DATE:  August 4, 1995
CASE NO. 90-ERA-30


IN THE MATTER OF

MARVIN B. HOBBY,

          COMPLAINANT,

     v.

GEORGIA POWER COMPANY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         DECISION AND REMAND ORDER

     This proceeding arises under the whistleblower provision of
the Energy Reorganization Act of 1974, as amended (ERA), 42
U.S.C. § 5851 (1988), and is before me for review of a
Recommended Decision and Order (R. D. and O.) issued by the
Administrative Law Judge (ALJ) on November 8, 1991.  See
29 C.F.R. § 24.6(b) (1994).  The ALJ recommends dismissal of
the entire complaint.  I disagree and remand for the ALJ to
determine a complete remedy.
                             BACKGROUND
     Complainant, who has "unsurpassed" knowledge of the nuclear
industry, was employed by Respondent in 1985 as the Assistant to
the President.  Complainant's Exhibits (CX) 2, 7.[1]  
Complainant held one of the highest non-officer positions in the
company.  In 1987, with Complainant's support and cooperation,
Respondent proposed to its owner, the Southern Company, that a
central nuclear operating company be established.  Transcript
(T.) at 62-64.  The operating company, the Southern Nuclear
Operating Company (SONOPCO), would serve as a pool of talent from
the various companies within the Southern Company with a single 
[PAGE 2]
purpose and single focus, i.e., the safe and efficient
operation of all its nuclear plants.  T. at 306.[2]   The
Southern Company agreed with the idea and filed an application
with the Securities and Exchange Commission for incorporation of
SONOPCO in June of 1988.  T. at 79.  The incorporation was
halted, however, when one of Respondent's joint owners,
Oglethorpe Power Corporation, filed a petition for intervention. 
T. at 80-81.[3]   At the time of the hearing, Oglethorpe's
intervention had continued to prevent the incorporation of
SONOPCO.  T. at 305, 405.
     During 1988 Respondent's nuclear operations department
underwent numerous personnel changes and reorganizations.  T. at
73, 78.  Complainant assumed several different positions in a
brief period.  In April of 1988, R.P. McDonald was named as
Respondent's new Executive Vice-President of Nuclear Operations. 
T. at 72.  McDonald is also Executive Vice-President of Nuclear
Operations at Alabama Power.  T. at 601-604.  Bill Dahlberg
became Respondent's new President in June 1988.  T. at 84.
     Although the incorporation of SONOPCO was delayed, the
Southern Company proceeded with the SONOPCO "project" as a
division of the company.  T. at 305.  In November 1988, the
Southern Company moved or collocated all of the nuclear
operations in its system to the SONOPCO project in Birmingham,
Alabama.  T. at 82.  Joe Farley, Executive Vice-President of the
Southern Company, was placed in charge of the SONOPCO project. 
T. at 308.  McDonald also worked in Birmingham as part of the
SONOPCO project and was responsible for operating Respondent's
and Alabama Power's nuclear plants.  Complainant was offered a
position with SONOPCO, both in November and June of 1988, but he
declined because he preferred to remain with Respondent's
executive department in Atlanta.  T. at 83, 85.
     By memorandum dated December 27, 1988, Respondent created
the Nuclear Operations Contract Administration (NOCA) "to
interface with [its] nuclear operations group in Birmingham."  CX
8.  Complainant was named the general manager of NOCA and began
reporting to George Head.  After Head retired in April 1989,
Complainant reported to Carey Adams, who reported to Grady Baker,
Respondent's Senior Executive Vice-President.  T. at 215, 466.
     During 1989 Complainant was directly involved in negotiating
contracts with Oglethorpe Power.  T. at 405-406.  He worked
closely on several projects with Dan Smith, Oglethorpe's project
director.  T. at 830, 858.  Fred Williams, Respondent's Vice-
President of Bulk Power, was primarily responsible for the
negotiations, and he had continual contact with Complainant
throughout 1989.  T. at 406.
     On January 1, 1990, Williams made a formal recommendation to
eliminate Complainant's position, T. at 411, though he previously
had discussed the issue with Baker and Dwight Evans, Respondent's

