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BEFORE THE
U.S. DEPARTMENT OF LABOR
NORTHEAST REGION

------------------------------X
In the Matter of: :
:
OSCAR B. SHIRANI, :
:
Complainant, : Case No.: 2002-ERA-28
v. :
:
COMED/EXELON CORPORATION, :
:
Respondent. :
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U.S. District Court
Courtroom 1944-C
Dirksen U.S. Courthouse
230 S. Dearborn Street
Chicago, Illinois 60604

Wednesday,
December 18, 2002

The above-entitled matter came on for hearing,

pursuant to notice, at 8:42 a.m.

BEFORE: ROBERT J. LESNICK,
Administrative Law Judge

 

 

 

 

 

 

 

 

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APPEARANCES:

On behalf of the Complainant:

MICHAEL C. McDERMOTT, ESQ.
134 N. LaSalle Street
Suite 1410
Chicago, Illinois 60602
312-372-4550

On behalf of the Respondent:

SCOTT E. GROSS, ESQ.
DARREN R. REISBERG, ESQ.
Sidley, Austin, Brown, and Wood
10 South Dearborn Street
Chicago, Illinois 60603
312-853-7011

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Reporter: Stuart Karoubas Date: December 18, 2002
OALJ Case Name & Number: Oscar B. Shirani, 2002-ERA-28

WITNESS (FULL NAME) DIRECT CROSS REDIRECT RECROSS
Kombiz Salehi 284 326

Oscar B. Shirani 331 432 504 521
522

Ellen Dee Caya 523 565
Eliecer Palacios 590 600

 

EXHIBITS

EXHIBITS IDENTIFICATION RECEIVED WITHDRAWN REJECTED

CX 11 341 345

CX 12 345 345
CX 13 413 415

CX 15 410 411

CX 17 423 424
CX 19-21 415 417

CX 22 419 419

CX 23 421 423
CX 26 417 418

CX 27 424 426

CX 28 407 410
CX 30 420 420

CX 31 411 413

 

 

 

 

 

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RX 1 528 529

RX 2 484 489

RX 3 538 539
RX 4 489 489

RX 5 545 545

RX 6 549 550

RX 7 557 559
RX 8 475 477

RX 14 469 470

RX 15 447 448
RX 16 442

RX 21 479 480

RX 32 497 498
RX 33 499 500

RX 34 462

RX 35 490
RX 36 441 442

RX 38 442 443

RX 40 459
RX 41 498 499

RX 42 466 467

RX 43 468 469
RX 44 501 502

RX 45 500 500

 

 

 

 

 

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1 P R O C E E D I N G S

2 (8:42 a.m.)

3 JUDGE LESNICK: All right. We're back on the record.

4 Day two of the matter of Shirani v. ComEd/Exelon Corporation,

5 2002-ERA-28. And raise your right hand, sir.

6 (Whereupon,

7 KOMBIZ SALEHI

8 was called as a witness by and on behalf of the Complainant,

9 and after having been first duly sworn, was examined and

10 testified as follows:)

11 JUDGE LESNICK: All right. Please be seated. And,

12 Mr. McDermott, you may question the witness.

13 MR. McDERMOTT: Thank you, Judge.

14 DIRECT EXAMINATION

15 BY MR. McDERMOTT:

16 Q Would you state and spell your full and complete name

17 for the court reporter please?

18 A Certainly. My first name is Kombiz, K-o-m-b-i-z.

19 And the last name is S-a-l-e-h-i. Address is 2362 Homestead

20 No. 1 in Santa Clara, California 95050.

21 Q And when did you arrive in Chicago, Mr. Salehi?

22 A About 5 o'clock, 4:50 this morning.

23 Q What is your trade or occupation?

24 A At the present time, I work for a high-tech company,

25 an organization called KLA-Tencor.

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1 Q I'm sorry?

2 A KLA-Tencor is the name of the company. It's a high-

3 tech company manufacturing semiconductor devices. And I also

4 teach at the University of Phoenix, the Northern California

5 division in San Jose.

6 Q What is your educational background?

7 A I received my Bachelor degree at Northeastern --

8 State University in physics which is now referred to as Truman

9 University. I received my masters in nuclear engineering from

10 the University of Illinois. And also, I received my MBA from

11 Pepperdine University.

12 Q From where?

13 A Pepperdine University.

14 Q In California?

15 A In California, yes, sir.

16 Q Could you tell the court what your work history is as

17 a professional? What was your first professional position?

18 A In 1971, I was recruited by ComEd, I should say

19 Commonwealth Edison, right out of University of Illinois, and I

20 worked at their -- Nuclear Power Station as -- reactor engineer

21 for a span of three years. And then, subsequent to that, I

22 worked for Bechtel Power Corporation for a year in 1974, and

23 then Parsons Power for three years.

24 Q I'm sorry?

25 A Parsons.

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1 Q Power?

2 A Power, yes.

3 Q And where is Parsons Power?

4 A That's in Pasadena, California. And Bechtel was also

5 in, at the time, Norwalk, California, Southern California. And

6 then, subsequent to that, I worked for General Electric Nuclear

7 -- Division between 1977 and 1987 in San Jose. And from 1987

8 to 1990, I managed and founded and organized a consultant

9 corporation. And in 1990, I worked for U.S. Nuclear Regulatory

10 Commission.

11 Q The NRC?

12 A NRC, yes, sir. And in 1997, I left the US NRC and

13 was employed back with ComEd until September, or July of 1998,

14 and then was laid off by ComEd and moved back to California.

15 And after a span of about a year of unemployment, I was

16 employed by the University of Phoenix on a part-time basis.

17 And then, I got employed by KLA-Tencor at which I'm currently

18 full-time employed. That's basically my professional whole

19 work history.

20 Q That's 30 years, 31 or 2 years, correct?

21 A Since 1971, 31 years exactly. Yes, sir.

22 Q And you then, in and around, and or about the nuclear

23 industry, your whole profession --

24 A That is correct until 1998 when I left ComEd, my

25 entire career was founded under the nuclear technology, nuclear

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1 industry.

2 Q Specifically, what were your duties at the NRC?

3 A For a span of six years, I was a reactor inspector

4 here at their Region 3 in Lisle. And in 1997, I joined their

5 headquarters, NRR, as a project manager, Division of Reactor

6 Projects, in Rockville, Maryland. And it was at that time that

7 I was recruited by ComEd.

8 Q What is the difference between NRC and NRR?

9 A NRR is a branch within the NRC, Nuclear Regulatory

10 Regulations. It's a section within the Nuclear Regulatory

11 Commission, it's a division.

12 Q And what were your duties at NRR?

13 A I was a project manager and the project that I had

14 responsibility was Arizona Public Power and Southern Utility.

15 And basically, I monitored their progress, monitored their

16 correspondence and managed their affairs as far as regulation

17 is concerned.

18 Q You're familiar then with NRC regulations?

19 A Yes, sir.

20 Q And you applied them on a daily basis? Or you --

21 A Yes. My job as a reactor inspector was to evaluate

22 codes and standards, conduct inspections as a reactor inspector

23 at various power plants within the Midwestern regions and

24 evaluate their performance, monitor their progress, and conduct

25 audits, conduct inspections, and evaluate their findings

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1 according to the codes and standards that were prevailing. And

2 that was my job as reactor inspector.

3 Q Did you have occasion in working in Region 3 to do

4 such inspections of the ComEd reactors?

5 A Yes, several times at their Downers Grove facilities

6 as well as their power plants. The ComEd plants at the time or

7 even at the present time are basically controlled, regulated if

8 you will, within the Region 3 which is in Lisle. So, it was my

9 responsibility to come to the plants, either as a solo

10 inspector or as team inspector and monitor the activities,

11 monitor the performances in mostly announced inspections. And

12 there were events, there were cases, abnormalities, transients

13 that we needed to monitor and evaluate the performance in

14 accordance with the codes and standards.

15 Q Just briefly, you had your own consulting company, is

16 that correct?

17 A That's correct, yes, sir.

18 Q And did you apply to the NRC or did the NRC recruit

19 you?

20 A The duties and responsibilities I had in the

21 consulting company was in training nuclear engineers and

22 nuclear physicists at the boiling water reactor types. I

23 managed training business for GE for that decade I worked for

24 them, from 1977 until 1987. And I had engineering training

25 which included all engineering related training courses as well

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1 as instrumentation training courses for GE, for the type of

2 plants that were manufactured by GE. And then, while I was at

3 NRC, mostly, my activities were in regulation, not so much in

4 terms of the training. If there were issues that were germane

5 to training adequacies or inadequacies, certainly I would

6 review them. The number of the inspections I conducted was in

7 the area of core physics, field performance, field safe guards.

8 Those activities pertain due to my background at GE and also

9 due to my background at ComEd.

10 Q And, again, the NRC knew of your activities, is that

11 correct?

12 A Yes, sir. Absolutely, yes.

13 Q And were you offered a job or did you make an

14 application to the NRC?

15 A I sent an application. I sent a resume and reference

16 letters, yes. I wanted to see --

17 Q Go ahead, that's all right.

18 A I wanted to see, you see, I had worked at ComEd.

19 ComEd or Commonwealth at the time was an owner-operator, and

20 then working for Bechtel and Parsons were architect engineers.

21 These are the people who designed the plants. And then,

22 working for GE, those are the individuals who manufactured the

23 plants, I wanted to complete the cycle by working for the

24 regulator, how we regulate the industry. So, that completed

25 the cycle.

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1 Q Have you ever been called as an expert witness to

2 give testimony either in a deposition --

3 A No. No, I have not, sir.

4 Q Have you ever been called to write reports with

5 respect to just specific issues presented or --

6 A In a court proceeding?

7 Q Yes.

8 A No, sir.

9 Q All right. So, is this your first time on a witness

10 stand in a court proceeding?

11 A Yes, sir.

12 Q And you've never been deposed or --

13 A No.

14 Q You know what a deposition is?

15 A Absolutely.

16 Q -- and sworn and you've never participated in

17 anything like that?

18 A No. My daughter is an attorney. She would sue me if

19 I, I apologize for the indulgence.

20 Q That's quite all right. Are you familiar with

21 something called the Sigma standards?

22 A Yes, 6 Sigma process. Yes, sir.

23 Q What is the 6 Sigma process?

24 A 6 Sigma process is a process that manufacturing or

25 just any products that are produced will have failure rates

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1 that would be less than 99.999 percent.

2 Q Which translates into?

3 A Into allowing three failures within one million

4 products. It's a phrase that many companies as of late follow

5 and adhere to if their quality requirements comply with that

6 principle that they will only allow three failures, three

7 deficiencies, three inadequacies, three nonconformances within

8 one million products that they produce.

9 Q Did GE, for example, subscribe to that 6 Sigma

10 principle?

11 A GE claims, I should say, that it adheres to this

12 principle. 6 Sigma was a phrase that was coined by Motorola

13 Company. And then, Mr. Jack Welch of General Electric promoted

14 this --

15 Q Again, would you repeat that?

16 A I'm sorry. Mr. Jack Welch, the former CEO of GE,

17 promoted this concept and said, we as a company are going to

18 follow this practice. It's a goal and objective. It's a

19 highly noble, highly objective practice, if that is attainable.

20 As a team member of inspection while I was a member of the NRC

21 at headquarters, we conducted inspection audit of GE nuclear

22 fuel fabrication facility at Wilmington. They came quite a bit

23 short of that requirement.

24 Q Not to digress, Motorola was the leader in the 70's,

25 am I correct?

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1 A Initially, yes, sir.

2 Q In quality assurance?

3 A Quality assurance, yes, sir.

4 Q And Motorola, in fact, had a campus teaching all of

5 these executives, and middle management people, in fact, still

6 have that campus in Schaumburg whether the enrollment is up or

7 down, is that correct?

8 A That is correct.

9 Q Did you ever attend that?

10 A No.

11 Q Did you ever have any special training while you

12 worked for GE, I'm sorry, when you worked for ComEd during your

13 first ten-year with Commonwealth Edison?

14 A Absolutely, yes. I received extensive training to

15 qualify, to receive my senior reactor operator's license.

16 Q Senior?

17 A Senior reactor operator's license. This is a 12-week

18 extensive training at the outset in order to get adequate

19 training to become a licensed supervisor. That's only one

20 small phase. This was a certification program at the Dresden

21 Nuclear Power Station. Because I was at Quad Cities, then I

22 had to supplement my training at the Quad Cities Station in

23 order to receive the NRC license with the SRO license at the

24 Quad Cities Station.

25 Q Did you receive other special training when you

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1 worked at Commonwealth?

2 A I'm sorry?

3 Q Did you receive other special training when you

4 worked at the ComEd during this first period or first tenure

5 with ComEd?

6 A Other than certifying as an SRO which was a very

7 significant goal and objective of the company, and other than

8 receiving training to become a nuclear engineering, post

9 graduation from the University of Illinois, not really. That

10 was it.

11 Q Okay. Now, why did you, as you said it, you wanted

12 to do the industry circle. And that circle was complete in

13 your mind when you became a regulator, correct?

14 A Correct. That's correct.

15 Q Why did you leave the NRC or the NRR?

16 A I left because ComEd contacted me and offered me a

17 package that I essentially, if you will, couldn't refuse. I

18 initially refused, but, so to speak, they upped the ante, and

19 for other reasons, I left the Commission and joined ComEd.

20 Q And you were in Maryland at the time, is that

21 correct?

22 A At the time, I was in Rockville, Maryland.

23 Gettysburg was my residence.

24 Q How attractive was this package?

25 A The overall package was about a 30 percent salary

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1 increase with the relocation expense not only from Gettysburg

2 to Downers Grove, but also from Lisle or I should say

3 Naperville to Gettysburg which was the expenses that were

4 incurred by me to move from Naperville working for the Region

5 into the headquarters NRR.

6 Q I see.

7 A So, in essence, I can put along with the salary and

8 benefits in aggregate, you're talking about, the first year,

9 would be about $200,000 package.

10 Q I see. What was your, when they recruited you, for

11 what position did they recruit you? Strike that. Who

12 recruited you?

13 A It was Robert Renuart, my supervisor.

14 Q Can you spell that last name?

15 A R-e-n-u-a-r-t, and Robert is his first name.

16 Q All right. And what was his title when he recruited

17 you?

18 A He was the configuration management chief. Chief of

19 configuration management.

20 Q And is configuration management a component of the

21 engineering area?

22 A It was. It was, yes.

23 Q At the time?

24 A At the time, it was.

25 Q And what specifically were your duties? What was

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1 your title?

2 A My title was engineering assurance group supervisor.

3 And my duties and responsibilities included coordination of

4 engineering assurance activities of the six nuclear power

5 stations that ComEd owned and operated. It was an independent

6 oversight that ComEd had generated or had developed in response

7 to NRC's claim that the quality of engineering work at the

8 stations had lagged and had suffered. At the time ComEd did

9 not have a reputable, I should say reputation with the

10 Commission.

11 Q This is 1997?

12 A This is 1997, correct, time frame.

13 Q And in 1997, you're wearing an NRC or NRR hat,

14 correct?

15 A Correct.

16 Q And you knew of what Commonwealth Edison's reputation

17 was in NRC/NRR, correct?

18 A Yes. Absolutely true, yes.

19 Q And Commonwealth Edison, am I correct, operated more

20 plants than any other corporate power generator?

21 A That is absolutely correct. Yes, sir.

22 Q And you had prior work experience with them for at

23 least three years?

24 A That's absolutely a true statement. And my concern

25 was, at the time in 1971 to '74, we, Commonwealth, presently

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1 had the highest reputation in the nuclear industry. If there

2 were any issues that would come to ComEd, Commonwealth Edison,

3 to seek advice, to seek professional guidance, essentially we

4 were the top of, the cream of the crop, if you will, in terms

5 of qualification, expertise, knowledge, and also compassion and

6 tolerance towards employees and everybody else. But

7 professionally and morally and technically, we were a sound

8 organization.

9 Q This is 1971 to '74?

10 A This is 1971 to '74 time frame. However, this had

11 drastically changed at the time, in my recollection, even as a

12 reactor inspector, I formed the view that pretty much ComEd was

13 at the bottom of the pile. Many other utilities licensees, if

14 you're going to refer to them, had better stature, better

15 technical judgments, better plant performance than ComEd.

16 Q This was a challenge for you then?

17 A It was a challenge for me.

18 Q And was it presented as such?

19 A It definitely was. Definitely, it was, that I needed

20 to come in and support myself. The reason they provided me

21 with that kind of an incentive package was that I had expertise

22 in nuclear core physics, I had expertise in field performance,

23 I had an SRO license, I had ten years of GE management

24 experience, I had the NRC experience. All of these things

25 together told them that essentially they needed my support to

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1 get them out of that dilemma that they were in.

2 Q From the layman's point of view, when you come in,

3 what is you are going to for Commonwealth Edison?

4 A Coordinate engineering activities as an independent

5 oversight organization, monitoring the engineering oversight

6 that existed at the plants.

7 Q All right. This is not quality assurance?

8 A No.

9 Q This is engineering oversight?

10 A Engineering oversight.

11 Q What is the difference between quality assurance and

12 engineering oversight?

13 A Engineering oversight was an entity, as I mentioned

14 earlier, generated in response to quality assurance problems

15 that existed in the plants. And what, the licensee I should

16 say, what ComEd proposed, that because of the problems we were

17 having, that they finally pointed the direction towards

18 inadequacies in QA organizational department, that we ComEd

19 would form an independent engineering oversight that would

20 monitor engineering activities, totally independent of QA that

21 would monitor activities that would go on at the plants.

22 Q At the plants and in Downers Grove?

23 A At the plants mainly and there were certain segments

24 of it in Downers Grove, too. Yes, sir.

25 Q But primarily the plants?

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1 A Primarily the plants.

2 Q The six campuses?

3 A The six plants.

4 Q All right, the six sites.

5 A The six sites.

6 Q Did you recruit a staff?

7 A No, I did not recruit. I had a staff of four

8 initially, and at the time I was laid off, I only had a staff

9 of one.

10 Q When you arrived, there were four?

11 A Correct.

12 Q Engineers?

13 A Engineers.

14 Q Plus yourself?

15 A Plus myself.

16 Q This group was a group of five?

17 A Group of five, yes, sir.

18 Q And again, what month in '97 did you start?

19 A I started in September of 1997.

20 Q Beginning, middle, end, do you recall?

21 A I believe it was the tail-end, 26, if I'm not

22 correct. It was during that time frame.

23 Q When you returned to Commonwealth Edison, did you

24 know Oscar Shirani?

25 A I had met him once during one of the audits that I

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1 performed when I was a member of NRC at the Region 3. I

2 performed or conducted an engineering audit and that was the

3 first time I met the gentleman. He demonstrated, among others,

4 a mathematical software that performed some calculations. And

5 ComEd was demonstrating to me some of the engineering

6 activities that they had done to improve and, so, he was one

7 example, there were others as well.

8 Q Do you recall when it was you met Mr. Shirani under

9 these circumstances?

10 A I don't remember the exact date.

11 Q But it was prior to your return and it was only --

12 A Oh, absolutely, yes, sir. This was prior to 1997.

13 Q He didn't have any hand in your recruitment that you

14 know of?

15 A Absolutely not. No, sir.

16 Q All right. When you arrived at Commonwealth Edison

17 at the end of September 1997, did you become aware of a GENE

18 audit?

19 A I did.

20 Q And how did you become aware of this audit?

21 A My manager, Mr. Renuart, informed me that there was a

22 stop work order and that we needed to get a result. So, that's

23 the first exposure that I received. Since I had worked for GE

24 in the past, I had worked for the NRC, and also because of my

25 MBA and familiarity with the financial terms, conditions and

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1 constraints, it was a natural thing for me to get involved.

2 And on top of that, it was within the purview of engineering

3 assurance.

4 Q So, it did fit within the scope of your work?

5 A It fit within the scope of my work, and also, it fit

6 within my qualification, experience and exposure, and

7 capabilities.

8 Q You had no knowledge of this stop work order or this

9 audit prior to your being employed?

10 A That's a correct statement. Yes, sir.

11 Q During that period of time, however long that period

12 of time was that they were recruiting you and making a better

13 offer or --

14 A No.

15 Q They didn't tell you anything about it, an audit

16 underway at GENE?

17 A I am not sure at this time, when I have to go back

18 during the lengthy discussion that I had with Mr. Renuart prior

19 to making his final, you know, he discussed some of his

20 challenges, whether or not he mentioned in that sitting the

21 stop work order. I don't recall if he did. I'm not certain.

22 Q Okay. But in any way, you were not brought here back

23 to Illinois to address the issues of the stop work order?

24 A No. Once I had arrived, then he discussed and he

25 said to me this was an issue that needed to be resolved.

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1 Q All right. How did you go about resolving this

2 issue?

3 A Certainly we had the terms of the audits.

4 Q Does that mean you were at the audit?

5 A Yes, after I came.

6 Q Okay. Then, what did you do?

7 A Then, we needed to set up a meeting and propose the

8 agenda to GE counterparts in San Jose, and we needed to take it

9 to -- to take a trip to San Jose in trying to resolve the

10 issues. And taking it all with me was the manager of QA,

11 Mr. Ed Netzel, and there were issues with respect to root cause

12 analysis. And we needed to take our expert, Mr. Jack Bunner.

13 So, that was our team.

14 Q He's an expert in what again, Mr. Salehi?

15 A Root cause analysis.

16 Q Root cause analysis. What is root cause analysis?

17 A Any event that occurs in the -- of the Commission, we

18 must identify the true root cause. If a light bulb burns, you

19 know, it's not enough to remove that light bulb and say the

20 problem is fixed. We have to find out what caused the failure

21 of that. And you've got to go sufficient iterations in depth

22 and detail in order to find the true root cause of the problem.

23 Q Is the root cause expert common in such an issue

24 resolution matter?

25 A It's not only it's common, it's mandated by the

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1 Commission.

2 Q All right. So, it's an NRC requirement?

3 A NRC requirement, yes. In fact, in a nuclear power

4 plant, if a pump fails and you take the pump and put another

5 one in there, you get cited by the Commission because you have

6 not done an adequate root cause evaluation to determine what

7 causes the failure of that pump.

8 Q You said you had to work out these issues with your

9 GENE counterparts. Who were they or who were identified as

10 your GE counterparts in September, and I take it it's in

11 October as well, of 1997?

12 A My counterparts were two individuals under the

13 leadership of one. The two persons were Mr. Nicholls, John

14 Nicholls, Bob Nicholls, and also Mr. James Klapproth,

15 K-l-a-p-p-r-o-t-h. And Mr. Nicholls is N-i-c-h-o-l-l-s. Both

16 of these, Mr. Nicholls was the manager of the QA for GENE and

17 Mr. Klapproth was manager of engineering support and

18 engineering analysis. Both of these individuals reported to

19 Mr. Dave Helwig at the time who was the general manager of

20 GENE.

21 Q So, how did you go about accessing or gaining access

22 to your counterparts at GENE?

23 A I needed to establish communication with Mr. Helwig.

24 He had presided and he was the key individual at the audit

25 meeting and was definitely involved in the prior audit meeting

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1 and the stop work order. And I had heard that he was not at

2 all happy with the outcome or the results and the findings that

3 ComEd had produced.

4 Q Who did you hear that from?

5 A I heard that from my manager, Robert Renuart. And I

6 had also heard it from Mr. Shirani and I heard it from other

7 team members.

8 Q When you say John Netzel, are you talking about

9 Mr. Netzel?

10 A Right.

11 MR. GROSS: I'll object to this testimony and ask

12 that it be stricken as hearsay.

13 JUDGE LESNICK: I can allow hearsay although the

14 objection goes to weight not admissibility. So, if it's not

15 tied in, it won't be given much weight.

16 MR. McDERMOTT: I'll tie it in. Thank you.

17 BY MR. McDERMOTT:

18 Q How did you establish, what did you do to establish

19 communication with Mr. Helwig?

20 A I telephoned and left several messages for him to

21 communicate with me, that we have got an agenda, we need to

22 come to San Jose. The stop work order was a key issue we need

23 to get resolved. It cost the company money for doing the

24 things that we were doing, so I needed to get resolution.

25 Q And how many telephone calls did you make?

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1 A I don't recall exactly and precisely how many.

2 Certainly, you know, a minimum of three, four.

3 Q Were your calls returned?

4 A None.

5 Q Did you plan a trip to San Jose?

6 A We had a planned trip to San Jose and yet I could not

7 get Mr. Helwig's attention to get back to me and say, okay, why

8 are you coming, when are you coming, what's your agenda, who

9 are you bringing, what issues needed to be resolved. And I

10 needed to resolve that at his level.

11 Q Why did you need to resolve them at his level?

12 A Because he was the counterpart. He was the person

13 who presided over the previous meeting and he had the overall

14 ownership of those issues and the responsibility for the

15 resolution. It was right decision because subsequently when we

16 met, he was the person, he was the key decision maker.

