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Ma v. American Electric Power, Inc.

United States District Court, W.D. Michigan, Southern Division

August 18, 2015

MARY MA, Plaintiff,

          For Mary Ma, Plaintiff: Jason L. Alexander, Ruth I. Major, The Law Offices of Ruth I. Major, P.C., Chicago, IL; Katherine Smith Kennedy, Pinsky Smith Fayette & Kennedy LLP, Grand Rapids, MI.

         For American Electric Power, Inc., a corporation, Defendant: Dean F. Pacific, Warner Norcross & Judd LLP (Grand Rapids), Grand Rapids, MI; Donn C. Meindertsma, Conner & Winters LLP (DC), Washington, DC; Ryan Todd Scharnell, Conner Winters LLP, Tulsa, OK.

         For Facilitative Mediator, Mediator:Jon G. March, LEAD ATTORNEY, Miller Johnson PLC (Grand Rapids), Grand Rapids, MI.


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          This is a dispute between Plaintiff Mary Ma and Defendant American Electric Power (" AEP" ) concerning Ma's terminated employment from AEP. Ma asserts that AEP terminated her employment as retaliation for her safety reports and or other protected activity under the Energy Reorganization Act. Defendant AEP says the termination had nothing to do with protected activity, but rather with Ma's inability to work constructively with a team of engineers to implement management's chosen solution to a disputed technical issue. The parties presented evidence and argued the merits of their positions at a bench trial beginning on November 4, 2014, and ending on November 14, 2014. At the close of the bench trial, the Court took the matter under advisement. The opinion constitutes the Court's findings of facts and conclusions of law under Federal Rule of Civil Procedure 52.

         I. BACKGROUND

         Ma worked as an engineer, and later as a supervisor, for AEP from 2000 until her discharge on June 11, 2011. AEP is an entity licensed by the Nuclear Regulatory Commission that operates the Cook Power Plant in Bridgman, Michigan, where Ma worked. The Nuclear Regulatory Commission is the federal entity which oversees licensees such as AEP. AEP is required by federal

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law to comply with various Nuclear Regulatory Commission Policy Statements concerning workplace safety and protocol at the Cook Power Plant.

         Maintaining a safe workplace environment at AEP is not only a requirement of regulations, but also a standard of practice and basic common sense. Accordingly, AEP offers various internal mechanisms designed to enforce compliance. AEP has personnel that focus on human performance and industrial safety who hold daily meetings that involve discussion of safety at the plant. (R. 211, Tr. Vol. V at 900, PageID # 4902.) An employee who is concerned about safety can raise a concern with her immediate supervisor, as well as any other supervisor or manager on the site. An employee also can raise a safety concern anonymously through AEP's internal Employee Concerns Program. Moreover, AEP has a Corrective Action Program, which relies on a Condition Report process in which employees can anonymously file safety reports, identifying what they see as human errors and where the errors occur. AEP's Condition Process is intended to and does promote reports--indeed, some 9,000 Condition Reports are submitted annually so that AEP can document potentially adverse conditions. In addition, any employee can address a safety concern through external channels, by filing a report with the Nuclear Regulatory Commission. In fact, the NRC has two full-time resident inspectors with offices physically present at the plant site.

         AEP's senior management were unanimous in their praise of AEP's safety culture. Engineering Director Randy Ebright described the safety culture of AEP as a " self-improving culture and learning organization" where the engineers are " constantly striving to learn, to improve, and to get better." Director Ebright testified that " pointing out or identifying gaps in either knowledge or performance are things that we [engineers] can take action on to strengthen the organization." (R. 211, Tr. Vol. V at 856, PageID # 4858.) Director Ebright further testified that it was " absolutely" okay when co-workers pointed out other employee's mistakes in condition reports. (R. 211, Tr. Vol. V at 856, PageID # 4858.) Vice President Mike Carlson testified that " there's a recognition that we're all human, mistakes get made, we've got processes in place to correct them." (R. 211, Tr. Vol. V at 901, PageID # 4903.)

         That said, some AEP employees depicted the safety culture at AEP differently. Ma, for her part, believed that AEP was a place that was hostile to employees such as herself who raised safety issues. Engineer Bill Mammoser, Ma's husband, for a time worked at AEP, and he agreed with his wife Ma's view of AEP's safety culture. Some of Ma's direct reports, such as Engineer Andy Hawk, also tended to view things in a manner similar to Ma. In particular, Engineer Mammoser testified that he had refused to work on projects that in his view would have been used to advance what he saw as a solution that violated the Nuclear Regulatory Commission's regulations.[1] Notably, despite Engineer Mammoser's occasional refusal to participate in solutions on safety grounds, witnesses from AEP's human resources department indicated that no one at AEP reported that Engineer Mammoser was insubordinate. Nor did AEP take any adverse employment action against him. Similarly, there

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were no reports that Engineer Hawk was insubordinate for refusing to participate in a solution. (R. 210, Tr. Vol. IV at 624, PageID # 4607.) Ultimately, the Court is satisfied that while personal feathers could and did get ruffled due to engineers disagreeing on the best approach to a problem, AEP's culture, policies, and practices all point to the open and orderly processing of safety reports.