[PAGE 3]
Executive Vice-President for External Affairs.  T. at 407, 412. 
Evans made the ultimate decision.  T. at 369-71.  Earlier,
however, on November 7, 1989, Respondent's Management Council had
met and discussed Complainant's future with the company.  T. at
346, 705.
     In late November 1989, Complainant heard from Smith that he,
Complainant, was going to be removed from his job.  Complainant
confronted Williams and Williams confirmed that the information
was true.  T. at 189, 425-27.  Williams and Complainant began to
negotiate concerning the terms of his removal.  Thomas Boren,
Respondent's Senior Vice-President of Administration, assisted
Williams in negotiating within company guidelines.  T. at 431,
486.  Eventually, on January 25, 1990, Respondent offered
Complainant a financial out-package, but because Complainant did
not respond to the offer within the time afforded, Respondent
eliminated his job on February 2, 1990.  T. at 206-208. 
Complainant was then offered the standard out-package for an
"impacted" employee.  T. at 208.  He remained at the company
until about February 23, 1990.  T. at 275.     In the interim, Complainant was moved from his Level 20
office to a much smaller Level 12 office that contained storage
boxes and a broken credenza.  T. at 211-12.  Williams also
ordered Complainant to turn in his employee badge and his gate
opener to the executive parking garage.  In addition, Williams
limited Complainant's access to only four floors of the building. 
T. at 217.  Complainant filed this ERA complaint on February 6,
1990, T. at 210, and then amended it on February 28, 1990.
                            ALLEGATIONS
     Complainant alleges that he engaged in two forms of
protected activity which led to Respondent's decision to
eliminate his job.  The first occurred on January 2, 1989, during
a pre-hearing meeting concerning another ERA case, Fuchko v.
Georgia Power Co., Case Nos. 89-ERA-9, 10.  Several lawyers
from the same law firm that is representing Respondent in this
action conducted the meeting to prepare potential witnesses to
testify on behalf of Respondent.  Both Complainant and McDonald,
who was the alleged discriminating official in the Fuchko
case, attended.  T. at 722.  During the meeting the attorneys
gave each prospective witness an outline of the testimony they
expected to elicit from the witness.  Complainant alleges that he
openly objected to his outline of testimony as containing
untruths, and that he and McDonald clashed over the change in the
proposed testimony.  He also alleges that one of the attorneys
attempted to suborn perjury from him, but that he refused.     The second alleged protected activity centers around a memo,
dated April 27, 1989, which Complainant submitted to Williams. 
Respondent's Exhibit (RX) 18, Tab 3.  The memo raised numerous 
[PAGE 4]
concerns and problems Complainant had been encountering in doing
his job as manager of NOCA.  One of the concerns was that
Respondent might be in violation of its Nuclear Regulatory
Commission (NRC) license because McDonald was taking management
direction from Farley, the chief executive of the SONOPCO
project, rather than from Dahlberg, Respondent's president.
     Complainant also alleges that Respondent's decisions to
revoke his office and parking privileges were retaliatory. 
Complainant contends that Respondent took these actions because
it knew he was about to contact the NRC or file this complaint.
     Respondent contends that Complainant did not engage in
protected activity but even if he did, that activity was not the
reason for its actions.  Williams testified that after observing
the operation of NOCA and SONOPCO, he concluded there was no need
for a high level manager at NOCA, or even a separate organization
apart from the SONOPCO project.  T. at 408, 412.  Evans agreed
that the position was unneeded.  T. at 370.  Williams also
testified that after the termination decision, he moved
Complainant up to the floor on which his office was located and
limited Complainant's parking and access privileges, essentially
for nuclear safety reasons.  T. at 435-36.                             DISCUSSION
     As a preliminary matter the ALJ found that Respondent had
waived its argument that the complaint was untimely filed.  R. D.
and O. at 44-45.  I agree.  The time frame for filing a complaint
under the ERA is not jurisdictional, but is a statute of
limitations, generally considered an affirmative defense.  See
Lastre v. Veterans Administration, Case No. 87-ERA-42, Sec.
Dec., Mar. 31, 1988, slip op. at 3.  See also School Dist. of
City of Allentown v. Marshall, 657 F.2d 16, 19 (3d Cir.
1981); Hicks v. Colonial Motor Freight Lines, Case No.
84-STA-20, Sec. Dec., Dec. 10, 1985, slip op. at 7.  At Respondent's
request, the ALJ ordered the parties to submit a statement of contentions
prior to the hearing.  In addition, he held a pre-hearing conference on
October 16, 1990.  See Transcript dated October 16, 1990,
at 3-5; Motion dated September 27, 1990.  The issue of timeliness
was not mentioned in either the pre-hearing statement or the
conference.  Nor was it raised in Respondent's pre-hearing brief,
filed October 19, 1990.  Respondent raised the issue for the
first time in its post-hearing brief.  Had Complainant expected
Respondent's defense, he might have presented his evidence
differently.  Since the ALJ ordered the parties to narrow the
issues in preparation for the hearing, and Respondent failed even
to intimate the statute of limitations defense, the ALJ did not
err in ruling against Respondent on that issue.  See 29
C.F.R. § 18.6(d)(2)(v) (1994).  This ruling is also
consistent with those made under analogous circumstances pursuant
to Rule 8(c) of the Federal 
[PAGE 5]
Rules of Civil Procedure.  Johnson v. Sullivan, 922 F.2d
346, 355 (7th Cir. 1990); Paetz v. United States, 795 F.2d
1533, 1536 (11th Cir. 1986) (statute of limitations defense is
waived when not raised in pleadings).[4]   
     Turning to the merits, the ALJ concluded that Complainant
failed to establish a prima facie case of retaliatory
discharge or other adverse action.  Considering the posture of
this case and the magnitude of the record, I will not belabor the
question of whether Complainant established a prima facie
case.  See Carroll v. Bechtel Power Corp., Case No. 91-
ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 11-12, appeal
filed, No. 95-1729 (8th Cir. Mar. 27, 1995).  Respondent
articulated legitimate, nondiscriminatory reasons for removing
Complainant from his job as manager of NOCA and modifying his
office and parking privileges.  Thus, the question becomes
whether Complainant proved by a preponderance of the evidence
that Respondent retaliated against him for engaging in activity
protected by the ERA's whistleblower provision.  Id.[5]  
While the ALJ proceeded in the analysis and reached an