17 Q Did you plan and take the trip?

18 A Oh, yes. Yes, we made it, we finally made the trip.

19 Q Do you recall when that was approximately?

20 A It was in October of 1997.

21 Q When you planned and made the trip, had you had

22 telephone communication with Mr. Helwig?

23 A I did finally. And the way I did it was peculiar

24 because I had to contact Mr., or I should say Dr. Stephen

25 Specker.

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1 Q Can you spell that name for the record?

2 A S-p-e-c-k-e-r, Stephen. He was at the time vice

3 president of GE Nuclear, and he was Mr. Helwig's manager. He

4 had the total responsibility. Of course, the reason I called

5 him was because I knew him from my, you know, decade of GE

6 management position. And I didn't know him on a buddy-buddy

7 tight level but I had many interfaces with him. He's very

8 competent, very professional and he supported my training

9 courses many times. I would call him, he would come to our

10 classes, he would teach our courses as a guest speaker and he

11 knows me real well.

12 Q So, you then had a conversation with this man?

13 A With Dr. Specker. And said that this was my dilemma,

14 we've got an impending situation, we've got a trip. We, your

15 customer, ComEd, are in a dire position and we, I'm not getting

16 the response. Is there a reason, have we done anything that is

17 unacceptable according to professionalism, our organization,

18 that Mr. Helwig is not responding?

19 Q And as much as you know or as much as you believe,

20 that's what caused Mr. Helwig to return your calls?

21 A I believe so, absolutely, yes. He had returned my

22 call --

23 Q Did he tell you he had talked to this Dr. --

24 A Specker. He told me that he had, Dr. Specker had

25 talked to him and he told me that he hadn't received any of the

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1 messages that I had called. And it is my opinion, and it was

2 substantiated later on when we were there, that it was a false

3 statement when he said he never received the calls. And it was

4 inconceivable that numerous calls would be made to a man of his

5 stature, his position, and he wouldn't be notified, especially

6 if a customer called. Especially in a repeat basis.

7 Q Who did you meet with when you got to San Jose?

8 A The meeting was arranged. When Mr. Helwig returned

9 we communicated and he demonstrated his anger that I had

10 essentially gone around him by communicating with Dr. Specker.

11 Q What did he say?

12 A He said, there was no need to go around me, to bypass

13 me, I'm the person you want to contact, or words to that

14 effect. I don't recall exactly. I know he was frustrated, he

15 was angry that I had contacted Dr. Specker.

16 Q You had never met Mr. Helwig by this --

17 A Absolutely not, no.

18 Q How could you tell he was angry? By the phone?

19 A By the message and the exchange of words.

20 Q I see. Who did you meet with when you got to San

21 Jose?

22 A When we met, we met with Mr. Helwig and his team

23 which consisted of Mr. Nicholls and Mr. Klapproth. I knew

24 Mr. Klapproth many years both as GE and also as NRC. We had

25 conducted inspection at the GE nuclear facilities in Wilmington

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1 and he was our counterpart and we audit his organization and

2 his team. He's highly professional and --

3 Q So, he's a person known to you?

4 A Absolutely, yes. I know Mr. Klapproth real well.

5 Q What was the outcome of -- strike that. What was the

6 purpose of the meeting?

7 A The purpose of the meeting, to discuss the issues

8 that were the subject of the audit that Mr. Shirani and his

9 team had conducted and tried to get the resolution of those

10 issues and convey to Mr. Helwig the things that we wanted to do

11 which was nothing unacceptable, unordinary, and which were

12 essentially the things that we at ComEd had done in order to

13 satisfy the Commission, mainly, formation of an independent

14 oversight organization that would be applied to engineering

15 activities that GE was doing.

16 Q So, you came there wearing a ComEd hat and you're

17 suggesting NRC/NRR mandated resolutions for the problems that

18 were identified in the audit, is that correct?

19 MR. GROSS: I'm going to object to the leading

20 questions.

21 MR. SALEHI: It was --

22 JUDGE LESNICK: It is leading but I'll let him answer

23 the question.

24 MR. McDERMOTT: Thank you.

25 MR. SALEHI: It wasn't, the resolution of SW, stop

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1 work order wasn't promulgated by the Commission. It was

2 promulgated by our necessity. We, ComEd, needed to get beyond

3 the SW because it affected our performance, it affected the

4 operation of the plants. There needed to be a resolution. But

5 the resolution needed to meet certain minimum requirements.

6 And the certain minimum requirements that were invoked, that

7 were blessed by our management is, number one, formation of an

8 independent oversight similar to our EAG, engineering assurance

9 group. And of course, we knew that if we do not meet the audit

10 requirements, we would be in difficulty and jeopardy with the

11 Commission.

12 So, indirectly, yes, anything that the plants do

13 affects and gets scrutinized by the Commission. But the

14 resolution of the issues were not, strictly speaking, as a

15 result of, as a direct consequence of NRC's concern. It was

16 our concern that needed to be resolved.

17 Q You needed to get it --

18 JUDGE LESNICK: Let's go off the record a moment.

19 (Off the record at 9:20 a.m.)

20 (On the record at 9:25 a.m.)

21 JUDGE LESNICK: All right. Proceed.

22 MR. McDERMOTT: Thank you, Judge.

23 BY MR. McDERMOTT:

24 Q What time of the day was your first meeting with your

25 counterparts in San Jose?

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1 A I don't believe the exact, but it was early in the

2 morning, I mean, you're talking about 8:00-9:00.

3 Q You didn't red-eye fly to there?

4 A No.

5 Q Like you did today?

6 A No, we arrived, no.

7 Q All right. I take it you had prepared for that

8 meeting?

9 A I certainly did, yes, sir.

10 Q And did you have a handout for that meeting or did

11 you have notes that you read from?

12 A Yes, I did. I developed a note and a memorandum

13 essentially, and I read from that note.

14 Q What was Mr. Helwig's reaction to your presentation

15 of this memorandum?

16 A The objection he had was a term that I used which was

17 the focal point of my message. And the term I used which I

18 received plenty of training, excessive training at GE, you

19 become a manager at GE, you receive excessive training

20 including -- that in any kind of negotiation, you ought to take

21 the approach of a win-win situation. If you go for a sort of

22 juggler -- and make your counterpart a losing situation,

23 chances are you're not going to succeed. And it's got to be

24 something that there would be room for him to win as well as

25 win for you. And to me, our stance, our dilemma was a lose-

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1 lose proposition. And I used the term I want to negotiate, I

2 want to get things resolved based on the --

3 Q When you say "our", you mean Commonwealth Edison?

4 A ComEd, yes.

5 Q And what, did you explain in your presentation what a

6 win-win situation would be in practical terms?

7 A Yes, I did.

8 Q And what was it?

9 A I said that we, ComEd, were losing because we would

10 have to go through a torturous pass in order to get our

11 engineering work done. And we didn't certainly have the

12 expertise that GE had and we had to apply our own QA, if you

13 will, endorsement evaluation in order to get our engineering

14 work done. And it took time and it impacted the plant's

15 operations.

16 And it was a lose proposition for GE because issuing

17 a stop work order on a company the size of GE was quite

18 significant. It was a major adverse impact on the stature and

19 the reputation of GE as a company. It is my belief that no

20 other organizations until then had told GE that the quality of

21 your work certainly was inadequate, substandard, and needed to

22 be evaluated. And most definitely, when you evaluate 56

23 packages of training, I mean, material calculations and their

24 deficiencies, all of them doesn't fall in the category of 6

25 Sigma.

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1 So, that was my approach. Now, it was also my

2 understanding --

3 Q That's the, as I understand it, that's the lose-lose

4 scenario?

5 A Right. That you're losing because it affects your

6 stature. There are other utilities, other individuals who are

7 commenting, hey, what is this work order? If ComEd can put a

8 stop work order on you, should we not do the same thing, if

9 your QA is lacking to that extent, maybe we ought to take a

10 look. So, the whole industry was taken aback. The GE that I

11 knew in earlier days was premium quality for premium price.

12 But premium quality had gone down significantly and that was

13 because of major cutbacks, reduction in force that they had

14 gone through.

15 Q And you knew that to be the case?

16 A I knew that to be exactly the case, yes, sir. And

17 that was the point that I identified in my message, that while

18 we were not, we, customer, we, ComEd, were not advocating that

19 they could not follow the strategy of reduction in force, we as

20 ComEd expected GE not to resort in practices that would

21 jeopardize the quality of their work. So, we had every right

22 to expect that the quality of their work meet certain minimum

23 standards.

24 Q Right. That's the lose-lose equation. What was the

25 win-win situation you suggested to Mr. Helwig?

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1 A We needed to get this resolved, the stop work order

2 lifted, you improve your quality so that we don't have to go

3 through that process and you get your fame and fortune back.

4 And also, you get contracts.

5 Q Contracts from ComEd?

6 A ComEd, because we had --

7 Q That means money?

8 A Absolutely, it was money, yes. So, it was a win-win

9 proposition for them.

10 Q And you say Mr. Helwig took exception with that?

11 A Absolutely. And that was the only thing. What

12 totally surprised me at the time, out of the things that I had

13 formulated in my message, he only took the exception it's not a

14 lose-lose proposition. He said you're wrong. You're not

15 losing and we are not losing.

16 Q And did he add anything to that?

17 A No. Well, he said, you're not losing because your

18 plants are going around you and getting the engineering done by

19 us. We are not losing because they're getting our engineering

20 done anyway.

21 Q So, he's telling you that he's ignoring the stop work

22 order?

23 MR. GROSS: Objection, mischaracterization of the

24 statement and leading.

25 JUDGE LESNICK: Mr. McDermott, try to stop that.

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1 BY MR. McDERMOTT:

2 Q What did you interpret, I'm sorry, what did you

3 understand Mr. Helwig to mean when he told you we're not

4 losing, you're not losing?

5 A His direct reference was that your plants are

6 bypassing your process and they're asking us to do the

7 engineering work, so we're getting our job done, we're getting

8 our money. So, it's not a lose for us. And he said "I'm sorry

9 you feel it's a losing thing for you. It's not a losing thing

10 for us."

11 Q How many days were you in San Jose for this meeting?

12 A Two days, I believe.

13 Q Did you have an opportunity to do what you planned to

14 do when you were there?

15 A We did, and I also, going back to this period of win-

16 win, and I knew that Mr. Helwig's feathers were ruffled by

17 contacting Dr. Specker and I needed to get his blessings or at

18 least to get him on board. I needed for him to negotiate, so I

19 sought him out in a one-to-one meeting on the same day.

20 Q The day, the same?

21 A The first day.

22 Q The first day?

23 A Yes, sir. At 4 o'clock.

24 Q And what if anything did you say to him and what if

25 anything did he say to you?

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1 A I explained to him that the reason I had to seek

2 Dr. Specker was that my numerous calls to him were not

3 answered. He said, I didn't know about that. My secretaries

4 didn't tell me. And it was my belief then, it is my belief now

5 that that was not a false, I mean that that was not a true

6 statement. And I knew that he was upset by my contact to

7 Dr. Specker. And I said, well, I didn't have any choice, we

8 needed to get this thing resolved. And he said, well, I

9 understand where you're coming from, you didn't have any

10 choice, but we'll try to do what needs to be done.

11 So, he was perhaps more conciliatory, if that is such

12 a word for that. Of course, I later found out that that's

13 totally false, he was not conciliatory at all. He was very

14 disturbed, perturbed, angry by reading, and I believe I

15 forwarded you and it can go on record what I presented in that

16 meeting.

17 Q When you had this meeting in San Jose with your team,

18 with your counterparts, you had how many years experience

19 working with GENE? I'm sorry, working for GENE.

20 A Working for GE was a decade, ten years.

21 Q Ten years. And when you had this meeting with

22 Mr. Helwig at a responsible position, do you have any idea how

23 long he worked for GENE?

24 A I don't believe he worked for GE nowhere near as long

25 as I had. I know he had worked for other utilities. I don't

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1 recall how many years he had worked. I would suspect somewhere

2 -- of two or three years. I don't know.

3 Q Would you be shocked to know it's less than six

4 months?

5 A No, not at all.

6 Q Why?

7 A Because the pictures that I have heard or the phrases

8 that I have heard in reference to him was that he wasn't a --

9 MR. GROSS: I'll object. This is responding with

10 hearsay about what other people told him about --

11 JUDGE LESNICK: Yes, it's not going to be much help.

12 MR. SALEHI: I had formed an opinion.

13 BY MR. McDERMOTT:

14 Q You formed the opinion. I take it you returned to

15 Illinois?

16 A I certainly did, yes.

17 Q And I take it you made a report to your management?

18 A Yes, and the report was positive. Essentially, the

19 things that we had sought out, we had wanted to do, GE

20 complied. GE did that.

21 Q And by doing that, that meant what?

22 A That meant that his management below him got his

23 blessings, and they told me that they did not agree at all with

24 Mr. Helwig's point of view that this was not a loss situation

25 for GE. This is as clear as I know my name.

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1 Q Now, I'm going to ask you to look at what has been

2 previously marked and in fact admitted in these proceedings,

3 can you take a look at that, Mr. Salehi and tell the Court what

4 it is?

5 JUDGE LESNICK: You didn't tell what number that was.

6 MR. McDERMOTT: No. 8.

7 JUDGE LESNICK: Thank you.

8 MR. SALEHI: This is the document that I generated on

9 October 24th. It's got my initial.

10 BY MR. McDERMOTT:

11 Q And that document went to whom?

12 A It went to the engineering manager, it went to Bob

13 Renuart and also went to, there's the distribution right here.

14 Oswald, Gavin Clark (ph.), Burgess, Renuart, a host of

15 different players, all the sites and also it went to Oscar

16 Shirani, the QA organization. Wide distribution.

17 Q And then, in a nutshell, what is the content of this

18 exhibit? What is the content of that report?

19 A That essentially said the sites needed to apply

20 engineering review of all the work that GE performed, that no

21 safety related work would be accepted by GE without our

22 acceptance.

23 Q Accepted by ComEd, you mean?

24 A By ComEd. This is by applying our own QA measures,

25 our own QA, and that was the term. When we came back, until we

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1 lifted the stop work order, until the adequacy of GE

2 engineering work would reach a level that would be commensurate

3 with the requirements, we ComEd would apply our own engineering

4 assurance.

5 Q Did you in fact do that?

6 A That was the distribution that I sent for the

7 stations to do that. My role was to distribute the

8 information. My role was not to follow --

9 Q Did the stations do that?

10 A I assume they did.

11 Q All right. Do you know, as you sit here today, when

12 the stop work order was lifted?

13 A I'm not sure of the exact date. I have been away

14 from the nuclear for four years.

15 Q Were you consulted at all about the lifting of the

16 stop work order?

17 A Well, I was involved in terms of what needed to be

18 done in order to lift the stop work order.

19 Q And is it contained that memorandum, what needed to

20 be done to lift the stop work order?

21 A I don't believe that has.

22 Q Was there another document that you generated that

23 gave a criteria for the lifting of the stop work order?

24 A I believe so, but I'm not absolutely a hundred

25 percent positive at the present time. And if it did, you know,

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1 what were the requirements on that.

2 Q This certainly was not your only task in your new

3 position?

4 A No. No.

5 Q And you had work to do --

6 A Yes, coordinating engineering assurance.

7 Q Are you familiar with Mr. Shirani's companion audit

8 of Commonwealth Edison engineering in and of itself as it

9 related to the GENE audit?

10 A Yes. Yes, there was, you know, he issued that

11 finding on GE on ComEd engineering as well, and that was a

12 level one finding. That basically said ComEd's work did not

13 meet the requirements.

14 Q Is that an ordinary sort of issue?

15 A No, it was not an ordinary finding. Level one

16 finding was grave and understandably so on the part of the

17 engineering managers, most engineering managers objected to it.

18 They didn't want to have class finding essentially be reflected

19 on the records.

20 Q Did you have the occasion to review whatever that

21 finding was as written by Mr. Shirani?

22 A I did. And I concurred with it, yes.

23 Q And do you recall a meeting?

24 A I certainly do. I don't know the exact date but I

25 definitely remember vividly the day that we met. And there

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1 were several objections by several engineering managers.

2 Q Can you tell me who attended this meeting?

3 A It was a large gathering. All the engineering

4 chiefs, Gavin Clark, Terry Rican (ph.), nuclear field services,

5 Mr. Hogan was not there. There were a few other

6 representatives of, just one person specifically. Mr. Renuart

7 was there, I was there. Mr. Burgess was there. A number

8 engineering managers were there. And the finding, a stop work

9 order, and especially a level one finding against the

10 engineering activities were discussed. And there were several

11 objections at the end of the day.

12 Q Was Mr. Shirani there?

13 A Yes, he was.

14 Q Was he there willingly?

15 A I don't recall if he was brought in willingly or, I

16 don't recall.

17 Q But he didn't exhibit any timidity, did he, in this

18 meeting?

19 A No.

20 Q Everybody conducted themselves in a professional

21 manner?

22 A Yes. Yes.

23 Q As much as engineers can?

24 A Yes, sir.

25 Q All right. Did you address this assemblage with

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1 respect to the level one finding of Mr. Shirani?

2 A I did not address that. This was a QA finding,

3 something within the confines of engineering organization. And

4 I could understand why the engineering managers didn't like it

5 and appreciate it, but I could see as a former regulator that

6 there were merits for his point of view.

7 Q And you told them that?

8 A Yes. Yes, I think pretty much at the end of the day,

9 when I was asked for my view, I said I supported it. That

10 possibly, if I recall correctly, might have gotten turned

11 around and reduced some of the objections, because he is a

12 former NRC essentially blessing the validity of the finding,

13 even though I was not a member of the NRC at the time.

14 Q Did this meeting occur before or after the employment

15 of Oliver Kingsley, Jr. at ComEd?

16 A I don't, I can't say with a hundred percent validity

17 it was before or after. I'm sorry.

18 Q Did it occur before or after David Helwig's arrival

19 at ComEd?

20 A It was before.

21 Q So, it would have been sometime after your generating

22 of the memorandum?

23 A Right. Right.

24 Q But before the first of the year of 1998?

25 A Correct. To the best of my recollection.

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1 Q Did you have occasion to see Mr. Helwig once he

2 became employed by Commonwealth Edison?

3 A Yes, I did. On one occasion, I was asked to make a

4 presentation to him in his office.

5 Q On a particular subject?

6 A It was on engineering assurance activities.

7 Q And did you make that presentation?

8 A I did.

9 Q And was there anything remarkable at all?

10 A The only thing that was remarkable was, nothing

11 really remarkable. It was calm, casual, nonchalant, no

12 emotions, no significance, no response essentially if you will.

13 Q Did he hear the presentation?

14 A He might have, now that I think about it.

15 Q Did he indicate, was there any indication he

16 understood it?

17 A I don't believe that I had the indication that he

18 understood.

19 Q And at this time, when you meet him this time, he is

20 your boss' boss?

21 A He is my boss' boss' boss' boss.

22 Q He's your boss' boss' boss' boss?

23 A He was the vice president, yes, with all the

24 engineering essentially under his belt. He was vice president

25 of ComEd. Three levels, to be safe. Renuart, Cosmer and

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1 Helwig. Three levels up.

2 Q All right. So, he was your boss' boss' boss. What

3 became of your engineering assurance group?

4 A It got essentially dissolved. And it got dissolved,

5 I was laid off and I came back to California and a decision was

6 made that we were no longer require that independent oversight

7 activity of engineering activities of the plants. We would

8 just leave it at the discretion of the sites to do their own

9 oversight.

10 Q So, the purpose for which you were recruited in early

11 fall, late summer of 1997, that purpose was abandoned?

12 A That is a true statement.

13 MR. GROSS: Objection. Objection, lack of foundation

14 to what happened at ComEd after he departed and what was

15 abandoned or not abandoned.

16 JUDGE LESNICK: Why don't you lay a foundation if you

17 can?

18 MR. McDERMOTT: Sure.

19 BY MR. McDERMOTT:

20 Q Directing your attention to the first quarter of the

21 year 1998, did you have assignments, did you have tasks, did

22 you have staff similar to the assignments and staff you had in

23 the last quarter of 1997?

24 A I did, with the reduction in number of head count.

25 Q Right. So, during January, February and March, you

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1 lost personnel?

2 A Correct. They were reassigned. And at the time that

3 I was laid off in --

4 Q Let me just stay in that first quarter please.

5 A Yes.

6 Q You said that there were four and yourself, a group

7 of five.

8 A Right.

9 Q Who was first reassigned during that first quarter?

10 A They were one individual and subsequently another

11 individual in November-December time frame. Two individuals

12 were reassigned, one was laid off.

13 Q That occurs before 1998, this is '97?

14 A Before 1998, yes. Before Christmas.

15 Q And they were, one was laid off and one was

16 reassigned?

17 A Correct.

18 Q Okay. Did you discuss this issue with your

19 supervisor?

20 A I did and, but this was a reduction in the scope of

21 work and scope of activities for the organization.

22 Q Had the purpose for which you had been recruited been

23 modified at that time?

24 A No, the purpose was still there.

25 Q Okay. Now, to the first quarter of 1998, you're a

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1 group of three?

2 A Correct.

3 Q Did you lose staff at that time?

4 A One, I did.

5 Q And how did that person leave?

6 A That person was laid off. So, now, we're talking

7 about by May of 1998, I only had one direct report.

8 Q And did you still have assignments?

9 A We still had the assignments.

10 Q And were you still doing engineering assurance?

11 A Yes.

12 Q And were you still working with the plant sites the

13 way you had in the beginning?

14 A Yes, sir. Yes, sir.

15 Q What if anything occurred next?

16 A The next was the indication of reorganization and the

17 knowledge that there would be impending change. And the change

18 came and the change was reassignment of the one last individual

19 who worked for me to Quad Cities Station, and then the solution

20 of the independent engineering assurance at the Downers Grove

21 and relegation of responsibilities and duties solely to the

22 sites. And the premise for the use of the phrase abandonment

23 is predicated on the fact that the formation of the engineering

24 assurance group was a commitment to NRC principally because the

25 QA had lacked, suffered reduced effectiveness.

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1 So, in response to that, engineering assurance

2 activity was promoted. But all of a sudden, without indication

3 that the QA had improved, the independent formation of

4 engineering assurance activity was dissolved, abandoned.

5 Q The persons on your staff other than those who were

6 laid off, those who were reassigned, did they possess skills,

7 experience and training superior to yours?

8 A Absolutely not.

9 Q Pardon me?

10 A Absolutely not. No, sir. Not in my judgment.

11 Q Was there any reason that you were not reassigned?

12 MR. GROSS: Objection. Calls for speculation, lack

13 of foundation that he had any involvement in that decision.

14 JUDGE LESNICK: Sustained.

15 BY MR. McDERMOTT:

16 Q Did anybody tell you why you weren't going to be

17 reassigned?

18 A No. I knew that, although the answer, there was no

19 reason to even ask the question.

20 Q What did you know?

21 MR. GROSS: I'll object as to what he speculates

22 might have been the reason for it. He already said he doesn't

23 know what the reason is.

24 JUDGE LESNICK: Why don't you ask him how he knows?

25 BY MR. McDERMOTT:

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1 Q How do you know?

2 A Okay, two things. A, my manager informed me at the

3 first meeting that he had with Mr. Helwig, before the meeting

4 he had after he became the general manager, I told him it was a

5 gesture that now that we have put a stop work order at GE, we

6 were in trouble. Putting a stop work order at GE was

7 definitely a negative response or a negative action. As a

8 member of the utility, we had no choice but to do that. So, it

9 protected the safeguards of our company. Of course, unbeknown

10 to us that if it has a negative reflection, it's a negative

11 reflection on a man that later on would become our boss' boss'

12 boss. So, that's one indication.

13 And the second indication was that Mr. Renuart, after

14 his meeting with Mr. Helwig, came down and told me point blank,

15 I told him that, hey, I ironed out our differences and he came

16 down and said, no, you didn't. Mr. Helwig is very upset with

17 your performance in that meeting. So, it doesn't take, you

18 know, with all the credentials and the knowledge and the

19 experience and the age that I have, it doesn't take a genius to

20 figure out that the type of personality that Mr. Helwig has, he

21 would retaliate. And he did.

22 MR. McDERMOTT: I have no other questions.

23 JUDGE LESNICK: Mr. Gross, you may cross again.

24 MR. GROSS: Thank you.

25 CROSS EXAMINATION

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1 BY MR. GROSS:

2 Q Do you know who made the decision to terminate your

3 employment with the company?

4 A The announcement was made by Mr. Renuart with a

5 representative of HR. He came down, took me upstairs, they

6 said, sorry, you know, your position is no longer there, we

7 have eliminated engineering assurance and you have essentially

8 the benefits that is given to everybody who is laid off.

9 Q Thank you. That's, but I'd appreciate if you could

10 focus on what I'm asking you. Do you know who made the

11 decision to terminate your employment with ComEd?

