424, 432-33 (1971);

Pesterfield, 941 F.2d at 443 (holding "proof of discriminatory intent" is required in cases "alleging disparate treatment"). The Board must reject the contention that Kent's comment was a per se violation as a matter of law because it would read out of the regulation all of the elements of discrimination, including motive and intent, except knowledge of protected activity. The effect of the Staff's theory would be that an off-hand comment would confer knowledge and therefore establish liability. This is unsupportable in light of Supreme Court, Sixth Circuit, and Secretary of Labor precedents.

The Board must also reject the Staff's theory that Kent's comment was discriminatory because Staff presented no reasonable basis upon which discriminatory animus can be inferred from Kent's comments. Unlike the comments in Earwood, Kent's comments were not negative, he did not indicate or reveal a displeasure with Fiser for filing an ERA complaint, and he did not, explicitly or otherwise, suggest that Fiser should not be selected because of his protected activity. To the contrary, he counseled McArthur not to participate in the interviews precisely to help to ensure the integrity and fairness of the process. As Cox testified, Kent "was recommending to Mr. McArthur that he not participate and not ask any of the questions and that sort of thing, and it was strictly from the standpoint of making sure that there was nothing even perceived to be inappropriate as part of the selection" (SX135 (Cox) p. 138, 1. 24-

p. 139, 1. 4).

Kent's advice to McArthur was reasonable in light of Fiser's own attempt to extort the PWR Chemistry Program Manager position or to build a case against TVA.

129

See Brochu v. City of Riviera Beach, 304 F.3d 1144, 1161, (11th Cir. 2002) ("One cannot permanently insulate oneself from a legitimately-motivated adverse employment action by simply becoming politically active and thereafter artificially linking all one's behavior to that allegedly protected political activity."). Fiser threatened to file a DOL complaint prior to the posting of the job with the intent to cause TVA not to post the job.

Fiser filed his 1996 DOL complaint prior to the selection process and informed at least Kent, Grover, and Cox, thinking at the time that Kent and Cox were to be on the SRB.

Fiser clearly intended for the SRB to know of his 1996 DOL complaint when the interviews occurred. Under these circumstances, Kent's remark was intended to be, and was, a reasonable precaution to McArthur.

Another reason that an innocent reference to an employee's past DOL complaint is not a per se violation of Section 50.7 is that NRC has recognized the appropriateness of an employer's action in taking "'added assurance'" "to ensure that

[allegers] had not been targeted specifically for reduction." NRC, Millstone Independent Review Team, Report of Review, at 13, (Mar. 12, 1999). 30 Clearly, such "added assurance" prior to an adverse action would involve discussion ("remarks") of protected activity. This should not be treated as aper se violation. Thus, prohibited discrimination under both Section 50.7 and the ERA requires that an employee incur an adverse action based on an action by an employer that is undertaken with specific intent to cause an adverse action. In this case, Kent's comment was not made with a retaliatory intent nor did it cause Fiser to incur an adverse action.

Finally, Staff interjects that TVA fosters a hostile work environment towards those employees who have engaged in protected activities (SF&C ¶¶ 3.125-3.131). This is just another example of Staffs ever changing theories and constant attempts to throw the proverbial mud against the wall to create inferences. The Staff has 30 A copy of the Report is attached to TVA's findings.

130

identified McGrath and McArthur as the alleged discriminating officials (JX47) and, in fact, issued them individual NOVs (JX48; JX49). The Staff does not contend in those NOVs that either McGrath or McArthur subjected Fiser to a hostile work environment for engaging in protected conduct. As the evidence shows, neither McGrath nor McArthur created a hostile work environment. Moreover, this proceeding does not extend to any other hypothetical managers or individuals who have allegedly created a hostile work environment and for which the NRC has not issued an NOV in this case.

IV. Conclusion Based on the foregoing Reply and TVA's previously filed findings and conclusions, Staff's conclusions (¶¶4.1-4.4.9) are erroneous and should be rejected by the Board. Accordingly, the NOVs issued by the Staff against TVA, McGrath, and McArthur should be vacated and dismissed.

March 7, 2003 Office of the General Counsel Tennessee Valley Authority 400 West Summit Hill Drive Knoxville, Tennessee 37902-1401 Facsimile 865-632-6718 Of Counsel:

David A. Repka, Esq.

Winston & Strawn 1400 L Street, NW Washington, D.C. 20005 003701457 Respectfully submitted, Maureen H. Dunn General Counsel Thomas F. Fine Assistant General Counsel John E. Slater Senior Litigation Attorney Brent R. Marquand (TN BW 4717)

Senior Litigation Attorney Telephone 865-632-4251 Attorneys for Tennessee Valley Authority 131

CERTIFICATE OF SERVICE I hereby certify that the foregoing document, together with the identified attachments, has been served by regular mail on the persons listed below. Copies of the brief only have also been sent by e-mail to those persons listed below with e-mail addresses.

Administrative Judge Charles Bechhoefer, Chairman U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: cxb2@nrc.gov Administrative Judge Ann Marshall Young U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: amy~nrc.gov Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 This 7th day of March, 2003.

Administrative Judge Richard F. Cole U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Two White Flint North 11545 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: rfclinrc.gov Dennis C. Dambly, Esq.

Jennifer M. Euchner, Esq.

U.S. Nuclear Regulatory Commission Office of the General Counsel One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 e-mail address: dcdinrc.gov e-mail address: jmeCnrc.gov Mr. William D. Travers Executive Director of Operations U.S. Nuclear Regulatory Commission One White Flint North 11555 Rockville Pike Rockville, Maryland 20852-2738 orney for Tennessee V y Authority 132

ADDENDUM UNPUBLISHED DECISIONS CITED IN THIS REPLY

UNPUBLISHED DECISIONS CITED IN THIS REPLY Cases:

Page TVA v. Frady, 134 F.3d 372 (table),

No. 96-3831, 1998 WL 25003 (6th Cir. Jan. 12, 1998).................................

01 Peterson v. Dialysis Clinic, Inc.,

No. 96-6093, 1997 U.S. App. LEXIS 26254 (6th Cir. Sept. 8, 1997).................................

06 Warren v. Ohio Dep't of Pub. Safety, No. 00-3560, 2001 U.S. App. LEXIS 21664 (6th Cir. Oct. 3, 2001)..................................

11 Williams v. Rumsfeld, No. 01-4016, 2002 U.S. App. LEXIS 16524 (3d Cir. Aug. 13, 2002).................................

18

134 F.3d 372 (Table)

Unpublished Disposition (Cite as: 134 F.3d 372, 1998 WL 25003 (6th Cir.))

Page 1 NOTICE: THIS IS AN UNPUBLISHED OPINION.

(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of unpublished opinions.)

United States Court of Appeals, Sixth Circuit.

TENNESSEE VALLEY AUTHORITY, Petitioner, V.

Randolph FRADY, United States Department of Labor, Respondents.

No. 96-3831.

Jan. 12, 1998.

Before:

RYAN, SUHRHEINRICH, and COLE, Circuit Judges.

PER CURIAM.

substantial evidence."

We find that the Secretary's decision with regard to the three contested allegations is not supported by substantial evidence.

We, therefore, REVERSE that decision.

I. Facts Plaintiff Frady was employed by TVA from 1978 until 1992.

From 1983 on, he worked as a nuclear inspector at the Sequoyah and Watts Bar nuclear plants. While working as an inspector, he raised safety concerns with the NRC and TVA management on several occasions.

In December 1990, Frady received notice that he would be terminated due to a reduction in force.

In response, Frady filed a complaint under the ERA.

The complaint resulted in a settlement agreement which extended Frady's employment with TVA until January 1992.

As part of that agreement, Frady was placed in the Employee Transition Program from June 1991 until his termination.

The program allowed him to seek a new position within TVA, which he did.

However, Frady was not selected for any of the positions he applied for, and he filed ERA complaints challenging these non-selections.

• • 1 This appeal arises from claims by Randolph Frady under the whistleblower protection provision of the Energy Reorganization Act of 1974(ERA), as amended, 42 U.S.C. § 5851 (1988), which prohibits licensees of the Nuclear Regulatory Commission (NRC) from discriminating against employees who engage in protected activity, such as identifying nuclear safety concerns or making complaints under the ERA. Pursuant to the ERA, Plaintiff Frady filed complaints with the U.S. Department of Labor (DOL), alleging that his non-selection for fourteen different positions was the result of unlawful retaliation for his protected activities while working as a nuclear inspector for Defendant Tennessee Valley Authority (TVA).

The case ultimately reached the Secretary of Labor (hereinafter Secretary), who found for Plaintiff with regard to three of the fourteen allegations.

Petitioner TVA appeals the Secretary's decision for Plaintiff on those three allegations.

The issues raised by Petitioner on appeal ask whether "the Secretary was arbitrary and capricious in disregarding the ALJ's credibility determinations,"

and whether his "decision was supported by After an investigation by the DOL's Wage and Hour Division found no merit to Frady's complaints, he filed a request for a hearing.

An administrative law judge (hereinafter AU), charged with making recommendations to the Secretary, conducted the hearing and thereafter dismissed eight of the fourteen allegations upon TVA's motion for summary judgment.

The AU issued a written opinion discussing the remaining six allegations and recommended that they all be decided in TVA's favor.

The Secretary adopted the AU's recommendations concerning the eight dismissed allegations and three of the six allegations decided on the merits, but found for Frady on the remaining three allegations, which are the only ones contested here.

While on remand to the ALJ for determination of Plaintiffs remedy, the parties reached agreement on the appropriate remedy, contingent upon this appeal.

The resulting "Joint Stipulation" was recommended for approval by the ALJ, and the Administrative Review Board of the DOL issued an order approving it.