alternative, ultimate conclusion that Respondent was not
motivated in whole or in part by any protected activity, R. D.
and O. at 54, that conclusion is not supported by the evidence. 
After thoroughly reviewing the entire record before the ALJ, I
find that Complainant met his burden of proof on the ultimate
issue and thus, as logic dictates, also presented a prima facie
case.  See St. Mary's Honor Center v. Hicks, 113 S. Ct.
2742, 2756 (1993).
The January 2 pre-hearing meeting
     The ALJ concluded that "[n]othing said at the [January 2
pre-hearing] meeting either by or to the Complainant constituted
protected activity."  R. D. and O. at 51.  He found Complainant's
accusation that one of Respondent's attorneys attempted to suborn
perjury during the meeting "totally unbelievable."  R. D. and O.
at 40.  Alternatively, finding no evidence that Respondent was
aware of the alleged protected activity, the ALJ concluded that a
causal connection had not been established.  R. D. and O. at 52.
     I disagree with the ALJ's ruling that Complainant did not
engage in protected activity at the January 2 meeting.  Under
Title VII of the Civil Rights Act of 1964, it has been held that
an employee's refusal to assist a respondent employer in the
preparation of its defense of a discrimination claim is protected
activity.  Smith v. Columbus Metro. Hous. Auth., 443 F.
Supp. 61, 64 (S.D. Ohio 1977).  The court explained that when an
employee is approached on an informal, ex parte basis by
one of the parties to such a proceeding and is asked to relate
personal knowledge concerning the subject matter of the charge,
the employee's decision whether to cooperate is one that affects
his participation in the pending case.  "Whether an employee
agrees 
[PAGE 6]
or refuses to cooperate, his participation in the pending Title
VII investigation and proceeding has begun."  Id.  The
employer may not then retaliate against the employee because of
the employee's decision not to participate in the manner the
employer desired.  See also Donovan v. Stafford Constr.
Co., 732 F.2d 954, 959-60 (D.C. Cir. 1984) (employee's
refusal to agree to provide investigators with testimony that
employer desired but employee believed to be false is protected
under FMSHA).
     Here, Complainant attended the pre-hearing session as a
prospective witness and in effect refused to testify to facts
contained in the outline of proposed testimony which he believed
were false.  T. at 770.  Contrary to Respondent's argument, the
changes insisted upon by Complainant were not "consistent" with
Respondent's defense.[6]   In the end, Complainant was not called
to testify, and Respondent settled the case shortly after the
hearing began.  T. at 762.  These facts alone are sufficient to
show that Complainant engaged in a protected refusal to cooperate
in Respondent's defense.
     I agree that there is no evidence that any of the managers
or executives who were directly involved in the decision to
terminate Complainant participated in the January 2 pre-hearing
meeting or were aware of Complainant's January 2 protected
activity.  McDonald, however, was aware of that protected
activity.  He overheard at least some of Complainant's remarks
during the meeting.  T. at 721-22.  I find it likely that
counsel, in preparing McDonald for the Fuchko hearing,
fully explained the factual discrepancies to him.
     I have carefully considered Complainant's theory that
because of animus for the January 2 protected activity, McDonald
interfered with Complainant's job and Respondent's assessment of
his worth to the company, thereby contributing to Respondent's
decision to eliminate his job.  Like the ALJ, I do not doubt that
McDonald "interfered" with Complainant's ability to do his job as
manager of NOCA.  R. D. and O. at 41.  There is ample evidence of
McDonald's lack of cooperation under various circumstances. 
See, e.g., T. at 132-35, 337, 454, 651-52; Deposition of
H.G. Baker, Jr. at 54.  McDonald's interference in Complainant's
job, however, was not motivated by Complainant's January 2
protected activities.  In making this finding I rely on
Complainant's testimony regarding an incident that occurred the
next day, as corroborated by a letter Complainant wrote to his
mentor, Admiral Dennis Wilkerson, on June 8, 1989.  CX 22.  
     Complainant testified that on January 3, he met with
McDonald concerning a new work assignment.  T. at 104.  At the
outset of the meeting Complainant casually informed McDonald that
he would be happy to take the assignment, but he first would have
to check with his new boss, George Head.  According to 
[PAGE 7]
Complainant, McDonald became "livid" and asked Complainant what
he was talking about.  CX 22.  Complainant showed him the memo
creating NOCA and naming Complainant general manager under Head. 
McDonald got very mad and said he opposed the creation of such a
group.  McDonald told Complainant, "[d]on't have any part of
that, I'm not going to have any part of it.  If I decide that job
is necessary or is needed in the future, I will pick the people
who head it up.  Don't you get involved with that."  T. at 105.
     There is no evidence contradicting the ALJ's finding that
the January 3 meeting between Complainant and McDonald began
amicably.  R. D. and O. at 41.  Had there been a hostile "clash"
at the pre-hearing meeting on January 2, as Complainant alleges,
the January 3 meeting would not have begun so affably.[7]  
Rather, during the course of the January 3 meeting, McDonald
discovered that NOCA had been created and he strongly
disapproved.  Although Complainant described the January 3
incident and his thoughts about it in detail to Admiral Wilkerson
on June 8, he did not mention the January 2 pre-hearing meeting. 
CX 22.
     McDonald's hostile reaction to the news of NOCA on January 3
is more consistent with other evidence that he instituted a new
philosophy of nuclear operations when he came to Georgia Power in
April 1988.  His predecessor believed in strong corporate
oversight; McDonald believed in no corporate oversight.  T. at
76.  McDonald did not want any nuclear experience in Atlanta and
had effected many changes in keeping with that philosophy.  T. at
76-77.  Thus, while McDonald was uncooperative and, in fact, took
steps that proved to be detrimental to Complainant's employment,
I am not convinced that Complainant's January 2 protected
activity motivated his actions.  Furthermore, even if the
managers who were more directly involved in the termination
decision were aware of Complainant's January 2 protected
activity, there is insufficient proof that it motivated their
decision.[8]   Complainant engaged in other protected activity,
however, that did motivate Respondent's decision to terminate
him.
The April 27 memo
     The ALJ reluctantly found that in his April 27 memo,