12 A Other than David Helwig, I believe nobody else did.

13 Q Other than David Helwig based on what you assumed is

14 the case, is that correct?

15 A That's absolutely correct, yes, sir.

16 Q Do you know whether Mr. Renuart himself had any role

17 in that decision to terminate you?

18 A It would highly surprise me.

19 Q But you do not know?

20 A I do not know, no.

21 Q Have you had any communication with anyone in

22 Commonwealth Edison engineering since you left the company in

23 1998?

24 MR. McDERMOTT: Objection. Outside the scope of

25 direct. I don't know what this has --

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1 MR. GROSS: He's already talked about issues --

2 JUDGE LESNICK: I'll allow it. I'll allow it.

3 MR. SALEHI: I communicated once with Mr. Helwig, I

4 mean, with, I'm sorry, with Mr. Renuart, and I also

5 communicated naturally with Mr. Shirani.

6 BY MR. GROSS:

7 Q And in that communication with Mr. Renuart, what

8 topics did you discuss? Was it just pleasantries, how are you

9 doing, or was there anything substantive?

10 MR. McDERMOTT: Objection, foundation.

11 JUDGE LESNICK: I'll allow the question.

12 MR. SALEHI: It wasn't just a pleasantry. We

13 discussed the outcome of retaliation by Mr. Helwig and he

14 showed strong resentment towards his treatment by Mr. Helwig as

15 well. We discussed that.

16 BY MR. GROSS:

17 Q This was after Mr. Renuart had already departed from

18 the company?

19 A No, before.

20 MR. McDERMOTT: Objection. Why do we suddenly now

21 know Mr. Renuart has departed from the company? There has been

22 no testimony to that. Maybe Counsel would like to testify?

23 JUDGE LESNICK: Counsel, I think I'm giving some

24 leeway on cross-examination. He can answer the --

25 MR. McDERMOTT: Well, he can't assume a fact that's

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1 not in evidence in cross-examination.

2 JUDGE LESNICK: Go ahead. Don't go back and forth,

3 I'll allow it. Go ahead.

4 BY MR. GROSS:

5 Q Have you reviewed any of the engineering work that

6 has been done at ComEd since your departure from the company?

7 A No, sir.

8 Q Do you have any knowledge as to what engineers at the

9 stations do, have done since your departure from the company?

10 A No, sir.

11 Q Do you have any knowledge as to what the engineering

12 group within the nuclear organization does since your departure

13 from ComEd?

14 A No, I've exited the nuclear industry.

15 Q And do you have any knowledge as to whether the type

16 of work your engineering assurance group was doing is performed

17 by others within ComEd since your departure?

18 A No.

19 Q At the time you actually worked with General Electric

20 while an employee of ComEd, you indicated it started shortly

21 after you arrived at Commonwealth Edison in 1997, is that

22 correct?

23 A No, that's not correct.

24 Q Approximately how long after you arrived at ComEd in

25 1997 did you begin working on the GE audit issues?

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1 A Oh, essentially as soon as I entered. However, prior

2 to joining ComEd, I was involved with the reviewing of GE as

3 part of a vendor audit when I was a member of the Commission.

4 Q I understand. After you began -- strike that. Do

5 you know about how long you were working on GE audit issues

6 after you arrived at ComEd in 1997?

7 A About a month because I was out there two weeks to a

8 month.

9 Q And the October memorandum that's Complainant's

10 Exhibit 8 is a document that you prepared after you returned

11 from GE?

12 A After I had returned, yes, sir.

13 Q And after that October 1997 memo, did you continue

14 for weeks, months to work on issues relating to the GE audit?

15 A I would say more on the order of weeks rather than,

16 well, if it was months, it was a fraction of the time.

17 Q Okay. So, let's assume no later than December of

18 1997, is that fair?

19 A December-January, I can't be that specific.

20 Q Okay. After that, did you have any involvement with

21 the efforts by GE to change any of their internal programs as a

22 result of the audit by Mr. Shirani?

23 A No, sir.

24 Q Do you have any information as to what GE has done

25 since January 1998 relating to the findings that Mr. Shirani

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1 made in his audit?

2 A No, I don't.

3 Q Have you reviewed any of the follow up audit

4 materials that Mr. Shirani prepared?

5 A No, I did not.

6 MR. GROSS: I have no further questions.

7 JUDGE LESNICK: Any redirect?

8 MR. McDERMOTT: No, I have no redirect. Thank you,

9 sir.

10 JUDGE LESNICK: All right. You are excused, sir.

11 MR. McDERMOTT: Can I have just a minute just to see

12 the witness out and show him where --

13 JUDGE LESNICK: Sure. Off the record.

14 (Off the record at 9:57 a.m.)

15 (On the record at 10:07 a.m.)

16 JUDGE LESNICK: Mr. Shirani is back on the stand, you

17 may proceed.

18 (Whereupon,

19 OSCAR B. SHIRANI

20 was recalled as a witness by and on behalf of the Complainant

21 and, having been previously duly sworn, was examined and

22 testified further as follows:)

23 DIRECT EXAMINATION

24 BY MR. McDERMOTT:

25 Q Yesterday, Mr. Shirani, you were asked about your

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1 activities, your assignments and I asked you what your audit

2 activities were for the year 1999.

3 A Yes.

4 Q Do you recall what they were?

5 A Yes.

6 Q What were they?

7 A I had to remind our management about the follow up

8 audit of the GE which happened in 1997 due to my obligation to

9 implement the 10 C.F.R. 50 Appendix B Criterion 16 for the

10 prompt corrective action. I had several attempts made in

11 January 1998 that the audit needs to be followed, the

12 corrective action and the cause of corrective action needs to

13 be identified. I was promised that it's going to happen toward

14 the end of --

15 Q Who promised that to you?

16 A It was just by the telephone calls to GE and they

17 were asking to give us more time.

18 Q Who in GE were you talking to?

19 A Mr. Norman Barclay and Mr. Robert Nicholls.

20 Q Did Mr. Barclay and Mr. Nicholls send you the

21 material as required?

22 A They were providing some charts and figures. No, not

23 the stuff that I was requesting.

24 Q All right. So, did you ever get from GE what you

25 requested to close, is it to close the audit?

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1 A To close the audit.

2 Q Did you ever get those materials?

3 A I received some documents regarding their corrective

4 action, and in the status of their finding, I document exactly

5 what I received. One status is dated January 1998, the next

6 status is like eight, nine months later which if you refer to

7 the audit, I could identify it.

8 Q Without pulling them out, and just again, I don't

9 mean to be redundant, this document that we have been referring

10 to as the audit --

11 JUDGE LESNICK: That's exhibit?

12 MR. McDERMOTT: It's our Exhibit No. 4, Judge, 595

13 pages.

14 JUDGE LESNICK: All right.

15 BY MR. McDERMOTT:

16 Q That documents your activity in '97, '98 and '99,

17 correct?

18 A Yes.

19 Q All right. Your activity in '97 was what? The

20 physical audit?

21 A Physical audit.

22 Q And then 1998, your activity was?

23 A Providing the update status reports.

24 Q How long does it take, I'm sorry, does the Code or

25 any procedure manual or organization determine the advised time

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1 or exact time to close an audit?

2 A The 10 C.F.R. 50 Appendix B, as I stated yesterday,

3 it says prompt but it doesn't give the time limit. But the

4 ASME NQA-1, they have a non-supplement and they have a

5 supplement. I believe on the non-mandatory supplements, they

6 recommend that the audit should be done within 30 days, and

7 they expect the lead auditor to receive the audit and review it

8 if the progress is made. And the lead auditor who did the

9 audit feels that the progress made is reasonable, only he can

10 provide an extension of another 30 to 60 days, depends on the

11 complexity of the product.

12 Q Did you give these extensions when requested?

13 A I gave that, I provided my response in January 1998

14 and I did not receive anything within 30 days or 60 days. I

15 received something in September --

16 Q That's not my question. Did you ever --

17 A No, I did not.

18 Q Were you ever requested and did you ever grant an

19 extension?

20 A I requested, I was not granted the extension.

21 Q You did not grant it?

22 A I did not grant the extension.

23 Q Do you know if anybody gave an extension?

24 A Nobody could have, I was in charge of maintaining the

25 supplier.

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1 Q All right. Was the GENE audit finally closed?

2 A Almost two years later.

3 Q And how was it closed?

4 A In like almost 18 months after the findings and

5 looking at the status, looking at all the promises that I was

6 given throughout the whole 1998, in January, toward the end of

7 January, beginning of February, I wrote an e-mail and said HOT!

8 URGENT! to all the executives and all the people who were on

9 the distribution of the original GE. And I said, the

10 statements that I used, "This is going too long. This is going

11 to be a bad reflection on our QA program. These are the 12

12 significant findings which resulted in a stop work order. NRC

13 is aware of those; if NRC comes back, this is going to be a bad

14 reflection on our QA program."

15 Q You're summarizing a document?

16 A That's what I said on the e-mail.

17 Q All right.

18 A The next day, one of the managers of the GE was right

19 at my desk before I even get there, his name was Mike, I don't

20 remember his last name. And he said, Mr. Shirani, we hear you,

21 we're going to send you to GE but just give us some more time.

22 And then, I said, 18 months has passed.

23 Q Is this a manager from ComEd or --

24 A No, this is the manager of GE who is in charge of

25 ComEd projects.

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1 Q And he's on site in Downers Grove?

2 A Right.

3 Q All right.

4 A So, what I told him, I said, I was at the audit,

5 NUPIC audit of GE in September and October 1998. Not only you

6 guys did not provide the status report and a complete action

7 allowing me to do the follow up throughout the whole 1998, I

8 was not even given that allowance during the NUPIC audit of

9 1998 to look at ComEd. So, this is not acceptable. I have an

10 obligation to the Code and I am supposed to do my job. You are

11 jeopardizing my obligation to the Code requirements. So, he

12 said, we're going to send you.

13 So, I was, about a month passed, nothing heard. I

14 had an audit in Boston, Massachusetts.

15 Q And what audit was that?

16 A It was one of the valve vendors in Massachusetts.

17 Q All right.

18 A I believe I was doing the exit meeting with the

19 executives and I got paged two, three times with a 9-1-1 behind

20 it. And I was saying that, God, I hope nothing serious to the

21 family, so I answered the phone, I excused myself, went

22 outside, and it was one of the managers of the LaSalle Station,

23 Mr. Dale Sinclair. And he was very upset, and he, the words he

24 said, I don't know what the hell or what the heck, you're going

25 back to GE again. I hope you're not going to cause me another

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1 trouble.

2 And I said, what did I cause you? This is an

3 obligation, it's almost two years. He said, we are involved

4 with a power upgrade project, and if you go to GE, I don't have

5 any problem, but you cannot look at my project because this is

6 a major project and I don't want you to go cause another delay

7 and screw me up with my boss. That's exactly --

8 Q And who is Mr. Sinclair's boss?

9 A Well, he was one of the managers, I don't know he was

10 a direct report to Mr. Helwig or not, but all I know, the power

11 upgrade was sponsored and supported by Mr. Helwig and

12 Mr. Kingsley, both of them.

13 Q When you say the power upgrade project, what was it?

14 A Power upgrade project is that you are, should I

15 define it again?

16 Q Just define it, yes.

17 A Define it is you are increasing the thermal output of

18 the reactors, and by increasing the power, the output to the

19 generator to create more electricity. In another word, in a

20 mechanical structural term is that you are squeezing the metal

21 to get more juice out of it.

22 Q All right. Was there a program in Commonwealth

23 Edison called the power upgrade program?

24 A Yes.

25 Q When did it start?

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1 A I believe around 1998 it was advocated by Mr. Helwig

2 and Mr. Kingsley.

3 Q Do you remember when in '98?

4 A Probably toward the fall.

5 Q The middle of the year?

6 A Middle of the year.

7 Q And what did the power, you're saying squeezing the

8 metal?

9 A In a layman's term, that's why I want to describe the

10 design, the power, the nuclear plant is designed for 1100,

11 let's say, Megawatts. Now, you're squeezing the metal to get

12 more juice out of it, it means you are exposing more stress to

13 the component structures.

14 Q All right, I understand that. But what are the

15 component parts of the power upgrade? Do you have to have an

16 outside vendor, for example?

17 A Yes. Commonwealth Edison, they don't do their own

18 in-house engineering and NSSS supplier scope. They are giving

19 it to the General Electric, if they are especially, if they are

20 doing it for the boiling water reactor, they contract it with

21 the BWR's owner, I mean, manufacturer which is GE. The

22 gentleman who was calling me was working for LaSalle and

23 LaSalle, Dresden, Quad Cities, they are boiling water reactors.

24 Q And what if any, do you know what the GE vendor does

25 when they come to present a power upgrade or to create a power

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1 upgrade for LaSalle, for example?

2 A They do the power upgrade means that they have to go

3 and use more margins from the design to increase the output.

4 So, whatever the stress analysis that you have to, if you are

5 pressuring, putting more load on a component, of course,

6 obviously the stress would increase. So, if you have, let's

7 say, in a normal design condition you have a stress of 80

8 percent for one particular member, by increasing the power

9 upgrade, that state of the stress is going to increase.

10 Q I understand, but what does GE do --

11 A GE does the analysis to support that component, the

12 reactor, and its associated component will take the extra load

13 to provide excess energy that you want.

14 Q So, when you say analysis, do you mean calculations?

15 A Calculations.

16 Q So, they are providing new equipment?

17 A No. They provide --

18 Q Let me ask the question.

19 A Yes.

20 Q They're not providing new equipment, correct?

21 A I cannot exclude it, that they may not include the

22 new equipment, because if the existing equipment does not have

23 enough capacity, they may have to back it up with the excess

24 amount of backup support that in case of the failure, they have

25 excess --

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1 Q Did SES, your supplier evaluation services group,

2 have any interaction with GENE power upgrade program?

3 A We never audited that.

4 Q You had no interaction with it?

5 A No.

6 Q Did you ever attempt to have interaction with it?

7 A Yes.

8 Q How?

9 A Because once I do the follow up audit in 1999 of the

10 GE, as Mr. Salehi put it, that if the bulb is broken, you don't

11 just go fix it with another bulb. You have to come up with a

12 root cause. So, you have to not only look at the root cause,

13 you have to expand the samples to see the same mistakes that

14 they have done, they are not doing with the new calculations

15 that they are generating for the new power upgrade. So, then I

16 have to go over it again, put my QA hat on. Criterion 7, I

17 have to address in the Code.

18 The Code says the frequency of the audit is based on

19 important and complexity. Power upgrade and the dry cask are

20 two major projects going at ComEd.

21 Q At this time?

22 A In 1999, yes.

23 Q You were talking about 1999?

24 A Right.

25 Q All right. The power upgrade is in all sites?

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1 A I'm not sure how many sites, but it was advocated at

2 all the sites. How many of them a were participant in that

3 time or not, I knew LaSalle was because the phone call

4 reflected that.

5 Q And again, you took that phone call in Boston?

6 A Yes.

7 Q The date of that Boston audit, do you recall? Is it

8 before you finally closed --

9 A Yes, because I went in May --

10 Q Let me ask the question. Is it before you closed

11 GENE?

12 A It's before I closed the GENE.

13 Q And when did you close GENE?

14 A I closed the GENE on June 15, 1999.

15 Q I'm going to ask you to look at what we've marked as

16 Exhibit No. 11.

17 A Yes.

18 (Whereupon, the document referred

19 to as Complainant's Exhibit No.

20 11 was marked for

21 identification.)

22 BY MR. McDERMOTT:

23 Q Can you tell the court what that exhibit is?

24 A Can I look at it?

25 Q You want to read it?

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1 A Yes.

2 Q Take your time.

3 A It's from Russell Bastyr sent on May 7th, 1999 at

4 1:40 p.m. to Tom Joyce, his manager, cc Oscar Shirani,

5 regarding GE final results. And it starts with, "We can

6 finally get some good sleep tonight. Oscar and the audit team

7 called me right before their exit. They discussed the results

8 of the audit during the phone call. The new audit," the follow

9 up audit, "came up with one finding and three recommendations."

10 This is in addition to the past one. "The findings were

11 problematic in nature and did not have any effect on the

12 product design services at the GE supplies. The

13 recommendations was also problematic and no time was the

14 quality of the GE product in question. I will describe the

15 finding and recommendations below." And then he goes describe.

16 Q All right.

17 A Can I read the summary here?

18 Q No, it's not necessary. This letter, did you get a

19 copy of this letter from Mr. Bastyr?

20 A Yes, it was cc'd to me.

21 Q All right. So, you read it before when you read it

22 before preparing for this hearing, correct?

23 A Yes.

24 Q Is it typical for an auditor to give a preview of an

25 audit result by telephone prior to the return from the audit

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1 offsite?

2 A If the audit is addressing very significant issues,

3 you have the responsibility to call your managers or the

4 manager can call you up about the status. And so, that's not a

5 norm but it could be if the audit findings are significant and

6 the management is expecting some results.

7 Q But your manager writes this letter a month before

8 you've completely written the audit, correct?

9 A Right. Right.

10 Q Were you calling him to give him updates or was he

11 calling you?

12 A He was calling me two or three times every single

13 day.

14 Q While you were in San Jose?

15 A Yes. And wanted to know the status of each day.

16 Q How many audits did you do between the original GENE

17 and this wrap up-audit? Several dozen?

18 A Yes.

19 Q Did Mr. Bastyr call you two or three times each day

20 when you were away doing any of those audits?

21 A None of them.

22 Q This contact between you and he was unusual?

23 A Yes.

24 Q And did you ever get a letter, copy of a letter from

25 Mr. Bastyr, your manager, to his supervisor on a first name

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1 basis, Tom, telling him that you could finally sleep tonight?

2 Did you ever get any other letters remotely similar to this?

3 A Never saw that, anything.

4 Q Pardon me?

5 A Never saw anything before this.

6 Q And after?

7 A No.

8 Q All right. Any other audits in 1999?

9 A Yes. I was charged to look at the continental field

10 machine CFMVR Tesco, they are in Schaumburg, Illinois. And

11 they were working on there to a program for one year and the

12 first day that I entered, within half a day, I thought that I

13 could find more than 20 findings. So, I told them that it's

14 not beneficial to you to continue this audit because it's going

15 to end up with a stop in your work. But since they were just

16 starting their program, I could understand that give them the

17 opportunity to come back with the real work because the work

18 that they were doing was a mock-up.

19 So, I would not have the luxury to give them a chance

20 if that safety related. Since it was a mock-up, I allowed them

21 to go back and work on their program and in a matter of three

22 to four months, I went several times and helped them. And as a

23 result, I wrote most of their procedures and created a program

24 to stand on their own feet per 10 C.F.R. 50. And then, I also

25 created a pilot study with the president.

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1 Q All right. Any other audits? During 1999?

2 A 1999, it could have been some, Holtec, could be

3 Sargent & Lundy.

4 Q But nothing like the GENE audit?

5 A 1999, that's what I mentioned, my follow up audit was

6 in May.

7 Q But nothing like that, and again, asking you to look

8 at Exhibit No. 12, is that the letter closing out the audit?

9 A Yes. June 15.

10 (Whereupon, the document referred

11 to as Complainant's Exhibit No.

12 12 was marked for

13 identification.)

14 BY MR. McDERMOTT:

15 Q All right, in June 15. Again, that's more than a

16 month after the priors.

17 MR. McDERMOTT: We move to admit 11 and 12, Your

18 Honor.

19 JUDGE LESNICK: Any objection?

20 MR. GROSS: No.

21 JUDGE LESNICK: 11 and 12 will be admitted in the

22 record.

23 MR. McDERMOTT: Thank you, Judge.

24 (Whereupon, the documents

25 referred to as Complainant's

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1 Exhibits Nos. 11 and 12 were

2 received into evidence.)

3 BY MR. McDERMOTT:

4 Q Mr. Shirani, let me direct your attention to the year

5 2000. Strike that. What was your evaluation for the year

6 1999?

7 A I believe it was B again. The paper says reflecting

8 excellent but the grade given to me was B.

9 Q All right. Directing your attention to the year

10 2000, in early 2000, did you receive any new audit assignments?

11 A Yes. I audited Holtec/Omni in March of 2000.

12 Q Let me ask you, just stop there. Holtec and Omni,

13 related to what?

14 A To spent fuel, spent nuclear fuel dry cask storage.

15 Q All right. What is Omni?

16 A Omni was a fabricator working under Holtec's QA

17 program because they did not have a 10 C.F.R. 50 -- program.

18 They are involved with welding pieces of the dry cask for

19 Dresden Unit 1.

20 Q You heard Mr. Landsman testify about 24 hours ago as

21 to what a dry cask is. Is that your understanding of dry cask?

22 A Yes.

23 Q Have you seen dry casks?

24 A Yes.

25 Q Have you seen dry casks in the process of being made?

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1 A Yes.

2 Q All right.

3 A Several.

4 Q Did you visit the Omni site?

5 A I visited the Omni site.

6 Q Where is the Omni site?

7 A They are like about 15 miles from Holtec office, from

8 Marlton, New Jersey office of Holtec.

9 Q So, they're in New Jersey somewhere?

10 A Yes.

11 Q All right. What was the result of your Holtec, I'm

12 sorry, how many days from beginning to end or months do you

13 take, beginning to end, to do, complete and publish your audit?

14 A During the audit, usually four, five days. But then,

15 you have 20 working days or 30 calendar days to write the audit

16 report.

17 Q In this case, how long did it take?

18 A I don't believe that I was the lead auditor.

19 Q All right.

20 A I was a participant. The lead auditor writes the

21 report.

22 Q And who was the lead auditor, if you recall?

23 A I believe it was Southern Nuclear Operating Company,

24 abbreviated as SNOC.

25 Q All right. So, you're a part of the team?

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1 A Yes.

2 Q And what part did you write, if you wrote a part?

3 A The first part in March because we went twice in

4 Omni, it was March and in May. I was looking at the whole

5 process of the, you know, the assignments of the area of any

6 part of the 18 criteria that it was applicable to their shop.

7 I don't remember exactly what sections of the checklist I wrote

8 but I was involved in the whole quality assurance audit.

9 Q What were the results of the audit?

10 A We found that the Holtec QA program was ineffective.

11 And then, it did impact, negatively and adversely impact the

12 dry cask storage spacers that are inside the dry cask, and

13 those dry cask spacers were already shipped to the Dresden

14 Nuclear Stations. I don't believe the other audit team, their

15 utilities had received any item that these welding issues that

16 we identified was adversely impacted. So, I immediately, once

17 I came back, I discussed the issues with Mr. Bastyr, and I said

18 those welding and their overall quality assurance program was

19 ineffective and those welding is going to have adverse impact

20 on those spacers and we have to put a stop work. In a sense,

21 it means that they have to stop the production that does not

22 come and they have to come and investigate what they had

23 already received.

24 Q And did he approve that stop work?

25 A I wrote the PIF and he signed it.

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1 Q When you say a PIF --

2 A Problem identification form. We did --

3 Q Is that a stop work order?

4 A No.

5 Q What is it?

6 A The problem identification form is, I guess, it was

7 one time we were writing CAR's, non-conformance report, and

8 then some other times we were writing PIF, but the PIF could be

9 the cover sheet of a CAR. Basically, you identify, anybody who

10 can even walk on the site and find something, they can write a

11 PIF. It may not necessarily constitute a CAR.

12 But in that one, we gave 24-hour notice to Holtec to

13 halt their quality assurance program, and if they don't put

14 action, an action to prevent recurrence, and a program

15 together, then we would come in 24 hours and we could stop

16 work.

17 Q So, the PIF is a threat of a stop work order? It's a

18 declaration of your intent to issue a stop work order?

19 A Yes. I would say threat is very strong. It's just

20 like quality assurance directions on implementation.

21 Q Other than the Holtec/Omni, were you assigned to

22 participate in any other audit in the year 2000?

23 A Yes. In April 2000, Dr. Kris Singh which was the

24 president of Holtec called me and he said, we are in trouble

25 with our holtite/A which is used at your casks.

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1 Q A what A?

2 A Holtite/A. The holtite/A is the material spelled

3 holtite. Holtite is h-o-l-t-i-t-e/A. There is a compound

4 which is mixed almost like a concrete mix that's a neutron

5 shielding material.

6 Q All right.

7 A This neutron shielding material was manufactured by

8 Nabisco in Illinois, and it was Dr. Turner who discovered it.

9 And Nabisco went out of business, this product went to Japan.

10 And Japan produced it to some utilities in the United States.

11 Apparently, holtite, I mean, Holtec was now in the business of

12 creating that material which is called NS4FR which means

13 neutron shielding for fire resistance. This is kind of

14 circumferential outside of the dry cask.

15 Q All right, I know what it is. And what did Dr. Singh

16 say was the problem?

17 A The problem was that another competitor to them, NAC

18 International who also in the business.

19 Q Can you spell NAC?

20 A NAC, I don't know what it's abbreviated for but it's

21 NAC International, had put a safety significant report to the

22 NRC as a potential Part 21. And for the, you know, for the

23 benefit of the audience who are not familiar what the 10 C.F.R.

