DOL Home > OALJ > Whistleblower > Udovich v. Houston Lighting & Power Co., 95-ERA-16 (ALJ Mar. 30, 1995) |
Date: March 30, 1995 Case No. 95-ERA-16 In the Matter of RICHARD F. UDOVICH Complainant v. HOUSTON LIGHTING AND POWER CO. Respondent Appearances: Edward A. Slavin, Jr., Attorney 2829 Timmons Lane, #128 Houston, TX 77027 For Complainant Roy Q. Minton, Attorney Randy T. Leavitt, Attorney Jennifer L. Breidenbach, Attorney Baker & Botts One Shell Plaza 910 Louisiana Houston, TX 77002 For Respondent Before: ALFRED LINDEMAN Administrative Law Judge RECOMMENDED DECISION AND ORD ER This case arises under the Federal employee protection provisions of the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. §5851, the Water Pollution Control Act ("WPCA"), 33 U.S.C. §1367, and the applicable regulations at 29 C.F.R. Parts 18 and 24. Complainant having filed a complaint in the Department of Labor's Wage & Hour Division on November 1, 1994, a duly noticed hearing having been held in Houston, Texas, on February 28-March 2, 1995, and the parties having filed their respective post-hearing briefs,
[PAGE 2] the issues presented for determination are: whether complainant engaged in "protected activity" cognizable under ERA and/or WPCA; whether his employer, Houston Lighting & Power Co. ("HL&P"), with knowledge of and as a result of such activity, discriminated against him by demoting him to a lower paying position; and, if so, what remedy is appropriate. Complainant contends that from 1992 to 1994 he expressed concerns for safety to his superiors in the course of his work as a Facilities Management Division supervisor, responsible for maintenance of the spillway and discharge channel that extends for a 1.3 mile distance from the Main Cooling Reservoir at the South Texas Nuclear Power Project; that as a result of such "protected activity" he was demoted in October of 1994 to a lower-paying, non- supervisory position. He also contends he has suffered stress headaches and depression as a result and seeks various compensatory relief. Respondent asserts that complainant's expression of concerns for possible flooding of an area well removed from and outside the nuclear containment area was not protected activity under either ERA or WPCA; that his superiors responded to his expression of concerns by investigating them, determining they were not safety-related and deciding the maintenance recommended by complainant would be deferred until some later time; that complainant was instructed by three levels of supervisors that he was not to authorize any work in the discharge channel area south of the "low water crossing"; that he failed to follow such instructions and authorized a "mucking out" operation that resulted in a heavy piece of equipment getting stuck in the mud in the subject area of the spillway discharge channel on August 29-30, 1994; and that his demotion was not retaliation for his having engaged in protected activity but was a proper disciplinary action for complainant's insubordination. As a consequence, respondent asserts there was no violation of either ERA or WPCA and neither damages nor compensatory relief is appropriate. Preliminary Evidentiary Rulings Having taken under submission respondent's objections on grounds of hearsay and/or relevance to various complainant's exhibits offered at the hearing, my rulings are as follows pursuant to 29 C.F.R. §24.5(e): CX 3 - Admitted: the September 21, 1992, memorandum is deemed relevant to the issue of whether complainant's concerns were a protected activity. CX 4 - Admitted: complainant's work journal is deemed admissible, but with low probative value as self-serving recollections undertaken after the incident of August 29-30, 1994,
[PAGE 3] and after he had retained counsel. CX 6A, 6C, 6E, 6F - Rejected: the Department of Labor Wage & Hour Division investigator's handwritten notes of statements taken from company witnesses who did not sign their statements and were not called to testify about the contents of those statements are deemed non-probative hearsay (it is noted that the investigator's notations to the effect that the individuals were "asked not to sign" their statements were refuted by others who were called to testify). CX 6I - Admitted: the signed statement of Garland Steinman, who was listed as a witness by both parties, but who was not called to testify, is deemed reliable. CX 19, 20, 21, 23, 24, 27, 29, 30, 31 - Admitted: these company documents are all deemed relevant to the "retaliation" issue. CX 34 through 41, 51 through 54 - Admitted: complainant's contemporaneous notes of meetings and impressions are deemed probative and relevant to the protected activity and retaliation issues. CX 56 - Admitted: the document is deemed a company records/admission hearsay exception. CX 57 through 59, 61 and 62 - Admitted: more of complainant's contemporaneous notes, deemed relevant and probative, as those referred to above. CX 68 - Admitted: the document is deemed relevant to the "nuclear safety/protected activity" issue. CX 84 through 86 - Rejected: three newpaper articles are deemed unreliable, non-probative hearsay and irrelevant to the issues in this case. In addition, after the hearing complainant submitted several exhibits, marked