• • 2 Two of the three contested allegations concern Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 01

134 F.3d 372 (Table)

(Cite as: 134 F.3d 372, 1998 WL 25003, **2 (6th Cir.))

Page 2 Frady's application for machinist trainee positions at both the Watts Bar and Sequoyah nuclear plants, as well as for a steamfitter trainee position at Sequoyah.

Applicants for each of these three positions were considered by a different three-person committee, consisting of a

TVA representative, a member of the applicable union, and Kevin Green, a human resources manager for TVA. The TVA and union representatives were charged with ranking the applicants and making the hiring decisions, while Green was assigned to be a facilitator.

Each of the committees ranked Frady below the applicants who were ultimately selected.

The third contested allegation concerns Frady's application for a quality control inspector position at the Sequoyah facility.

Shortly after the vacancy for this position was announced, a staffing study conducted by an outside consultant recommended that staffing levels at the facility be reduced.

Roy Lumpkin, Frady's former supervisor and the supervisor for the open position, ultimately decided to cancel the vacancy without hiring anyone for it.

11. Applicable Law We review the Secretary's decision to ensure that it is not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Ohio v.

Ruckelshaus, 776 F.2d 1333, 1339 (6th Cir.1985)

(quoting 5 U.S.C. § 706(2)(A)(Administrative Procedure Act)).

As part of our review, "we must determine whether [the decision] is supported by substantial

evidence, which is

'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' "

Moon v.

Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987) (quoting Richardson v. Perales, 402 U.S.

389. 401 (1971)).

The substantial evidence standard requires us to consider evidence in the record that is contrary to the Secretary's findings and conclusions. Tel Data Corp. v. National Labor Relations Bd., 90 F.3d 1195, 1198 (6th Cir.1996).

Although the AUJ only recommends a decision, the evidentiary support for the Secretary's conclusions "may be diminished,

however, when the administrative law judge has drawn different conclusions."

National Labor Relations Bd. v.

Brown-Graves Lumber Co., 949 F.2d 194, 196-97 (6th Cir.1991).

In particular, this court "will not normally disturb the credibility assessments of... an administrative law judge, who has observed the demeanor of the witnesses." Litton Microwave Cooking Prods. Div., Litton Sys., Inc., 868 F.2d 854, 857 (6th Cir.1989) (reversing National Labor Relations Board, which declined to follow AU's recommendation to dismiss complaint) (internal quotes omitted); accord Curran v. Dept. of the Treasury, 714 F.2d 913, 915 (9th Cir.1983) (

"Special deference is to be given the AL's credibility judgments").

Given the conflicts in this case between the conclusions of the AU and the Secretary, we must examine the record with particular scrutiny. Tel Data, 90 F.3d at 1198.

• • 3 The law governing Frady's proof of his claims was carefully laid out by the Secretary:

a complainant... must first make a prima facie case of retaliatory action by the [defendant], by establishing that he engaged in protected activity, that he was subject to adverse action, and that the

[defendant] was aware of the protected activity when it took the adverse action.

Additionally, a complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action.

If a complainant succeeds in establishing the foregoing, the [defendant] must produce evidence of a legitimate, nondiscriminatory reason for the adverse action.

The complainant bears the ultimate burden of persuading that the

[defendant's] proffered reasons... are a pretext for discrimination.

At all times, the complainant bears the burden of establishing by a

preponderance of the evidence that the adverse action was in retaliation for protected activity.

Frady v.

Tennessee Valley Authority, Nos.

92-ERA-19

& 92-ERA-34, slip op.

at 5-6 (Secretary of Labor Oct. 23, 1995) (citations omitted) (hereinafter Secretary's Opinion); accord Moon, 836 F.2d at 229.

The Secretary went on to state that, as part of the establishment of a prima facie case, "Frady must establish that he was qualified for such position; that, despite his qualifications, he was rejected; and that TVA continued to seek and/or select similarly qualified applicants."

Secretary's Opinion at 18 (adopted from McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973)).

The Secretary concluded that, for each of the three contested allegations, Frady established all the elements of a prima facie case discussed above and met his ultimate burden of proving that TVA's proffered reasons for its personnel decisions were a pretext for retaliation.

III. Trainee Positions Copr. @ West 2003 No Claim to Orig. U.S. Govt. Works 02

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(Cite as: 134 F.3d 372, 1998 WL 25003, **3 (6th Cir.))

Page 3 Two of the three contested allegations involve the machinist and steamfitter trainee positions.

The record contains little to support the Secretary's finding that Plaintiff established a prima facie case of retaliation with regard to these positions.

As to the knowledge element of a prima facie case, we agree with the AL's finding that there is no evidence that members of the selection committees knew about Plaintiff's protected activity, including his earlier ERA complaint. (J.A. at 73). As to the inference element of a prima facie case, the Secretary found that Plaintiff "established an inference of retaliatory motive based on temporal proximity."

Secretary's Opinion at 24. Where adverse employment action follows rapidly after protected activity, common sense and case law allows an inference of a causal connection.

See Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987) (stating, in a case where the plaintiff was fired less than two weeks after making a complaint, that "the proximity in time between protected activity and adverse employment action may give rise to an inference of a causal connection"). However, because seven or eight months elapsed between Frady's most recent protected activity, namely the filing of the earlier ERA complaint, and the decisions by the selections committees, the Secretary's inference is a weak one.

[FN1]

FNI. The Secretary chose to determine temporal proximity based on Frady reaching a settlement agreement with TVA in June 1991, two or three months before his non-selection by the committees.

We believe that the date of the complaint, January 1991, is the more appropriate date to use, because I) unlike a settlement agreement, a complaint is clearly a protected activity under the ERA, and 2) common sense dictates that employees are much more likely to be retaliated against for filing a complaint against their employer than for resolving the dispute with their employer by reaching a settlement agreement.

• • 4 Even if we were to overlook the scarcity of evidence supporting the knowledge and inference elements of Plaintiffs prima facie case, we would still be forced to conclude that the Secretary's decision regarding the trainee positions was not supported by substantial evidence.

Assuming arguendo that Plaintiff established a prima facie case, Defendant must produce evidence of a legitimate, nondiscriminatory reason for the non-selection.

The Secretary conceded that Defendant met this burden of production by presenting testimony that the people selected for the trainee positions had qualifications superior to those of Plaintiff.

Secretary's Opinion at 24.

However, the Secretary found that Plaintiff met his ultimate burden of proving that this legitimate reason was a pretext for discrimination.

The Secretary discussed several evidentiary reasons why he reached this conclusion, id. at 26-31, but none of them amount to substantial evidence.

The most direct reason cited by the Secretary was that he did "not find the testimony indicating that the selectees... were found by each committee to be better qualified than Frady based on their 'hands on' experience to be persuasive."

Id. at 26.

In reaching this conclusion, the Secretary did not give any deference, as required, to the AL's implicit finding that this testimony was credible.

Moreover, the Secretary substituted his judgment for that of the selection committees at an inappropriate level of detail, when he determined that Frady's experience using calibration tools and building a log home was equivalent to other applicants' experience with automobile engines and heating and air-conditioning equipment.

Id. at 20-21.

The other reasons cited by the Secretary for his conclusion that Frady proved pretext are speculative at best.

For example, the Secretary concludes that "other candidates could have been 'primed' in advance to assist them in answering the standard questions that were asked of each applicant."

The Secretary bases this hypothesis solely on committee member Green's off-hand comment during his testimony that "I have no knowledge that [the candidate] was primed or anything." Id. at 27-28.

The Secretary also cites, as evidence of pretext, that eleven of the eighteen applicants selected by the committees were from outside TVA, despite a TVA policy of filling vacancies from within the ranks of TVA employees.

Id. at 29.

However, the Secretary fails to explain how discrimination against Frady can explain more than one of the eleven selections from outside TVA.

As further evidence of pretext, the Secretary cites the fact that TVA "relied almost entirely on

[committee member] Green's testimony concerning the relevant qualifications."

Id. at 30.

The Secretary concludes that this indicates that Green was less than honest when he indicated that he was Copr. a West 2003 No Claim to Orig. U.S. Govt. Works 03

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(Cite as: 134 F.3d 372, 1998 WL 25003, **4 (6th Cir.))

Page 4 a facilitator on the selection committees, rather than a decision maker.

Even if we ignore the problems with citing a defendant's strategy as evidence of a witness's credibility, Defendant's reliance on Green's testimony about qualifications can be explained by the fact that Green was the personnel representative on the committees and was the only person to serve on all the relevant selection committees.

• • 5 Finally, the Secretary cites evidence "that Frady was the subject of a considerable degree of animus from supervisory personnel... at TVA" Id.

at 31.

However, the Secretary cites no evidence that the animus was due to Frady's protected activity.

In fact, there is evidence pointing in the opposite direction.

For example, TVA employee Michael Miller, a witness vouched for by Frady, (

J.A. at 492-93), attributed the animus from one supervisor to personality conflicts rather than Frady's whistleblowing. (J.A. at 662-4).

Without evidence that the animus was based on protected activity, the animus does not suggest retaliation for such activity.

We also note that one of the two decision makers on each selection committee was a union representative, rather than a representative of TVA.

Frady never alleged, and the Secretary never found, that the there was any reason why the union representatives would discriminate against Frady.

Thus, it is significant that the TVA and union representatives ranked Frady at about the same level, as he concedes. (J.A. at 487).

This appears to us to be compelling evidence that the TVA representatives were not biased by Plaintiffs protected activity.

Moreover, the fact that the union representatives gave Plaintiff a relatively low ranking indicates that they too believed there was a legitimate reason for not selecting him.

For all the reason discussed above, we conclude that the Secretary's decision regarding the machinist and steamfitter trainee positions is not supported by substantial evidence.