24 is, if you find significant issues with any design or product,

25 you have to notify NRC to look at the impact for all the other

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1 users.

2 Q You mean if you're a citizen? Or who is mandated to

3 do this?

4 A This is United States NRC, 10 C.F.R. 50 Appendix B,

5 and then the other one is 10 C.F.R. Part 21.

6 Q I see.

7 A So, they kind of work together.

8 Q All right. So, NAC International alerts NRC about

9 this issue at Holtec. And what does Dr. Singh want you to do?

10 A Dr. Singh called me and he says, a few months from

11 now, you guys are going to load your casks, so it's going to be

12 a vested interest for ComEd to go and look at this product and

13 we want to use your reputation. And I don't know where he

14 heard that. He called me, that we want to use -- Shirani. I

15 think this is what all those nicknames by my company managers

16 was broadcasting -- that I was named -- Shirani.

17 And he said, he took it like a compliment, and he

18 says we want you to come here, audit us, then we can tell NRC

19 there's no issues. And I told Mr. --

20 Q Is that unusual for a vendor to call you and request

21 an audit?

22 A Yes.

23 Q All right. What did you do when that occurred?

24 A Then I talked to Mr. Bastyr and Mr. Bastyr said stay

25 out of it. We don't want to be getting sued in the courts with

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1 the fights between NAC International and Holtec.

2 Q All right.

3 A I understood. I said that's fine. That's his

4 request.

5 Q What happened next?

6 A And then he said, why don't you talk to the Dresden

7 management, they are the one making the decision. I went there

8 and I said --

9 Q When you say you went there, you physically went

10 there?

11 A I went there physically because we had, every two

12 weeks, I had a biweekly meeting for the dry cask project.

13 Q I understand. You're the dry cask --

14 A Oversight.

15 Q Oversight project.

16 A Right. So, I brought up the issue and I said, first,

17 I have two vested interests in here.

18 Q I didn't ask you what you said. I asked you what you

19 did. You brought the subject up at this biweekly meeting that

20 you're attending?

21 A Yes.

22 Q And did they, what happened then? Not what was said,

23 not the whole story, what happened next?

24 A I decided that we should go and do the audit, it's

25 going to be our advantage.

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1 Q "Our" meaning the company?

2 A Yes.

3 Q "Our" meaning the company Dresden, correct?

4 A Yes.

5 Q "Our" meaning the company Dresden because they're

6 storing there, is that right?

7 A Dresden Unit 1, yes.

8 Q What happened? What did you do next?

9 A I could understand their point of view but from my

10 point of view, I also had to fulfill my obligation to see if

11 the cask is correct or not, to fulfill my obligation.

12 Q What did you do next?

13 A So, I went to audit the Holtec for that project.

14 Q Didn't you the Dresden message back to Mr. Bastyr?

15 A Yes.

16 Q That's what you did next, right?

17 A Yes, and he says fine.

18 Q What changed his mind?

19 A Dresden management runs the dry cask, so he has to

20 support them. So, he has assigned me to support them, so if

21 they agreed, he had to agree with it.

22 Q You did an audit? No?

23 A I did, yes.

24 Q An audit?

25 A Yes, we did an audit.

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1 Q Where did you go to do this audit?

2 A I went to Holtec but I also sought the assistance of

3 the three subject matter experts. That's like my tradition to

4 make sure that I do a good audit. Southern Nuclear provided

5 subject matter experts, NYPA, New York Power Authority,

6 provided the subject matter expert, and Commonwealth Edison

7 provided their Joe Reiss was one of the physicists. He was

8 very familiar with the dry cask physics and design. So, I had

9 a very good team. We spent about three to four days.

10 Q Where?

11 A At Holtec office.

12 Q New Jersey?

13 A New Jersey. And now, the audit, they looked at the

14 design, I looked at the rest. And then, the audit resulted in

15 a finding, major finding, but still endorsed holtite/A. We

16 figured that the audit does not have any impact on the

17 holtite/A so, the holtite/A is a good product. But I cited

18 Holtec that they failed to fulfill their obligation to the 10

19 C.F.R. Part 21 because NAC had told them that, you know, they

20 had used this product in the United States and in Japan. I

21 told Holtec, what did you do with that? He says we just

22 removed them, once we tested their samples, they were not good,

23 we removed them from ASL.

24 I said, do you know that you have failed your

25 obligations to the 10 C.F.R.? He says, in what sense? I said,

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1 you should have notified the NRC because you found significant

2 holes in that sample. And then, they accepted the finding and

3 this was reflected in Spent Fuel Magazine and Macra Hill (ph.)

4 -- two news reporters interviewed me, and the result of this

5 interview was published worldwide, Spent Fuel Magazine and

6 Macra Hill.

7 Q What was your next audit?

8 A That was June and July audit of U.S. Tool and Die,

9 another fabricator of Holtec.

10 Q This is the third fabricator for Holtec at this time?

11 A Yes.

12 Q Omni, correct? The one you just testified to, and

13 now, U.S. Tool and Die.

14 A U.S. Tool and Die.

15 Q All right. Was the last audit you testified to, was

16 that a NUPIC audit?

17 A June and July?

18 Q The last one you testified to.

19 A Oh, the May one? It was a special audit between HUG

20 members which other utilities were involved in the dry cask,

21 they could get a copy of it.

22 Q All right. So, it was published? All right.

23 A It's in NUPIC because DSQG is part of the NUPIC.

24 Another term used, dry cask storage quality group, DSQG, is

25 like 20-some members of the NUPIC who are involved with that

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1 dry cask project.

2 Q How were you assigned to this U.S. Tool and Die

3 audit?

4 A I got a call from the DSQG chairman, Mr. Jim Gill.

5 Q And again, DSQG is what?

6 A Dry cask storage quality group, it's like a QA or

7 oversight group within the utilities of the HUG members. HUG

8 means Holtec Users Group.

9 Q All right.

10 A The ones who are using the Holtec design are HUG

11 members, and Exelon is one of those.

12 Q Now, what was the content of the call?

13 A They said, we have found repeated problems with the

14 welding issues, and our QC people, they have found other

15 problems. The report that comes from your resident inspectors

16 at Holtec reflects a lot of nonconformances and we need to take

17 care of this because very soon we're going to be all adversely

18 impacted to load the casks. So, we got to do this nationwide,

19 this NUPIC and DSQG audit together.

20 Q Why would they call you instead of Mr. Bastyr?

21 A Because they wanted to know if I would accept.

22 Probably they should have called him first.

23 Q Well, is it possible they did call him first?

24 A I'm not sure.

25 Q Did you discuss this "problem" assignment at the time

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1 with Mr. Bastyr?

2 A Yes, I did.

3 Q And what was his reaction?

4 A Mr. Bastyr said, I have not budgeted for the U.S.

5 Tool and Die. And if they are not on our actual supplier list,

6 begin with the Holtec, so that's a Holtec problem. And I said,

7 well, we have found a lot of problems with Holtec, so it's not

8 they're relying on a problem, they're to solve another problem

9 on their issue. So, he says talk to the station. If the

10 station approves it, you can go.

11 Q So, you again go to, this then Dresden again?

12 A Again, yes.

13 Q And they go through the same, this is again the same

14 meeting?

15 A Biweekly meetings, yes.

16 Q Biweekly meetings. Did you bring their

17 recommendation back to Mr. Bastyr?

18 A Yes. I told them that they supported it and he says

19 fine.

20 Q When was that audit conducted?

21 A That was June 19th to 23rd of 2000, and I had to

22 extend it to July 4, another three days.

23 Q Through another what?

24 A Another three days.

25 Q Three days?

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1 A Yes.

2 Q Was there anything else going on in SES on the

3 personal side at this time?

4 A I believe we were like four people reported to

5 Mr. Bastyr.

6 Q No, what I'm talking about is company-wide. Was

7 there anything else going on within nuclear during this period

8 of time?

9 A Oh, yes. The company was going through the process

10 of the merger because there was like, almost they were, almost

11 it took a year or a year and a half effort to consummate this

12 merger on October 20th of 2000. So, it started middle of 1999

13 until it was the final --

14 Q How did it impact on you as a worker in SES during

15 this period of time?

16 A I was trying to apply for some jobs, but before, once

17 I was doing this audit, this is very important and I would like

18 to highlight this --

19 Q No, let me ask a question please.

20 A Yes.

21 Q When you say you were trying to apply for some jobs,

22 what does that mean?

23 A Because during the merger process, there are jobs

24 that, you know, come in on the ECOS, electronic computer --

25 Q What is, tell us what the ECOS is.

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1 A It's the electronic computer opportunity system to

2 the best of my knowledge.

3 Q All right. And everybody in ComEd at this time or

4 soon to be Exelon at this time has access to this ECOS?

5 A Yes. Yes.

6 Q And when you say they were advertising for jobs, is

7 this company-wide?

8 A Company-wide between ComEd's side and also the

9 Philadelphia people side.

10 Q When you say they're advertising for jobs, what do

11 you mean? And what were you --

12 A There are departments that are going to be generated

13 over the expansion of the work because once there is a merger,

14 there's going to be a lot of, you know, reduction in some areas

15 and also increasing some other areas. So, there are

16 opportunities for the employees to take advantage and apply;

17 and especially, if you're looking for a promotion, that would

18 be nice to see if you meet the requirements of a higher

19 position and you will be interested to apply.

20 Q Now, was this job advertisement done early in the

21 year? I mean, in January, February, March or was it

22 summertime?

23 A I would say throughout the 1998 but most --

24 Q I'm talking 2000.

25 A 2000, yes. Around, I would say, the second-third

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1 quarter.

2 Q All right. What jobs did you apply for?

3 A I applied for some positions within the nuclear, I

4 don't know exactly the titles but there were some openings that

5 I felt like I meet the requirements. And also, the company had

6 an, I guess, announcement that in addition to the four

7 positions that you could nominate yourself for, you could also

8 apply for two more positions through your manager, and your

9 manager will nominate you for that position.

10 Q So, let me get this straight. There was a company-

11 wide announcement on four positions?

12 A No. I said each employee is entitled to apply, to

13 self-nominate themselves for four positions.

14 Q And how did you come to know that?

15 A It was known through the company.

16 Q All right. So, that's a company-wide bulletin?

17 A Right.

18 Q Okay. And on top of this four, what are these other

19 two?

20 A They said you also could ask your supervisor for two

21 additional nominations. So, I figure that --

22 Q When did you come to know this?

23 A In, I would say, second quarter, 2000.

24 Q And you don't remember the four that you self-

25 nominated yourself for? Either you do or you don't.

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1 A I don't. I don't remember specifically.

2 Q Okay. And did you ask Mr. Bastyr to nominate you for

3 two?

4 A Yes.

5 Q And would it be your choice of two jobs or would it

6 be his choice of two jobs?

7 A My choice to say these are the jobs that I want you

8 to apply for me.

9 Q All right. And to nominate you for?

10 A To nominate, yes, sorry.

11 Q What were those two positions, if you recall?

12 A I gave him like four to five options on different

13 disciplines. So, if he's going to ECOS, each discipline has

14 many jobs within that screen. So, for example, let's say

15 transmission and distribution.

16 Q Well, how many did you give him?

17 A Okay, about five.

18 Q You gave him about five.

19 A HR which was at nuclear.

20 Q I didn't ask you what they were.

21 A Okay. All right.

22 Q But they were from different areas?

23 A Different areas.

24 Q Outside of SES?

25 A Outside of it.

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1 Q Outside of Q&A?

2 A Outside of the Q&A.

3 Q All right. But still within the company?

4 A Still within the company.

5 Q Did you give him a document that indicated you wanted

6 to go into business services internal audit?

7 A No.

8 Q Did you discuss with anybody at this time your desire

9 to go into internal audit at what would become Exelon Business

10 Services?

11 A I never even knew that they have internal audit in

12 business services or what business services meant.

13 Q Were any of the four or five that you self-nominated

14 yourself for, were they in any way related to internal audit?

15 A No.

16 Q I didn't hear you.

17 A No.

18 Q Because you didn't know about internal audit?

19 A Yes.

20 Q All right. And this is the second quarter of the

21 year 2000?

22 A Yes.

23 Q Did you lead the U.S. Tool and Die the whole time

24 U.S. Tool and Die was audited?

25 A Yes. I was the lead auditor and I believe five, six

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1 utilities, they joined me. And I went down and talked to one

2 of the managers at Dresden, Mr. Tripkin, and I asked him to

3 give me two best welding experts that he has.

4 Q Out at the plant site?

5 A Out of the plant site.

6 Q So, how big was the audit team?

7 A I would say close to about ten. But not full time.

8 Q How many outside agencies knew about this audit as

9 you're conducting it?

10 A I would say all the DSQG members knew about it.

11 Q And DSQG means?

12 A Dry storage quality group, one of the entities of the

13 NUPIC, the utilities involved in the dry cask.

14 Q If you know, did those people consider this audit

15 critical?

16 A Of course.

17 Q Why?

18 A Because there was industry issues about the welding

19 issues of U.S. Tool and Die and also design deficiencies of

20 Holtec which impacted the fabrication.

21 Q All right. Did anything unusual occur when you were

22 at Holtec?

23 A Yes.

24 Q What?

25 A I was, on the first day we were doing the audit, I

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1 highlighted that I found, I reviewed the NRC reports and the

2 other NUPIC reports that they did not find any problems and I

3 came up with two, a couple of significant problems. The next

4 day, I received a phone call from Mr. Tom Joyce's office.

5 Q Now, again, Tom Joyce is Mr. Bastyr's boss?

6 A Yes.

7 Q All right.

8 A And Tom Joyce directly reports to Mr. Helwig.

9 Q All right.

10 A I received a phone call that you're going to be going

11 to Philadelphia from Pittsburgh, since you are in Pennsylvania,

12 to go to see Mr. Honorio Padron.

13 Q Can you spell that for the court reporter's purposes?

14 A P-a-d-r-o-n.

15 Q And the first name is?

16 A Honorio is H-o-n-o-r-i-o.

17 Q And who is Honorio Padron?

18 A He was the president of the BSC, Business Services

19 Corporation.

20 Q Did you ever hear of his name before?

21 A He was just, was recently hired about a month ago.

22 Q Wait. You heard his name before? Can you answer the

23 question?

24 A Yes. I heard his name before.

25 Q All right. And in what context did you hear the

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1 name?

2 A They were advertising that he is a Hispanic person in

3 charge of a big project.

4 Q All right. So, he was being touted because of his

5 Hispanic heritage?

6 A Yes.

7 Q And how would you come to know that specifically?

8 A Because I was the president of Asian American

9 Community for Exelon -- known as AACES.

10 Q At this very time?

11 A Yes. From beginning of 2000 to the end of 2000, I

12 was serving as the president of the Asian American --

13 Q All right. This AACES is a diversity group, correct?

14 A Yes.

15 Q And the elevation of Mr. Padron had nothing to do

16 with AACES but I take it there was a Hispanic diversity group?

17 A Yes, there were four minority groups. Latinos were

18 LUCES, African Americans were AAMA, which is African American

19 Management Association. Latinos, I mean, Asian Americans was

20 AACES, and Gay and Lesbian Americans were SIGLO (ph.), gay

21 lesbian community. Four communities.

22 Q Had you ever met Mr. Padron? Prior to this call from

23 Tom Joyce's office?

24 A I don't believe I've seen him personally.

25 Q Did you go up? Did you make this trip at that time?

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1 A Yes, the second day of the audit, before I accepted

2 to go, I asked, I said I'm in middle of the audit, this is a

3 NUPIC audit, and is there any way because I know Mr. Padron is

4 in Chicago office. I can come back. They said, well, they

5 requested for you to go today.

6 Q That's what you were told?

7 A Yes.

8 Q Even though Mr. Padron is housed in Chicago?

9 A Yes.

10 Q I take it down in here, in the Loop?

11 A Right.

12 Q And you're housed in Downers Grove.

13 A Right.

14 Q They want you to go from Pittsburgh to Philadelphia?

15 A Pittsburgh to Philadelphia.

16 Q And I take it he's in Philadelphia somehow or another

17 related to the merger? Would you know?

18 A Yes. I think they wanted to, for his convenience of

19 his schedule, wanted to send me to go there since he was in

20 that day --

21 Q Did they tell you what the purpose of this meeting

22 was to be?

23 A Yes. They said he's going to interview for the vice

24 president of supply.

25 Q He's going to interview you?

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1 A Interview me for --

2 Q Had you applied for the vice president of supply?

3 A No, I didn't.

4 Q Pardon me?

5 A No.

6 Q Have you ever heard that the vice president of

7 supply's position was open?

8 A No.

9 Q Did you go up for the interview?

10 A Yes, I did.

11 Q And what occurred?

12 A We chat for four to five minutes, maybe three, five

13 minutes regarding my resume. The rest of it was regarding the

14 diversities and how John Rowe likes him and all the other stuff

15 and the company is changing, they are trying to promote a few

16 minorities and everything. So, I said, well, I'm very glad for

17 you at least, you know.

18 Q I'm not really interested in, was it a genuine

19 business interview as far as you were concerned?

20 A Not really.

21 Q All right. Did you return to the audit?

22 A Yes, I came back. I lost one day of the audit.

23 Q Again, that was the first time in the audit. During

24 the second time of the audit --

25 A Once I came back, I saw a couple of, two or three

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1 members of the DSQG members are leaving. And I said, you guys

2 committed to me to stay full time. This is two audits in one,

3 DSQG checklist and the NUPIC checklist. I cannot do it without

4 all of you. They said, well, we never made a commitment to

5 stay full time. And I said, fine; so I had to roll up my own

6 sleeve and almost doing 60-70 percent of the audit myself.

7 So, once I came back, I saw my two technical

8 specialists are doing something different. I told Paul Macubia

9 and Pete Servey, the two welding specialists, I said, you are

10 committed to this audit. They said, well, the station called

11 and they have more urgent work for them since they are here. I

12 said, well --

13 Q So, they didn't arrive in Pittsburgh, is that it?

14 A No, they were there on the first day.

15 Q Oh, all right.

16 A And they said, why you left us here, if you can't --

17 they are doing something else, why you left as the lead auditor

18 yourself? I said, well, I got a phone call to go there. So,

19 they said, we got a phone call to do something else, too.

20 Q All right. While you were away?

21 A Yes. So, I said, then call the station and tell them

22 that I'm going to expect that if I'm not done with your scope,

23 that they're going to come back and extend the audit to the

24 next week which is in the first week of July.

25 Q All right.

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1 A So, they said fine and they got the permission that

2 the pay is going to be back and that we're going to get paid

3 and we're going to come back. So, I communicated to U.S. Tool

4 and Die that because I went over there and these guys over

5 here, we're going to come back. They said fine. And then, we

6 came back, I mean, the audit resulted in none findings. And to

7 my surprise, the NRC audited --

8 Q Let me just, I didn't ask you. You wrapped up the

9 onsite audit in the first week in July, correct?

10 A The first, I had two exit meetings, one in June, then

11 I came back and I did another exit meeting in July.

12 Q All right. So, it's wrapped up as far as your

13 physical presence is concerned?

14 A Yes.

15 Q And you came back and you started writing the --

16 A Audit report.

17 Q Audit report. Did Mr. Bastyr ask you what the

18 content of the audit report was going to be?

19 A Yes, because the issue was the issues were

20 significant again.

21 Q They had asked you?

22 A Yes.

23 Q Did you tell them?

24 A Yes.

25 Q What did you tell them?

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1 A I told them that I think we've got to do something to

2 Holtec and U.S. Tool and Die and potentially stop work.

3 Q And what?

4 A And a potential stop work order.

5 Q Did he ask you to see any of the raw data that you

6 had collected while you were there?

7 A I briefly explained to him the nature of --

8 Q Did he ask you to see any of the raw data that you

9 had collected there?

10 A No.

11 Q Did he ever ask you when you were doing audits to see

12 the raw data?

13 A No.

14 Q Okay. Did he expect a written report upon your

15 return or an oral report?

16 A Upon your return, all you have is an oral plus some

17 scratches.

18 Q All right. Anything else unusual occur in your life

19 thereafter?

20 A Yes. Once I was doing the audit, because I finished

21 the audit report in August 4th and within that time period, in

22 June, in July, about two weeks after I came back, I received a

23 message from Tony Broccolo or HR that I'm going to be

24 interviewing for SES manager position.

25 Q All right. Stop for a minute. You're back in the

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1 first week in July. Mr. Landsman has identified August the 4th

2 as the date on the audit.

3 A For U.S. Tool and Die.

4 Q Yes. Please. August 4th is the date of the audit.

5 Are you writing during this entire period?

6 A Yes.

7 Q And you get a call. And what if anything did you do?

8 A I went and interviewed with Tony Broccolo.

9 Q And who is Tony Broccolo? And spell the name please.

10 A Tony Broccolo is B-r-o-c-c-o-l-o.

11 Q And who is he and what is he?

12 A I believe in the past he was part of the nuclear

13 oversight, but I did not know his function at that time that he

14 was interviewing me.

15 Q He was what?

16 A That he was interviewing me for the SES manager

17 position.

18 Q Had you applied for the SES manager position?

19 A No.

20 Q Was that one of your self-appointed?

21 A No.

22 Q As far as you know, was that position going to be

23 open?

24 A No.

25 Q As far as you know, who filled that position?

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1 A I believe Mr. Bastyr had it.

2 Q You had written him, in fact, prior to that when he

3 was selected, correct?

4 A Yes.

5 Q And when had he been selected? In what year had he

6 been selected for that position?

7 A I believe that 1997, he was the SES supervisor.

8 Q And when did he become manager?

9 A I knew it was in October 1999 that he gave me a

10 delegate of authority letter and it says SES manager, that on

11 his behalf, I will fulfill his obligations to do all his

12 duties. I believe it was 10/11/99.

13 JUDGE LESNICK: Mr. McDermott, how much more direct

14 of this witness do you anticipate?

15 MR. McDERMOTT: I should be done by noon, Judge.

16 JUDGE LESNICK: Let's take a five-minute recess.

17 (Off the record at 11:05 a.m.)

18 (On the record at 11:15 a.m.)

19 JUDGE LESNICK: Mr. McDermott, you may continue.

20 MR. McDERMOTT: Thank you, Judge.

21 BY MR. McDERMOTT:

22 Q Did you attend this interview?

23 A Yes, I did.

24 Q And again, you had no warning, no application?

25 A No.

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1 Q No knowledge of the person who was going to interview

2 you. All right. Where did this interview occur?

3 A At Tony Broccolo's office on 1400 Opus Place, Suite

4 300.

5 Q All right. Anybody else participate in the

6 interview?

7 A Just him and I.

8 Q Anybody else by telephone conference --

9 A After I finished with Tony Broccolo, I was called in

10 HR on the seventh floor.

11 Q The same day?

12 A Same day. And interviewed with Mr. Jim Heller, John

13 or Jim Heller from PECO over the phone.

14 Q I'm going to ask you, who contacted you and told you

15 that you had an appointment for an interview?

16 A HR.

17 Q Human resources, a person in HR?

18 A Yes, I believe so.

19 Q And they identified the subject matter of the

20 interview being the SES manager's position?

21 A Yes.

22 Q And you had not applied for it?

23 A No.

24 Q How many days after that phone call was the

25 interview?

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1 A A couple of days.

2 Q Pardon me?

3 A A day or two.

4 Q All right. And how long did the interview last with

5 Mr. Broccolo?

6 A With Mr. Broccolo, about I would say a little bit

7 over half an hour.

8 Q Was it a serious interview from your perspective?

9 A No.

10 Q What did he ask you and what did you tell him?

11 A He basically, the first two minutes he went through,

12 that I know you, you've worked in the QA before, so I'm

13 familiar with your qualifications. And I got this resume, is

14 this your latest resume? I said yes. And then, he said, just

15 two minutes casual conversation, he said, can you tell me an

16 example that you had encountered with your manager? And I

17 said, what do you mean encounter? He said, agreement,

18 disagreement, issues. And I said, yes, of course, we had many

19 different issues. For example --

20 Q Well, I don't want you to recall the whole

21 conversation. But he asked about your reaction or your

22 interaction with your manager?

23 A Yes.

24 Q Anything else that he asked about?

25 A He continued focusing on the same subject over and

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1 over.

2 Q When you say same subject, do you mean what subject?

3 A Give me another example that you had argument with

4 your boss.

5 Q That's all he was interested in?

6 A Yes.

7 Q When you were sitting in his office, did you know you

8 had another telephonic interview to go?

9 A No, after I left and I went back --

10 Q When you say back --

11 A Back to my office across the street on the 1411 Opus,

12 second floor, then I received the call to come to HR. And they

13 assigned me an office and they said, Mr. Heller is going to

14 call you from PECO.

15 Q Did you know who Mr. Heller was?

16 A No.

17 Q Did he identify himself?

18 A He said, I am Jim or John Heller from PECO, and I'm

19 interviewing you for the SES position. That's all.