for identification as CX 98, 100, 102, 103 A-F, and 104,[1] and a motion to admit them dated March 20, 1995, the date set for the simultaneous filing of post-hearing briefs. CX 98 (a 1993 annual report) is rejected as having been offered late and without good cause. CX 100 (a March 6, 1995, printout) and CX 104 (a March 13, 1995, letter to complainant) are admitted for the limited purpose of completing the record concerning pending matters raised in testimony at the hearing. CX 102 (a March 3, 1995, news release relating to witness Garris) is rejected as irrelevant. CX 103 A-F (copies of newspaper articles dating from 1979 regarding a "dam disaster" in Florida) are rejected as irrelevant to the instant proceeding, as well as having been offered after the close of the hearing and without a showing of good cause). Next, complainant's counsel has twice moved for a default judgment based on respondent's alleged "spoliation of evidence." First, in a pre-hearing motion, complainant's counsel asserted "spoliation" as the result of the fact that several HL&P employees who were interviewed while the matter was before the Wage & Hour Division did not sign the statements prepared by the interviewing official. See CX 6 A-J. As noted above, each of those individuals who did testify at the hearing controverted the notation on their
[PAGE 4] statements to the effect that they had been directed by their attorney not to sign. In any event, considering that there is no requirement that such statements be signed and since all the individuals were subject to being called to testify at the de novo hearing, the first motion for default judgment was denied. Second, in his post-trial "Complainant's Brief," complainant moves for default judgment based on the asserted "evidence destruction" of CX 79 and an off-hand remark by respondent's counsel at the hearing that "we deep sixed it."[2] The exhibit in question, a so-called "first Kerry Whelan memorandum," was fully described by witness Andrew Woods, who explained to my satisfaction that there was only one "Whelan memorandum," see RX 54, which had a notation stating "original being mailed," and this resulted in two copies of the same document, dated September 16, 1994. See RX 66. Further, an earlier memo, dated September 7, 1994, see CX 97-A, was not destroyed or "removed from the file by an agent of HL&P" but rather it was not recognized by witness Woods as responsive to requests made of him.[3] Thus I find there was no "perjury" by witness Woods and no spoliation of evidence.[4] Therefore, the second motion for default judgment based on the alleged destruction of evidence is also denied. Findings of Fact and Conclusions of Law Based on the credible testimony adduced from the fourteen witnesses who were called to testify at the hearing and the probative documentary evidence of record, the following salient findings are made: Complainant was employed at the South Texas Project ("STP"), the site of a jointly owned nuclear powered generating plant providing electricity to several cities including Houston, Texas. After a stint at another assignment he returned in 1992 to the position as Supervisor of Reservoir Maintenance within the Facilities Management Division. His immediate supervisor was Gary Ralston. As Supervisor of Reservoir Maintenance complainant's job duties involved authorizing and overseeing maintenance in and around the main cooling reservoir and other areas outside and removed from the nuclear reactor containment buildings after such work was requested by E. J. Thormaehlen, a Senior Engineer within the Design & Engineering Division. Thormaehlen's immediate supervisor was Kenneth Cope. The manager of the Facilities anagement Division, as well as Human Resources and Access, was Roger Garris. The Chief Executive Officer over the whole project was Group Vice President/Nuclear, William Cottle. As relevant to this proceeding, the STP consists of two
[PAGE 5] nuclear containment buildings, a steam generator, turbine-generator building, a 7,000 acre main cooling reservoir and a 1.3 mile long, 200 ft. wide channel leading from the reservoir's dam and spillway to the Colorado River, which is at a lower elevation. The reservoir, described as a giant, above-ground bathtub, is filled by rainwater and by pumping water from the Colorado River below. The reservoir water is the third part of a three-loop system: i.e., one loop surrounds the nuclear fuel assemblies inside the reactors; a separate second loop supplies water to the steam generator; and the separate third loop provides water from the main cooling reservoir to a condenser to cool the spent steam back to water to be pumped back to the steam generator to be heated to steam again. Thus, I find that the main cooling reservoir's water is not used in the separate loop of water flowing around the fuel assemblies inside the reactors. See CX 2. The spillway end of the reservoir is about three miles away from the nuclear containment buildings. The spillway discharge channel has a three ft. wide ditch down the middle to facilitate the flow of any water in it to the Colorado River. See CX 1. The spillway discharge channel has a concrete "low water crossing" at a point approximately two-thirds of the distance away