Complainant raised protected concerns about the reporting
structure between SONOPCO and Respondent.  R. D. and O. at 42,
52.  I definitively hold that he did.  Because McDonald was
refusing to cooperate with NOCA, an organization created and
supported by President Dahlberg, Complainant became concerned
that Dahlberg actually had no control over McDonald.  Complainant
drew this inference because "[p]roblems occurred, were brought to
the president's attention, and the president did not seem to be
able to straighten out the problems."  T. at 240, 243; see
also T. at 652.  Even Respondent's counsel recognized that
Complainant 
[PAGE 8]
sought to get an adequate answer to the "rhetorical question
about why doesn't Bill Dahlberg just pick up the phone and tell
McDonald what to do."  T. at 240.
     Complainant's concerns were validated by Smith.  Complainant
was well aware that Smith and Oglethorpe Power had begun to
question whether Respondent's reporting structure was in
violation of the NRC license.  Smith had raised the issue with
Complainant several times in early 1989.  By March 30, Smith was
"very upset," and in an April 19 joint committee meeting Smith
officially raised the issue and requested an organizational chart
for the SONOPCO project.  T. at 136-39, 851-54.  Although
Complainant tried to defend Respondent's reporting structure, by
that time Complainant too had begun to question the lines of
authority.  In his April 27 memo, Complainant described specific
examples of McDonald's antics, and added, "I am not a lawyer or
licensing specialist but I believe both will tell you that it is
essential that GPC [Georgia Power Company] and APC [Alabama Power
Company] be in control of these plants. . . .  [If McDonald does
not receive his management direction from Dahlberg] . . . we are
in violation of our license and could experience significant
repercussions from the NRC -- including the revocation of the
licenses."  RX 18, Tab 3.  Complainant added that a Region II NRC
employee had suggested that the NRC was so concerned that they
might seek to place a resident inspector in Birmingham "to see
what was going on."  Id. 
     Respondent argues that Complainant's concern about
Respondent's compliance with its NRC license and regulations
governing the reporting structure is a purely internal complaint
not covered under the ERA.  Recently, the United States Court of
Appeals for the Eleventh Circuit, which has appellate
jurisdiction of this case, endorsed the Secretary's longstanding
position that internal complaints are protected.  Bechtel
Const. Co. v. Secretary of Labor, 50 F.3d 926, 931-33 (11th
Cir. 1995).  Complainant's concern also is "grounded in
conditions constituting a reasonably perceived violation" of the
ERA.  42 U.S.C. § 5851(a)(1); DeCresci v. Lukens Steel
Co., Case No. 87-ERA-13, Sec. Dec., Dec. 16, 1993, slip op.
at 5, and cases cited therein; see also Minard v. Nerco
Delamar Co., Case No. 92-SWD-1, Sec. Dec., Jan. 25, 1994,
slip op. at 8-9.  Whistleblowers are protected under the ERA to
further the Congressional purpose of protecting the public from
the hazards of nuclear power and radioactive materials. 
Complainant's concern about whether Respondent's president
actually was in control of Respondent's nuclear power plants, as
prescribed by the NRC license, implicates the safe operation of
the plants.  See also RX 19 (organizational hierarchy
described in Final Safety Analysis Report submitted to NRC). 
Extending coverage to Complainant's 
[PAGE 9]
concern is, therefore, consistent with the purpose of the Act.[9] 
 Respondent's testimony that Complainant's perception of the
reporting structure was wrong does not render Complainant's
concern unprotected.  An employee's reasonable belief that his
employer is violating the Act may form the basis for a
retaliation claim irrespective of after-the-fact determinations
regarding the correctness of the employee's belief. 
Minard, slip op. at 22, 24; see Dodd v. Polysar
Latex, Case No. 88-SWD-0004, Sec. Dec., Sept. 22, 1994, slip
op. at 9.  Complainant's suspicion that a violation existed was
shared at least by Smith, and was reasonable considering
McDonald's behavior within the organizational structures.[10] 
     The ALJ concluded that the decision to eliminate
Complainant's position was not based in whole or in part on
Complainant's protected activity, but was based on Respondent's
business judgment that the position was not needed.  R. D. and O.
at 53-54.  He credited the testimony of Williams and Evans as the
principal decisionmakers and discounted the significance of
Respondent's November 7 meeting.  He relied primarily on the
following findings:  (1) that over six months had passed since
the April 27 memo and that the time frame for oral complaints
about the reporting issue is not established in the record; (2)
that Williams objected only to the "complaining" style of the
April 27 memo; (3) that none of the witnesses who participated in
the November 7 council meeting acknowledged knowing of the 
April 27 memo; (4) that the council members' low opinion of
Complainant's performance was no surprise; (5) that many of the
executives previously had expressed reservations about the
necessity of NOCA; (6) that the incorporation of SONOPCO had been
delayed beyond expectations; and (7) that at the time
Complainant's position was eliminated, other positions were being
eliminated as cost-saving measures.  See R. D. and O. at
42-44, 52.  The ALJ's findings ignore significant and conflicting
evidence, and cannot be upheld.
     The council members in effect decided to terminate
Complainant's employment during the November 7 meeting.  Baker
ultimately conceded that they decided to eliminate the position
at that time.  T. at 702-704.  While Williams and several other
witnesses testified that the position was eliminated because it
had no function, T. at 408, 312, the November 7 decision was made
irrespective of whether Complainant's position had a function. 
As illustrated by the evidence outlined below, the council's
decision was more personal and more final.  Williams and Evans
simply provided Respondent with a post-hoc explanation for
implementing the November 7 decision.  T. at 708-709.[11] 
     Various witnesses who attended the November 7 meeting
testified that the focus of the meeting was "people," not any 
[PAGE 10]
particular job.  Dahlberg testified that the subject of the
meeting was people -- their performance and potential.  T. at
346.  Baker testified that "the major issue was whether or not
the individual involved could contribute to the company, as
whether they had the abilities and management abilities that we
needed and required . . . ."  T. at 680.  Boren described the
meeting in detail, as follows:
     The purpose was several things, but the primary purpose
     was to look at leadership.