IV. Quality Control Inspector Position One of the three contested allegations involves a quality control inspector position at the Sequoyah facility.

Unlike the trainee positions, this position was canceled rather than being filled by other applicants.

However, after Roy Lumpkin canceled the inspector vacancy, two inspectors "returned to their positions as nuclear inspectors at the Sequoyah plant pursuant to the terms of a settlement agreement."

Secretary's Opinion at 36.

The Secretary, therefore, "conclude[d] that TVA, in

effect, filled the announced nuclear inspector vacancy with similarly qualified candidates," thus establishing one element of a prima facie case. Id.

We find, however, that this conclusion is not supported by substantial evidence for a number of reasons.

First, the two inspectors returned to their positions almost a year after the vacancy was canceled. Id. at 36 n. 26. Second, Roy Lumpkin, the manager who canceled the vacancy, moved to an unrelated position four months before the inspectors returned, (J.A.

at 600), and was uninvolved in their return.

Third, the two inspectors returned based on settlement agreements, whereas Plaintiff sought the position through regular application channels. [FN2]

For all these reasons, Plaintiff cannot show that he was treated any differently than similarly qualified candidates.

See White v. General Motors Corp. Inc., 908 F.2d 669, 671 (IOth Cir.1990) ("to maintain an action for wrongful discharge, [plaintiffs] must demonstrate that they were treated differently because of their whistleblowing activity").

FN2. Plaintiff's earlier settlement agreement guaranteed only that he would be placed in the Employee Transition Program.

• • 6 The Secretary also concludes that Plaintiff met the prima facie requirement of raising an inference that his protected activity was the likely reason for the adverse action, namely the vacancy cancellation.

The Secretary bases this conclusion on two factors.

One factor is the temporal proximity between the cancellation and Frady's protected activity.

Secretary's Opinion at 38.

However, as discussed with regard to the trainee positions, the Secretary's inference based on temporal proximity is a weak one, because seven months elapsed between Frady's earlier ERA complaint and the cancellation of the vacancy.

'The second factor cited by the Secretary is his "conclu[sion]

that Lumpkin strongly suspected, if he did not have certain knowledge, that Frady had applied for the position." Id. This is by no means a forgone conclusion, given that Lumpkin canceled the vacancy before he received the applications from Human Resources.

Yet the Secretary explicitly bases his conclusion on the Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 04

134 F.3d 372 (Table)

(Cite as: 134 F.3d 372, 1998 WL 25003, **6 (6th Cir.))

Page 5 following summary of Lumpkin's testimony:

"although [Lumpkin] was unsure whether he had been told... that Frady had applied for the job, he was 'reasonably certain if [Frady] wanted the inspector job at Sequoyah, he would have applied.'

" Id. We fail to see how this testimony leads to the conclusion that Lumpkin strongly suspected or knew for sure that Frady had applied.

In summary, substantial evidence is lacking with regard to at least two elements of a prima facie case of retaliation involving the canceled inspector position.

Plaintiff cannot show that the canceled vacancy was filled with similarly qualified candidates, and the Secretary's finding that Plaintiff successfully raised an inference of discrimination lacks adequate support.

We conclude, therefore, that the Secretary's decision regarding the inspector position fails to meet the substantial evidence standard.

In addition, we note that the consultant's study, which recommended a reduction in staff, appears to be the legitimate reason for the cancellation, as Defendant contends.

However, we need not reach this issue, because a defendant's obligation to proffer a legitimate reason for an adverse employment decision is not triggered until a prima facie case of discrimination is established, Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir.1987), which Plaintiff failed to do here.

V. Conclusion The Secretary's decision for Plaintiff with regard to each of the three contested allegations is unsupported by substantial evidence.

We, therefore, REVERSE that decision and VACATE the orders of the Secretary and Administrative Review Board.

The Secretary's decision for Defendant regarding Plaintiff's other eleven allegations is undisturbed.

134 F.3d 372 (Table), 1998 WL 25003 (6th Cir.),

Unpublished Disposition END OF DOCUMENT Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 05

Page 4 MARTHA J. PETERSON, Plaintiff-Appellant, v. DIALYSIS CLINIC, INC., Defendant-Appellee.

No. 96-6093 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 1997 U.S. App. LEXIS 26254 September 18, 1997, Filed NOTICE:

[*I] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT.

THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

SUBSEQUENT HISTORY: Reported in Table Case Format at: 124 F.3d 199, 1997 U.S. App LEXIS 30684.

PRIOR HISTORY: On Appeal from the United States District Court for the Eastern District of Tennessee.

DISPOSITION: AFFIRMED.

CASE

SUMMARY

PROCEDURAL POSTURE: Plaintiff employee filed an action against defendant employer in the United States District Court for the Eastern District of Tennessee alleging she was fired in retaliation for a decision to testify against the employer in an unrelated matter in violation of 42 U.S.C.S. §§ 2000e-2000e-17. The employer filed a motion for summary judgment, which was granted. The employee appealed.

OVERVIEW: The district court concluded the employee did not establish a prima facie case of unlawful retaliation or prove that the employer's proffered reason for the discharge was a pretext for such retaliation. The employee claimed that there was sufficient evidence to permit a reasonable jury to find the elements of a prima facie case. The court affirmed the judgment. To establish a prima facie case of unlawful retaliation the employee had to prove that she was engaged in a protected activity, the protected activity was known to the employer, she was subjected to an adverse employment action, and there was a causal connection between the protected activity and the adverse employment action. The court found that a reasonable jury could have supported a conclusion of a pretext but that because the employer had no knowledge of the protected activity, an inference of unlawful retaliation where the basic question of knowledge itself was in doubt could not have been made.

There was no evidence that the employer knew of the employee's protected activity. Thus, the employee failed to make out a prima facie case sufficient to create a jury question as to the ultimate fact of unlawful retaliation.

OUTCOME: The judgment of the district court granting the employer's motion for summary judgment was affirmed.

CORE TERMS: retaliation, protected activity, prima facie case, appointment, pretext, nurse, summary judgment, reasonable jury, pernnission, quit, discharged, fired, proffered reason, direct evidence, agreed to testify, causal connection, deposition, friendship, vacation, attend, circumstantial evidence, race discrimination, produced evidence, preponderance, favorable, paradigm, termination, suspension, scheduled, afternoon CORE CONCEPTS -

Civil Procedure: Summary Judgment: Summary Judgment Standard Civil Procedure: Appeals: Standards of Review: De Novo Review The appellate court reviews a district court's grant of summary judgment de novo, examining the record and drawing all inferences in the light most favorable to the non-moving party.

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1964 Labor & Employment Law: Discrimination: Title VII 06

Page 5 1997 U.S. App. LEXIS 26254,

• In order to establish a prima facie case of unlawful retaliation under Title VII of the Civil Rights Act of 1964, a plaintiff must prove, by a preponderance of the evidence that: 1) she engaged in a protected activity; 2) this protected activity was known to defendant; 3) she was thereafter subjected to an adverse employment action; and 4) there was a causal connection between the protected activity and the adverse employment action.

The central inquiry in evaluating whether the plaintiff has met her initial burden is whether the circumstantial evidence presented is sufficient to create an inference of unlawful retaliation.

Labor & Employment Law: Discrimination: Disparate Treatment Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. The plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for unlawful retaliation.

Evidence sufficient to permit a reasonable jury to conclude that the defendant's proffered reasons were not its true reasons, together with evidence sufficient to establish the elements of the prima facie case, is sufficient to create a jury question as to the "ultimate fact" of unlawful retaliation.

COUNSEL: For MARTHA J. PETERSON, Plaintiff-Appellant: Robert D. Bradshaw, Chattanooga, TN.

For DIALYSIS CLINIC INC, Defendant - Appellee:

Tim K. Garrett, Bass, Berry & Sims, Nashville, TN.

JUDGES: BEFORE: NELSON and RYAN, Circuit Judges; QUIST, District Judge. *

• The Honorable Gordon J. Quist, United States District Judge for the Western District of Michigan, sitting by designation.

prove that DCI's proffered reason for the discharge was a pretext for such retaliation. We agree that Peterson has not produced evidence sufficient to permit a reasonable jury to find the elements of the prima facie case.

Accordingly, we will affirm I.

A.

DCI is a not-for-profit corporation which provides dialysis treatment at multiple locations. Pam Bethune is the administrator of several DCI facilities, including the "Broad Street" facility in Chattanooga, Tennessee.

Mickey Chumley is the head nurse at the Broad Street location. As head nurse, Chumley supervises daily operations and reports to Bethune.

Peterson, a registered nurse, was hired by DCI in June 1993. After completing training, Peterson was assigned to the Broad Street facility. According to Peterson, almost immediately after she began working at Broad Street, Chumley made racially hostile remarks regarding a black nurse, Sharon Parks. Peterson stated in her deposition that Chumley indicated that Bethune had "gotten rid of' or "run off' two other black employees.

In October 1993, Parks filed[*3] a charge of race discrimination in response to a suspension. According to Parks, she asked Peterson to testify on her behalf several times, beginning in November 1993. Both Peterson and Parks agree that it was sometime in December when Peterson agreed to testify for Parks.

Explaining her decision to testify, Peterson stated that, although she had initially complained to Chumley about Parks's attitude and work ethic, she eventually came to think of Parks as a good worker and a friend. Peterson added that she had been goaded into complaining about Parks by Chumley. According to Peterson, Chumley was aware that Peterson and Parks became friends, and Chumley was "furious" about the friendship.