from the reservoir's spillway end toward the river below. As complainant testified, when he returned to his position as supervisor of reservoir maintenance, he found that extensive rains of 1991 and 1992 had caused so much silt and vegetation build up in the spillway channel that it was impossible to mow all the way down to the ditch and he considered the condition "deplorable." While some maintenance work, undertaken in late 1992, produced improvements, see CX 43, complainant still had concerns that the area south of the "low water crossing" would be considered a "wetland" necessitating permits if it needed to be drained. He mentioned this to his then-supervisors, Kinsey and Steinmann, both in written memos in January and May, 1993, and at open meetings in late August and early September of 1993. Kinsey told him "the spillway did not have to be taken care of immediately, however, Ken Cope and his group should start preparing for some ideas on how to approach this task." See CX 44-48; RX 57-58.[5] During the same time period, according to the testimony of Gary Ralston, who had become manager of the Facilities Management Division, beginning in May 1993, he started the process of streamlining the organization by merging the positions of reservoir maintenance supervisor and grounds maintenance supervisor. As a consequence, the individual who had been the grounds maintenance supervisor, John Lauger, was proposed to take over the new position and complainant was to be reassigned to another position involving training and the handling of station problem reports (the merger was not to involve any
[PAGE 6] change in salary and two other supervisors were also to be transferred to plant engineering as part of the reorganization). When this proposal was announced, and evidently implemented, in October 1993, complainant filed an "age discrimination" grievance with Human Resources. See CX 35-42. According to the credible testimony of both Ralston and Roger Garris, after it was determined that the process should not go forward without interviewing the individuals contesting for the new position, complainant and Lauger were interviewed,[6] and the selection committee was prepared to choose Lauger. Garris, however, determined that the reorganization should not go forward and complainant was returned to his reservoir maintenance supervisory duties effective December 14, 1993. RX 7.[7] Once back at his reservoir maintenance position complainant continued to voice his concern that the spillway discharge channel should be cleared so that it would not be considered a wetland. As a result of complainant's expressed concerns to Garris in December of 1993, Ralston was directed to get a further clarification from the Technical Services Department regarding the reservoir spillway status. The response obtained, dated January 14, 1994, which was conveyed to complainant, was: "The current status of the spillway (e.g. siltation, vegetation) would require us to obtain permits and appropriate agency approval prior to cleaning or otherwise disturbing this area." RX 8. Garris testified that he told complainant, upon giving a copy of the document to him, "Dick, to me this means no work in the area without a permit." Nonetheless, Garris directed Ralston "to develop an estimate to obtain permits etc. and clean" and noted that "although Mr. Gangluff does not believe in his memo that it is needed at this time it is an issue that should compete for funding in 1994/95." RX 9. As a result, complainant was directed to prepare an estimate for performing the work, which he did in February 1994, though it was "still the position of Environmental that no action with respect to the spillway is necessary." RX 10-12. The records indicate that as of July 6, 1994, complainant recognized that "the spillway channel may be declared as a wetlands, and the Texas Department of Parks & Wildlife would now determine what we could or could not do to alleviate our problem." RX 18; CX 55-56. According to the testimony of complainant and William Cottle, pursuant to complainant's request they met on July 27, 1994, because complainant was "concerned about maintenance of the spillway." After accompanying complainant to view the area in question Cottle agreed that the items would need to be done but he told complainant it was a "business risk decision" when to do the work and it was his decision that it was not part of the 1994 budget. Cottle did not alter his decision even after complainant