20 Q Did he tell you what his position was?

21 A No.

22 Q But it was on human resources territory?

23 A Yes.

24 Q How long did that interview take?

25 A I would say not more than two, three, four minutes,

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1 maximum four minutes.

2 Q In your opinion, was it a serious interview?

3 A He was more complimentary than asking questions. And

4 he looked at the resume, accomplishment, very good judge --

5 asked me some question about Stone and Webster experience and

6 basically summarized. And he says, I think you got very good

7 credentials for the job.

8 Q Did you receive any other calls for participation in

9 interviews during this period of time you're writing the audit?

10 A Yes.

11 Q From who?

12 A By another HR again.

13 Q And what was the subject matter of that call?

14 A They said, you're going to be going to Chicago,

15 interviewing with Ms. Kathleen Rowe, R-o-w-e, for the position

16 of director in supply in the BSC unit.

17 Q Director of supply in the BSC unit?

18 A Right.

19 Q Do you have any idea what that job was?

20 A No.

21 Q And again, did you do anything to initiate this call?

22 A No.

23 Q Did they tell you the date and time of this

24 interview?

25 A I think they said, she is available on August 4th,

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1 2000, and if that's going to meet your schedule. And I was

2 anticipating to finish my audit on August 4th, so I made it

3 that I finished, gave it to Mr. Bastyr's hand on August 3rd,

4 and I went to free myself for the August 4th interview with

5 Ms. Kathleen Rowe.

6 Q So, you completed the audit on the 4th of August and

7 went to Chicago?

8 A Yes.

9 Q Did you meet with Ms. Rowe?

10 A Yes.

11 Q How long did that meeting last?

12 A About 15-20 minutes, max.

13 Q What if anything did she ask you about during that

14 interview?

15 A Basically, the whole focus was on the resume and

16 said, supply evaluation services, what do you do? I'm kind of

17 helping the suppliers to stay with the regulations. And I also

18 have helped stations to write specifications which kind of was

19 pertaining to the title which I heard director of supply, I

20 think. It's director of supply, I thought it's positive to say

21 I have written specifications, so I know once you write to your

22 subcontractors what kind of technical requirements you need to

23 inquire. And also I said, I also -- the quality assurance

24 aspect, so I think I will be very good for this position.

25 Q Did she give you a position description or did HR

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1 send you a position description?

2 A No.

3 Q Did anything come to you over the e-mail?

4 A No.

5 Q So, you didn't know what she was, did you have any

6 idea what she was talking about?

7 A I assumed director of supply means you're dealing

8 with the suppliers. That's all I assumed that it's going to be

9 but I never received anything.

10 Q During the same period of time, now, was there any

11 other contact from people within Exelon through HR or through

12 any Tom Joyce or other office?

13 A No.

14 Q You didn't seek either of these, any of these jobs,

15 correct?

16 A No.

17 Q Did you have an idea as to why maybe these people are

18 interviewing you for positions?

19 A I thought that maybe Ms. Ruth Ann Gillis or Mr. Frank

20 Clark, that they knew that I am, you know, trying to move up.

21 I thought maybe they did something behind it.

22 Q How did they know that you were trying to, as you

23 say, move up?

24 A Because on the first Taste of Asia meeting, I guess

25 it was around May time frame of 2000, I met Ms. Gillis and we

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1 had like about over one and half hours one on one, because she

2 knew I was the president of AACES and she was the sponsor of

3 the AACES. Because every four of the minorities group, they

4 had one executive sponsor.

5 Q All right. You met her, and did you tell her you

6 were looking for a job?

7 A No. We were talking about the background and I was

8 telling her that I have some problems at the nuclear, I'm not

9 moving up the ladder.

10 Q You're what?

11 A I told her that I have experienced some problems with

12 the new officer of the company and I mentioned Mr. Helwig. I

13 said, it seems that anywhere I go, his shadow is all over the

14 place and I'm not moving up because I'm not in the QA anymore.

15 I'm going to go to engineering, it's under Mr. Helwig. I want

16 to go to move up in my organization which is supposed to be QA,

17 it's now a part of the production, it's under Mr. Helwig. It's

18 anywhere in the nuclear I want to move is under Mr. Helwig.

19 And you as an officer of the company, you may be able to do

20 some, you know, help me out to see if I --

21 Q Okay. How did Mr. Clark know about this feeling you

22 had or this --

23 A Mr. Clark, he was also the executive sponsor of the

24 AAMA, the African American. And throughout my presentations, I

25 had a few AACES president presentations and we met after a

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1 time.

2 Q And you told him these things in person?

3 A I asked him to see if he can help me as a mentor.

4 Q Did you ask the same of Ms. Gillis?

5 A Yes.

6 Q Did she act as a mentor?

7 A She said, I would be more than happy to do that.

8 Q And did you have some mentoring sessions with her?

9 A I would say two or maximum three the whole year.

10 Q Did you have any mentoring sessions with Mr. Clark?

11 A Maybe one or two.

12 Q Did you write either of them and tell them about your

13 hopes to, as you say, move up?

14 A I wrote an e-mail to, around, I guess, July time

15 frame or August time frame of 2000. And I say, you know -- go

16 ahead.

17 Q You don't have to quote it. In summary, what did you

18 ask for?

19 A I said, I am not moving up the ladder in the nuclear

20 and I want your help to find me the best spot that fits my

21 background and I attached a resume. And I said, I want to find

22 a leadership role in Exelon which pertains to my background

23 that would be a benefit for me and the company.

24 Q You knew there was a merger underway, everybody knew

25 it, right?

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1 A Yes.

2 Q Did you consider this unusual behavior on your part

3 at this time?

4 A No, I think everybody knows that if you are sponsored

5 by an executive, you have a better chance to move up the

6 ladder.

7 Q And was it your belief then, when you got these three

8 unsolicited requests for job interviews, literally all over the

9 company, correct?

10 A Yes.

11 Q It was your belief that that somehow was related to

12 your contact with Ms. Gillis and Mr. Clark?

13 A I thought it was a good gesture from their parts. I

14 thought so.

15 Q Did Mr. Clark and Ms. Gillis at any time, during this

16 time communicate to you and say that they had a job for you?

17 A No.

18 Q Did you ask either of them directly if they had a job

19 in their organizations for you?

20 A No.

21 Q You finished the report, correct?

22 A Yes.

23 Q The audit report.

24 A Yes.

25 Q You were here yesterday for Mr. Landsman's testimony,

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1 correct?

2 A Yes.

3 Q You saw Mr. Landsman identify Respondent's exhibit, a

4 five-page exhibit dated August the 4th, correct?

5 A Yes.

6 Q You saw Mr. Landsman identify our Exhibit No. 14,

7 correct?

8 A Yes.

9 Q Did you have an opportunity to read Respondent's

10 Exhibit, that five-page August 4th exhibit?

11 MR. GROSS: Can you tell me what exhibit number

12 you're referring to?

13 MR. McDERMOTT: To be honest with you, I wrote it

14 down on a piece of paper but it's now --

15 MR. GROSS: August 4?

16 MR. McDERMOTT: It's your August 4th, five-page, I

17 want to say it's like 29 maybe.

18 THE WITNESS: 46, I believe it was.

19 BY MR. McDERMOTT:

20 Q 46? That's it. Yes, 46. Thank you, Mr. Shirani.

21 A Just on top of my head --

22 Q That's fine. You remember Respondent's Exhibit No.

23 46, it was that second exhibit -- do you remember that exhibit?

24 A Yes.

25 Q All right. Have you had a chance to read that

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1 exhibit?

2 A Last week.

3 Q Yes. Was that the first time you saw it?

4 A Yes.

5 Q You had a chance to read our Exhibit No. 14 a good

6 while ago, correct?

7 A Yes.

8 Q Why?

9 A I generated that.

10 Q You generated it in July and August of the year 2000,

11 correct?

12 A And I finalized it by August 4th, yes.

13 Q With respect to Respondent's Exhibit No. 46, is that

14 an accurate -- strike that. Is that a true or false statement

15 of the audit?

16 A Definitely, certainly false statement.

17 Q Did you author that false statement?

18 A No, sir.

19 Q Do you have any idea where that statement goes or

20 where that statement went?

21 A That statement could be distributed to the ComEd

22 system, it could be available to the regulators, could be

23 available anywhere because it's part of the PIF system. And

24 this is misleading.

25 Q All right, let me ask you then. Had you ever seen

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1 that format before for audit summaries?

2 A That was, I had seen a similar one called PIF.

3 Q When you say PIF, what is that?

4 A Problem identification form.

5 Q All right.

6 A This was not typical identification form. They had

7 cut and pasted information from the PIF in this form but it was

8 not exact copy of the PIF to my knowledge, to the best of my

9 knowledge.

10 Q Do you know if it was routed to anybody?

11 A I'm not sure, but it's available. It becomes a

12 quality assurance safety record.

13 Q All right. After August the 4th of 2000, did anybody

14 offer you a job during the month of August?

15 A No, all the blessings stopped.

16 Q Did anybody offer you a job during the month of

17 August?

18 A No.

19 Q Did anybody offer you a job during the month of

20 September?

21 A No.

22 Q Did anybody offer you a job during the month of

23 November?

24 A No.

25 Q During the month of November, did you have occasion,

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1 as Mr. Landsman has testified, to attend a Holtec symposium?

2 A Yes. I was not invited, I heard about it.

3 Q And did you attend?

4 A Yes, I did attend.

5 Q All right. And did you participate?

6 A I was not on the agenda, but I raised your questions.

7 Q Did you participate?

8 A Yes.

9 Q How did you participate?

10 A I was hearing the untrue statements and I raised my

11 hand and I said these are contrary to the requirements of my

12 findings.

13 Q What contrary statements did you hear?

14 A About the root cause, the strength of the Holtec

15 corrective action. They have increased their root cause, they

16 have increased their welding expertise, welding specialties,

17 and there are identified issues that they have enhanced. And

18 their QA program is really, has gone, it was a marketing place

19 so they have --

20 Q All right. Who was making that presentation, if you

21 remember?

22 A Holtec's CEO, Dr. Kris Singh, one of the speakers,

23 plus they had a speaker phone from U.S. Tool and Die from

24 Pittsburgh, and Dr., I don't know, Mr. Robert Moscardini,

25 M-o-s-c-a-r-d-i-n-i, was the president of U.S. Tool and Die.

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1 And also Mr. Marty Edwards, M-a-r-t-y E-d-w-a-r-d-s, he was

2 the QA manager, the former one was the president of U.S. Tool

3 and Die.

4 Q And, now, how many people in this room?

5 A I would say close to between 80 to 100.

6 Q And these are representatives from similar utilities?

7 A Utilities, HUG members and other potential new

8 customers.

9 Q All right. That date of that meeting was when?

10 A November 30th, 2000.

11 Q Was your participation, however you defined it, was

12 your participation in that meeting reported to your supervisor?

13 A It must have.

14 Q Pardon me?

15 A It must have been reported. I came back on December

16 2nd, he had the formal knowledge of it.

17 Q I'm sorry?

18 A He had the formal knowledge that I --

19 Q How do you know he had the formal knowledge of it?

20 A Because I told him that there were certain issues

21 that I described in the meeting and NRC was attending. And

22 then, he says that who invited you to be there? I said, well,

23 didn't you assign me as a dry cask storage quality person? He

24 said, but you were in vacation. I was in Brazil. And then, I

25 said, well, I came one day earlier.

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1 Q Set us straight. He was in Brazil or you were in

2 Brazil?

3 A I was in Brazil. So, I came one day earlier and I

4 called Holtec to find out why I was not invited because this

5 must be planned before. I was kind of, even like that they

6 excluded me. When I called Holtec secretary, she recognized my

7 name, she says, oh, Mr. Shirani, you're more than welcome, it's

8 right behind your office. So, we went to Doubletree Hotel at

9 Downers Grove.

10 Q But Mr. Bastyr knew about it when you came back in

11 December, is that correct?

12 A December, yes.

13 Q In December, what date?

14 A I believe the first working day after that November

15 30th. I believe it's December 2nd or 3rd.

16 Q All right. On December the 2nd or 3rd, did anybody

17 make you a job offer?

18 A No.

19 Q On December the 4th or 5th, did anybody make you a

20 job offer?

21 Q Did anybody make you a job offer on December the 6th?

22 A No.

23 Q Did anybody make you a job offer on December the 7th?

24 A Yes.

25 Q Who?

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1 A Ms. Ruth Ann Gillis, senior vice president and CFO,

2 chief financial officer of Exelon Corporate or BSC which is

3 part of the corporate.

4 Q Now, this is the person who had mentoring sessions

5 with you, correct?

6 A Yes.

7 Q Had you had any telephonic communication or e-mail

8 communication with her from the last of your mentoring sessions

9 until December the 7th?

10 A No.

11 Q How was it this job offer was made to you? What

12 happened that day?

13 A Okay. I got a phone call from Maureen Reagan, her

14 secretary, who says that Ruth Ann Gillis would like to see you.

15 A day before December 6th, Mr. Assir DaSilva was also the VP of

16 diversity also called me. And then, made an appointment on

17 December 7th to see Mr. DaSilva, I didn't know what's the

18 scope. Then, I met Ms. Ruth Ann Gillis and then she said,

19 Oscar, I would love to talk to you. I said fine.

20 And then, she brought up some of the issues that I

21 had raised here in the AACES presentation saying that you

22 talking about diversity is not applied to the nuclear and says,

23 do you know who you're dealing with? This is a guy --

24 Q Now, who is talking, Ms. Gillis?

25 A Ms. Gillis.

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1 Q Right. This is the subject she starts on right away?

2 A She started right away. She says, do you know that,

3 let me tell you one thing. She says, once I worked, in a past

4 company that I worked for, my manager came and put his hand on

5 my leg. And one time she -- in my face and they called me

6 b-i-t-c-h. And once I was subjected to that, I just left. Do

7 you want to stay in the nuclear and deal with that ordeal that

8 you've been telling me the whole time during our sessions?

9 Think about what's good for Oscar.

10 Q All right. So, that's what she says to you in the

11 beginning. Did she make a job offer?

12 A She says, I would like you to come, would you want to

13 be a tax manager? And I said, I don't know nothing about

14 taxes. She says, don't worry, we have Arthur Andersen, they

15 can teach you. I said, no, really, I don't even know the

16 basics of tax. She says, well --

17 Q All right. What else did she say?

18 A Would you want to be a risk assessment manager in

19 Philadelphia office? I said risk assessment, I only heard the

20 name, and I don't want to go to Philadelphia, and I my family

21 don't me do. She says, okay, Oscar, I know you are a very

22 analytical guy, a very good QA guy, auditor. I want that brain

23 to put into doing a lot of work for ComEd, you probably can

24 save us millions of dollars if you do the internal audits. And

25 I said, internal audits, I don't even know what's internal

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1 audits. Is that nuclear? She says, no, internal audit is in

2 here.

3 I said, you have a group? She says, no, Arthur

4 Andersen is doing it. She says, you're going to be the first

5 one. And I said, well, financial audits, I mean, this is, you

6 know. Don't worry, the word finance, don't be scared, we're

7 going to train you. Remember you said, she was referring to

8 one of my sessions we made, that you said that if I had an MBA

9 degree, I would love to have a manager like you because you are

10 so nice and all the other managers are so rude to me? Here is

11 the opportunity.

12 Q That's what she said? She reminded of this

13 conversation?

14 A Yes.

15 Q Did you accept the offer?

16 A No.

17 Q What did you tell her?

18 A I said, let me think about it.

19 Q At that time, had you applied for any other

20 positions?

21 A Yes.

22 Q What positions had you applied for?

23 A I applied for, I believe in November time frame, I

24 applied for diversity manager in the nuclear division. I did

25 apply for that. There was a posting, I applied for it.

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1 Q I hadn't asked you if you applied for anything in

2 November, but that's when you applied?

3 A Yes.

4 Q Was that the only application that was alive at this

5 time?

6 A Yes.

7 Q All right.

8 A I told her that I have already, you know, interviewed

9 with Ms. Hickman, Stephanie Hickman, and Mark Relcon from PECO

10 and they were very impressed with my knowledge about

11 affirmative action and EEOC rules and the suggestions that I

12 said I could make the procedures to get the company really out

13 of trouble with the regulations. And these procedures will

14 enhance that the company stay in the right track and would not

15 be subject to all these lawsuits. And then, she says, I mean,

16 Ms. Hickman said --

17 Q You know, I'm not interested in that. You had made

18 an application, is that correct?

19 A Yes.

20 Q And they told you they were impressed with you?

21 A Yes.

22 Q And you told that to Ms. Gillis on the 7th?

23 A Yes. I said that the two interviews went well. Yes,

24 go ahead. I'm sorry.

25 Q Did Ms. Gillis communicate with you on the 8th of

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1 December?

2 A No.

3 Q 9th?

4 A No.

5 Q 10th?

6 A No.

7 Q 11th?

8 A No.

9 Q 12th?

10 A No.

11 Q 13th?

12 A Around that time, she says, I'm going on vacation.

13 Q So, she talked to you?

14 A Yes.

15 Q By phone?

16 A I believe so.

17 Q She call you or did you call her?

18 A She called me.

19 Q All right. She told you she was going on vacation?

20 A She said I'm going to go on vacation, and she gave me

21 the e-mail address for her husband's laptop. And her husband

22 was not Gillis, was McGuinness. She says, we're going to take

23 our laptop, and then if you have any questions or things,

24 nobody's going to call me but you could call me, to make up

25 your decision if you have any question. That, she told me and

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1 she left.

2 Q Did you call her?

3 A No.

4 Q Did you access e-mail through her husband's laptop?

5 A No.

6 Q Did you hear from her on the 14th?

7 A No.

8 Q 15th?

9 A No.

10 Q 16th?

11 A No.

12 Q 17th?

13 A No.

14 Q 18th?

15 A No.

16 Q 19th?

17 A Yes.

18 Q How did you hear from her?

19 A 7:30 p.m. at my house, I never gave her my phone

20 number, she called me at home.

21 Q And she called your home and what did she say to you

22 and what did you say to her?

23 A She reiterated what she told me in December 7th,

24 that, Oscar, you told me I'm like a sister to you. I'm your

25 mentor, I'm as a friend. And I think you're going to have a

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1 good opportunity to come here. If you don't like it, you can

2 go back later, but at least you can get some financial

3 background. And I said, you know, how about the other job?

4 She says, if I were you, I would call HR, Richard

5 Lundy and I would reject that job in the nuclear. Because you

6 don't have too many allies in the nuclear and because of all

7 this diversity talk that you gave, Oliver Kingsley is a

8 Southern man, he doesn't like this kind of stuff, especially if

9 you're exposed in front of people saying majority of Asian

10 employees are in the nuclear and he does not make any of them

11 managers. He's not a person to change for diversity.

12 You're going to put yourself in the line of fire.

13 You don't already have too many allies, you're going to put

14 yourself in the line of fire. And I'm not making up your mind,

15 you're a big grown up, but think what's best for Oscar. And I

16 have the opportunity. I said --

17 Q What did you say to her?

18 A I said, okay, Ruth Ann, you know, I consider you as a

19 friend and a sister, and I oblige. And I think you have good

20 intentions for me, and I will call. And I called the next

21 morning on December 20th. Shall I continue?

22 Q No. There's no question. That was the end of the

23 conversation?

24 A Yes.

25 Q This is in the evening?

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395

1 A At my house.

2 Q You didn't call anybody in HR or anybody in diversity

3 or anybody in AACES and tell anybody about this?

4 A No.

5 Q Did you communicate this telephone call to anybody?

6 Members of your family?

7 A Yes. My kids, my mom, my family. And they said,

8 once and for all, you know, somebody is caring to take care of

9 you, why do you want to stay in nuclear? Why so stubborn about

10 staying in nuclear? I said that's where my expertise is.

11 Q Had money been discussed in this telephone call?

12 A Yes.

13 Q In this call?

14 A In this call, she said, I told her that this is going

15 to add another three hours on my commuting. It's going to take

16 more time because Downers Grove is only five minutes away from

17 here.

18 Q From where?

19 A From the office that I was at the nuclear, Downers

20 Grove office, from my house. And then, she says, I'll

21 compensate for that additional three hours of commuting which I

22 believe that she added $1500 on that offer that she gave me on

23 December 7th.

24 Q And that offer she gave you on December 7th was how

25 much more than you were making at the time?

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396

1 A The offer was like around 6.2 percent but with that

2 another $1500, it came close to 7.2 percent.

3 Q Did you in fact call on that diversity issue?

4 A I called Mr. Lundy --

5 Q Did you call?

6 A Yes, I did.

7 Q Who did you call?

8 A I called Mr. Richard Lundy as I was instructed.

9 Q And did you do as you were instructed?

10 A Yes.

11 Q Did you subsequently move downtown within Exelon?

12 A On January 15th, 2001.

13 Q On January the 15th, 2001?

14 A Yes.

15 Q Approximately a month later?

16 A Yes.

17 Q During that time between the 19th or the 20th of

18 December and the 15th of January, did you continue to work on

19 SES?

20 A Yes.

21 Q Did you continue in your duties at SES?

22 A Yes.

23 Q Did you discuss this move with Mr. Bastyr?

24 A Yes, I did.

25 Q Did Mr. Bastyr have to sign off for you to take this

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397

1 job?

2 A I believe if you applied, he has to release. But he

3 didn't have to release me because I didn't have to apply for

4 this job.

5 Q Did you ever see a job description?

6 A No.

7 Q Ever?

8 A No.

9 Q Did you ask for one?

10 A No.

11 Q When you went to this position, it's called what?

12 A She says principal auditor.

13 Q The entire title, principal auditor what?

14 A Principal auditor, I guess it was in internal

15 finance, or just said principal audit.

16 Q Exelon Business Services?

17 A I didn't pay attention if it was BSC or corporate. I

18 thought she was a part of the corporate. Later on, I found out

19 it's BSC. I'm not sure because -- used.

20 Q Did she tell you that you would be reporting to her?

21 A She says, yes, I would be reporting, not directly to

22 her. She says you will be reporting to George Hurtz from ComEd

23 side and Tim Makris from Arthur Andersen side.

24 Q Did you stay in that job?

25 A Yes, I did.

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398

1 Q Until when?

2 A Until October 26 which I was notified that I got laid

3 off, and October 30th that I was physically removed with a

4 security guard.

5 Q On October 26, you were told you were laid off or

6 terminated?

7 A Well, I guess interchangeably used. Terminated, I

8 think, is more appropriate.

9 Q When you received the letter, is that correct?

10 A Yes.

11 Q They never used the term layoff, did they?

12 A I don't think so.

13 Q Your actual separation date would have been what?

14 A December 26th of 2001.

15 Q And did that letter come from HR?

16 A It came from HR, yes.

17 Q Did you ever get a letter from Ms. Gillis or

18 Mr. Hurtz or anybody who replaced Ms. Gillis or Mr. Hurtz or

19 the people on Andersen that indicated that you were being

20 terminated?

21 A It was Ms. Caya who was working for Ruth Ann Gillis

22 and Martha Garza. They both presented me with that letter.

23 Q But that letter was an HR letter, it wasn't from

24 either one of them, was it?

25 A I believe it was from HR.

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399

1 Q Not from them?

2 A Not from them. I'm not sure. At that time, I was

3 just in total disbelief. I probably didn't read more than two,

4 three lines of it. I mean --

5 Q In October the 26th of 2001 -- strike that. After

6 January, the middle of January 2001, you made attempts to come

7 back to Exelon Nuclear, is that correct?

8 A Yes, I made several attempts by e-mails.

9 Q And who did you send these e-mails to?

10 A To Mr. Kingsley.

11 Q Anybody else?

12 A I tried to call, I believe, Mr. Nick Davy. He was

13 working on the transmission distribution system, working for

14 Mr. Helwig. I called him up, too. And I sent him an e-mail

15 three months before, so, I sent him another e-mail reminding

16 him about the findings that I issued in my audit findings to

17 the transmission and distribution. And he did like my

18 recommendation, how to reduce and mitigate the risk, and I

19 think he liked the recommendation, so I made a proposal right

20 after the exit they had with Arthur Andersen knowing that most

21 of those recommendation was mine. I said, I will have a

22 business proposal to you, Mr. Nick Davy. He said fine, I sent

23 him an e-mail.

24 Q Do you recall when this happened?

25 A I would say around June time frame, June-July time

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400

1 frame. And he sent me e-mail back and it says, sounds good,

2 you know, remind me in three more months because right now I'm

3 forming the organization but I like your proposal. Then, I

4 believe that I went to Oak Brook and I saw him in the elevator

5 and I said, Mr. Nick Davy, because I sent him an e-mail again

6 after three months as he told me, Mr. Nick Davy, in the

7 elevator, good morning. He didn't even answer me. I said, I

8 sent you an e-mail. He just looked the other way and the

9 elevator opened and he just walked away.