OPINIONBY: RYAN OPINION: RYAN, Circuit Judge. Martha J. Peterson filed suit against Dialysis Clinic, Inc. (DCI), pursuant to 42 US C. §§ 2000e-2000e-17, Title VII of the Civil Rights Act of 1964, alleging that DCI fired her in retaliation for her decision to testify on behalf of a coworker who had filed a charge of race discrimination.

DCI moved for and was granted summary judgment [*2]

The district court concluded that Peterson could neither establish a prima facie case of unlawful retaliation nor On January 21, 1994, Peterson was permitted to take time off from work in order to attend a meeting regarding Peterson's plan to donate a kidney to her sister. After returning to work that same day, Peterson told Chumley that she had a second appointment with a transplant coordinator at 1:00 p.m., on February 23, 1994. Peterson asked Chumley for permission to attend the appointment, and offered to give up one of her vacation days, scheduled for February 18-22, 1994. According to Peterson, Chumley[*4] told her that she did not need to give up a day of vacation, and that they would "work it out" so that Peterson could keep the appointment.

07

Page 6 1997 U.S. App. LEXIS 26254,

• Chumley testified, however, that she subsequently told Peterson that, although Peterson could keep her scheduled vacation, she would have to reschedule her February 23 appointment because the Broad Street facility was experiencing unexpected staffing shortages.

Peterson does not dispute that Chumnley made some statement to this effect, but Peterson contends that, in context, Chumley appeared to be joking.

Peterson and Chumley apparently continued to have difficulty communicating about the February 23 appointment. According to Peterson, although Chumley made vague statements suggesting that Peterson's appointment was an inconvenience, Chumley never told Peterson that she could not keep her appointment or that she would be fired if she did so. Chumley testified in her deposition, however, that she made it clear to Peterson that Peterson did not have permission to leave, and that, if Peterson left, she would not have a job when she returned. Peterson left for her appointment sometime shortly before 1:00 p.m. After consulting with Bethune, Chumley[*5] fired Peterson when Peterson returned to work later that afternoon.

Peterson went immediately to Bethune's office to dispute her termination. Bethune agreed to place Peterson on suspension and conduct an investigation.

Upon review, however, Bethune concluded that Peterson had left work without permission and she informed Peterson that her termination would not be rescinded.

Louise Roberson, a nurse who works at the DCI facility where Bethune's office is located, testified in her deposition that she was asked at 8:40 a.m., on February 23, 1994, by the head nurse at her facility, if she would be able to fill in at the Broad Street facility the following week. Roberson explained that she asked, "Who's quit now?" because Broad Street "has had a bad reputation for many years of not being able to keep staff." Roberson was told that "Martha [Peterson]" had quit. When Peterson arrived to speak to Bethune later that afternoon, Roberson told Peterson that she was sorry to bear that Peterson had quit. Roberson testified that Peterson told her that she had not quit, but, rather, had been fired.

B.

On July 12, 1995, Peterson filed a complaint, pursuant to 42 U.S.C. §§ 2000e-2000e-17, [*6] alleging that she had been discharged in retaliation for agreeing to testify on behalf of Parks. On April 22, 1996, DCI moved for summary judgment, arguing that Peterson could neither establish a prima facie case nor prove that DCI's reason for firing Peterson was a pretext for unlawful retaliation.

With specific regard to the prima facie case, DCI argued that Peterson could not prove that DCI knew of Peterson's intent to testify for Parks, or that there was a connection between Peterson's protected activity and her discharge.

Both Bethune and Chumley denied having knowledge of Peterson's decision to testify on behalf of Parks.

Peterson herself acknowledged that she had not shared her decision with any representative of DCI, because she "did not think that [it] was in [her] best interests to do so. Parks likewise testified that she did not tell anyone about Peterson's decision.

However, both Parks and Peterson submitted affidavits in which they averred that they had discussed Peterson's decision to testify "on several occasions in the breakroom at DCI's Broad Street facility." They explained that the employees at Broad Street were prone to gossip, and that "once one[*7] employee learned information about another employee, it was repeated until all of the employees knew about it." Another nurse, Connie Bedwell, who was herself discharged for excessive absenteeism, submitted an affidavit in which she averred that she overheard two other employees discussing the fact "that Martha Peterson was going to support [Parks's]

complaint with her testimony."

On May 16, 1996, the district court concluded that Peterson had failed to establish a prima facie case of unlawful retaliation under Title VII, and it granted DCI's motion for summary judgment. Specifically, the district court concluded that Peterson had failed to submit evidence sufficient to establish either that DCI knew she had engaged in protected activity or that there was a causal connection between her protected activity and her discharge. The district court also concluded that Peterson could not succeed at the pretext stage because "she has utterly failed to produce evidence that DCI was motivated to fire her for her involvement with Parks rather than because of her leaving the facility without permission."

Peterson filed a motion for reconsideration, relying heavily on Roberson's testimony, [*8] which the district court had not discussed in its opinion. The district court denied Peterson's motion, stating that she had failed to present any evidence, direct or indirect, that DCI knew that she had agreed to testify on Parks's behalf.

II.

Peterson argues that the district court erred when it granted DCI's motion for summary judgment.

Specifically, Peterson argues that the totality of the circumstances, including: the "gossipy" work environment; Bedwell's testimony; Chumley's hostility to Peterson's friendship with Parks; Chumley's awareness 08

Page 7 1997 U.S. App. LEXIS 26254,

• that Peterson knew of racial hostility directed at Parks; Peterson's otherwise unblemished work record; the timing of Peterson's discharge; and Roberson's testimony, is sufficient to permit a reasonable jury to conclude that DCI knew of Peterson's decision to testify and that DCI discharged Peterson because of this knowledge. We disagree.

This court "review[s] a district court's grant of summary judgment de novo, examining the record and drawing all inferences in the light most favorable to the non-moving party." Woythal v. Tex-Tenn Corp., 112 F.3d 243, 245-46 (6th Cir. 1997).

In order to establish a prima facie case[*9] of unlawful retaliation under Title VII, a plaintiff must prove, by a preponderance of the evidence that: I) she engaged in a protected activity; 2) this protected activity was known to defendant; 3) she was thereafter subjected to an adverse employment action; and 4) there was a causal connection between the protected activity and the adverse employment action. Canitia v. Yellow Freight Sys., Inc.,

903 F.2d 1064, 1066 (6th Cir. 1990). The "central inquiry in evaluating whether the plaintiff has met [her]

initial burden is whether the circumstantial evidence presented is sufficient to create an inference" of unlawful retaliation. Shah v. General Elec. Co., 816 F.2d 264, 268 (6th Cir. 1987); see EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir. 1997).

Once the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 125 L. Ed. 2d 407, 113 S Ct 2742 (1993). The plaintiff then has the "opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant[* 10] were not its true reasons, but were a pretext for" unlawful retaliation. Id at 515 (quoting Texas Dep't of Community Affairs v. Burdine 450 U.S 248, 253, 67L. Ed 2d207, 101 S. Ct 1089 (1981)). Evidence sufficient to permit a reasonable jury to conclude that the defendant's proffered reasons were not its true reasons, together with evidence sufficient to establish the elements of the prima facie case, is sufficient to create a jury question as to the "ultimate fact" of unlawful retaliation. Id. at 511; EEOC v. Yenkin-Majestic Paint Corp, 112 F.3d 831, 834 (6th Cir. 1997).

In the light most favorable to Peterson, Roberson's testimony that she was told that Peterson had quit several hours before Peterson committed the act which allegedly led to her discharge, and Peterson's testimony that she was led to believe that she had permission to attend her appointment, could permit a reasonable jury to conclude that DCI manipulated Peterson so that it would have an excuse to fire her. In other words, this testimony could support the conclusion that DCI's proffered reason for discharging Peterson was a pretext--the critical question being: "a pretext for what?" If Peterson[* 11] has produced sufficient evidence to prove the elements of the prima facie case, a reasonable jury could conclude that DCI's proffered reason was a pretext for unlawful retaliation.

After a careful and thorough consideration of all the evidence in the record, however, we find that we are in agreement with the district court's conclusion that Peterson has not produced evidence sufficient to establish the third or fourth elements of a prima facie case of unlawful retaliation. On the record before us, we simply cannot conclude that it would be reasonable, as distinguished from speculative, for a jury to conclude that DCI knew of Peterson's protected activity and that this knowledge was causally connected to Peterson's discharge.

Although the paradigm established by McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct 1817 (1973), was designed to accommodate discrimination claims based on circumstantial evidence, see Burns v. City of Columbus, Dept of Pub. Safety, Div.

of Police, 91 F.3d 836, 843 (6th Cir. 1996), a plaintiff relying on this paradigm to prove unlawful retaliation typically has direct evidence that the defendant was aware of the plaintiffs [* 12]protected activity. See, e.g.,

Harrison v. Metropolitan Gov't of Nashville and Davidson County, Tenn., 80 F.3d 1107, 1118 (6th Cir.),

cert. denied, 136 L. Ed. 2d 111, 117 S. Ct. 169 (1996);

Jackson v. RKO Bottlers of Toledo, Inc. 743 F.2d 370, 377 n.3 (6th Cir. 1984). In such cases, the difficult question is whether the defendant's knowledge of the plaintiff's protected activity motivated the adverse employment action.

Here, however, there is no direct evidence that DCI knew that Peterson had agreed to testify on behalf of Parks. Although we do not intend to suggest that such direct evidence is always necessary, this case highlights how difficult it is to create an inference of unlawful retaliation where the basic question of knowledge is itself in doubt.

Both Peterson and Parks indicated that they endeavored to keep their arrangement secret, and both Bethune and Chumley denied that they were aware of Peterson's decision to testify. Although Bedwell's testimony might establish that Peterson's decision became grist for the office rumor mill, and Peterson's testimony might establish that Chumley was aware of and hostile to Peterson's friendship with Parks, there is nothing[* 13] in these circumstances which suggests that DCI actually 09

Page 8 1997 U.S. App. LEXIS 26254,

• learned of and acted on the basis of Peterson's protected activity.