[PAGE 7] delivered a copy of a Dam Safety Book (with which Cottle was not familiar) that complainant cited as the source of his views. On August 2, 1994, at the routine weekly meeting attended by complainant, Thormaehlen and Douglas Peltier, the independent contractor in charge of maintenance at the reservoir area, Thormaehlen brought up the work that needed to be done at the river end in the spillway discharge channel. Peltier's credible testimony, substantially confirmed by Thormaehlen, is that Peltier asked complainant twice if he was sure he wanted "to clear that area out," complainant did not give a clear answer the first time, but by the end of the meeting it was agreed that when the #5200 Gradall was available the work was authorized. Though complainant testified that he believed at the conclusion of the meeting that "we'll talk about it when the equipment comes available," there is no dispute that no further discussions took place before the Gradall became available on August 29th. Peltier testified that on that day he saw complainant in the hallway of Building 45 at about 8-8:30 a.m., and told him "we're fixing to do the work down at the spillway." Though complainant denies that exchange, it is not disputed that "mucking out" work was done from the river end of the spillway channel during the full day of August 29th under the supervision of Thormaehlen and Peltier, and without complainant in attendance. The work consisted of taking out several pick up loads of "sapling" sized water weeds and "cat tails," and widening the ditch in the center of the channel, all in an area south of the low water crossing. On the morning of August 30, before either Thormaehlen or Peltier had arrived, the driver of the 26-ton Gradall started work and got stuck in four feet of mud. After the Gradall was pulled out a "furor arose." Ralston, complainant's first line supervisor, testified that when he asked complainant what had happened, complainant drew a sketch saying that the work was being done north of the low water crossing, but when he later learned that the work had been south at the river end of the channel he asked all concerned to prepare statements. On August 31, 1994, in a meeting with his superior, Garris, Ralston was scolded because complainant had been told not to do any work in that area. Then, after the matter had been investigated, Garris informed Ralston that he considered complainant's action in authorizing the work to be a very serious case of insubordination and that disciplinary action should be considered. Cottle testified that when the matter was reported to him he said that if someone performed unauthorized work in the discharge channel he should be terminated. After investigation by the appropriate Human Resources personnel, Garris determined that complainant had authorized work
[PAGE 8] that he had been instructed not to do by three levels of superiors, that he could no longer be trusted to perform as a supervisor of reservoir maintenance and that some disciplinary action was necessary. After considering three options presented by Human Resources, termination (if there was "willful intent"), demotion, or a written warning (recommended by Ralston), Garris decided to demote complainant from his Level 12 supervisor position to a Level 10 office position that he occupied from about October 1, 1994, until the time of the hearing; the demotion involved a $4,500.00 reduction in salary (i.e., from about $60,000 to $55,500). See CX 58-59, 62, 75; RX 28-29, 55, 61; CX/RX 14-15. Thormaehlen and Garris testified that no action was recommended against Thormaehlen because it was determined that as an employee of the Design and Engineering Department he did not have supervisory responsibility for authorizing the work in question. The record reflects that subsequent to the August 29-30, 1994, Gradall incident and the ensuing investigation, Ken Cope, Thormaehlen's supervisor, "requested that in order to prevent future occurrences of this nature Facilities should only perform work on the Reservoir that he authorized" and the Environmental Department reiterated the position that activities "at the terminus of the spillway channel could potentially be within Corps of Engineers jurisdiction" and "absent Corps concurrence that an exemption or general authorization applies, or that no degradation of wetlands will occur, the activity is unauthorized and, if subsequently determined jurisdictional, subject to enforcement action by the Corps." CX 97-A; RX 66. Following his demotion, by letter dated November 1, 1994, complainant filed a whistleblower complaint with the Department of Labor. CX 10. I find that this document contains the first assertion that he had ". . . reported concerns about . . . the potential for massive flooding that could adversely affect property values, wildlife and water quality" and "concerns about a reservoir and spillways that are part of the emergency core-cooling system." Id. at pp. 1-2. I also find it significant that as of that date, complainant had not stated that his concerns were based on the inability to detect "sand boils," nor were sand boils mentioned in his discussions with Ralston, Garris or Cottle; rather, as he summarized in his rebuttal testimony, his concern was that the silt at the end of the spillway discharge channel had clogged up the ditch, and the operating manual provided that it should be mucked out "to prevent water from spilling all over the place." That concern was consistent with his previously stated concern that unless the area was better maintained it would result in the need to obtain "wetlands" permits before HL&P could discharge water from