     The Southern system, of which Georgia Power is a big
     part, was going through the process of looking at how
     do we ensure that we have the right number and quantity
     and type of leaders in the pipeline so to speak for the
     next decade, and one of the challenges they had issued
     to Mr. Dahlberg was to look at people we had coming up
     through the ranks and make sure we identified those
     leaders, looked at their potential and were basically
     trying to develop that.

     Also at the same time Mr. Dahlberg was doing some team
     building with us as well.

                         *    *    *    * 

     Each of us stood up before the rest of the members of
     the management council, and we would list the
     individuals that reported directly to us, and then
     before anybody else commented on them we would sit down
     and identify what we thought their performance was from
     a rating of zero to four, zero being the lowest, four
     being the highest, and what we thought their potential
     was, and that basically went from zero to three I
     think, zero being peaked out, no further potential, one
     being could move one more level, two being could move
     two more levels.

     In that particular assessment Mr. Hobby had three what
     we call double zeros, three two zeros and one one-zero. 
     In other words, in terms of potential everyone rated
     him as having no further potential.

     In terms of performance, three out of the seven people
     rated him at the lowest level possible, that's zero;
     one person rated him at one, and . . . four people
     rated him at level 2 which was basically about average.


[PAGE 11]
T. at 483-84.[12]   In sum, Baker explained that the council
determined that Complainant was not a valuable asset to the
company.  T. at 708.  He also responded affirmatively to
counsel's inquiry that there was "no place in Georgia Power for
Marvin Hobby."  T. at 705.
     These assessments, particularly those concerning
Complainant's "management ability" and leadership ability, are
wholly unrelated to whether his position had a function.  There
is no evidence that Respondent ever criticized Complainant's
management skills except in connection with the April 27 memo. 
As discussed below, that criticism was based on the protected
complaint raised in the memo, not on the memo's "complaining
style."  Furthermore, Williams and Evans, who purported to be the
principal decisionmakers, testified emphatically that
Complainant's work performance was not a factor in the
decision to eliminate his job.  T. at 413, 370.  These and
numerous other contradictions in Respondent's explanation are
persuasive evidence of pretext.  See Bechtel Const. Co.,
50 F.3d at 935.  (pretext demonstrated by employer's shifting
explanations).
     Baker implied that he never had a high opinion of
Complainant's communication or interface skills.  T. at 700.  He
also claimed that placing Complainant as manager of NOCA "was an
experiment to see if in fact Mr. Hobby could produce something
that was of value to the company."  T. at 701.  Contrary to the
ALJ's finding, these remarks and Baker's other derogatory
comments are surprising because on December 14, 1988, he,
as "Rater (Immediate Supervisor)," gave Complainant a
"commendable" performance evaluation; considered his knowledge of
the industry "unsurpassed;" and indicated there was growth
potential.  CX 7.  In the year before, Baker rated Complainant's
performance as "excellent" and "commendable" and wrote that there
was "no known limit" to Complainant's future growth possibilities
with Respondent.  CX 4.  I find no legitimate, nondiscriminatory
reason for Baker's change of opinion.  Williams, who more closely
observed Complainant's performance during the spring and fall of
1989, had no complaints about Complainant's performance and
admitted that Complainant and Smith went "a long way in
finalizing" the managing board agreement.  T. at 464.  Baker, on
the other hand, opined that nothing was accomplished by the
discussions between Complainant and Smith.  T. at 685.
     Even if Baker "didn't really have a strong feeling that
[NOCA was needed] to start with," T. at 688, and even if
Respondent had decided that it made a mistake in creating NOCA,
these also are not bases for suddenly concluding that
Complainant's performance and potential were "zero."  The
drastic, inadequately explained change in Respondent's perception
of Complainant's work performance is further evidence of pretext.