10 Q Let me ask you. In January of the year 2001, did you

11 receive, you heard Mr. Landsman testify. Did you receive a

12 telephone call from Mr. Landsman?

13 A Yes, I did. On January 19, 2001, four days after I

14 started the new job, I received a phone call from Mr. Russ

15 Landsman of the NRC Region 3.

16 Q The prior November, you had a conversation with

17 Mr. Landsman, correct?

18 A Yes.

19 Q Had you met Mr. Landsman before November the 30th of

20 2000?

21 A I might have seen him while he was in Sargent & Lundy

22 investigating some issues that ComEd helped and asked me to

23 help either him or another inspector. That was an issue about

24 Byron, issue, and I think I met him in one of those meetings at

25 Sargent & Lundy.

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401

1 Q What was that, without what he said to you or you

2 said to him, what was the bottom line subject of your

3 conversation with him on November the 30th of 2000?

4 A As soon as I objected to a lot of these vague and

5 false promises and things at the U.S. Tool and Die and Holtec,

6 and I raised my issues, he heard me. And at the break session,

7 while the audience were sitting there, right at the middle of

8 the room, he started talking to me. And then, he says, the way

9 you describe and things --

10 Q I didn't ask you what he said and you said. What was

11 the substance of the conversation between you and Mr. Landsman

12 on the 30th of November?

13 A He was interested to know about my findings in my

14 audit.

15 Q Did he ask you for a copy?

16 A Yes. He was saying that why your company did not

17 share that information with me or the NRC, and I want a copy of

18 that immediately. That's exactly what the words he said.

19 Q And what did you tell him?

20 A I said, of course, I'll just go back. I said I'm not

21 coming to tomorrow, I think there was another follow up day

22 that they wanted to, I said I'm not coming to the symposium but

23 I will go and get your copy of it. So, I came and informed

24 Mr. Bastyr. He was not surprised; apparently, somebody had

25 told him that I talked to the NRC. So, he said, I don't think

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402

1 it's your business to give a copy of that report to

2 Mr. Landsman. You better go and talk to Ken Anger, that's

3 their duties. And then I said fine, because I could have just

4 gone and make --

5 Q And who was Ken?

6 A Ken Anger was the licensing manager at Exelon.

7 Q And did you talk to Ken?

8 A Yes. I went there, he was very, very upset.

9 Q Had you known of this contact before -- so when you

10 went to talk to him, the fact that you had challenged this

11 marketing presentation was already known by him?

12 A Yes. He knew about it. He says, who the hell

13 invited you to go there?

14 A I said I'm a dry cask quality representative for the

15 dry cask. I was supposed to be there, they didn't even invite

16 me. He says, you don't --

17 Q Let me ask you. You were asked to join that dry cask

18 project by Mr. Bastyr, correct?

19 A I was assigned by Mr. Bastyr.

20 Q Well, that's what I mean, you were assigned or asked,

21 right?

22 A Right.

23 Q Because of your skill, training and profession?

24 A Because he told me that I don't have anybody in that

25 group to replace those five guys, the one, he meant Paul

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403

1 Zurowski --

2 Q I remember.

3 A Right. And he says, you're the only one in the group

4 who can handle it, and he says, I have told my boss, Tom Joyce,

5 that you could do it in the 20 percent of your time.

6 Q Did it actually take 20 percent of your time?

7 A No.

8 Q Okay. How much of your time did it take?

9 A I would say more than 50 percent of my time.

10 Q More than 50?

11 A Yes.

12 Q Is there a reason Mr. Bastyr couldn't do that?

13 Couldn't do the dry cask storage project?

14 A Dry cask has a lot of design issues and I don't

15 believe that Mr. Bastyr had a design background.

16 Q Did you have more than one telephone conference in

17 the year 2001 with Ross Landsman?

18 A 2001, January 19, I believe that's the only one that

19 me and Mr. Landsman had a conversation while I was at ComEd.

20 Q You were offered a job on December the 7th and you

21 accepted it on the 19th, correct?

22 A Yes.

23 Q Had you ever heard, prior to December the 7th, the

24 job of principal auditor in Exelon finance?

25 A Never heard of it.

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404

1 Q Did you ever have a conversation with Mr. David

2 Helwig with -- just please let me finish. Did you ever have a

3 conversation with him where you sought his advice on a career

4 change?

5 A Never.

6 Q Did Mr. Helwig come to you, your office or make a

7 phone call to you?

8 A Never.

9 Q Did he ever come to you, to your office or make a

10 phone call to you within the first month of his arrival that

11 would have been anywhere between the 1st, I guess, of January

12 1998 and the 1st of February 1998 and did he contact you to

13 tell you that there were no hard feelings?

14 A Never.

15 Q You heard his testimony yesterday?

16 A Yes.

17 Q Any of that ever happen?

18 A Never.

19 Q Isn't it true you, I'm sorry. Did you ever invite

20 Mr. Helwig to an AACES function?

21 A No.

22 Q An AACES function?

23 A At one of the dinners that I entertained, I invited

24 the executives including Mr. Helwig.

25 Q Okay. So, you did invite him?

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405

1 A It was the distribution of the executives. I didn't

2 pick and choose.

3 Q So, did he attend?

4 A Yes, he did.

5 Q Did he shake your hand?

6 A No.

7 Q Did any of the other executives shake your hand?

8 A Every one of them.

9 Q Including Oliver Kingsley?

10 A Mr. Kingsley, Mr. John Rowe, every one of the

11 officers invited.

12 JUDGE LESNICK: Mr. McDermott, it's 12:00 noon. When

13 do you anticipate --

14 MR. McDERMOTT: I'm just about finished. We could

15 take our lunch. I'll -- real fast and make sure I look through

16 my exhibit list.

17 JUDGE LESNICK: All right.

18 MR. McDERMOTT: If that's all right with you, Your

19 Honor.

20 JUDGE LESNICK: Okay, break at 12 o'clock.

21 (Whereupon, at 12:00 p.m., a luncheon recess was

22 taken.)

23

24

25

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406

1 A F T E R N O O N S E S S I O N

2 JUDGE LESNICK: Back on the record.

3 MR. McDERMOTT: We're back on the record, Judge. And

4 as I said before we broke for lunch, I asked Mr. Shirani to

5 identify certain documents.

6 JUDGE LESNICK: Mr. Shirani, I remind you you're

7 still under oath.

8 THE WITNESS: Yes.

9 JUDGE LESNICK: You may continue.

10 BY MR. McDERMOTT:

11 Q Mr. Shirani, did you have a personal, face-to-face

12 meeting with Oliver Kingsley?

13 A Yes.

14 Q And do you recall when that occurred?

15 A October 6th, 2000.

16 Q And during that period of time, did you give certain

17 documents to Mr. Kingsley?

18 A Yes.

19 Q And do you recall what those documents were?

20 A Yes. It was the summary of my performance, and also

21 a chart which indicated the structural -- criteria that I did

22 on Virginia ASME paper and the cost savings to the company.

23 And the third one was the letter that I received from GE San

24 Jose, California engineer's report to executive officers,

25 including Mr. Helwig, after our audit that they confirmed that

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407

1 they agreed with my finding reports. And they said this was a

2 bad reflection of the GE.

3 Q How would you describe that meeting with

4 Mr. Kingsley?

5 A I think we socialized for about five, ten minutes.

6 Q How would you characterize it? Was it positive?

7 A I would say I left with a positive impression.

8 Q Sometime later the next year, did you write to

9 Mr. Kingsley?

10 A Yes.

11 Q And what was the purpose of your writing to

12 Mr. Kingsley?

13 A I wanted to come back to nuclear.

14 Q And did he respond back to you?

15 A No.

16 Q I'll ask you to look at what's marked as Exhibit No.

17 28.

18 A Yes.

19 (Whereupon, the document referred

20 to as Complainant's Exhibit No.

21 28 was marked for

22 identification.)

23 BY MR. McDERMOTT:

24 Q Can you tell the judge what that is?

25 A This is an e-mail from Rich Lundy, Nuclear HR VP, I

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408

1 guess.

2 Q I don't mean to interrupt but if you start at the

3 bottom, on most of your Exelon/ComEd e-mails, the earliest or

4 the most distant or most past document is at the bottom, is

5 that correct?

6 A Yes.

7 Q And what is that?

8 A July 19, 2001, from Oscar Shirani to Oliver Kingsley.

9 Q And what was the subject of that particular e-mail?

10 A Opportunity.

11 Q And what was the real purpose of that e-mail?

12 A I said I would like to return to nuclear --

13 Q Okay. You don't have to read it. What is the

14 purpose?

15 A To say that I was resented at the new job, I want to

16 come back where I would be benefit most in engineering.

17 Q All right. And somebody responded on Mr. Kingsley's

18 behalf, is that right?

19 A I imagine, I mean, Mr. Rich Lundy responded.

20 Q And there are other documents attached to that e-

21 mail?

22 A Yes.

23 Q And he responded to you when?

24 A On July 23rd, four days after that.

25 Q What were these other documents, in summary? I'm not

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409

1 asking you about each and every one.

2 A The summary is all the job openings.

3 Q In?

4 A In nuclear and at the transmission and distribution.

5 These are the areas of my particular expertise in engineering.

6 Q And those jobs you believe were open in and at that

7 time frame?

8 A These are the copies of the actual ECOS.

9 Q And what's an ECOS?

10 A The electronic computer opportunity systems.

11 Q I'd ask you to look at --

12 JUDGE LESNICK: Before we do that, that was

13 Complainant's Exhibit 28?

14 MR. McDERMOTT: Complainant's Exhibit No. 28, 21

15 pages, Judge.

16 JUDGE LESNICK: Okay. Be sure to identify it as

17 Complainant's or Respondent's.

18 MR. McDERMOTT: I'm sorry. Complainant's Exhibit No.

19 28, 21 pages. I move to submit and enter, Judge.

20 JUDGE LESNICK: Any objection?

21 MR. GROSS: Only that all of these position postings

22 are well after these e-mails. I don't think he's representing

23 that they were part of these e-mails.

24 MR. McDERMOTT: No.

25 MR. GROSS: But they are all after these e-mails.

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410

1 MR. McDERMOTT: That is correct.

2 MR. GROSS: I just want to make sure that's clear.

3 MR. McDERMOTT: That's correct.

4 THE WITNESS: I have to make one clarification.

5 These are the ones that I made a copy around October time frame

6 which I was still with the company. There are more, if you get

7 a copy from ComEd, throughout the whole year. There are

8 hundreds of jobs like this on ECOS.

9 MR. GROSS: I have no objection to Complainant's

10 Exhibit 28.

11 (Whereupon, the document referred

12 to as Complainant's Exhibit No.

13 28 was received into evidence.)

14 BY MR. McDERMOTT:

15 Q And Complainant's Exhibit No. 15, Mr. Shirani, would

16 you take a look at that? I guess it's two pages or three

17 pages.

18 A Yes.

19 (Whereupon, the document referred

20 to as Complainant's Exhibit No.

21 15 was marked for

22 identification.)

23 BY MR. McDERMOTT:

24 Q What is that?

25 A This is the subject PIF that I was describing before.

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411

1 Q With respect to what?

2 A To the joint NUPIC audit of Holtec which I was part

3 of in May of 2000, and their audit number is SR-2000-256.

4 Q And which of the Holtec audits is that?

5 A I believe this is the May audit that we found the

6 Omni fabrication and Holtec were not only ineffective, they

7 were beyond, they were violating ASME Section 9 which is the

8 welding codes.

9 Q That was what's been referred to by yourself and by

10 Mr. Landsman as Holtec/Omni, is that correct?

11 A Holtec/Omni, yes.

12 MR. McDERMOTT: Move to enter Exhibit No. 15, three

13 pages.

14 MR. GROSS: No objection.

15 JUDGE LESNICK: All right. Accepted.

16 (Whereupon, the document referred

17 to as Complainant's Exhibit No.

18 15 was received into evidence.)

19 BY MR. McDERMOTT:

20 Q Mr. Shirani, would you look at what's marked as

21 Complainant's Exhibit No. 31 comprised of three pages?

22 A Yes.

23 (Whereupon, the document referred

24 to as Complainant's Exhibit No.

25 31 was marked for

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412

1 identification.)

2 Q And what, does that bear a date?

3 A From the top to the bottom or from the last page to

4 the front page?

5 Q Well, from the, chronologically, I take it, from the

6 bottom, from what dates to what dates?

7 A We're not looking at the same one?

8 Q No, you're looking at that.

9 A Okay. The top one is from September 19, 2000 from

10 John Faya to Stephanie Hickman, cc Christine Ziano, Martha and

11 Russ Bastyr.

12 Q And what's the --

13 A Subject is supervisory nomination of subordinates,

14 important is very --

15 Q All right. What's the next portion on that e-mail?

16 A The next portion is an e-mail message from Russ

17 Bastyr on September 19 sent to Martha, Christine Ziano and John

18 Faya, cc Tom Joyce, important, high, supervisor nomination of

19 subordinates.

20 Q All right. What was the, you didn't write this

21 document?

22 A No.

23 Q You didn't get a copy of this document?

24 A Upon the documents to be received.

25 Q Only during discovery, is that right?

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413

1 A Right.

2 Q You didn't receive a copy of this prior to that?

3 A No.

4 Q What is the general gist of this particular document?

5 A This refers my August 17th request reminding

6 Mr. Bastyr, please do not forget the deadline for those two,

7 for those series of jobs that I have requested regarding the

8 two positions that the manager could nominate you for.

9 Q All right. And did he nominate you for that?

10 A No.

11 MR. McDERMOTT: Move to enter Exhibit No. 31, three

12 pages.

13 JUDGE LESNICK: Any objection?

14 MR. GROSS: No objection.

15 JUDGE LESNICK: All right. Admitted.

16 (Whereupon, the document referred

17 to as Complainant's Exhibit No.

18 31 was received into evidence.)

19 BY MR. McDERMOTT:

20 Q I'll ask you to look at what is marked as

21 Complainant's Exhibit No. 13, Mr. Shirani. Can you tell the

22 court what that is?

23 (Whereupon, the document referred

24 to as Complainant's Exhibit No.

25 13 was marked for

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414

1 identification.)

2 A This is Commonwealth Edison job description,

3 management position for the supplier evaluation services,

4 reports to general manager nuclear supply.

5 Q And it is two pages?

6 A Yes.

7 Q The bottom of the second page, does it bear two

8 signatures?

9 A Yes.

10 Q And whose signatures appear there --

11 A Mr. Russ Bastyr and Mr. Tom Joyce, dated 10/11/99. I

12 believe I mentioned this date before off of my head.

13 Q And -- testimony to Mr. Bastyr, Mr. Bastyr was the

14 manager of supplier evaluation services at that time?

15 A Yes.

16 Q And in reading this with respect to other pertinent,

17 I'm sorry, with respect to job specifications and/or

18 requirements for the position, in this section, the minimum

19 requirement is 15 years of experience, is that correct?

20 A 15 years of experience in power plant design,

21 operations, maintenance. Should I read?

22 Q No. Just summarize it for me if you can.

23 A It's minimum skills required, BS Engineering or

24 Science and must have a working knowledge of 10 C.F.R. ASME

25 Code and other requirements.

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415

1 MR. McDERMOTT: Move to enter Exhibit No. 13.

2 MR. GROSS: No objection.

3 JUDGE LESNICK: Admitted.

4 (Whereupon, the document referred

5 to as Complainant's Exhibit No.

6 13 was received into evidence.)

7 BY MR. McDERMOTT:

8 Q Mr. Shirani, I'm going to ask you to look at Exhibits

9 No. 19, 20 and 21. Those are, for the purposes of the record,

10 Complainant's Exhibits No. 19, 20 and 21.

11 (Whereupon, the document referred

12 to as Complainant's Exhibit Nos.

13 19, 20 and 21 were marked for

14 identification.)

15 BY MR. McDERMOTT:

16 Q What is Exhibit No. 19?

17 A 19 is compensation summary for Oscar Shirani for the

18 principal auditor position, band grade level E-4, with a salary

19 of $94,000.

20 Q All right. Did you receive a copy of, I'm sorry, did

21 you receive the original of that?

22 A Yes, I did.

23 Q And where did you receive it?

24 A At Ms. Ruth Ann Gillis' office on December 7th.

25 Q What year?

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416

1 A 2000.

2 Q All right. What is Exhibit No. 20?

3 A It's Exelon Tier 3 selection compensation action,

4 effective date December 18, 2000. That says employee name,

5 Oscar Shirani, salary grade is E-4, and then it says E-4.

6 Q What is Exhibit No. 21?

7 A It says effective January 1, 2001, which is like 13

8 days after the first one and is titled as auditor, supplier

9 evaluation services principal auditor.

10 Q And does it have a different salary range?

11 A Yes, $92,500 and $94,000. This is that $1500

12 deficiency that I was talking to you about.

13 Q That you gave testimony about?

14 A Yes.

15 MR. McDERMOTT: We move, we ask that, we move that

16 Exhibits No. 19, 20 and 21 be admitted.

17 MR. GROSS: I have no objection to 20 and 21, Your

18 Honor, but I do object to 19 only to the extent that it's made

19 clear on the record that the handwriting on there was text that

20 was added by Mr. Shirani later. It's not something that was on

21 the document when received.

22 JUDGE LESNICK: Can I see that?

23 MR. McDERMOTT: Yes, Your Honor. And we would

24 stipulate that that is true, that Mr. Shirani did put that

25 notation on the exhibit originally. We did not fiddle with it,

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417

1 and the photocopy was just the way it came into my possession.

2 But his testimony is that he, it's our position in here today

3 that he received that document, the original document of which

4 that is a copy altered later, on 7th of December.

5 JUDGE LESNICK: Okay. That's all right. 19, 20, 21

6 will be admitted.

7 (Whereupon, the document referred

8 to as Complainant's Exhibit Nos.

9 19, 20 and 21 were received into

10 evidence.)

11 MR. McDERMOTT: Thank you, Judge.

12 BY MR. McDERMOTT:

13 Q I'll ask you to look at what is marked as Exhibit No.

14 26.

15 (Whereupon, the document referred

16 to as Complainant's Exhibit No.

17 26 was marked for

18 identification.)

19 A This is from John Rowe sent to Oscar Shirani on

20 Wednesday, December 20th, 2000 at 1:36 p.m. And it says,

21 "Thanks. You have a fresh opportunity with people who want to

22 see your talents rewarded. Please work very hard on the

23 personal relationships so that we all have a happy new year in

24 this regard. Congratulations again."

25 Q And who is John Rowe?

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1 A John Rowe is the CEO of Exelon.

2 Q And this is the day after you, I'm sorry, this is

3 December the 20th, correct?

4 A Yes.

5 Q Your previous testimony is you had a conversation

6 with?

7 A With Ms. Ruth Ann Gillis on the, 7:30 p.m. of

8 December 19th at my house. She called me house.

9 MR. McDERMOTT: Okay. Move to admit Exhibit No. 26.

10 JUDGE LESNICK: Any objection?

11 MR. GROSS: Only to the extent that it begins by

12 cutting off a prior e-mail. But I suspect that will come in

13 separately. The top of it is actually the continuation of a

14 chronologically later e-mail to which these were attached. So,

15 this isn't a complete document.

16 THE WITNESS: It's all the same date.

17 MR. GROSS: But I have no objection to these

18 particular portions of the e-mail, I just wanted to point that

19 out.

20 JUDGE LESNICK: All right. 26 then will be admitted.

21 (Whereupon, the document referred

22 to as Complainant's Exhibit No.

23 26 was received into evidence.)

24 BY MR. McDERMOTT:

25 Q I'll ask you to look at what's marked as

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1 Complainant's Exhibit No. 22 consisting of four pages.

2 (Whereupon, the document referred

3 to as Complainant's Exhibit No.

4 22 was marked for

5 identification.)

6 BY MR. McDERMOTT:

7 Q Can you tell the court what that is?

8 A This is a management career opportunity application,

9 management opportunity information for diversity manager

10 position in Exelon Nuclear.

11 Q All right. That's the position you gave testimony

12 about earlier this morning?

13 A Yes, I did apply for this.

14 Q And this is your particular application for this

15 position?

16 A Yes.

17 MR. McDERMOTT: Move to admit Complainant's Exhibit

18 No. 22.

19 JUDGE LESNICK: Any objection?

20 MR. GROSS: No objection.

21 JUDGE LESNICK: Admitted.

22 (Whereupon, the document referred

23 to as Complainant's Exhibit No.

24 22 was received into evidence.)

25 BY MR. McDERMOTT:

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1 Q I'll ask you to look at what we've marked as

2 Complainant's Exhibit No., is that 20?

3 A 30.

4 Q 30, I'm sorry. And can you tell the court what that

5 is?

6 (Whereupon, the document referred

7 to as Complainant's Exhibit No.

8 30 was marked for

9 identification.)

10 A That's the delegation of authority from Russ Bastyr,

11 SES manager, to Tom Joyce, NGG supply manager.

12 Q And it's dated when?

13 A This is dated May 22nd, 2000.

14 Q And Mr. Bastyr is at that time describing himself as

15 SES manager, is that correct?

16 A Right.

17 MR. McDERMOTT: Move to admit Exhibit No. 30.

18 MR. GROSS: No objection.

19 JUDGE LESNICK: 30 admitted for Complainant.

20 (Whereupon, the document referred

21 to as Complainant's Exhibit No.

22 30 was received into evidence.)

23 BY MR. McDERMOTT:

24 Q I'll ask you to look at what is marked as

25 Complainant's Exhibit No. 23 consisting of six pages.

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1 (Whereupon, the document referred

2 to as Complainant's Exhibit No.

3 23 was marked for

4 identification.)

5 BY MR. McDERMOTT:

6 Q Mr. Shirani, would you take a look at that and tell

7 the court what that is?

8 A It is six pages and it says Exelon -- system.

9 Attachment 7.1 self-nomination, and it's titled principal

10 auditor E-4. And the first thing catching my eyes, caught my

11 attention as I see this, this is not my signature.

12 Q Did you file, I'm sorry, whether this is your

13 signature or not, did you complete one of these personal or

14 self-nomination?

15 A I had to.

16 Q And did you ever have a copy of it? You yourself?

17 A No.

18 Q And this, how did this copy come into your

19 possession?

20 A We requested it from Exelon.

21 Q But I don't believe it has any of their control

22 numbers on it, does it?

23 A No.

24 Q Could that have been your copy or somebody else gave

25 you a copy of that?

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1 A I don't recall that.

2 Q Is it in substance what your, without regard to

3 whether you signed it or somebody signed your name to it, does

4 it in substance have the information that was accurate and

5 correct at that time as it applies to you?

6 A I would say some of them applies to me, Oscar

7 Shirani, Social Security, employee ID, work phone number,

8 title, principal auditor.

9 Q Well, looking at the bottom where things may have

10 been originally, I mean, is that material that could only have

11 come from you?

12 A No. I could have had that information assembled on

13 this one but I don't recall if I --

14 Q Do you know if you did write one of these self-

15 appointment nomination forms?

16 A Yes. Yes, I did.

17 Q However, is that it or is that not it?

18 A No, this is not it.

19 MR. McDERMOTT: I'm going to withdraw the exhibit

20 being identified.

21 MR. GROSS: Well, he didn't establish all -- through

22 cross-examination.

23 JUDGE LESNICK: Is that right?

24 MR. GROSS: Yes.

25 MR. McDERMOTT: Okay, fine. We'd move to admit

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1 Exhibit No. 23, six pages, Your Honor.

2 JUDGE LESNICK: No objection then?

3 MR. GROSS: No objection.

4 JUDGE LESNICK: All right.

5 BY MR. McDERMOTT:

6 Q Could you look at what's marked as Complainant's

7 Exhibit No. 17?

8 (Whereupon, the document referred

9 to as Complainant's Exhibit No.

10 17 was marked for

11 identification.)

12 JUDGE LESNICK: 23 would be admitted for Complainant.

13 (Whereupon, the document referred

14 to as Complainant's Exhibit No.

15 23 was received into evidence.)

16 THE WITNESS: Yes. This is a requisition detail and

17 it has 201302 number. The position title is a senior staff

18 auditor in the financial services area.

19 BY MR. McDERMOTT:

20 Q And on page 2, does it have minimum requirements

21 listed? Or is it listed on page 1?

22 A It's on page 1.

23 Q All right. What are the minimum requirements?

24 A Position requirements.

25 Q Is that page 2?

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1 A Page 2.

2 Q Thank you.

3 A Level of education, certification, years of

4 experience, undergraduate degree in computer science,

5 accounting, engineering, business or related field.

6 Professional affiliation, CIA, CPA, CISI. Advanced degree

7 preferred, five to eight years internal audit experience.

8 Supervisory experience a plus. Business risk assessments of

9 technical competency, business process analysis, analytical

10 skills and others.

11 Q What's the date of that document?

12 A The date of this document, according to the bottom

13 says 10/5/2001.

14 Q All right. Did you possess those requirements, those

15 minimum requirements?