[PAGE 9] the reservoir if it became necessary to do so. See CX 33- 34. Between October 1994 and the time of the hearing complainant continued working in the office-based position to which he had been demoted. However, based on the testimony of complainant, Ralston and Garris, I find that at the time of the hearing the STP was in the process of a project-wide down-sizing reorganization as a result of which complainant's current duties were being reassigned; that he was given an extension of time past the deadline he had missed to post for other positions for which Ralston would not be on the selection panel; that complainant elected not to post for other Level 10 positions but did post for two Level 12 positions; that voluntary separation packages were made available to all employees affected who did not post for or obtain other positions; and that Ralston had elected to accept such a voluntary separation. Also, based on post-hearing exhibits CX 100 and 104, I find that complainant was not selected for the Level 12 positions for which he posted and, effective March 13, 1995, was relieved of duty and would remain on the payroll and continue to receive full pay and benefits for 60 days, during which time he was to have access to services of the Placement Opportunity Services Center and be able to seek other employment opportunities through the company-wide posting process; further, if at the end of the period he is unsuccessful in securing other employment with the company, he is offered involuntary severance benefits. Regarding the matter of "nuclear safety," the record contains documentary evidence to the effect that "the Cooling Reservoir Spillway Release Facilities are classified as a Non-Nuclear Safety Class 1 (NS-1) System"; i.e., they are not part of the quality control or "emergency core-cooling system." CX/RX 1, pp. 16, 27; CX/RX 2, p. 1; see also CX 49, 69. The record also reflects the uniform opinions of witnesses Thormaehlen, Craddock, Ralston, Cottle and Garris to the effect that a worst-case scenario regarding the reservoir would not result in any danger of nuclear safety; rather, the only effect would be a shut down of the plant resulting in a shortage of electric power to users of the system until the reservoir could be refilled with water. Regarding the matter of safety related to flooding, the record reflects evidence that: The Cooling Reservoir Spillway Release Facilities are used to release floodwaters, i.e., water exceeding the NMO elevation of 49.0 feet msl, from the cooling reservoir safely and efficiently. Operation of the Cooling Reservoir Spillway Release Facilities
[PAGE 10] is anticipated to be infrequent. Precipitation of 6 inches or more, beginning with the reservoir water surface elevation at 49.0 feet msl, initiates system operation . . . . RX 1, pp. 36-37. According to witness Thormaehlen, the water level in the reservoir is 40 feet at the bottom of the gates, the reservoir is usually kept at 45 feet by adding water, there has not been any occasion to open the gates to release water, and any flow from the spillway would reach the Colorado River 1.3 miles below. According to Thormaehlen's predecessor, Charles Craddock, a retired civil engineer who originally proposed the ditch within the discharge channel, the greatest concern was for potential damage to the reservoir's embankment from underseepage, the effect of which might be catastrophic flooding (and the shut down of the project without sufficient cooling water for the generators), and without maintenance of the spillway discharge channel it would revert to a "jungle state." Craddock also testified that the spillway/dam gates had not been opened for 10 years. On cross-examination, he acknowledged that in order for the reservoir to fill to overflowing there would have to be so much rain that the Colorado River would already be flooding the area between it and the reservoir. The applicable law The elements to be proved in a whistleblower action under either ERA or WPCA are that: complainant engaged in some "protected activity" (i.e., that he notified his employer of an alleged violation of the laws in question, refused to engage in some practice made unlawful by the statute, testified in or was about to testify in a proceeding under such law, commenced or assisted in such a proceeding); that his employer knew of such protected activity; and that the employer took adverse action against the complainant because of such activity. 42 U.S.C.A. §5851(a)(1); 33 U.S.C.A. §1367(a); see St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993); Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986); Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985). Did complainant engage in protected activity under ERA or WPCA? A. Internal complaints As a preliminary matter, I note there is a split in authority regarding the question of whether an internal complaint, as opposed to one filed with an outside agency, can trigger the whistleblower
