780 F.2d 1505 (10th Cir. 1985), 84-2114, Kansas Gas & Elec. Co. v. Brock

Docket Nº:84-2114, 84-2735.
Citation:780 F.2d 1505
Party Name:1 Indiv.Empl.Rts.Cas. 1767 KANSAS GAS & ELECTRIC COMPANY, Petitioner/Appellant, v. William E. BROCK, Secretary of Labor, Respondent/Appellee, and James E. Wells, Jr., Intervenor-Respondent, United States Nuclear Regulatory Commission, Government Accountability Project, Nuclear Utilities, Amicus-Curiae, and James E. WELLS, Jr., Plaintiff-Appellee, v
Case Date:December 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1505

780 F.2d 1505 (10th Cir. 1985)

1 Indiv.Empl.Rts.Cas. 1767

KANSAS GAS & ELECTRIC COMPANY, Petitioner/Appellant,

v.

William E. BROCK, Secretary of Labor, Respondent/Appellee,

and

James E. Wells, Jr., Intervenor-Respondent,

United States Nuclear Regulatory Commission, Government

Accountability Project, Nuclear Utilities, Amicus-Curiae,

and

James E. WELLS, Jr., Plaintiff-Appellee,

v.

KANSAS GAS & ELECTRIC COMPANY and its Wolf Creek Generating

Plant, Defendants-Appellants.

Nos. 84-2114, 84-2735.

United States Court of Appeals, Tenth Circuit

December 26, 1985

Page 1506

Stanley E. Craven, of Spencer, Fane, Britt & Browne (David L. Wing, Kansas City, Mo., and Mark A. Vining and Ralph B. Foster, Kansas Gas and Elec. Co., Wichita, Kan., with him on the briefs), Kansas City, Mo., for petitioner/appellant.

Allen H. Feldman, (Francis X. Lilly, Sol. of Labor, Karen I. Ward, Associate Sol., and Edward D. Sieger, with him on the brief), U.S. Dept. of Labor, Washington, D.C., for respondent/appellee, Secretary of Labor.

Dale W. Bell, Guy, Helbert, Bell & Smith (Michael C. Helbert, with him on the brief),

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Emporia, Kan., for intervenor-respondent/plaintiff-appellee, James E. Wells, Jr.

William H. Briggs, Jr., Sol., E. Leo Slaggie, Deputy Solicitor, Martin G. Malsch, Deputy General Counsel, and C. Sebastian Aloot, U.S. Nuclear Regulatory Com'n, Washington, D.C., for the amicus Nuclear Regulatory Com'n.

Nicholas S. Reynolds, Joseph B. Knotts, Jr., Richard K. Walker, and David A. Repka, of Bishop, Liberman, Cook, Purcell & Reynolds, Washington, D.C., for amicus Nuclear Utilities.

George A. Shohet, Stephen M. Kohn, and Thomas M. Devine, Government Accountability Project, Washington, D.C., on the brief for amicus Government Accountability Project.

Before BARRETT and MOORE, Circuit Judges, and CHILSON [*], District Judge.

JAMES E. BARRETT, Circuit Judge.

Two related matters, Nos. 84-2114 and 84-2735, are presented on appeal. The first, No. 84-2114, is a petition for review of an order by the Secretary of Labor concerning the discharge of a Kansas Gas & Electric (KG & E) employee, James Wells. The second matter, No. 84-2735, is KG & E's appeal from the district court's enforcement of the Secretary's remedial order on behalf of James Wells.

FACTS

KG & E is the managing partner and owner of a 47% interest in the Wolf Creek Generating Station, a nuclear power plant. James E. Wells was hired by KG & E as a quality assurance inspector. Wells' duties consisted primarily of inspecting equipment and lines that had been manufactured by a sub-contractor of KG & E before these items were integrated into the plant. If inspections uncovered discrepancies or inferior work, Wells was to submit written reports of these deficiencies to his superiors. Although run by the licensee (KG & E), this quality assurance program is required by Nuclear Regulatory Commission (NRC) regulations. 10 C.F.R. Sec. 50 App. B (II) (1985). The program serves as an adjunct inspection program during the construction and operating phases of a nuclear facility.

