This Board utilizes a four-part test to determine whether to stay its own actions: (1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting a stay. Doyle v. Hydro Nuclear Services, ARB Nos. 99-041, 99-042, and 00-012, ALJ No.1989-ERA-22 (May 17, 2000); Dutkiewicz v. Clean Harbors Environmental Svcs, Inc., ARB Case No. 97-090, ALJ No. 1995-STA-34 (ARB Sept. 23, 1997); McCafferty v. Centerior Energy, Case No. 96-ERA-6 (ARB Oct. 16, 1996). Georgia Power fails to meet any of these criteria and therefore its request must be denied.

    1. Georgia Power is not likely to prevail on the merits.

   In its Brief in Support of its Motion for Stay (Brief), Georgia Power argues that it is likely to prevail on appeal because the Secretary failed to give deference to the ALJ's credibility determinations when issuing his 1995 decision on liability, asserting that the Secretary erred because he "reversed ALJ Williams on critical credibility determinations based only on his reading of a cold record." Brief at 5-6. While we agree that an ALJ's demeanor-based credibility findings are entitled to great deference, it is clear that the Secretary's 1995 decision on liability is not premised on any disagreement with a demeanor-based credibility finding by ALJ Williams. Georgia Power's argument therefore is misleading and entirely without merit.

   Hobby alleged that he was terminated from his job at Georgia Power in retaliation for two activities that he claimed were protected under the ERA: (1) objecting to alleged requests by Georgia Power's attorneys that he provide false testimony in the Fuchko whistleblower case (in January 1989), and (2) expressing concerns that Georgia Power was violating NRC regulations by delegating operating authority for its nuclear plants to the newly-created SONOPCO organization (in April 1989). We review separately the Secretary's disagreements with the ALJ's fact-finding regarding both of Hobby's protected activity claims.

the ALJ does not reject Hobby's version of the Fuchko-related matter because of demeanor but instead because (a) the ALJ found Hobby's account illogical, and (b) the ALJ found the testimony of Georgia Power's witnesses more persuasive:

I fail to see where Respondent's attorneys would even consider having the Complainant testify about the SONOPCO selection process as he was not involved in the same and any testimony he would have given relating thereto would have been nothing more than hearsay. The Complainant is unable to identify the attorney who purportedly approached him with such an incredible request. The two partner attorneys, who conducted the two sessions which the Complainant attended, have denied making such a statement and I consider them to be credible witnesses. There were two other associate attorneys present at the meeting, but the Complainant made no attempt to subpoena them to the hearing. Although he allegedly related the purported conversation to Mr. McHenry the next day, Mr. McHenry was not examined at the hearing in regard thereto and I decline to credit his affidavit, prepared with the Complainant's assistance 1 1/2 years after the purported event.

Id. While the ALJ affirmatively found Georgia Power's witnesses to be credible, and declined to credit an affidavit proved by McHenry, nowhere did the ALJ conclude that Hobby was to be disbelieved based upon his demeanor at trial. Thus to the extent that the ALJ decided to believe Georgia Power's version of events, it really was based on inferences that the ALJ drew from conflicting evidence in the record, and not on demeanor. The ALJ concluded from these inferences that Georgia Power's lawyers did not ask Hobby to provide false testimony on January 2, 1989, and that Hobby therefore did not engage in protected activity by refusing to provide false testimony himself in the Fuchko matter.

   The Secretary had plenary power to review the ALJ's factual and legal conclusions in ERA whistleblower cases de novo. 5 U.S.C.A. § 557(b) (West 1996). Pursuant to this authority, on appeal the Secretary reviewed the record thoroughly and reached inferences different from the ALJ's inferences. The Secretary noted that Hobby:

attended the pre-hearing session [with Georgia Power's lawyers in the Fuchko matter] as a prospective witness and in effect refused to testify to facts contained in the outline of proposed testimony which he believed was false. Contrary to Respondent's argument, the changes insisted upon by Complainant were not "consistent" with Respondent's defense. In the end, Complainant was not called to testify, and Respondent settled the case shortly after hearing began. These facts alone are sufficient to show that Complainant engaged in a protected refusal to cooperate in Respondent's defense.