[PAGE 11] protection provisions of nuclear and environmental statutes. In Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984), the Ninth Circuit held that the employee protection provision of the ERA protects quality control inspectors from retaliation for making internal safety and quality control complaints. See also, McCuiston v. TVA, 89- ERA-6 (1991). Conversely, the Fifth Circuit, in which this case arises, holds that the filing of an internal safety report does not constitute protected activity. Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984). The Secretary of Labor, however, has declined to follow Brown & Root, even in whistleblower actions that arise in the Fifth Circuit. See Bivens v. Louisiana Power & Light, 89-ERA-30 (1991); Goldstein v. Ebasco Constructors, Inc., 86- ERA-36 (1992). Further, the Secretary has held that the filing of internal complaints by employees who are not quality control inspectors is also protected. Nunn v. Duke Power Co., 84- ERA-7 (1987). I conclude, therefore, that complainant's "expressions of concern" to his superiors regarding the condition of the spillway discharge channel in this case may qualify as a protected activity cognizable under ERA or WPCA. B. Protected Activity under ERA In order to establish a prima facie case of discrimination under the ERA, a complainant's charge must relate to some aspect of nuclear safety; thus, "not every act of whistleblowing is protected under the ERA simply because the employer holds a license from the [Nuclear Regulatory Commission]". Decresci v. Lukens, 87-ERA-13 (1993). See also Aurich v. Consolidated Edison, 86-CAA-2 (1987); Fugate v. TVA, 93-ERA-0009; (1993) and Bailey v. System Energy Resources, Inc., 89-ERA-31 & 89-ERA-32 (1993). The evidence of record shows that the reservoir and spillway are not part of the nuclear emergency core cooling system at STP and are not related to nuclear safety. I credit the testimony of witnesses Thormaehlen, Craddock, Ralston, Cottle and Garris that a breech of the reservoir wall resulting in a release of water through the spillway discharge channel could, at most, cause the shut down of the plant but would not present any nuclear danger. Therefore, I find that the condition of the spillway discharge channel does not pose any threat to nuclear safety. Based on the foregoing, I find that complainant's concerns regarding the overgrown condition of the spillway were not related to nuclear safety. Thus, I conclude that he was not engaging in protected activity within the meaning of the ERA when he expressed these concerns and, accordingly, he has not established a prima
[PAGE 12] facie case of discrimination under that Act. C. Protected Activity under WPCA The WPCA prohibits the discharge or runoff of pollutants, without a permit, into the "navigable waters" of the United States. 33 U.S.C. §1311. "Discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source," and "point source" is defined as "any discernable, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit . . . from which pollutants are or may be discharged." 33 U.S.C. §1362(12),(14). Water itself is not a pollutant; therefore, moving water from one place to another does not constitute the discharge of pollutants. Bettis v. Town of Ontario, N.Y., 800 F.Supp. 1113, 1119 (W.D.N.Y. 1992). In addition, the Eighth Circuit has held that fluctuations in the flowage of water and turbulence caused by the operation of a dam did not result in a "discharge of pollutant" as defined in the WPCA because the operation of the dam did not involve the addition of a pollutant from a point source. State of Mo. ex rel. Ashcroft v. Dept. of the Army, 672 F.2d 1297 (8th Cir. 1982). The court also rejected the argument that soil erosion caused by the flow of water should be classified as "runoff" and regulated under the WPCA. Id. Although water is not a pollutant, the 1972 amendments to the WPCA established a permit system that regulates any discharge by point sources. 33 U.S.C. §1342. A breech of the STP reservoir wall resulting in the release of water through the spillway discharge channel would constitute an unpermitted discharge under the WPCA. The record shows that respondent has applied for and been issued permits authorizing the discharge of water into the Colorado River from spillway gate leakage and reservoir relief wells. CX/RX-4 at 3, CX/RX-20 at 2. However, the spillway gates have not been opened for 10 years and respondent does not anticipate a need to open them during the lifetime of the plant.[8] Based on the foregoing, I find there has been no actual violation of the WPCA and that the possibility of a future violation is extremely remote. See Crosby v. Hughes Aircraft Co., 85-TSC-2 (1993). Further, the record shows that complainant's expressions of concern prior to his demotion were limited to his perception that the spillway discharge channel would become a wetland unless it was cleared. Complainant was concerned that a wetland designation would necessitate permits before water could be discharged from the
[PAGE 13] reservoir, and might prevent the release of water during an emergency. Complainant's subsequent allegations regarding the possibility of "wide-spread flooding" resulting from the overgrown condition of the spillway discharge channel were made after he had been demoted. This concern could not have played a part in respondent's decision to demote him, and, therefore, cannot trigger the employee protection provision of the WPCA. See Grover v. Houston Lighting & Power, 93-ERA-4 (July 28, 1993); Bailey v. System Energy Resources, Inc., 89-ERA-31 & 89-ERA-32 (1993). Accordingly, I find that complainant was not engaging in protected activity within the meaning of the WPCA when he expressed concerns about the condition of the spillway discharge channel and its relation to detecting reservoir leakage and/or flooding,[9] and