Any inference of unlawful intent which might arise from the timing of Peterson's discharge, an inference which is of questionable strength to begin with, see, e.g.,

Cooper v. City of North Olmsted, 795 F.2d 1265, 12 72-73 (6th Cir. 1986), is significantly blunted by the fact that there is no evidence that DCI knew of Peterson's protected activity, cf. Polk v Yellow Freight Sys., 876 F.2d 527, 531 (6th Cir. 1989). The fact that Peterson was discharged roughly two months after deciding to testify is hardly sufficient to reasonably raise both an inference that DCI knew of Peterson's decision to testify and an inference that there was a causal connection between such knowledge and Peterson's discharge.

In the end, then, although we accept that Roberson's testimony may suggest that something was afoul, we cannot conclude that the evidence permits the reasonable inference that this something was DCI's knowledge of Peterson's decision to testify on Parks's behalf.

III.

Accordingly, we AFFIRM the judgment of the district[* 14] court.

10

Page 13 FLORENCE A. WARREN, Plaintiff-Appellant, v. OHIO DEPARTMENT OF PUBLIC SAFETY, WILLIAM L. VASIL, Defendants-Appellees.

No. 00-3560 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 24 Fed. Appx. 259; 2001 U.S. App. LEXIS 21664 October 3, 2001, Filed NOTICE:

[**I] NOT RECOMMENDED FOR FULL-TEXT PUBLICATION.

SIXTH CIRCUIT RULE 28(g)

LIMITS CITATION TO SPECIFIC SITUATIONS.

PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.

PRIOR HISTORY: On Appeal from the United States District Court for the Southern District of Ohio. 97-00460. Marbley. 3-28-00.

DISPOSITION: AFFIRMED.

CASE

SUMMARY

PROCEDURAL POSTURE: Discrimination plaintiff, a terminated employee, appealed from a grant of summary judgment by the United States District Court for the Southern District of Ohio in favor of defendants, employer and supervisor, and held that she had not participated in protected activity, it was causally unrelated to her termination, and her speech in issue did not address a matter of public concern under U.S. Const.

amend. I.

OVERVIEW: The employee was the senior Equal Employment Opportunity compliance officer and Chief of Human Resources for employer. As such, she participated in other employees' discrimination claim investigations. Defendant supervisor testified that he terminated the employee because of complaints about the ineffectiveness of the Human Resources division and lack of confidence in her judgment and reliability, and had planned to do so before she engaged in her alleged protected speech to a state official. Although the court of appeals questioned the district court's determination that the employee's speech was not protected activity under the civil rights statutes, Title VII of the Civil Rights Act of 1964, 42 U.S CS § 2000e et seq., and 42 U.S C.S. § 1983, it held that summary judgment was nonetheless proper because the employee could not establish a causal connection between her conversation with the state officer, which could be protected speech, and her firing, based on the supervisor's testimony that her termination was already contemplated. She therefore could not prove that her speech was a substantial or motivating factor in the decision to terminate her employment.

OUTCOME: Summary judgment was affirmed on a different ground, that the employee failed to show the requisite causal connection between her activity and her termination.

CORE TERMS: protected activity, termination, causal connection, summary judgment, First Amendment, retaliation, matter of public concern, terminated, protected speech, causation, matters of public concern, temporal proximity, inherently, internal investigation, sexual discrimination, sexual harassment, handling, prima facie case, motivating, public concern, involvement, deposition, harassment, afternoon, morning, duty, racial discrimination, decision to terminate, sufficient evidence, issue of causation CORE CONCEPTS -

Civil Procedure: Summary Judgment: Summary Judgment Standard An appellate court reviews de novo a district court's grant of summary judgment. It may affirm the grant of summary judgment on other grounds, even a ground not considered by the district court. Summary judgment is appropriate when there are no issues of material fact in dispute, and the moving party is entitled to judgment as a 11

Page 14 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

matter of law. Fed. R. Civ. P. 56(c). In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the nonmoving party.

Labor & Employment Law: Discrimination-Title VII Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.CS § 2000e et seq., prohibits an employer from retaliating against an employee who has "opposed" any practice by an employer made unlawful under Title VII It also prohibits retaliation against an employee who has "participated" in any manner in an investigation under Title VII. 42 U.S C.S. § 2000e-3(a). Those provisions are known as the opposition clause and the participation clause.

Labor & Employment Law: Discnmination: Disparate Impact To establish a claim under either the opposition or the participation clause, a plaintiff must show that (I) she engaged in activity protected by Title VII of the Civil Rights Act of 1964, 42 U.S C.S § 2000e et seq., (2) this exercise of protected activity was known to defendants, (3) defendants took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. If plaintiff establishes this prima facie case, the burden shifts to defendants to articulate legitimate, nondiscriminatory reasons for plaintiffs discharge. Plaintiff must then demonstrate that the proffered reasons were a mere pretext for discrimination. The plaintiff bears the burden of persuasion throughout the entire process.

Labor & Employment Law: Discrimination: Title VII Under the opposition clause, the person opposing apparently discriminatory practices must have a good faith belief that the practice is unlawful. There is no qualification on who the individual doing the complaining may be or on who the party to whom the complaint is made.

Labor & Employment Law: Discrimination: Retaliation To defend against summary judgment on a retaliation claim, a plaintiff is required to show the existence of a causal connection between her protected activities and her termination. Temporal proximity alone in the absence of other direct or compelling circumstantial evidence is generally not sufficient to support a finding of causal connection. Temporal proximity may establish a prima facie case only if the temporal proximity is very close.

Labor & Employment Law: Discrimination: Retaliation A public employee has the constitutionally protected right to comment on matters of public concern without fear of reprisal from the government as employer. A public employee does not forfeit his protection against governmental abridgement of freedom of speech if he decides to express his views privately rather than publicly.

Labor & Employment Law: Discrimination: Title VII An employee may sue a public employer under both Title VII of the Civil Rights Act of 1964, 42 U.S.G.S § 2000e et seq., and 42 U.S.CS. § 1983 when the § 1983 violation rests on a claim of infringement of nghts guaranteed by the United States Constitution.

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage To establish a claim for violation of her right to free speech under 42 U.S C.S § 1983, a plaintiff must first establish that her speech was protected because it was directed toward an issue of public concern, and her interest in making the speech outweighs the public employer's interest in promoting the efficiency of the public services. Matters only of personal interest are not afforded constitutional protection. Speech upon matters of public concern relates to any matter of political, social, or other concern to the community. It is a question of law for the court to decide whether an employee's speech is a matter of public concern. Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage Once a plaintiff establishes that her speech is protected in a claim under 42 U.S CS § 1983, she must present sufficient evidence to create a genuine issue that her speech caused her discharge. The speech must have been a substantial or motivating factor in defendants' decision to terminate her employment. While causation ordinarily is a question of fact for the jury, a court may nevertheless grant summary judgment on the issue of causation when warranted. If the protected speech was a substantial or motivating factor in a plaintiff employee's termination, the employer may present evidence that the employee would have been terminated in the absence of the protected speech.

Constitutional Law: Civil Rights Enforcement: Civil Rights Act of 1871: Coverage Allegations of racial and sexual discrimination are inherently matters of public concern even if they are tied to personal employment disputes. Whether the motive behind complaining of discrimination is civic mindedness or an individual employee concern is not relevant. What is relevant is the subject of the complaint, discrimination, which is a matter inherently of public concern.

12

Page 15 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

JUDGES: Before: GUY and MOORE, Circuit Judges; and HULL, District Judge. *

• The Honorable Thomas G. Hull, United States District Judge for the Eastern District of Tennessee, sitting by designation.

OPINIONBY: RALPH B. GUY, JR.

OPINION: [*262]

RALPH B. GUY, JR., Circuit Judge. Plaintiff, Florence A. Warren, appeals from the order granting summary judgment in favor of defendants, Ohio Department of Public Safety (ODPS) and William L. Vasil. Plaintiff argues that the district court erred in finding (1) that she did not participate in protected activity under the retaliation provisions of Title VII, (2) that there was no causal connection between protected activity and her termination, and (3) that plaintiffs speech did not address[**2] a matter of public concern under the First Amendment. nl For reasons different than those given by the district court, we affirm the grant of summary judgment.

nl Plaintiff does not pursue and, therefore, has abandoned on appeal the dismissal of her other 42 US C. § 1983 and state law claims.

I.

Plaintiff was the senior EEO compliance officer and Chief of Human Resources at ODPS. At the relevant times in this case, plaintiff reported to defendant Vasil, the Assistant Director of ODPS.

Plaintiffs duties included supervising personnel matters; providing advice to the Director and the Assistant Director regarding personnel matters; drafting pamphlets and handbooks concerning work rules, disciplinary procedures, and other matters related to EEO compliance. Plaintiff also investigated or supervised the investigation of sexual dlscrimination[*263] and harassment complaints by ODPS employees.

There were a large number of sexual discrimination and harassment complaints within ODPS during[**3]

plaintiffs tenure. Three specific internal investigations were the focus of plaintiffs Title VII claim. The first involved Bessie Smith, a Human Resources employee, who was disciplined in May 1995 for neglect of duty and malfeasance. As a result of Bessie Smith's mishandling of the termination of another employee, the terminated employee was awarded back pay. There were no allegations of discrimination under Title VII in that internal investigation. In the second, Rebecca Gustamente complained of sexual harassment by her supervisor. In November 1994, the supervisor was reassigned within ODPS. Gustamente testified that she was not subjected to further harassment thereafter.