A properly functioning licensee quality assurance program is an integral part of the NRC's regulatory program. "Quality control inspectors play a crucial role in the NRC's regulatory scheme. The NRC regulations require licensees and their contractors and sub-contractors to give inspectors the authority and organizational freedom required to fulfill their role of independent observers of the construction process." Mackowiak v. University Nuclear Systems, 735 F.2d 1159, 1163 (9th Cir.1984). In effect, such a program serves as the eyes and ears of the NRC because the inspectors are always on site and take over much of the inspection burden from federal personnel. In the Matter of Consumer's Power Co., 7 AEC 7, 11 (1974). The observations and judgments of quality assurance personnel on potential construction deficiencies are documented and that documentation is preserved and facilitates NRC audits. The inspection team of which Wells was a part was established to comply with these regulations. The team was also established in response to a previous NRC investigation in which KG & E was cited for a violation and fined. (Tr. 366, 572-73.)

During his employment with KG & E, Wells performed inspections and filed reports with his superiors detailing potential quality assurance problems. On June 20, 1983, Wells reported safety problems. That same day, Wells was told that he was terminated because he could not get along with his co-workers. (Tr. 405, 452.) Wells protested, claiming this lack of cooperation was merely a pretext and that the real reason that he was being fired was for voicing safety concerns. After a brief discussion, Wells' superiors decided to give

Page 1508

him a second chance and re-instated him. (Tr. 53-57, 402-403.) Wells continued to file reports of safety concerns.

In early August, 1983, Wells again filed a safety report. Again he was called to speak with his supervisor. At this meeting, Wells was told that a routine background investigation had been conducted and several of his qualifications had proved difficult to verify. Wells was told that he had 48 hours to produce documentation of these items or face discharge. Wells was unable to secure the documentation within the allotted time and he was fired. He was, however, able to produce the requested paperwork within two weeks at which time he requested that he be rehired. KG & E refused. It was subsequently learned that KG & E had had difficulty verifying certain background information of other employees who held positions similar to Wells, but they had not been discharged.

Suspecting that he had been a victim of discrimination, Wells contacted the NRC. Wells was told that the Department of Labor (DOL) handled employment discrimination claims. Consequently, he referred his grievance to the Department of Labor.

DOL conducted an investigation and subsequently, a hearing was held before an administrative law judge (ALJ). Wells was found to have been fired for filing internal safety complaints. KG & E was ordered to reinstate Wells and to compensate him with back pay, attorney's fees, and costs. The ALJ's decision was appealed to the Secretary of Labor (Secretary). The Secretary adopted the ALJ's decision and order with minor modifications. KG & E petitions for a review of this decision and order of the Secretary.

Thereafter, Wells filed a complaint in the United States District Court requesting enforcement of the Secretary's order. KG & E also filed a motion to stay proceedings pending administrative action. A motion was also filed with the Secretary to hear evidence on the remedial issues--specifically, the amount of back pay awarded to Wells. The district court denied the stay and also refused to remand. The Secretary of Labor had also denied relief from the amount awarded, finding that he had no jurisdiction because the case was on appeal to this court. The Secretary observed that only this court had authority over the matter.

On appeal, KG & E raises the following issues: (1) whether James Wells engaged in protected activity under 42 U.S.C. Sec. 5851(a) when he filed internal safety reports; (2) whether substantial evidence supports the Secretary's findings that Wells was discharged in retaliation for filing his safety reports, i.e., KG & E's reasons for the discharge were pretextual; (3) whether KG & E waived its right to raise remedial issues; and (4) whether the district court erred by refusing to take jurisdiction over the remedial issues raised by KG & E or, in the alternative, erred by refusing to remand the proceedings for review of such issues to the Secretary of Labor.

I. Jurisdiction

Although not addressed in the briefs of the...

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