[PAGE 12]
     Nor does the delay in SONOPCO's incorporation justify
Respondent's explanation of "no function."  Williams testified
that the incorporation and contract issues were not significant
to his decision.  T. at 407.  Moreover, Dahlberg created NOCA to
perform work beyond contract administration.  T. at 328.[13] 
     There is another significant reason why Respondent's
explanation of "no function" is not credible.  It is undisputed
that on January 25, after Respondent had removed Complainant from
his job, Williams assigned another one of his managers, Bill
Smith, to take responsibility for Complainant's activities. 
Williams ordered Complainant to turn over his files to Smith.  
T. at 207.  Since Respondent appointed a replacement, a function
necessarily existed.[14] 
     The December 27, 1988, memo creating NOCA and naming
Complainant as manager, states:
     It is important for us to realize that while our
     nuclear operations may be managed in Birmingham and
     ultimately will be managed by a separate Southern
     subsidiary, Georgia Power will be held accountable by
     our regulatory groups, our stockholders, and the public
     for the operation and performance of our nuclear units. 
     It is essential that Georgia Power Company be involved
     in the operations of our units, monitor their
     performance and integrate nuclear operations goals,
     accountabilities, and financial planning into Georgia
     Power Corporate Plan.

RX 18, Tab 2.  These statements not only show that there was a
legitimate function to be performed by an organization separate
from SONOPCO, but they reveal that Complainant's protected
complaint about the reporting structure also was implicit in his
complaints about McDonald's lack of cooperation with NOCA. 
Baker's criticism of Complainant's complaints about lack of
cooperation from McDonald is, therefore, based on and tantamount
to criticism of Complainant's protected activity.  See T.
at 699-700.
     Respondent decided to remove Complainant from the "pipeline"
to silence these ongoing complaints about the reporting
structure.  Contrary to the ALJ's findings regarding the timing
of the complaints, R. D. and O. at 43, 49, 52, Evans indicates
that Complainant raised the reporting structure issue with him in
August 1989, just over two months before the council's November 7
decision.  See T. at 395-96.  This time frame is confirmed
by Complainant's testimony, T. at 169-71, and is documented by
another memo that Complainant prepared on August 14, 1989.  CX 23
at 5-1.  Boren testified that Complainant raised the reporting
concerns with him in "late 1989."  T. at 494-95.[15]   Thus, 
[PAGE 13]
Complainant was raising his protected complaint with the council
members within several months of the adverse action.  The ALJ's
analysis relying on the passage of six months as a factor
militating against causation is, therefore, flawed.  The two to
three month period of time at issue here is supportive of a
causal link, particularly considering that Respondent, as a very
large company, likely requires more time to effectuate important
personnel decisions.  Carroll, slip op. at 14-15.
     All of the witnesses who attended the November 7 meeting --
Dahlberg, Boren, Evans and Baker -- had knowledge of
Complainant's protected reporting concern.  See, e.g., T.
at 395, 418, 471-72, 483, 494, 682.  Although Dahlberg and Baker
denied it, T. at 316, 683, I discredit their testimony.  Williams
admitted that he, at least, informed them of some of the concerns
raised in the April 27 memo, which inherently would have included
Complainant's accusations of wrongdoing and predictions of NRC
intervention as a corollary to McDonald's lack of cooperation
with NOCA.  Complainant's protected concern and his complaints
about McDonald's lack of cooperation are interrelated. 
Supra at 22-23.  Further, it is uncontroverted that
Complainant discussed the problems and showed his April 27 memo
to Adams, who responded, "'[t]his is a mess.'"  T. at 164.
     While Williams may have viewed the April 27 memo as a set of
"gripes," T. at 418, he objected to its "inaccuracies" about the
reporting structure.  T. at 415.  He disapproved of "writing a
bunch of memos" to resolve problems.  T. at 416.  I conclude that
Williams feared that the memo, detailing and documenting
Complainant's problems with McDonald's interference and warning
Respondent about the potential regulatory violation, would
validate Smith's concerns or garner new ones by Oglethorpe. 
"[T]he co-owners were very interested in our relationship with
SONOPCO since they owned a large portion of the nuclear
facilities . . . ."  T. at 441.  Oglethorpe already was holding
Respondent "hostage."  T. at 461.  Williams admitted that he
counseled Complainant about "writing a lot of memos that were
inaccurate and more of a frustration and accusing people, if we
did have a litigation we would look kind of stupid having stuff
like that in."  T. at 422.  The undisputed fact that the subject
of "litigation" came up is telling.  Williams' reaction that the
memo would implicate Respondent in wrongdoing is also documented
in Complainant's June 8 letter to Admiral Wilkerson and confirmed
by Wilkerson's testimony.  CX 22; T. at 555.
     Williams considered the April 27 memo significant because
within the next few days he either showed it to Dahlberg or told
him about it, T. at 418, and also told one of Respondent's
attorneys about the memo.  T. at 778.  Complainant's telephone
log prepared on April 28 documents that the attorney was "worried