Warren testified that her last involvement with the Gustamente complaint was in mid to late 1994 and no later than February 1995. Julie Smith was the subject of the third investigation. Julie Smith was disciplined in August 1995, after she was charged with sexual harassment by another female employee.

Plaintiff subsequently heard that the union was considering filing an unfair labor practices complaint or class action litigation with respect to discrimination complaints. She then arranged to meet with Maria J.

[**4] Armstrong, the Deputy Chief Legal Counsel for the Governor of Ohio, on the morning of November 9, 1995.

Plaintiff states that she informed Armstrong of the threatened union action and discussed plaintiffs concerns that Vasil acted illegally in his direct handling of several discrimination issues, including the Julie Smith matter. In the afternoon of that same day, Vasil gave plaintiff notice of termination of her employment with ODPS. While he did not have prior knowledge, Vasil learned of the morning meeting between plaintiff and Armstrong in the afternoon of the day that plaintiffs employment was terminated.

Vasil stated that he terminated plaintiffs employment because of complaints about the ineffectiveness of the Human Resources division and lack of confidence in her judgment and reliability. Defendants offered evidence that Vasil decided to discharge plaintiff and took steps to initiate the discharge before plaintiffs meeting with Armstrong. In anticipation of discharging plaintiff, Vasil discussed transferring plaintiffs duties to another employee. Vasil talked to Warren Davies about having John Demaree assume responsibility for all human resource matters for ODPS. Davies[**5] stated in his affidavit that this discussion occurred approximately two weeks before November 9. While they did not specifically discuss plaintiffs termination, Davies understood that Vasil was going to transfer all of plaintiffs responsibilities to Demaree. The transfer of those responsibilities became effective on November 9.

Vasil did specifically discuss plaintiffs termination with Armstrong. Armstrong testified in her affidavit and during her deposition that Vasil told her several weeks before the November 9 meeting that Vasil intended to 13

Page 16 24 Fed. Appx 259, *; 2001 U.S. App. LEXIS 21664, **

discharge plaintiff and restructure the Human Resources functions within ODPS. Finally, Demaree testified that several days before November 9, 1995, Vasil asked him to prepare the paperwork for terminating plaintiffs employment.

The district court granted summary judgment in favor of defendants. Plaintiff appealed.

11.

We review de novo the district court's grant of summary judgment. See, e.g., [*264] Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997). We may affirm the grant of summary judgment on other grounds, even one not considered by the district court. Boger v. Wayne County, 950 F.2d 316, 322 (6th Cir. 1991).

[**6]Snumray judgment is appropriate when there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. FED. R.

CIV. P. 56(c). In deciding a motion for summary judgment, the court must view the factual evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed 2d 538, 106 S Ct. 1348 (1986).

Plaintiff argues that she was retaliated against in violation of both the participation and the opposition clauses because she complained about Vasil to Armstrong at the November 9 meeting. The district court in this case found that plaintiff did not engage in protected activity under the participation clause and that she failed to show a causal connection between her alleged opposition activities and her termination. We find that summary judgment was appropriate on both plaintiffs opposition and participation[**8] claims because she failed to show a causal connection between the alleged protected activity and her termination.

1. Participation Claim The district court concluded that plaintiff failed to establish a claim of retaliation with respect to the Bessie Smith internal investigation because there were no allegations of violation of Title VII rights. We agree.

Section 2000e-3(a) requires participation in proceedings under Title VII or opposition to unlawful employment practices under Title VII. Holden v. Owens-Illinois, Inc.,

793 F.2d 745, 748 (6th Cir. 1986). There were no Title VII allegations involved in the Bessie Smith matter, and it cannot form the basis of a retaliation claim under Title VII.

A. Title VII Retaliation Title VII prohibits an employer from retaliating against an employee who has "opposed" any practice by an employer made unlawful under Title VII. It also prohibits retaliation against an employee who has "participated" in any manner in an investigation under Title VII. 42 U.S. C. § 2000e-3(a). These two provisions are known as the opposition clause and the participation clause. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 578 (6th Cir.), cert. denied, 531 U.S. 1052, 121 S. Ct 657, 148 L Ed 2d 560 (2000).

To establish a claim under either the opposition or the participation clause, plaintiff must show that (I) she engaged in activity[**7] protected by Title VII, (2) this exercise of protected activity was known to defendants, (3) defendants took an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. If plaintiff establishes this prima facie case, the burden shifts to defendants to articulate legitimate, nondiscriminatory reasons for plaintiffs discharge. Plaintiff must then demonstrate that the proffered reasons were a mere pretext for discrimination. Id. The plaintiff bears the burden of persuasion throughout the entire process. See Morris v Oldham County Fiscal Court, 201 F.3d 784, 793 (6th Cir. 2000).

With respect to the Julie Smith and Rebecca Gustamente internal investigations, the district court found that there was no protected activity under the participation clause because plaintiff did not participate in an EEOC proceeding. Plaintiff argues on appeal that internal investigations by an employer's EEO compliance officer are protected activity under the[*265]

participation clause. This Court has not directly addressed the question of whether participation in intemal[**9] investigations constitutes protected activity under the participation clause. n2 Other courts, however, have held that protected activity under the participation clause does not include participation in internal investigations. See EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 ( 1th Cir. 2000); Brower v. Runyon, 178 F.3d 1002, 1006 (8th Cir. 1999); and Vasconcelos v.

Meese, 907 F.2d 111, 113 (9th Cir. 1990).

n2 See Davis v. Rich Prods Corp., 2001 U.S. App.

LEXIS 7114, 2001 WL 392036 (6th Cir. Apr. 9, 2001) (unpublished disposition).

These decisions comport with the plain language of 42 U.S. C. f 2000e-3(a): "because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this 14

Page 17 24 Fed. Appx 259, *; 2001 U.S. App. LEXIS 21664, **

subchapter." (Emphasis added.) They also are consistent with our decision in Booker v. Brown & WYilliamson Tobacco Co, 879 F.2d 1304, 1313 (6th Cir. 1989),

where we stated that[** 10] the purpose of the participation clause is "to protect access to the machinery available to seek redress for civil nghts violations and to protect the operation of that machinery once it has been engaged." In Booker, we examined the participation clause under Title VII in interpreting similar provisions under the Michigan Elliott Larsen Civil Rights Act. We concluded that the language must be read literally and, therefore, the instigation of proceedings leading to the filing of a complaint or a charge, including a visit to a government agency to inquire about filing a charge, is a prerequisite to protection under the participation clause.

Id.

It is not necessary, however, for us to decide whether an internal investigation is protected activity under the participation clause. To do so would not fully resolve the case because plaintiffs participation in the internal investigations and her meeting with the Governor's office may have been protected activity under the opposition clause. See Booker, 879 F.2d at 1313 n.3; Laughlin v.

Metro. Wash Airports Auth., 149 F.3d 253, 259 (4th Cir.

1998). Whether plaintiffs participation in the Julie Smith[** 11] and Rebecca Gustamente internal investigations is considered protected activity under the participation clause or the opposition clause, as discussed in the next section, plaintiff failed to show the requisite causal connection.

2. Opposition Claim.

Under the opposition clause, the person opposing apparently discriminatory practices must have a good faith belief that the practice is unlawful. There is no qualification on who the individual doing the complaining may be or on who the party to whom the complaint is made. Thus, the fact that the plaintiff is a human resource director who may have a "contractual duty to voice such concerns" does not defeat a claim of retaliation; and the complaint may be made to a co-worker, a newspaper reporter, or anyone else. Johnson, 215 F.3d at 5 79-80 To defend against summary judgment, plaintiff was required to show the existence of a causal connection between her protected activities and her termination.

Temporal proximity alone in the absence of other direct or compelling circumstantial evidence is generally not sufficient to support a finding of causal connection. See Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir.

2000).[** 12] Cases addressing this issue have said that temporal proximity may establish a prima facie case only if the temporal proximity is "very[*266] close." Clark County Sch Dist v. Breeden, 532 U.S 268, 121 S. Ct 1508, 1511, 149 L. Ed. 2d 509 (2001). See also, Hafford

v. Seidner, 183 F 3d 506, 515 (6th Cir. 1999) (absent additional evidence, two to five months insufficient to create a triable issue of causation); Cooper v. City of North Olmsted, 795 F.2d 1265. 1272 (6th Cir. 1986)

(four months insufficient to support an inference of retaliation).

The district court found that plaintiff failed to show a causal connection between her alleged oppositional activity and her termination because the Gustamente matter had been resolved almost 11 months before plaintiff met with Armstrong. Plaintiff does not argue that there was a causal connection between her involvement with the internal investigations and her termination under the participation or the opposition clauses. She relies wholly on the temporal proximity of her meeting in the morning with Armstrong and her termination in the afternoon of November 9 to establish causation. n3 Defendants[** 13] claim that there was no causal connection because Vasil decided to terminate plaintiffs employment before the meeting. Plaintiff argues that Vasil's statements should be discredited because in his deposition he could provide little detail about his reasons for terminating her employment, and he did not ask that complaints about plaintiffs performance be made in writing. This is not relevant or responsive to the testimony of Vasil, Armstrong, and other employees that Vasil took steps to transfer plaintiffs duties to Demaree and asked Demaree to prepare paperwork to terminate plaintiffs employment before Vasil learned of the meeting with Armstrong. Employers need not suspend previously contemplated employment actions upon learning of protected activity by the employee. See Alexander, 121 S. Ct at 1511 (no evidence of causality where employer planned to transfer employee before learning Title VII suit had been filed). Here, plaintiff offered no evidence, other than mere temporal proximity, that she was terminated because of the Armstrong meeting. Plaintiff has failed to raise a genuine issue of material fact of causation Accordingly, she has failed to establish[** 14] a prima facie case of retaliation under Title VII, and summary judgment in favor of defendants is appropriate.

n3 The issue of causation as it related to the internal investigations was briefed by the defendants before the district court and on appeal. Plaintiff, therefore, has not been denied the opportunity to respond, and it is appropriate for us to affirm summary judgment on this other ground. See Carver v. Dennis, 104 F.3d 847, 849 (6th Cir. 1991) Plaintiffs involvement in the Gustamente sexual harassment investigation was resolved by November 1994, or at the latest February 1995; and the Julie Smith internal investigation was 15

Page 18 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

completed by August 1995. Plaintiff offered no evidence to show a causal connection between these investigations and her termination In the absence of any other evidence of retaliatory conduct, the single fact that plaintiff was discharged two to eleven months after she was involved in internal discrimination investigations does not establish a causal connection between protected activity and her termination.