16 A No.

17 MR. McDERMOTT: Move to admit Exhibit No. 17.

18 MR. GROSS: No objection.

19 JUDGE LESNICK: 17 will be admitted.

20 (Whereupon, the document referred

21 to as Complainant's Exhibit No.

22 17 was received into evidence.)

23 BY MR. McDERMOTT:

24 Q Can you look at our final exhibit, Exhibit No. 27?

25 (Whereupon, the document referred

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1 to as Complainant's Exhibit No.

2 27 was marked for

3 identification.)

4 A Yes.

5 Q Can you tell the court what that is?

6 A From the top to bottom?

7 Q Just summarize what it is.

8 A Its subject is your congratulation note to me last

9 year sent from Ellen Caya to her secretary, Washington --

10 Washington. Important, high. The next one is from Assir

11 DaSilva to Gillis, Caya and Martha Garza, importance high,

12 within two, three hours. And the next one is from Oscar

13 Shirani to John Rowe, October 30th, 2000 at 12:44 which is six

14 minutes before the top one.

15 Q All right. Just in summarizing the content of your

16 e-mail, what was the purpose of your e-mail?

17 A The purpose of this one, I wanted to remind Mr. John

18 Rowe about the December 20th of 2000 congratulation notes,

19 three messages that he sent me, congratulations, now you're

20 going to be among the members. I wanted to know that what kind

21 of talent I would have been recognized that they wanted just to

22 bring me back here and just dump me. That's the bottom line it

23 says in here. I am describing that that was all planned.

24 Ruth Ann Gillis never described these requirements.

25 They are even bringing, you know, I couldn't even apply for

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1 lower positions. And I am saying that I believe Ruth Ann

2 Gillis had to satisfy certain individuals within nuclear to get

3 me out. And even before this, I was trying to even contact

4 Ms. Ruth Ann Gillis before I even go for the interview and

5 Ms. Ruth Ann Gillis never returned my calls.

6 MR. McDERMOTT: I'd like to move to admit

7 Complainant's Exhibit No. 27.

8 JUDGE LESNICK: Any objection?

9 MR. GROSS: No objection, Your Honor, but I would

10 like to note for the record that the predecessor e-mail I

11 indicated had been cut off in 26 is in fact in 27.

12 JUDGE LESNICK: It's all in here.

13 MR. GROSS: 26 is also in 27 actually.

14 JUDGE LESNICK: All right. Admitted.

15 (Whereupon, the document referred

16 to as Complainant's Exhibit No.

17 27 was received into evidence.)

18 MR. McDERMOTT: And finally, I know, for some reason,

19 I have a very similar -- our Exhibit No. 4 is still up here.

20 I'm not sure why all the rest of these are still up here. I

21 believe I've offered them all into evidence.

22 JUDGE LESNICK: What numbers are they?

23 MR. McDERMOTT: They're numbers 32, 9, 7, 6, 5, 12,

24 11 and 8.

25 JUDGE LESNICK: Go a little slower. Court reporter,

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1 do you know if we have those, repeat the numbers.

2 MR. McDERMOTT: The exhibit numbers are 32, 9, 7, 6,

3 5, 12, 11 and 8.

4 JUDGE LESNICK: Okay. Off the record.

5 (Off the record at 1:34 p.m.)

6 (On the record at 1:37 p.m.)

7 JUDGE LESNICK: Back on the record. All those

8 exhibits that you've just referenced, Mr. McDermott --

9 MR. McDERMOTT: Yes -- I'm satisfied. I think that

10 the matter is that I had to use them with a subsequent witness

11 and -- bringing them back. And I'll tender my client for

12 cross-examination at this time.

13 JUDGE LESNICK: Before you do this, let me ask two

14 things here. Either counsel, on the exhibit marked

15 Complainant's 15, I just note that at the top of the second

16 page and then again at the top of the third page, there are

17 just a few lines that are in different type. Is there a reason

18 for that or how does that happen?

19 MR. McDERMOTT: That's why the --

20 JUDGE LESNICK: It's different type format.

21 MR. GROSS: It's probably the printer, just the way

22 it printed out.

23 MR. McDERMOTT: Is it their control number? If it

24 isn't, then it's something I'm going to have to explain.

25 JUDGE LESNICK: All right. You can look at it. If

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1 you just flip back to the top of the second page, the type font

2 is entirely different.

3 MR. McDERMOTT: Yes, it is.

4 JUDGE LESNICK: And I just wondered if there's a

5 reason for that. You just -- printer.

6 MR. GROSS: But that's not, yes, I think he produced

7 that.

8 MR. McDERMOTT: Right. My client had this from that

9 period of time, I believe. He does not recall.

10 THE WITNESS: This is the copy from the PIF system.

11 BY MR. McDERMOTT:

12 Q This is, you accessed the PIF system?

13 A Yes. If they go and put and this number, they could

14 pull that record.

15 Q And this is the printer you had available to --

16 A I don't know if it's my printer or not, I had a copy

17 of this. But it's coming from ComEd system so they can trace

18 it back to the original.

19 Q I know, because it's difficult to read. I remember

20 it very well. And it is difficult to read.

21 JUDGE LESNICK: Okay. I just wanted to be sure while

22 we're asking the question. Also, in regard to this Exhibit 23,

23 and again, Mr. Shirani couldn't identify, but I guess it's by

24 agreement that it's in the record.

25 MR. McDERMOTT: Correct.

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1 JUDGE LESNICK: And --

2 MR. GROSS: If I can explain, Your Honor?

3 JUDGE LESNICK: Can you? Okay.

4 MR. GROSS: I was going to introduce that on cross-

5 examination of Mr. Shirani, but he did during the deposition

6 indicate that even though he didn't recognize the signature on

7 the first page, what is after the first page is what he

8 actually submitted as his application.

9 JUDGE LESNICK: Was it copied over or is this -- do

10 we -- or is this an actual document?

11 MR. GROSS: That's it. That's it.

12 JUDGE LESNICK: Okay. Now, attached is your resume?

13 THE WITNESS: One my resumes. I don't know the date

14 of the resume because I had different resumes at different

15 times with a different focus for the job applications.

16 JUDGE LESNICK: Okay.

17 MR. GROSS: I'm not going -- stipulate that is the

18 actual --

19 JUDGE LESNICK: Okay, all right.

20 MR. GROSS: We'll stipulate that that is the

21 application that Mr. Shirani submitted for that position at

22 that time.

23 MR. McDERMOTT: That, and that is my recollection of

24 Mr. Shirani's testimony in his deposition because it was

25 produced and it's one of your exhibits for the purposes of

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1 discovery. And we noticed that particular problem with it.

2 MR. GROSS: Right.

3 MR. McDERMOTT: I guess coming from Exelon, they may

4 have just grabbed the wrong one or destroyed the right one or

5 some sort of way.

6 MR. GROSS: They certainly didn't destroy anything.

7 MR. McDERMOTT: I didn't say they did.

8 JUDGE LESNICK: All right. And Mr. Shirani, your

9 Bachelor's is from West Virginia University?

10 THE WITNESS: Yes.

11 JUDGE LESNICK: I just note by looking at your

12 resume, it indicates Montgomery, West Virginia.

13 THE WITNESS: Yes.

14 JUDGE LESNICK: My recollection is that university is

15 in Morgantown, West Virginia.

16 THE WITNESS: The West Virginia Institute of

17 Technology at the time had merged with the University of West

18 Virginia. And now, the West Virginia, WIT does not exist

19 officially. It's now West Virginia University. One of the

20 campus of the Morgantown.

21 JUDGE LESNICK: I see. It is in Montgomery, West

22 Virginia.

23 THE WITNESS: Yes.

24 JUDGE LESNICK: All right. Okay, thank you.

25 Mr. Gross?

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1 MR. GROSS: In that vein, on exhibits, I do want to

2 also put something in the record, Your Honor. There are two

3 Complainant's Exhibits that I want to put in page numbers so

4 that the record reflects what's in them. Complainant's Exhibit

5 4 is a series of documents that we've been calling --

6 MR. McDERMOTT: Is this the audit?

7 MR. GROSS: For short, the audit. It's actually all

8 kinds of documents related to the audit. Mr. Reese Bergen has

9 gone through them and we can give these five groups of numbers

10 that will reflect what is in this document, so I'd like to read

11 those in the record.

12 JUDGE LESNICK: Okay. Please do that.

13 MR. GROSS: Complainant's Exhibit 4 consists of

14 documents that were Bates labeled ERA-1384 to 1389, 1391 to

15 1636, 1642 to 1819, 1826 to 1830 and 1832 to 1993. And

16 similarly, Complainant's Exhibit 29 actually consists of 29-A

17 through 29-E and those document numbers are all --

18 JUDGE LESNICK: Well, it was first identified as

19 ComEd's PID's --

20 MR. GROSS: Right.

21 JUDGE LESNICK: -- from 93 and 95 or a collection of

22 the -- proceed.

23 MR. GROSS: Right. And all of the documents in

24 Complainant's Exhibit 29-A through 29-E fall within production

25 numbers ERA-94 to 1383.

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1 JUDGE LESNICK: Okay. Now, I have my own question

2 before I take those two documents with me is that both of them,

3 the two you just identified, have a number of yellow sticky

4 tabs on them. Who put those on there?

5 MR. McDERMOTT: They should be removed --

6 JUDGE LESNICK: All right. Okay. That's all, that

7 answers my question. Otherwise, we'd have to account for them,

8 so we'll just have them removed from the official record. All

9 right. Proceed, Mr. Gross.

10 CROSS EXAMINATION

11 BY MR. GROSS:

12 Q Mr. Shirani, I'd like to get some clarification on

13 who you worked for and when your jobs changed. Prior to the

14 merger that created Exelon in October of 2000, you were

15 employed by Commonwealth Edison Company or ComEd, is that

16 correct?

17 A Prior to October --

18 Q Prior to the merger in October of 2000 that created

19 Exelon, you were employed prior to that with ComEd?

20 A Yes.

21 Q And then, after the merger while you were still in

22 nuclear, you were employed by Exelon Generation Company?

23 A Yes.

24 Q And then, in January of 2001, when you switched over

25 to internal audit, you were employed by Exelon Business

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1 Services Company or BSC for short?

2 A Yes.

3 Q And then, you remained employed with BSC up to the

4 termination in December of 2001?

5 A Yes.

6 Q During the time period you were an auditor of

7 nuclear, with respect to your duties as to audits, those duties

8 pretty much remained the same from when you first became the

9 quality administrator in 1996 up through January 2001, is that

10 correct?

11 A Yes.

12 Q You indicated that they were --

13 MR. McDERMOTT: I'm going to interpose an objection.

14 Is it '94 or '96 that he becomes a quality administrator?

15 MR. GROSS: I believe it's 1996.

16 BY MR. GROSS:

17 Q That's correct, right?

18 A 1996, January 1996, I became the quality assurance

19 administrator, promotion to level 9, yes.

20 Q Okay. And again, from that point until January 2001

21 when you went to internal audit, your duties with respect to

22 audits pretty much remained the same?

23 A Duties, yes.

24 Q Now, you also indicated that there were periods of

25 time during those years when you were given additional

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1 responsibilities?

2 A Yes.

3 Q And during that time, at any time between May of '96

4 to January of 2001, did the quality of your audits suffer in

5 any way because of these additional duties your received?

6 A Not mine.

7 Q Do you believe that you still did a thorough complete

8 audit throughout that time despite these other additional

9 duties?

10 A The portions which I prepared remained the same. But

11 the portion of the management review, I cannot say remained the

12 same.

13 Q I'm asking you just about your audit work.

14 A My audit work remained the same.

15 Q You were still able to do a good job as an auditor?

16 A Because I was committed to 10 C.F.R., yes.

17 Q Mr. Bastyr became your direct supervisor, setting

18 aside his exact title, he became your direct supervisor when he

19 replaced Paul Zurowski?

20 A Yes.

21 Q And that was in about September of 1997?

22 A About that time frame, yes.

23 Q Do you think Mr. Bastyr considered you a good

24 auditor?

25 A Yes.

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1 Q In fact, he frequently told you he considered you to

2 be a good auditor, did he not?

3 A Frequently, he told me I am his best auditor.

4 Q Did he sometimes send your audits to the NRC?

5 A Yes.

6 Q Do you know on how many occasions he did that?

7 A I would say two or three years on a row.

8 Q I'm sorry?

9 A Two to three years on a row, like 1998, '99 and 2000.

10 Q Mr. Bastyr, as your supervisor, reviewed the audit

11 reports that you prepared, correct?

12 A Yes.

13 Q And with the exception of some word editing, set that

14 aside if there was some word editing, with the exception of

15 that, did he approve every single audit report that you gave

16 him?

17 A I believe so, yes.

18 Q Did he approve every single finding you made in every

19 audit you performed while you were under his supervision?

20 A As of face value, yes.

21 Q As of face value meaning he signed it as approved?

22 A He signed it as approved but the impact of that, he

23 did not accept it with the impact of those. So, once it goes

24 to his signature, I would not have no control of what he asked

25 because he's my supervisor. The portions which I'd given to

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1 him, I'm responsible for that. The end product once it comes

2 out of his signature, I don't have no say-so.

3 Q You're not aware of any finding you made at an audit

4 that Mr. Bastyr did not approve, are you?

5 A As of face value, he approved every one of them.

6 Q The General Electric audit that you referred to that

7 occurred in 1997, you were the lead auditor on that, correct?

8 A Yes.

9 Q And isn't it true that after that audit, you became

10 the lead auditor on ComEd's problem vendors?

11 A Mostly, yes.

12 Q And those problem vendors were essentially vendors

13 for which there were more frequent production and QA, quality

14 of product issues than any other vendor that ComEd had?

15 A Most essential services and products related to the

16 operation and design of the power plants, yes.

17 Q And those problem vendors included GE?

18 A Yes.

19 Q U.S. Tool and Die?

20 A Yes.

21 Q Sargent & Lundy?

22 A Yes.

23 Q And Holtec?

24 A Yes.

25 Q And you remained responsible for all those problem

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1 vendors up through January of 2001 before you went to internal

2 audit, isn't that correct?

3 A As an individual contributor, yes. But as to overall

4 impact, I don't have no control what the final product looks

5 like, so I have to clarify that.

6 Q Okay, I understand that. But you remained the lead

7 auditor for all of those vendors up until January 2001?

8 A Yes.

9 Q And when you said as an individual contributor, is

10 that a term in the business or in the --

11 A Individual contributor means that I'm not titled

12 supervisor. I may supervise the audit team members and the

13 subject matter team experts who worked here in my audit, but I

14 did not have an official title from the company as a manager.

15 Q Now, you also, we also talked in your deposition

16 about major vendors as opposed to problem vendors. Do you

17 recall that?

18 A Yes.

19 Q And major vendors are vendors that provide product

20 that's most important to the operation and design of nuclear

21 power plants, is that correct?

22 A Yes.

23 Q And some of the major vendors that ComEd has are GE,

24 Sargent & Lundy, Bechtel, Stone & Webster, Holtec and GES

25 Associates, is that correct?

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1 A GES Associates.

2 Q And you remained the auditor responsible for all of

3 those major vendors I listed throughout your tenure up until

4 January 2001, isn't that correct?

5 A As an individual contributor, yes, sir.

6 Q Did you have unescorted access to any power plants?

7 A Yes.

8 Q And can you tell me what years you had that, to the

9 best of your recollection?

10 A At the power plants of ComEd or outside?

11 Q Just at ComEd, and then Exelon Nuclear.

12 A I believe I had unescorted access to all the nuclear

13 sites.

14 Q And was that at all points from at least 1996 through

15 January 2001?

16 A No, because some of them, if you did not visit for

17 that certain time, they could make it inactive. Depends on,

18 the regulations constantly changes. Right now, I hear that if

19 you don't show up less than 30 days, they pull your badge. But

20 I don't know, it depends on the time period. I am not in

21 control of that.

22 Q Did you have to go through what's been called NGET,

23 N-G-E-T, training during your tenure as an auditor in nuclear?

24 A Yes. That's required, yes.

25 Q And that was how frequently? Every year?

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1 A Every year.

2 Q And you did participate in that training every year

3 while you were an auditor in nuclear?

4 A Yes.

5 Q Directing your attention to the Holtec audits, I

6 believe you said there was an audit of Holtec in March and then

7 in May?

8 A Yes.

9 Q And you were an auditor on that?

10 A Yes.

11 Q And you were part of the team that was led by

12 Southern Nuclear, a separate utility?

13 A Yes.

14 Q Upon the completion of that audit, you reported your

15 findings to Mr. Bastyr, is that correct?

16 A Yes.

17 Q And you told Mr. Bastyr, I believe, in direct

18 testimony you told us, let me start again. I believe on direct

19 testimony you testified that you informed Mr. Bastyr that you

20 believe something should be done with Holtec's or U.S. Tool and

21 Die's production. Is that correct or am I wrong?

22 A The U.S. Tool and Die is June-July time frame, but I

23 think you were reading from March and May which is not U.S.

24 Tool and Die.

25 Q Just Holtec?

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440

1 A It's Holtec/Omni.

2 Q My mistake.

3 A Yes.

4 Q And your recommendation to Mr. Bastyr was that

5 something should be done, possibly a stop work order on their

6 production?

7 A Yes.

8 Q And the individual at Dresden Station you talked to,

9 do you recall that person's name? Subsequent to your

10 conversation with Mr. Bastyr?

11 A Generally, Nate Leech. Nathan Leech, Ben Christel

12 from engineering. Nathan Leech was the manager of the dry

13 cask. Paul Planning (ph.) was the director of the dry cask.

14 And sometimes Mr. Joe Reiss, he was the engineering manager.

15 Engineering, sorry about that.

16 Q And you also notified an individual named Dennis

17 Winchester?

18 A Dennis Winchester was on the quality assurance side

19 of the house.

20 Q Is that the left or right in the equation?

21 A To the best of my knowledge, to the last point that I

22 knew Dennis Winchester, he was on the right side of the

23 equation.

24 Q That's with the nuclear oversight?

25 A Right.

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441

1 Q After then, you came back to Mr. Bastyr?

2 A Yes.

3 Q And you recommended that you will tell Holtec either

4 you stop your work, Holtec, within 24 hours or we will?

5 A Yes.

6 Q And then, Mr. Bastyr did not disagree with your

7 recommendation at that point?

8 A He signed the PIF.

9 Q So, he did not disagree with the recommendation?

10 A Originally, I'm not sure. But eventually he agreed.

11 Q Okay. Let me give you Respondent's exhibits to refer

12 to. Could you please turn to Exhibit 36? Respondent's Exhibit

13 36.

14 (Whereupon, the document referred

15 to as Respondent's Exhibit No. 36

16 was marked for identification.)

17 BY MR. GROSS:

18 Q This is the letter to Holtec from you directing

19 Holtec to stop their production, is that correct?

20 A I believe so.

21 Q I'm sorry. Let me restate that. This is a letter

22 from Holtec back to you acknowledging that Holtec will honor

23 your request to stop work, is that correct?

24 A Yes.

25 MR. GROSS: Move to admit Exhibit 36.

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442

1 MR. McDERMOTT: No objection.

2 JUDGE LESNICK: Accepted.

3 (Whereupon, the document referred

4 to as Respondent's Exhibit No. 36

5 was received into evidence.)

6 BY MR. GROSS:

7 Q If you could turn now to what's been marked as

8 Respondent's Exhibit 16 which for the record is already in the

9 record as Complainant's Exhibit 15.

10 (Whereupon, the document referred

11 to as Respondent's Exhibit No. 16

12 was marked for identification.)

13 BY MR. GROSS:

14 Q This is the problem identification form that you

15 filled out recommending that Holtec be directed to stop work,

16 correct?

17 A Yes, sir.

18 Q This is the problem identification form that

19 Mr. Bastyr signed?

20 A Yes.

21 Q If you can now turn to Exhibit 38, which relates to

22 the U.S. Tool and Die audit.

23 (Whereupon, the document referred

24 to as Respondent's Exhibit No. 38

25 was marked for identification.)

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443

1 BY MR. GROSS:

2 Q And this Exhibit 38 is the letter that you sent to

3 U.S. Tool and Die on August 4th, 2000 with the audit report,

4 correct?

5 A Yes.

6 MR. GROSS: I'm going to ask that Respondent's

7 Exhibit 38 be admitted into the record.

8 JUDGE LESNICK: Any objection?

9 MR. McDERMOTT: No objection, Judge.

10 JUDGE LESNICK: 38 will be admitted.

11 (Whereupon, the document referred

12 to as Respondent's Exhibit No. 38

13 was received into evidence.)

14 BY MR. GROSS:

15 Q Now, you said that you made a recommendation to

16 Mr. Bastyr about potentially stopping U.S. Tool and Die's work,

17 correct?

18 A Yes.

19 Q You did not tell Mr. Bastyr that you believed a stop

20 work order should issue with U.S. Tool and Die, is that

21 correct?

22 A I believe I said we should do something including, up

23 and including stop work.

24 Q And do you believe anything was done pursuant to that

25 recommendation?

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444

1 A No.

2 Q Did you express any concern regarding Mr. Bastyr's

3 decision not to take further action to anyone else?

4 A He is the only manager that I report to. His boss is

5 not dealing with the audits. That's the only authority that I

6 had above me and I told him.

7 Q You never went to Tom Joyce, Mr. Bastyr's boss, to

8 tell Mr. Joyce that you believed something should be done, that

9 Mr. Bastyr has not done?

10 A He would have not understood it anyway.

11 Q He would not understand because?

12 A He is not on the QA side of the house. He's been,

13 all his life, he's been on the left side of the equation.

14 Q So, you're assuming he would not understand?

15 A My responsibility that came from SES, it came with

16 Russ Bastyr to Tom Joyce. Tom Joyce did not have an QA

17 responsibility in the past, so the only authority above me was

18 Mr. Bastyr.

19 Q You did not state in any PIF or correction action

20 report that a stop work order should issue directed to Holtec

21 or U.S. Tool and Die as a result of the audit reflected in

22 Exhibit 38?

23 A If he agreed, then the PIF would have been generated

24 because PIF, it would not be a PIF if he does not approve it.

25 So, if this, he disagrees that this is going to be stop work,

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445

1 then it would not constitute any PIF.

2 Q All right. I'm only asking you if you yourself ever

3 filed a PIF or a corrective action report stating that a stop

4 work order or some other action that hadn't been taken should

5 be taken against Holtec or U.S. Tool and Die as a result of the

6 audit reflected in Respondent's Exhibit 38.

7 A Again, as I mentioned before, PIF is the cover page

8 for the CAR. I have issued all my nine CAR's. My obligation

9 that I have met the 10 C.F.R., CAR is issued, the rest is, if

10 he does not agree the PIF will be signed, it would not be a

11 PIF. But the CAR, the only thing I can commit to the Code is I

12 write the CAR which I did.

13 Q I understand you write the CAR.

14 A -- if he does not agree to make it a finding, it's

15 not my responsibility. That's going to be his responsibility

16 to the Code and then if he makes any judgment of being not part

17 of the audit that these nine findings closed here in the audit,

18 that's his call. I'm not making that call.

19 Q And Mr. Shirani, I didn't ask you about the nine

20 findings. I asked you specifically if in any CAR or corrective

21 action report or PIF, did you ever write that a stop work order

22 should issue against Holtec or U.S. Tool and Die because of the

23 audit of U.S. Tool and Die?

24 A PIF is not a requirement of the NRC.

25 Q I'm not asking if it was required or not. I'm just

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446

1 asking if you did it.

2 A No, I didn't.

3 Q Thank you. Now, you believe, do you not, that you

4 had the authority to issue a stop work order unilaterally as a

5 result of the order, is that correct?

6 A And I paid a big price for it, so I did not practice

7 it anymore.

8 Q You believed you had that authority though, correct?

9 A Yes.

10 Q And you did not exercise that authority in the

11 context of the U.S. Tool and Die audit, is that correct?

12 A Because the last manager who approved it was Edward

13 Netzel, he bought into it. My new manager did not buy into it,

14 so he would not go beyond the individual contributor. It's

15 going to go to the management. The management --

16 JUDGE LESNICK: Mr. Shirani, I think you have to try

17 to answer his questions. If Mr. McDermott wants to ask you

18 more questions, he can. But we're going to be a long time if

19 you argue with him on every one. I mean, you're telling your

20 side of the study, I understand, but he has the right to just

21 ask you questions.

22 THE WITNESS: Yes, sir.

23 JUDGE LESNICK: Just give an answer. Mr. McDermott

24 has the fine job of having you put in what you want.

25 THE WITNESS: Yes, sir.

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447

1 JUDGE LESNICK: Go ahead, Mr. Gross.

2 BY MR. GROSS:

3 Q Mr. Shirani, could you turn to Respondent's Exhibit

4 15?

5 (Whereupon, the document referred

6 to as Respondent's Exhibit No. 15

7 was marked for identification.)