Sec'y 1995 Dec. at 10-11 (record citations omitted). Specifically, the Secretary noted that:

The outline [of Hobby's testimony that had been prepared by Georgia Power's attorneys] indicated that Complainant had urged [Georgia Power Sr. V.P.] McDonald to terminate Fuchko and Yunker in August 1988, after their protected activity, but that McDonald "vetoed" the request. 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 [Hobby] had no involvement with Fuchko and Yunker after June 1, 1988.

Id. at 10 n.6 (record citations omitted).

   With regard to Georgia Power's stay motion, the Secretary's rejection of the ALJ's finding with regard to the Fuchko pre-hearing event is significant in two key respects, each of which is sufficient to refute definitively Georgia Power's claim that it will prevail on appeal. First, as noted above, nowhere does the Secretary's disagreement with the ALJ's fact-finding on this issue involve overturning a demeanor-based credibility determination; therefore, in light of the Secretary's de novo review authority, the Secretary committed no legal error in drawing inferences from the record different from the ALJ and reaching a different conclusion. Second, although the Secretary concluded (contrary to the ALJ) that Hobby's January 1989 refusal to cooperate in the Fuchko matter was protected, the Secretary also concluded that the event did not play a role in Georgia Power's ultimate decision to terminate Hobby:

[W]hile 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 directly involved in the termination decision were aware of Complainant's January 2 protected activity, there is insufficient proof that it motivated their decision.

Id. at 13. Thus, even assuming arguendo that the Secretary's disagreement with the ALJ could be viewed as rejecting an ALJ's demeanor-based credibility fact-finding, the Secretary's contrary conclusion with regard to the Fuchko matter has no decisional significance and cannot possibly support Georgia Power's argument on that it will prevail on appeal.

   Hobby's April 27, 1989 memorandum about SONOPCO and NRC licensing concerns Georgia Power's claim that the Secretary improperly reversed ALJ credibility findings with regard to the company's response to Hobby's April 1989 memo has even less vitality than its argument regarding the Fuchko matter. Both the ALJ and the Secretary found that the April 1989 memorandum raised protected concerns. The ALJ concluded that Georgia Power's decision to terminate Hobby's employment was not motivated by retaliation for the concerns raised in the April 1989 memo, crediting the testimony of Georgia Power witnesses Williams and Evans. ALJ 1991 Dec. at 48-49. However, the Secretary analyzed the record in much greater detail than the ALJ and concluded to the contrary, noting that "[t]he ALJ's findings ignore significant and conflicting evidence, and cannot be upheld." Sec'y 1995 Dec. at 18.

   For these reasons, we find Georgia Power's argument that it will be irreparably harmed absent a stay to be unpersuasive.

    3. Hobby will be further harmed if a stay is granted.

   We have noted that delay in reinstatement can further stigmatize a complainant when that complainant finds himself working in a position with fewer responsibilities or lower pay. See, e.g., Jones v. EG&G Defense Materials, Inc., ARB Case No. 97-129, ALJ No. 1995-CAA-3, slip op. at 14 (ARB Dec. 24, 1998). Additionally, a stay would mean that Hobby must wait even longer to receive his back pay and other damages. It has been more than 10 years since Georgia Power discharged Hobby, and more than 5 years since the Secretary issued his Decision ordering Hobby's reinstatement. Hobby continues to be harmed seriously by the continuing delay in being reinstated, and we find that this factor too militates against Georgia Power's motion.

    4. A stay is contrary to the public interest.

   In addition to protecting the public, one of the purposes of the whistleblower provision of the ERA is to restore a successful complainant to the status he enjoyed prior to the respondent's statutory violation. See, e.g., Jones, supra, slip op. at 14. We disagree with Georgia Power's contention that this principle should not apply to senior managers, whose relationship with an employer may differ from that of lower level personnel. As we noted in our Final Decision, there is no reason why senior managers should receive less protection under the ERA than workers who occupy lower rungs on the corporate ladder. ARB 2001 Dec. at 10.

   The motion for stay pending judicial review is therefore DENIED.