         During Ma's time as an employee at AEP, her performance was mixed. On the one hand, Ma was a talented engineer who received positive performance reviews. For example, in 2008 and 2009, AEP positively recognized Ma's contributions to the company. In 2009, Ma received a highly-selective Key Contributor Award. In January 2011, Ma's Manager, Yu Shen, submitted a positive review of Ma's performance. And generally speaking, the AEP employees who worked under Ma testified that their experiences working with her were good ones. For instance, one of Ma's direct reports, Engineer Hawk, praised Ma's acumen and spoke highly of her. And Engineer James Hawley, who for a time worked in a particular engineering group with Ma, described her as a " hard worker" who was very " engaged in collegial discussions." (R. 209, Tr. Vol. III at 409, PageID # 4337.)

         On the other hand, Ma also had a series of interpersonal conflicts with other employees at AEP, particularly those who worked in groups other than her own. These interpersonal conflicts went beyond just an uncomfortable relationship between colleagues, and seriously compromised the ability of some individuals to work together. For instance, Ma and Supervisor Keith Steinmetz had interpersonal conflicts during Ma's time at AEP. Ma expressed dissatisfaction with Supervisor Steinmetz's work product, stating that his " fundamentals" were too " deficient" to warrant his continued participation in the resolution of an issue where he and Ma disagreed. Ma also did not get along with Engineer Greg Hill; their relationship was marked by several altercations indicating that the two had no personal affection for each other. Again, this animosity seriously undermined the ability of these individuals to work together, as Ma stated that Engineer Hill should " not be in the loop for current licensing basis matters," which, broadly speaking, relate to the overall design of the Cook Power Plant.

         This created untenable circumstances that adversely affected the groups' ability to collaborate on error resolution, and in turn, the promise of safe working conditions at AEP. The interpersonal conflicts served to cultivate the impression among many of Ma's colleagues that she was not a team player. For instance, Chief Nuclear Counsel and Regulatory Affairs Manager Jim Petro testified that when it came to Ma, " everything in her view was an us and a them." (R. 210, Tr. Vol. IV at 682-83, PageID # 4665-66.) And HR Specialist Tiffany Rydwelski testified that she was concerned that " people wouldn't go to [Ma] for concerns because [Ma] would deflect or take criticism of someone challenging her work." (R. 210, Tr. Vol. IV at 622-23, PageID # 102-03.)

         Ma's conflicted interpersonal interactions preceded the particular report at issue in this case. In a July 29, 2008 email, for example, Ma described her co-workers as " bullies." In a December 17, 2008 email, Ma stated that her work was " under attack" by her co-workers. In March 2009, Ma described some of her co-workers as " offensive" individuals, and characterized different groups at AEP as being engaged in " turf wars." And in April 13, 2010 email, Ma expressed resentment towards an individual who questioned her calculations on a project in a Condition Report. Ma wrote that the anonymous

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individual's analysis amounted to " heaping piles of nonsense," that the individual was " ignorant and mean," and that the " fight is far from over." In fact, the Court observes that interpersonal issues concerning Ma dated all the way back to 2003, and that the frequency of Ma's incidents concerning interpersonal conflicts increased in the time leading up to her termination. The interpersonal conflicts occurred often enough, over a sustained period of time and with a similar enough pattern for the Court to conclude that Ma is the common denominator of the troubled relationship, and the root source of the inability to forge constructive working relationships amidst interpersonal conflict.

         In March 2010, Engineer Hill and Supervisor Steinmetz had raised a safety concern relating to Ma. They believed that Ma and her group may have engaged in misconduct. In particular, they believed that Ma had intentionally withheld information regarding an evaluation for a fuel reload project. Supervisor Steinmetz reported his safety concern to one of AEP's managers. The manager did not take action. Director Ebright also investigated the matter, and determined that there was no evidence to support the contention that Ma had improperly withheld information.

         In May 2010, Ma raised a safety concern by filing a Condition Report. In the Condition Report, Ma notified AEP's high-level management that some of her fellow engineers may have intentionally withheld information from the Nuclear Regulatory Commission. Specifically, Ma indicated that these engineers were allegedly aware of certain errors concerning a nuclear safety analysis but failed to notify the Nuclear Regulatory Commission of those errors, which, if true, would constitute a violation of Nuclear Regulatory Commission regulations. In the report, Ma specifically listed the names of those who she believed were in the wrong, including Engineer Hill.

         The accusations between the individuals continued, and the conflict continued to escalate during the summer and fall of 2010. In July 2010, Supervisor Steinmetz raised another safety concern through AEP's Employee Concerns Program, which raised the possibility that Ma was an unethical employee. In October 2010, Ma raised another safety concern through AEP's Employee Concerns program, claiming that Supervisor Steinmetz had inappropriately yelled at her as retaliation for her having written the May 2010 Condition Report. Tensions continued to rise, to a point where the employees were loath to even speak to one another. In the backdrop, some leadership changes took effect at AEP. In particular, in June 2010, Vice President Carlson and Director Ebright had taken over AEP's increasingly-fractured engineering organization.

         On October 15, 2010, Vice President Carlson, Director Ebright, and HR Specialist Tiffany Rydwelski met with Ma. During the meeting, Ma discussed Engineer Hill's and Supervisor Steinmetz's inappropriate conduct and hostility towards her. Ma expressed that she felt that AEP had not properly dealt with this situation. From there, on October 22, 2010, Vice President Carlson met with Engineer Hill. Engineer Hill discussed what he felt was Ma's inappropriate and hostile conduct. He expressed that he felt that AEP had not properly dealt with this situation. ...

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