[**15]

B. First Amendment A public employee has the constitutionally protected right to comment on matters of public concern without fear of reprisal from the government as employer. n4 See Connick v. Myers, 461 U.S 138, [*267] 147, 75 L. Ed.

2d 708, 103 S. Ct. 1684 (1983). A public employee does not forfeit his protection against governmental abridgement of freedom of speech if he decides to express his views privately rather than publicly. Givhan

v. W. Line Consol. Sch. Dist., 439 U.S 410, 412, 58 L.

Ed. 2d 619, 99 S. Ct. 693 (1979).

to "any matter of political, social, or other concern to the community." Connick, 46! U.S. at 146 It is a question of law for the court to decide whether an employee's speech is a matter of public concern. Johnson, 215 F.3d at 583.

"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S at 147-48.

Once she establishes that her speech is protected,

[**17] plaintiff must present sufficient evidence to create a genuine issue that her speech caused her discharge. The speech must have been a substantial or motivating factor in defendants' decision to terminate her employment. See Mt. Healthy, 429 U.S. at 287. While causation ordinarily is a question of fact for the jury, a court may "nevertheless grant summary judgment on the issue of causation when warranted." Bailey, 106 F.3d at 145.

If the protected speech was a substantial or motivating factor in an employee's termination, the employer may present evidence that the employee would have been terminated in the absence of the protected speech.

Dambrot v. Cent Mich. Univ., 55 F.3d 1177, 1186 (6th Cir. 1995).

n4 Defendants argue that plaintiffs § 1983 action is precluded by Title VII. The district court did not address this argument. An employee may sue a public employer under both Title VII and § 1983 when the § 1983 violation rests on a claim of infringement of rights guaranteed by the Constitution. Day v. Wayne County Bd ofAuditors, 749 F.2d 1199, 1205 (6th Cir. 1984). See also, Johnson, 215 F.3d at 583 Defendants also argue that plaintiff abandoned her First Amendment claim by not briefing it in response to the motion for summary judgment. The district court, however, ruled on the First Amendment claim, and plaintiff is not relying on facts or arguments that were not considered by the district court in making that ruling.

[**16]

To establish a § 1983 claim for violation of her right to free speech, plaintiff must first establish that her speech was protected because it was directed toward an issue of public concern, and her interest in making the speech outweighs the public employer's interest in promoting the efficiency of the public services. See Mt. Healthy City Sch. Dist. Bd. of Educ v. Doyle, 429 U.S 274, 287, 50 L.

Ed. 2d 471, 97 S Ct. 568 (1977); Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 144 (6th Cir. 1997). Matters only of personal interest are not afforded constitutional protection. Speech upon matters of public concern relates Plaintiff argues that her discussion with Armstrong about improper handling of discrimination claims was protected speech, and that she was terminated because of that speech in violation of the First Amendment. The district court found plaintiffs discussion with Armstrong was not protected speech because it was nothing more than the "quintessential employee beef: management has acted incompetently."

Allegations of racial and sexual[** 18] discrimination are inherently matters of public concern even if they are tied to personal employment disputes. See, Connick, 461 U.S at 148 n.8 (allegations of racial discrimination by a public employer are a "matter inherently of public concern" discussing Givhan, 439 U.S at 415-16);

Strouss v. Mich. Dept. of Corr., 250 F.3d 336, 346 n.5 (6th Cir. 2001) (sexual harassment is a matter of public concern); Boger, 950 F.2d at 322 (response to reporter's question about racial discrimination addressed matter of public concern); Matulin v. Vill. ofLodt, 862 F.2d 609, 612-13 (6th Cir. 1988) (sexual and handicap discrimination in the workplace are matters of public concern). Whether the motive behind complaining of discrimination is civic[*268] mindedness or an individual employee concern is not relevant. What is relevant is the subject of the complaint, discrimination, which is a matter "inherently of public concern." Perry v.

McGinnis, 209 F 3d 597, 608 (6th Cir. 2000) 16

Page 19 24 Fed. Appx. 259, *; 2001 U.S. App. LEXIS 21664, **

While plaintiff offered somewhat differing accounts of her meeting with Armstrong, at one point in her deposition she testified[** 19] that she informed Armstrong of a potential problem relating to the handling of discrimination complaints, that Vasil had told plaintiff not to be concerned because they were "Just passing through," and that the Governor's office needed to do something about it. On this record, plaintiff presented sufficient evidence that her discussion with Armstrong was about the improper handling of sexual discrimination complaints, which is inherently a matter of public concern. The district court erred, therefore, in finding that the discussion with Armstrong was not protected speech under the First Amendment.

Defendants nonetheless are entitled to summary judgment. In order for plaintiff to prevail on her § 1983 claim, she must prove that her speech was a substantial or motivating factor in defendants' decision to terminate her employment. As discussed in the previous section, the evidence clearly shows that Vasil decided and took steps to effectuate plaintiffs termination before the meeting with Armstrong occurred and before he learned of the meeting. There being no material fact in dispute on causation, defendants were entitled to summary judgment on plaintiffs First Amendment claim.

[**20] AFFIRMED.

17

Page 24 BARBARA WILLIAMS, Appellant v. DONALD RUMSFELD, Secretary, Department of Defense No. 014016 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 44 Fed. Appx. 592; 2002 U.S. App. LEXIS 16524 July 16, 2002, Submitted Pursuant to Third Circuit L.A.R. 34.1 (a)

August 13, 2002, Opinion Filed NOTICE:

[**1] RULES OF THE THIRD CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: On Appeal from the United States District Court for the Middle District of Pennsylvania.

(D.C. Civ. No. 1: CV-00-1283). District Judge: The Honorable Sylvia H. Rambo.

DISPOSITION: Affirmed.

CASE

SUMMARY

PROCEDURAL POSTURE: Plaintiff employee, an African-American female, alleged that she was separated from federal service based on her race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. i 2000e et seq. She also alleged retaliation. The United States District Court for the Middle District of Pennsylvania granted defendant Secretary of the Department of Defense's summary judgment motion. The employee appealed.

OVERVIEW: The employee claimed that the district court erred in granting summary judgment because there existed sufficient evidence to create a genuine issue of material fact, namely whether three non-protected employees were treated more favorably through the reduction in force (RIF). The instant court agreed with the district court that the defense clearly met its intermediate burden of articulating a facially legitimate non-discriminatory reason for the employee's termination, namely that it had conducted the RIF in accordance with the procedure prescribed by the office of personnel management. The employee also claimed that the district court erred in granting the Secretary's summary judgment motion because conflicting and misleading evidence of the employee's seniority status created a genuine issue of material fact. Nevertheless, the instant court held that the employee offered no evidence that any of the three non-protected employees were hired based on their seniority.

OUTCOME: The judgment of the district court was affirmed.

CORE TERMS: summary judgment, non-discriminatory, proffered, prima facie case, racial discrimination, seniority, pretext, genuine issue of material fact, sufficient evidence, nonmoving party, protected class, non-protected, instructing, separating, favorable, facially, terminated, granting summary judgment, burden of proof, matter of law, discriminatory, probative, summary judgment motion, material fact, circumstantial, determinative, retaliation, misleading, motivating, eliminated CORE CONCEPTS -

Civil Procedure: Summary Judgment: Summary Judgment Standard An appellate court exercises plenary review over an order granting summary judgment, applying the same standard that the lower court should have applied.

Therefore, an appellate court must grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56. In making this determination, a court must view the facts in 18

Page 25 44 Fed. Appx 592, *; 2002 U.S. App. LEXIS 16524, **

the light most favorable to the nonmoving party and draw all inferences in that party's favor.

Labor & Employment Law: Discrimination: Title VII The United States Supreme Court has set forth a three-step, burden-shifting framework for the presentation of evidence in discriminatory treatment cases litigated under Title VII of the Civil Rights Act of 1964, 42 U.S C.S § 2000e et seq. In the first step, a plaintiff must make out a prima facie case of race discrimination.

Labor & Employment Law: Discrimination: Title VII In a Title VII of the Civil Rights Act of 1964, 42 U.S C S § 2000e et seq., case involving a reduction in force, to make out a prima facie case a plaintiff must show that (I) she belonged to a protected class; (2) she was qualified for the position from which she was terminated; (3) she was terminated; and (4) persons outside of the protected class were retained.

Labor & Employment Law: Discrimination: Title VII In a Title VII of the Civil Rights Act of 1964, 42 U.S C.S. § 2000e et seq., action, in order to satisfy its burden of production, a defendant need only introduce evidence which, taken as true, would permit the conclusion that there was a non-discriminatory reason for the unfavorable employment decision.

Labor & Employment Law: Discrimination: Actionable Discrimination Under the burden-shifting framework of Title VII of the Civil Rights Act of 1964, 42 U.S C.S. § 2000e et seq.

once a defendant has proffered a legitimate, non-discriminatory reason for its actions, the burden then shifts back to the plaintiff.