conclude that he has not proved a prima facie case of discrimination cognizable under the WPCA. D. Reasonable Perception The remaining question is whether complainant's good-faith belief that he was engaging in protected activity, even if he was wrong, was a sufficient basis to trigger the whistleblower statutes in this case. The test is: "To establish protected activity, the employee need demonstrate only a reasonably perceived violation of the underlying statute or its regulations." Abu-Hjeli v. Potomac Power Co., 89-WPC-1 (1993); see also Johnson v. Old Dominion Security, 86-CAA-3, 4, 5 (1991). It has been held, however, that once an employer investigates a complainant's safety concerns and demonstrates to him or her that there is no possible violation of the statute, the complainant's activity is no longer protected. Wilson v. Bechtel Construction, Inc., 86- ERA-34 (1988). The record here shows that respondent addressed complainant's concerns on numerous occasions. On August 27, 1993, the civil engineer responsible for the reservoir and its supporting structures, Ken Copes, met with complainant to discuss his concerns. After an investigation, Cope informed complainant that the condition of the spillway did not present a safety issue and that the spillway discharge channel could be utilized if necessary. The record also shows that complainant met with Bob Englemeier, anager of the Nuclear Safety Quality Concerns Program, on July 12, 1994, and with William Cottle, Group Vice President - Nuclear, STP's senior executive, on July 27, 1994, and was informed that the condition of the spillway did not present a safety threat and would not prevent the release of water from the reservoir in an emergency. CX 7.
[PAGE 14] Based on this record, therefore, I find that complainant's concerns regarding the overgrown condition of the spillway were not objectively reasonable concerns about safety in the light of respondent's investigations and reassurances, and thus he did not have a reasonable perception that respondent was violating either ERA or WPCA. In summary, having found that complainant's expression of concerns about the condition of the spillway discharge channel did not constitute protected activity under the ERA or the WPCA, I conclude that he has not established a prima facie case under either Act. Was complainant's demotion prohibited discrimination? Assuming, arguendo, that complainant's expression of concerns regarding the condition of the spillway discharge channel was protected activity within the meaning of either ERA or WPCA, and assuming his superiors who were involved in his demotion had knowledge of such protected activity,[10] the remaining question presented by the facts in this case is whether such demotion was taken in order to "discriminate" against him because he expressed those concerns. Based on the totality of the record alluded to above, I find that the evidence on this issue establishes that complainant's initial expression of concerns in 1992-1993 regarding the spillway channel was given due consideration and referred to the Environmen- tal Department, which determined that the condition did not present a safety concern that necessitated immediate attention; that he was informed in clear and understandable fashion as of January 1994 that the area should be "left as is"; that he was told to obtain estimates for the work, which was to be budgeted for future attention; that his continued expression of concerns to higher level superiors Garris and Cottle were also accepted without any indication that such activity was unwelcome; that complainant's action in agreeing to Thormaehlen's request for the Gradall work that was done on August 29-20, 1994, was not an intentional act to flout the instructions he had received to leave the area alone but was rather the result of a misunderstanding on his part as to what was to be done and what was precluded; that the decision to discipline him after investigation of the August 29-20 Gradall incident was within the parameters provided in HL&P's personnel policies; and that it was undertaken after a good-faith determination by Garris, after consultation with appropriate Human Resources personnel, that such action was necessary based on complainant's failure to understand and follow the clear strictures placed on him by three levels of superiors not to authorize any
[PAGE 15] work in the area.[11] There are several additional reasons why I am convinced that the record supports a finding that the disciplinary action taken against complainant was a good-faith personnel action and was not related to his prior expression of concerns about the condition of the spillway discharge channel. First, given complainant's actions in filing grievances when his reservoir supervisor job was threatened by reorganization in 1993, as well as HL&P's publicized messages to employees regarding whistleblowers' rights and the stipulated existence of other whistleblower-type actions involving HL&P, see, e.g., CX 25-26, 87-88, it would have been illogical, if not stupid, for complainant's superiors to think any action against him in October 1994 would not produce similar results; thus, the decision to proceed with the demotion, notwithstanding the