[PAGE 14]
about [the] memo."  CX 12.
     On May 5, Dahlberg, Baker, and Farley met to discuss the
relationship between Respondent and SONOPCO and the status of
negotiations with Oglethorpe.  T. at 681, 318.  There is no
evidence that Respondent contemplated removing Complainant from
his position until that meeting.  Williams had been "very open-
minded" about NOCA in the spring.  T. at 408.  Respondent claims
that it asked Farley to take Complainant into SONOPCO during the
May 5 meeting.  T. at 682, 586.  I find Respondent's request
disingenuous considering that Complainant had declined employment
with SONOPCO on two prior occasions in 1988.  T. at 82-83.  This
evidence only marks the point at which Respondent began to
contemplate removing Complainant from the "pipeline."[16] 
     Williams' testimony that he offered Complainant other
positions in lieu of termination does not convince me that
Respondent had not already decided to remove Complainant from the
"pipeline" for retaliatory reasons.  The offers were hollow and
unauthorized.  Evans admitted that in deciding to eliminate
Complainant's job as manager of NOCA, "whether there were [other]
jobs available or not was not even discussed."  T. at 392-93. 
After all, there was "no place in Georgia Power" for Complainant. 
T. at 705.  In any event, the alleged offers were not for
comparable employment, to which Complainant is now entitled as a
remedy for Respondent's unlawful retaliation.  See Rasimas v.
Michigan Dep't of Mental Health, 714 F.2d 614, 624 (6th Cir.
1983).
     While I find that Respondent's decision to terminate
Complainant was based solely on retaliatory animus, even if
Respondent's decision was based on "mixed motives," i.e.,
a mixture of legitimate and illegitimate motives, the outcome of
this case would be the same.  Respondent did not prove that it
would have terminated Complainant even if it had not allowed
Complainant's protected concerns about the reporting structure to
play a role in its decision.  See Price Waterhouse v.
Hopkins, 490 U.S. 228, 244-45 (1989).
The ERA complaint
     Assuming that the parking and access changes were adverse
actions, the ALJ again found no prima facie case that
these actions were taken in retaliation for Complainant's filing
this ERA complaint.  He explained that Williams, who changed
Complainant's office, had no knowledge of the complaint since it
was filed after the office change, and the changes in
Complainant's parking privileges and building access were based
on reasonable security concerns, not the filing of this
complaint.  R. D. and O. at 44, 53.
     I disagree.  Respondent's decisions adversely affected the 
[PAGE 15]
privileges of Complainant's employment, see, e.g., Bassett v.
Niagara Mohawk Power Corp., Case No. 86-ERA-2, Sec. Dec., 
Sept. 28, 1993, slip op. at 14, and were motivated at least in
part by Complainant's protected activity.  Complainant filed this
ERA claim on February 6 and his office was moved thereafter, on
February 9.  T. at 210; RX 18, Tab 12.  His parking and access
privileges were changed on February 19.  T. at 217.
     Williams tied the two actions together, claiming that he
moved Complainant to the 19th floor where his office is located
and changed Complainant's parking privileges after he discovered
that Complainant was shredding documents and bringing
unrecognized individuals into the parking garage.  T. at 436. 
Boren testified, however, that he was involved in these decisions
and that he thought it was "prudent management from looking at a potential labor problem here to make sure [he] knew who went and
who came."  T. at 497.
     I find that the potential labor problem Boren referred to
was this ERA complaint.  Complainant was dissatisfied with the
out-package negotiations and had employed counsel to assist him. 
See Letter to Dahlberg from Michael D. Kohn, dated January
31, 1990.  Considering the circumstances, Williams and Boren knew
that Complainant filed this claim, and they limited his
privileges to hinder the lawsuit.  Respondent has not shown that
it would have taken these actions even if it had not taken
Complainant's protected activity into account.  See Price
Waterhouse, 490 U.S. at 244-45.
                               ORDER
     Accordingly, Respondent is ORDERED to offer Complainant
reinstatement to the same or a comparable position to which he is
entitled, with comparable pay and benefits, to pay Complainant
the back pay to which he is entitled, and to pay Complainant's
costs and expenses in bringing this complaint, including a
reasonable attorney's fee.  This case is hereby REMANDED to the
ALJ for such further proceedings as may be necessary to establish
Complainant's complete remedy.
     SO ORDERED.
                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   The evidence adduced in this case has been summarized by
the ALJ at pages 2-40 of the R. D. and O.