Civil Procedure: Summary Judgment: Burdens of Production & Proof At the summary judgment stage of the proceedings, the burden of proof is on the plaintiff.

Civil Procedure: Summary Judgment: Summary Judgment Standard In a motion for summary judgment, a disputed fact is material if it would affect the outcome of the suit as determined by the substantive law.

Civil Procedure: Summary Judgment: Burdens of Production & Proof A party attempting to avoid a motion for summary judgment must offer sufficient evidence for jury to return a verdict in favor of the nonmoving party; if the evidence is merely colorable or not significantly probative, summary judgment should be granted.

Civil Procedure: Summary Judgment: Burdens of Production & Proof In reviewing a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.

COUNSEL: For Barbara Williams, Appellant: Andrew J.

Ostrowski, Harrisburg, PA.

For Secretary Defense, Appellee: Joseph J. Terz, Office of United States Attorney, Harrisburg, PA.

JUDGES: Before: SCIRICA, ALITO and FUENTES, Circuit Judges.

Civil Procedure: Summary Judgment: Burdens of Production & Proof Labor & Employment Law: Discrimination: Title VII In the context of a Title VII of the Civil Rights Act of 1964, 42 U.S.G.S § 2000e et seq., action, to defeat summary judgment when a defendant answers a plaintiffs prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a fact finder could reasonably either (I) disbelieve the employer's articulated legitimate reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. In other words, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly; or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.

OPINIONBY: Fuentes OPINION: [*593] OPINION OF THE COURT FUENTES, Circuit Judge:

Plaintiff Barbara Williams appeals the district court's grant of the Defendant's summary judgment motion.

Williams, an African-American female, had alleged that she was separated from federal service based on her race, in violation of Title VII. She also claimed that she was terminated in retaliation for pursuing administrative EEO remedies, a protected activity under Title VII. Because we agree with the district court that Williams' claim raised no genuine issues of material fact, we affirm.

I.

Barbara Williams brought the instant lawsuit after[**2]

having been separated from federal service in September 19

Page 26 44 Fed. Appx. 592, *; 2002 U.S. App. LEXIS 16524, **

1999. n1 Williams bad been employed by the Defense Logistics Agency (DLA), a component of the United States Department of Defense, since 1985. At all times relevant to this case, Williams held the position of Administrative Assistant, GS-05.

n1 The background and factual allegations underlying this case are well known to the parties, and therefore, they are not detailed here, except to the extent that they directly bear upon the analysis.

In 1997, the DLA was re-organized and two of its distribution regions were consolidated as part of a "Most Efficient Organization" plan ("MEO"). As a result, fifty-seven positions within the newly created Defense Distribution Center ("DDC") (including all GS-05's in Williams' office) were slated to be eliminated. However, because of the two-year differential between the proposal of the MEO and the implementation of the force reduction, many of the DLA employees in positions that the MEO had identified as 'excess' were able to take advantage of either Voluntary Early Retirement (VERA) and/or Voluntary Separation Incentive Payment (VISP) initiatives. In addition, others applied [*594]and were selected for promotion or reassignment to positions that became vacant prior to September 1999 (the MEO's implementation date). Together, these groups constituted the majority of the employees whose positions were

[**3]slated to be eliminated by the MEO.

Nevertheless, by July of 1999, the voluntary staffing reductions of the MEO had not been fully realized, and a mandatory Reduction-in-Force (RIF) was initiated.

Although sixteen employees in the DDC headquarters were still employed in positions targeted by the RIF in July, the only employees who were ultimately involuntarily separated in September were Williams and one Hispanic female.

II.

We exercise plenary review over an order granting summary judgment, applying the same standard that the lower court should have applied. Armbruster v. Unisys Corp, 32 F.3d 768, 777 (3d Cir. 1994). Therefore, we must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. In making this determination, "a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor." Armbruster, 32 F.3d at 777. Our jurisdiction to review summary judgment[**4] orders is based upon 28 US.C..§ 1291.

III.

Williams first claims that the district court erred in granting summary judgment because there existed sufficient evidence to create a genuine issue of material fact, namely whether three non-protected employees were treated more favorably through the RIF. The Supreme Court has set forth a three-step, burden-shifting framework for the presentation of evidence in discriminatory treatment cases litigated under Title VII of the Civil Rights Act of 1964. See McDonnel-Douglas

v. Green, 411 U.S 792 (1973). In the first step, the plaintiff must make out a prima facie case of race discrimination. See In re: Carnegie Center Assoc., 129 F.3d 290, 294 (3d Cir. 1997). The district court below found, and the defendant stipulates on appeal, that Williams has met her threshold burden. See Id. at 294-95 (determining that, "in a Title VII case...involving a reduction in force...to make out a prima facie case the plaintiff must show that (1) she belonged to a protected class, (2) she was qualified for the position from which she was terminated, (3) she was terminated and (4) persons outside [**5]of the protected class were retained."). Furthermore, we agree with the District Court that the defense has clearly met its intermediate burden of articulating a facially legitimate non-discriminatory reason for Williams' termination, namely that it had conducted the RIF in accordance with the procedure prescribed by the OPM. See App. Br. at 16; Fuentes v.

Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (instructing that, in order to satisfy its burden of production, defendant need only "introduce evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.").

Once the defendant has proffered a legitimate, non-discriminatory reason for its actions, the burden then shifts back to the plaintiff. Fuentes, 32 F.3d at 763. In Fuentes, we instructed that; To defeat summary judgment when the defendant answers the plaintiffs prima [*595]facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a fact finder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe[**6] that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. In other words...a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, 20

Page 27 44 Fed. Appx. 592, *; 2002 U.S. App. LEXIS 16524, **

either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.

Id.

This third and final stage of the McDonnel-Douglas test is the only one at issue here. On appeal, Williams claims that the district court erred in granting the defendant's summary judgment motion because "conflicting and misleading evidence of [Williams']

seniority status" created a genuine issue of material fact.

App. Br. at 19. She identifies three different documents that appear to indicate three different tenure ranking dates for her. She alleges that, if the DDC had relied on the highest of her three tenure rankings (and the one which Williams alleges is correct), she would have been listed ahead of three "excess" employees who were retained, even though none of them were members

[**7]of a protected class. App. Br. at 19-20.

Nevertheless, Williams offers no evidence that any of the three non-protected employees were hired based on their seniority. As Fuentes makes clear, at this stage of the proceedings, the burden of proof is on Williams.

Fuentes, 32 F.3d at 763. Specifically, she must offer some material evidence that casts doubt on the DDC's proffered, facially non-discriminatory explanation of its reasons for separating her from Federal service.

However, Williams' evidence that she may have had a higher seniority status than the three retained employees is not material if it was a non-factor in the hiring process.

See Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992) ( "[a] disputed fact is 'material' if it would affect the outcome of the suit as determined by the substantive law"). Therefore, Williams' attempt to discredit the DDC's facially legitimate claim for separating her from federal service based on her proffered conflicting and misleading evidence of her seniority status must fail as a matter of law. Id.

(instructing that a party attempting to avoid a motion for summary judgment must offer "sufficient evidence[**8]

for jury to return a verdict in favor of the nonmoving party; if the evidence is merely colorable or not significantly probative, summary judgment should be granted")

Williams also claims that "a position for which

[Williams had] interviewed and was qualified, was available exclusively to her as of September 30, 1999,"

and the fact that she was not offered the position is evidence that Defendant's proffered legitimate non-discriminatory purpose was actually a pretext for racial discrimination. The District Court rejected Williams' claim, indicating that the position that Williams claims was available "exclusively" to her on September 30, actually did not become open until October 12, 1999.

Since Williams had already been separated by that time, the Court reasoned that the Defendant's refusal to offer the position to Williams is not evidence that Defendant's non-discnminatory reason for separating Williams was a pretext for racial discrimination. App. at 10.

On appeal, Williams claims that since the availability date given for the job opening, [*596] October 12th, is not "a sworn and verified date" the District Court resolved a material fact issue against a non-moving party, and therefore[**9] its decision to grant summary judgment should be reversed. See Armbruster, 32 F.3d at 777 (instructing that, in reviewing a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor). Nevertheless, there is evidence in the record that a previously selected employee did not refuse the position until October 12th, 1999, See App. at 131 (DDC's Referral and Selection Register), and Williams offers no evidence to the contrary. While this Court must, on Defendant's motion for summary judgment, view the facts in a light most favorable to Williams' claim, we are not obligated to accept Williams naked assertions contrary to evidence that exists in the record. Williams further claims that there was a "legitimate opportunity to avoid the impact of the RIF as it relates to [Williams]," citing a recommendation made by the chief union steward to the DDC that Williams "could be placed in the Dispatcher position" once the previously selected employee had declined. App. at 132.

Nevertheless, this information is clearly not "significantly probative" as to the Defendant's alleged pretext for[** 10]

Williams' separation, since Williams had already been separated once the previously selected employee had declined the position in question. Therefore, Williams has failed to meet her burden of proof to show that Defendant's proffered legitimate reason was actually a pretext for racial discrimination, and we find that no genuine issue of material fact exists with regard to this claim.

Williams also offers evidence that three non-protected DDC employees each held two jobs simultaneously with the Department of Defense during the period in question, and that this evidence is "alone dispositive" of her racial discrimination claim. In addition, she also alleges that she has presented sufficient evidence of a discriminatory workplace atmosphere and that her separation was retaliation for earlier EEOC claim. With regard to each of these issues, we find the reasoning of the district court to have been thorough and persuasive. We therefore affirm substantially for the reasons stated in that opinion.

Isl Julio M. Fuentes Circuit Judge 21