readily anticipated legal costs that would ensue, must have been based on a serious determination that it was a necessary personnel action. Second, complainant's theory that the Gradall incident was a "pretext" is not credible in light of the fact that he was not terminated, a sanction that could have been imposed if retaliation were the true goal; instead, he was given credit for prior good service with the result that he was only reduced $4,500.00 to a position with a $55,500 annual salary. Third, the notion that complainant was being "set up" for retaliation, i.e., by being told to leave the "wetlands" area "as it is," is belied by the self-evident observation that he could have avoided any discipline by adhering to those instructions. In summary, therefore, I find that the decision to demote complainant as of October 1, 1994 (as well as the "displacement" action taken in March 1995), was not retaliation for his prior expression of concerns regarding the spillway discharge channel, but was a disciplinary action dictated by legitimate, non- prohibited considerations. See 10 C.F.R. §50.7(d); Lockert v. U. S. Dept. of Labor, 867 F.2d 513 (9th Cir. 1989); Dunham v. Brock, supra. Thus it is concluded that complainant was not discriminated against within the meaning of ERA or WPCA, and the complaint must be DISMISSED. ORDER It is therefore recommended that the complaint of Richard F. Udovich be DISMISSED. ALFRED LINDEMAN Administrative Law Judge San Francisco, California AL:ms [ENDNOTES] [1] Also listed in "Complainant's Final Exhibit List and Motion to Admit Proposed Complainant's Exhibits" are CX 99 and CX 101, both described as "reserved." [2] I note that when I observed the quoted comment I regarded it as an obvious but unfortunate attempt at humor, since I anticipated the result that has indeed ensued. See TR 677-678 (NB: in view of the regulatory requirement of issuing this decision within 20 [business] days of the close of the hearing, see 29 C.F.R. §24.6(a), no other page citations to the Transcript are provided). [3] E.g., an examination of CX 97-A indicates that it is a typewritten memo that is unsigned and has no readily apparent identity of the author or recipient. Nor does an examination of the document support complainant's assertion that it contained "some of the best evidence on many central issues." [4] Given the lack of substantiation for the charge, I must characterize the disproportionate fixation on the issue as unwarranted and inappropriate; similarly, I consider that the unintentional, momentary and innocuous communication between respondent's counsel and a witness during a recess was not the culpable conduct described by complainant's brief. [5] It is noted that at the September 8, 1993, meeting complainant "discussed the (6) people for reservoir maintenance, along with the (2) additional people slated for operations on heavy equipment such as the new 5200 Gradall and the brome to be purchased and used within the 1994 budget." RX 58. HL&P's Environmental Department determined on September 28, 1993, after a meeting attended by complainant on June 29, 1993, that "The condition of the reservoir spillway was discussed and it was decided to leave it as is." RX 6. [6] The day after the interviews on October 26, 1993, complainant added the matter of his voicing concerns about the spillway channel as a "new angle" to his age discrimination grievance. See CX 36, 37, 39. [7] Complainant's notes show that when he returned to his reservoir maintenance position he was concerned about "the size of my present office," his need for "a truck for reservoir/roads" and "to have Gary Ralston be more friendly and open to the people working for him, and not to hold any grudge against me"; also, when Human Resources notified him in June 1994 that its investigation did not support his grievance, he stated "my present harassment is still an ongoing concern to me. My work assignments and responsibilities are greater in proportion to other supervisors in my department. I also still believe that this harassment is either ongoing discrimination because of my age or in retaliation for having raised my concern in the first place." CX 50, 52; RX 16. [8] An unanticipated discharge could be defined as an "upset" (i.e. an "exceptional incident in which there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee"), providing an affirmative defense to a noncompliance action. 40 C.F.R. §122.41(n). [9] I.e., I credit the testimony of witness Thormaehlen that any flow from the spillway would reach the Colorado River, and the testimony of witness Craddock that the amount of precipitation necessary to cause the reservoir to overflow would also cause the area between the reservoir and the Colorado River to be flooded. Therefore, I find that vegetation in the spillway would not be the cause of flooding on adjacent land. [10] HL&P does not contest that Ralston, Garris and Cottle had knowledge of complainant's expression of concerns regarding maintenance of the spillway discharge channel; as indicated above, however, they do dispute that such concerns related to safety under either ERA or WPCA. [11] Ironically, the area's uncertain "wetlands" status was the basis of complainant's concern from the start.