[2]   The Southern Company also owns Alabama Power Company and
other utilities.  T. at 61-62.

[3]   Oglethorpe Power owns approximately 30% of Respondent's
power plants, or "about a $4 billion investment, 3 percent in
each of the four nuclear units."  T. at 139, 852.

[4]   I also reject Respondent's argument that it was prejudiced
by irregularities that occurred during the Wage and Hour
Division's investigation of the complaint.  After a hearing was
requested, the case received de novo review.  The Wage and
Hour determination was of no force or effect and was not legally
prejudicial.  McClure v. Interstate Facilities, Inc., Case
No. 92-WPC-00002, Sec. Dec., June 19, 1995, slip op. at 2-3.

[5]   I note, however, that it was error for the ALJ to consider
Respondent's proffered reasons for terminating Complainant in
determining whether Complainant had established a prima
facie case.  See R. D. and O. at 52-53; Moravec v. HC & M
Transp., Inc., Case No. 90-STA-44, Sec. Dec., Jan. 6, 1992,
slip op. at 11.  An employer's reason for the adverse action goes
not to the causal element of a prima facie case but to the
ultimate question of whether Respondent retaliated against
Complainant because he engaged in protected activity.

[6]   The outline indicated that Complainant had urged
McDonald to terminate Fuchko and Yunker in August 1988, after
their protected activity, but that McDonald "vetoed" the request. 
Respondent's Exhibit (RX) 18, Tab 9.  Complainant maintained that
he recommended that Fuchko and Yunker be reassigned or released
in April 1988, before their protected activity; that McDonald
refused; and that he had no involvement with Fuchko and Yunker
after June 1, 1988.  T. at 77-78.

[7]   According to Dahlberg, McDonald is "cantankerous."  T. at
321.  He is a strong personality who "stands up and . . . tells
you what he thinks, he operates his plants well, and he puts it
forth pretty straight to you."  T. at 321, 337.

[8]   Because I found other evidence sufficient to establish that
Complainant engaged in protected activity on January 2, it was
unnecessary to consider at that juncture whether counsel
attempted to suborn Complainant to perjury.  Even if counsel did,
that evidence would not alter this decision.

[9]   Smith explained:

     There is a requirement that whoever is the operating
     agent of a nuclear plant, that the upper management
     must be in charge -- totally in charge of what occurs
     at that nuclear plant, that there must be, in fact, a
     chain of command from essentially the CEO of the
     company that is the operating agent and holds a license
     to oversee, provide the resources, the guidance and
     direction to ensure that those plants are operated
     safely and legally. 

T. at 849.

[10]   Williams testified that Complainant's concern and Smith's
concern were not the same.  Smith credibly testified otherwise. 
Smith stated that he was concerned with whether Dahlberg managed
the nuclear plants through the chain of command as required and
whether he had control over McDonald.  T. at 851.  Smith also
explained as follows:

     [The upper management of SONOPCO, including McDonald]
     are all triple headed. . . .  They are employed as
     Georgia Power, SONOPCO, and Alabama Power which means
     that they work for all three companies simultaneously. 
     This is a very difficult situation to be put in. . . . 
     The issue and question here is [does] Mr. Dahlberg, who
     is CEO of Georgia Power, really have direct control
     over Mr. McDonald who wears three hats who has control
     over Mr. Harrison who wears three hats . . . et cetera.

T. at 850-51.  Thus, the questions of who reports to whom and
triple heading, which Williams referred to as Smith's primary
concern, "are very tightly connected."  T. at 883-84.

[11]   Respondent's testimony regarding precisely who made the
initial recommendation, when, and to whom, is vague and
conflicting, but most logically supports this pattern of events. 
See T. at 369, 372, 387, 392-95, 429-31, 407, 412, 485,
703.

[12]   Complainant's direct supervisor at the time, Adams, did
not testify.

[13]   The ALJ erred in finding that Complainant designed NOCA as
a means to stay in Atlanta.  R. D. and O. at 40.  Dahlberg
testified that he established NOCA in Atlanta because that is
where he is located.  T. at 329.

[14]   Respondent's evidence that two other positions were
eliminated during this time is also unpersuasive.  Those
positions resulted from voluntary resignations.  T. at 394.

[15]   In addition, Williams confirmed that Complainant raised
the issue with him several different times, not just in
connection with the April 27 memo.  T. at 421, 453.

[16]   Farley testified that Baker asked him, "'[i]s there a
place do you think for' or words to that effect 'for Mr. Hobby in
the Southern nuclear organization?'"  T. at 586.  The question
resembles Baker's remarks at the November 7 council meeting more
than any request for a new position for Complainant.

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