8 BY MR. GROSS:

9 Q And Respondent's Exhibit 15 is a letter that you sent

10 to U.S. Tool and Die on October 19th, 2000, correct?

11 A Yes.

12 Q And when you sent this letter, you agreed with its

13 contents, correct?

14 A I did my portion as prepared. "Roger Gillenwater

15 will perform the follow up of your corrective action," is not

16 my decision. It's my supervisor's decision.

17 Q But everything else in this letter you agreed with?

18 A Yes.

19 MR. GROSS: Move to admit Respondent's Exhibit 15.

20 JUDGE LESNICK: Any objection?

21 MR. McDERMOTT: No objection, Judge, with the

22 understanding that it's clarified that, and I think we've heard

23 enough, there are certain decisions that the supervisor makes

24 and there are certain decisions the auditor makes.

25 JUDGE LESNICK: Okay.

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448

1 BY MR. GROSS:

2 Q With respect to the U.S. Tool and Die audit,

3 directing your --

4 JUDGE LESNICK: Excuse me. Respondent's 15 will be

5 accepted.

6 (Whereupon, the document referred

7 to as Respondent's Exhibit No. 15

8 was received into evidence.)

9 BY MR. GROSS:

10 Q Turning now to the November 30th, 2000 meeting

11 regarding the Holtec matters, the meeting at which you had a

12 conversation with Mr. Landsman.

13 A Yes, November?

14 Q You indicated that you decided to talk or speak at

15 that meeting because someone had made misrepresentations about

16 how U.S. Tool and Die had improved in certain areas.

17 A Yes.

18 Q And those areas related to welding processes?

19 A One of them.

20 Q And it was your understanding that someone at U.S.

21 Tool and Die had misrepresented how much U.S. Tool and Die had

22 improved relating to welding processes?

23 A Yes.

24 Q And you believed that was a false statement that was

25 made?

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449

1 A Yes.

2 Q And you believed that it was false because some of

3 the findings you had made during the U.S. Tool and Die audit

4 were still open?

5 A Yes.

6 Q You had not been at U.S. Tool and Die since the audit

7 exit meeting on July 7th, 2000, correct?

8 A Yes.

9 Q And you did not have any information about what U.S.

10 Tool and Die had actually done since July 7th, 2000 to improve

11 the welding processes?

12 A That's not correct.

13 Q What information did you have?

14 A Mr. Tony Frazier who was the resident inspector of

15 ComEd involved with the fabrication, he sends me reports,

16 telephone calls to me, reports bi-weekly, weekly telephone

17 calls, and he informs me about the same repeated problems. And

18 it was not only his word, it was the industry that was

19 repeating the same problems that Tony Frazier was right. So,

20 his information was accurate.

21 Q And you felt that U.S. Tool and Die was not

22 acknowledging your audit findings at that conference, correct?

23 A No, I'm not saying they did not acknowledge me.

24 Q That they were not acknowledging that your findings

25 required certain improvements?

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450

1 A They were not talking about my findings.

2 Q And you were concerned that U.S. Tool and Die had not

3 improved in certain areas as they were representing they had?

4 A Yes.

5 Q The first time you had any conversation with anyone

6 from the NRC about the U.S. Tool and Die audit was on November

7 30th, 2000, correct?

8 A I believe so.

9 Q And that's when Mr. Landsman approached you to

10 discuss it and asked for a copy?

11 A Yes.

12 Q Now, jumping back to the GE audit in August of 1997,

13 during the audit, a lot of disagreement came up between

14 yourself and the GE staff about a number of issues, isn't that

15 correct?

16 A Yes.

17 Q And in fact, from the first day, there were issues

18 relating to the GE staff not providing you with documentation

19 that you had requested?

20 A Yes.

21 Q And disagreements also came up during that entire

22 week regarding your concern that GE was not providing you with

23 documentation as quickly as you felt you needed it, correct?

24 A That was not a matter of speed. That was a matter of

25 non-existence.

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451

1 Q Non-existence?

2 A At the time that we agreed from three months in

3 advance with a payment of $5,000, they were supposed to have it

4 ready, available for our review because I didn't want to waste

5 time.

6 Q And you felt that they were not making it available

7 to you as quickly as you wanted it made available, is that

8 correct?

9 A It was not, yes.

10 Q I'm sorry?

11 A It was not available, as quickly is included.

12 Q I just want to understand that.

13 A Yes.

14 Q Not only did they not give you documents you felt you

15 needed, but they also took too much time to get you some of

16 them?

17 A Yes, sir.

18 Q Again, during the audit itself before the exit

19 meeting, there were confrontations with GE management about the

20 findings you were making relating to calculations, isn't that

21 correct?

22 A Yes.

23 Q And you believed during that week that Bob Nicholls,

24 the QA manager of GE was in total denial?

25 A Yes.

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452

1 Q Total denial of the audit, your findings or both?

2 A Both.

3 Q And at the daily briefings, you did not like how GE

4 managers questioned your findings up to that point, isn't that

5 true?

6 A That's not true.

7 Q That's not true? You did not have any problem with

8 the manner in which they disputed your findings during the

9 daily debriefings?

10 A Always, my goal was to give opportunity to let them

11 defend themselves, and if the arrangement is we are convinced

12 that the calculation at its existing stage still is acceptable

13 with the Code, it's not a matter of personal opinion of one

14 engineer versus the other, because there are different

15 techniques and different methods that one engineer approaches

16 the other one. The Code says you could verify the design by an

17 alternate method if you disagree with the method -- but if the

18 alternate method comes up with the same result, then you will

19 say there is no issue.

20 But every single finding, we knew that the

21 calculation is inaccurate, the methodology is inaccurate,

22 design input was not reviewed and approved. We didn't know the

23 source of the input. It was multiple Code violations in each

24 single calculation.

25 Q And you informed GE management during the week of the

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453

1 audit before the exit meeting about these findings at the daily

2 briefings?

3 A Yes.

4 Q And they disagreed with your findings?

5 A They disagreed with some of them.

6 Q Okay. Some of them.

7 A Yes.

8 Q The first interaction you had with Mr. Helwig

9 relating to the audit was at the exit meeting?

10 A Yes.

11 Q And you testified as to certain things that were said

12 at the meeting. I only want to ask you about a couple.

13 Mr. Helwig did agree with you at that audit exit meeting that

14 there were problems and GE needed improvements, did he not?

15 A Toward the end.

16 Q Toward the end but he did agree with you?

17 A Yes.

18 Q He disagreed with some of your, he disagreed with

19 your contention that the findings you made rose to the official

20 level of findings, isn't that true?

21 A Can you repeat the question? I don't understand the

22 question.

23 Q Okay. I'll go the other way. He acknowledged that

24 there were deficiencies in GE's calculations when he talked to

25 you at that exit meeting, correct?

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454

1 A To some extent.

2 Q Okay. But he disagreed with you that those

3 deficiencies rise to the level of an official "finding," didn't

4 he?

5 A Yes.

6 Q Now, you said that the audit report that you prepared

7 was massaged before it was issued.

8 A Yes.

9 Q And did you believe it was massaged by Ed Netzel?

10 A I saw his signature. I don't know who Ed Netzel

11 communicates behind the scene. I don't know.

12 Q So, you don't know who "massaged" them?

13 A No.

14 Q And when you say massage, do you mean the findings

15 did not get reported in the final report in the way you felt

16 they should be reported?

17 A It's not the way I feel it should be reported. The

18 level 1, level 2, level 3 is all explained in the quality

19 assurance program of ComEd with the procedures. They are the

20 ones who title these level 1, level 2, level 3. And I included

21 it in my audit report and explained exactly what it meant. So,

22 also the Code says if you come up with a deficiency, you have

23 to come up with the impact statement to see how this could

24 impact the design, operation or if the state of the stress, for

25 example, is indeterminate, that's the impact statement.

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455

1 The impact statement has to follow especially

2 significant issues because you don't just write a finding for

3 fun. You just write a finding to make sure you meet the Code.

4 And if you're in violation, what it's going to impact on your

5 plant operation and design.

6 Q And the final audit report that was issued from your

7 GE audit violated the Code, in your view?

8 A Violated all the 10 C.F.R. 50 Appendix B and C and

9 45211, and it's all described in each finding. This is a

10 description. There could be a violation of not only the ANSI

11 standard, not only the 10 C.F.R., but also to the applicable

12 procedures and quality assurance manual of the vendors.

13 Q I'm not asking you about GE's violating anything in

14 their program. I'm asking about the audit report itself. You

15 said the audit report that you presented was massaged before it

16 was finally approved, correct? Is that correct?

17 A Audit findings were massaged.

18 Q The audit findings themselves were massaged.

19 A Yes.

20 Q Was the manner in which they were massaged itself a

21 violation of the Code?

22 A Yes.

23 Q And you do not know whether it was Ed Netzel or

24 someone else in the organization who violated the Code by

25 making those massage?

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456

1 A I only can assume Ed Netzel because he signed it.

2 Q Do you know what the date of the audit report was for

3 GE?

4 A The exit usually will take about a month or 20

5 working days to write it. So, if I see the exhibit, I would be

6 able to identify the date.

7 Q And I take it then you don't believe there's even any

8 room for disagreement on how those findings you made in that GE

9 audit should be presented in the audit report? It's either do

10 it the way you said or it's a violation, is that correct?

11 A No, that's not true.

12 Q Okay. So, the way it was done and massaged you

13 believe was a violation of the Code?

14 A Yes.

15 Q Did you file a PIF or a corrective action report to

16 report that management had violated the Code by massaging your

17 findings?

18 A Maybe the PIF did not exist at that time. It depends

19 on --

20 Q Or any equivalent, did you write any corrective

21 action document or submit any complaint to anyone that

22 management had violated the Code by massaging your audit

23 findings before the final report was issued?

24 A I did not see the final audit report because once I

25 give the audit as the individual contributor, I don't know how

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457

1 the end product which is submitted from your management to the

2 outside, I cannot attest to the validity of that.

3 Q How long after you submitted your draft audit report

4 did you see the final report that was approved?

5 A If I am on the distribution of the audit report and I

6 would have a copy of it, then I would tell you exactly. But I

7 cannot give you a general --

8 Q You don't know how long it was, a day, a month, a

9 week, a year?

10 A Usually, the expectation was 20 working days to issue

11 the audit report.

12 Q But you did ultimately see the final GE audit report?

13 A Yes.

14 Q And at any time after you saw it, did you file a

15 corrective action report or make any complaint internal to

16 ComEd raising the issue that the final audit report had

17 findings that violated the Code?

18 A The stop work order was a result of those 13 CAR's.

19 Q The stop work order was directed at GE. I am

20 focusing on the massaged findings that management at ComEd did

21 that you contend is a violation of the Code. Did you file any

22 internal complaint raising that issue?

23 A No.

24 Q If you could turn to what's marked as Respondent's

25 Exhibit 39 which is in the record as Complainant's Exhibit 5.

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458

1 This is the letter to GE informing them of the stop work order,

2 correct?

3 A Correct.

4 Q And the terms of the stop work order are reflected in

5 the two bullet points on the first page of Complainant's

6 Exhibit 5, correct?

7 A The way it says here, yes.

8 Q And the first bullet only requires that GENE not

9 begin new work, correct?

10 A That's what it says here.

11 Q Well, is your understanding of what the stop work

12 order was any different from what's contained in the August

13 29th, '97 letter?

14 A As you see on the second page, I never saw this.

15 They never included me on the cc and that's why I made that

16 complaint. Why not Oscar Shirani who did the job? So, I don't

17 have no control, that's why I keep saying individual

18 contributor, I'm responsible for that personally.

19 Q If you could turn to what had been marked as

20 Respondent's Exhibit 30 which for the record is in the record

21 as Complainant's Exhibit 9. This is the document that was sent

22 to GE lifting the stop work order, correct?

23 A Yes.

24 Q And the effective date of the lifting of the stop

25 work order was November 19th, 1997, correct?

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459

1 A Yes.

2 Q The date of this letter?

3 A Yes.

4 Q If you could turn now to Respondent's Exhibit 40

5 which is in the record as Complainant's Exhibit 12?

6 (Whereupon, the document referred

7 to as Respondent's Exhibit No. 40

8 was marked for identification.)

9 BY MR. GROSS:

10 Q This is your report to GE of the final result of the

11 follow up audit of GE, correct?

12 A Yes, sir.

13 Q And you led that follow up audit?

14 A Yes.

15 Q And you were assigned by Mr. Bastyr to do that follow

16 up audit?

17 A Yes.

18 Q Did you do a thorough follow up audit interview?

19 A To the extent the resources provided to me, the

20 resources was less than the resources that we applied at the

21 beginning. I was, I couldn't do nothing about it, I had to

22 live with what I got.

23 Q Now, you found in your follow up audit that GENE had

24 made significant improvements in their program, correct?

25 A To the extent of the samples we chose, yes. We did

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460

1 not choose all the samples. We did not include a lot of other

2 important activities. I wanted to know the power operate. I

3 was excluded. That was not part of this. To the samples that

4 the three managers that ComEd sent with this audit, based on

5 their technical subject matter review, I had to accept them

6 because I knew they're with engineering background even though

7 they were managers.

8 That was not to the level to the original design. I

9 requested the same people, only one of those five auditors that

10 I took, the subject matter experts, only one of them was the

11 same. The other two, they were manager levels.

12 Q Between June 15th, 1999 and the date you went to work

13 in internal audit in January of 2001, did you ever complain to

14 Mr. Bastyr's supervisors that their follow up audit did not

15 audit everything that should have been?

16 A Mr. Bastyr was the alternate supervisor that I had

17 related to the 10 C.F.R.

18 Q The answer is no then, you did not?

19 A No, I did not.

20 Q And did you file any corrective action report or any

21 internal complaint reflecting your concern that the follow up

22 audit of GE did not audit everything you believe should have

23 been audited?

24 A You do not write CAR over CAR. My CAR is already

25 there.

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461

1 Q Did you include in any car or any other internal

2 complaint this issue that you felt --

3 A No, that is, you don't write one CAR over the other

4 CAR. So, I did not issue another CAR on top of the CAR.

5 Q And in the initial, the only CAR you did relating to

6 this audit, you did not raise the concern that you felt this

7 follow up audit did not audit everything that should have been

8 audited?

9 A That's true.

10 Q Now, you also mentioned you were on another audit

11 team of GE in, I believe, September and October of 1998?

12 A Yes.

13 Q That was about a year or a little over a year after

14 the 1997 audit with GE?

15 A Yes, sir.

16 Q And I'm not sure you mentioned this, but I believe

17 PECO was the lead auditor in that audit?

18 A Yes.

19 Q Do you know who assigned you to go to that audit?

20 A That's the only supervisor I have, Mr. Bastyr.

21 Q We've mentioned on a number of occasions the ECOS

22 system, E-C-O-S?

23 A Yes.

24 Q And that's essentially a computer online system

25 through which employees of ComEd and then Exelon can apply for

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462

1 internal posted positions?

2 A Yes.

3 Q If you could turn to Exhibit 34 in Respondent's

4 exhibits which is already in the record as Complainant's

5 Exhibit 22?

6 (Whereupon, the document referred

7 to as Respondent's Exhibit No. 34

8 was marked for identification.)

9 BY MR. GROSS:

10 Q Do you see that?

11 A Yes, sir.

12 Q And this is the application that you submitted for

13 diversity manager position?

14 A Yes, sir.

15 Q And this application was submitted through that ECOS

16 system?

17 A Yes.

18 Q Even before you had applied for this diversity

19 manager position in fall of 2000, is that correct? You applied

20 in fall of 2000?

21 A I believe so, about November time frame.

22 Q Okay. Even before you had applied for the diversity

23 manager position, you had had many direct communications with

24 John Rowe, correct?

25 A Not many.

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463

1 Q Well, you had at least three or four?

2 A Not until December 20th.

3 Q Well, didn't you in fact have a dinner with Mr. Rowe

4 at an AACES meeting prior to --

5 A We invited all the executives to the restaurant and

6 John Rowe was sitting around my table.

7 Q He was sitting at the same table you were eating at?

8 A Yes.

9 Q And did you in fact prior to applying for this

10 diversity manager position have at least two other

11 conversations with Mr. Rowe?

12 A Since I was the president of the AACES, he could have

13 been a guest speaker or I attended Latinos or African

14 Americans, traditionally people shake hands with their officers

15 and everybody introduce themselves.

16 Q Well, I want to make sure that I'm not overstating.

17 It's my understanding you had more conversations with Mr. Rowe

18 than just pleasantries and introductions.

19 Let me show you a transcript of the deposition -- in

20 this matter. Take that please. And this was a deposition that

21 you took under oath, correct?

22 A Yes.

23 Q And starting on the bottom of page 124, 24th line,

24 I'll read it. Question, "Had you had any communications with

25 Mr. Rowe?" Answer, "Oh, many times." Question, "In the

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464

1 context of the president of AACES or a different context?"

2 Answer, "President of AACES."

3 And then I asked you had you had any conversations

4 with him prior to the diversity manager position? And you

5 said, "Conversations were very limited to like maybe two or

6 three minutes in a gathering." And if you look at the bottom

7 of page 125, do you see that?

8 A Yes.

9 Q You indicated there that you had seen him maybe three

10 or four times, you had communicated with him prior to applying

11 to the diversity manager job?

12 A Yes.

13 Q And you believed he knew you by name by that point,

14 correct?

15 A He was calling me Oscar, yes. So, on the sticky on

16 this here, we put our first name, Oscar. So, once we are

17 introduced, they call us by what they know us from the tag.

18 Q But you were certainly familiar to him by that point,

19 correct?

20 A Yes.

21 Q Now, you also had scheduled a meeting in the same

22 time period, I believe you testified in October of 2000 with

23 Mr. Kingsley?

24 A Yes.

25 Q And you did in fact meet with Mr. Kingsley and

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465

1 discussed among other things your own personal effort to be

2 promoted within nuclear, correct?

3 A Among other things.

4 Q Among other things. But one of the issues was your

5 own efforts to become promoted, correct?

6 A Yes.

7 Q And you also had scheduled a meeting with Mr. Rowe on

8 the same topic, correct?

9 A I canceled that, yes.

10 Q But you had a meeting with Mr. Kingsley and then you

11 had a subsequent meeting that was scheduled with Mr. Rowe?

12 A Yes.

13 Q That was about a week later?

14 A Yes.

15 Q And you canceled the meeting with Mr. Rowe because

16 you were satisfied with the meeting with Mr. Kingsley?

17 A Right.

18 Q And the meeting you had scheduled with Mr. Rowe was

19 to discuss among other things your own personal efforts to

20 become promoted?

21 A Yes.

22 Q And in fact, you canceled that meeting with Mr. Rowe

23 in an e-mail to Mr. Kingsley, correct?

24 A Yes.

25 Q And you noted in an e-mail that with this notice,

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466

1 "I'm canceling my appointment with Mr. Rowe," correct?

2 A Yes.

3 Q If you could turn now to Exhibit 42?

4 A I don't need this, sir?

5 Q Thank you. Could you turn to Respondent's Exhibit 42

6 please?

7 (Whereupon, the document referred

8 to as Respondent's Exhibit No. 42

9 was marked for identification.)

10 BY MR. GROSS:

11 Q Do you see that?

12 A Yes, sir.

13 Q And Exhibit 42 is an e-mail that you sent to David

14 Helwig -- strike that. The e-mail in Exhibit 42 is an e-mail

15 you forwarded to Stephanie Hickman on September 20, 2000,

16 correct?

17 A Yes.

18 Q And in that e-mail to Stephanie, you're forwarding to

19 her an e-mail that you sent to David Helwig on September 7th,

20 2000, correct?

21 A Yes.

22 Q And in that September 7th, 2000 e-mail that you sent

23 to Mr. Helwig, you expressly asked him for his assistance to

24 mentor you, correct?

25 A That's the way it says here, yes.

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467

1 Q And when you said mentor you, you were asking for

2 Mr. Helwig's assistance in developing your career?

3 A What I meant here was he gave me his word a year

4 before that, I don't know if a year before, sometime back, that

5 I don't have nothing against you. That's the only meeting that

6 I ever had with Mr. Helwig. And he said, I don't have nothing

7 against you. And I said, okay, let me send this message to say

8 that September 7th, this is the merger process, I have not been

9 selected for any of the position. So, if truly he does not

10 have anything against me, I say before I decide to quit, why

11 don't you mentor me to tell me what I am missing that I'm not

12 selected. That's the intent of this message.

13 Q Very good. And in the e-mail, you expressed the

14 statement, "Please set up a convenient time that I can see you

15 more frequently for mentorship." Correct?

16 A Yes.

17 MR. GROSS: I move to admit Exhibit 42.

18 JUDGE LESNICK: Any objection?

19 MR. McDERMOTT: No objection.

20 JUDGE LESNICK: Accepted.

21 (Whereupon, the document referred

22 to as Respondent's Exhibit No. 42

23 was received into evidence.)

24 JUDGE LESNICK: Mr. Shirani has been on the stand

25 about an hour and a half. Why don't we give him a break?

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468

1 Before we do, let me ask, Mr. McDermott?

2 MR. McDERMOTT: Yes, Judge?

3 JUDGE LESNICK: Is this your last witness?

4 MR. McDERMOTT: He is my last witness.

5 JUDGE LESNICK: And do you have witnesses?

6 MR. GROSS: Yes, I have one here already.

7 JUDGE LESNICK: All right. Let's take a ten-minute

8 break.

9 (Off the record at 2:28 p.m.)

10 (On the record at 2:45 p.m.)

11 JUDGE LESNICK: All right. Back on the record.

12 Mr. Gross, you may continue.

13 BY MR. GROSS:

14 Q Mr. Shirani, could you please turn to Respondent's

15 Exhibit 43?

16 (Whereupon, the document referred

17 to as Respondent's Exhibit No. 43

18 was marked for identification.)

19 A Yes, sir.

20 Q And can you confirm that Respondent's Exhibit 43 is

21 an e-mail without the attachment of a Word file that you sent

22 to Stephanie Hickman on September 25th, 2000?

23 A Yes.

24 MR. GROSS: I move to admit Exhibit 43.

25 MR. McDERMOTT: No objection.

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469

1 (Whereupon, the document referred

2 to as Respondent's Exhibit No. 43

3 was received into evidence.)

4 BY MR. GROSS:

5 Q If you could turn now to Respondent's Exhibit 14?

6 The second page of Respondent's Exhibit 14, the first e-mail

7 chronologically is August 17th, 2000.

8 (Whereupon, the document referred

9 to as Respondent's Exhibit No. 14

10 was marked for identification.)

11 BY MR. GROSS:

12 Q Do you see that?

13 A Yes, sir.

14 Q Did you send that e-mail to Mr. Bastyr on August

15 17th, 2000?

16 A Yes.

17 Q The e-mail above it is dated August 25th, 2000. Do

18 you see that?

19 A Yes.

20 Q Did you send that e-mail to Russ Bastyr on August

21 25th, 2000?

22 A Yes.

23 Q The first page of Respondent's Exhibit 14 has an

24 e-mail on the bottom portion dated September 18th, 2000. Do

25 you see that?

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470

1 A Yes.

2 Q Did you send that e-mail to Mr. Bastyr on September

3 18th, 2000?

4 A Yes.

5 MR. GROSS: I move to admit Respondent's Exhibit 14.

6 MR. McDERMOTT: No objection, Judge.

7 JUDGE LESNICK: Accepted.

8 (Whereupon, the document referred

9 to as Respondent's Exhibit No. 14

10 was received into evidence.)

11 BY MR. GROSS:

12 Q If you could turn to the second page of Respondent's

13 Exhibit 14? The first e-mail chronologically that is the one

14 dated August 17th, I take it in this e-mail you are asking

15 Mr. Bastyr in part to nominate you for positions during the

16 merger restaffing?

17 A Yes.

18 Q Was Mr. Bastyr the only person you asked to nominate

19 you during any part of the merger restructuring process in

20 2000?

21 A I believe we discussed that on October 6th with

22 Mr. Kingsley.

23 Q And it's unclear, that October 6th, that's after you

24 had already been selected for your auditor position in the

25 restaffing process, correct?

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471

1 A Auditor position?

2 Q Yes.

3 A I had the same auditor position since 1996.

4 Q During this restaffing process in October of 2000,

5 you were also selected to remain in your auditor position?

6 A To remain, yes.

7 Q Yes, that's what I'm asking. And your meeting with

8 Mr. Kingsley was after that, correct?

9 A Yes.

10 Q Any other requests you made during the entire merger

11 restaffing process of 2000 to anyone that you be nominated for

12 other positions?

13 A Besides the one with Ruth Ann Gillis and Frank Clark

14 which was July and this --

15 Q The request to Ruth Ann Gillis and Frank Clark was in

16 an e-mail, correct?

17 A Yes.

18 Q We'll get to that. Did you make any other requests

19 to any other individuals that you had been working with to help

20 promote your career during the 2000 restructuring process? For

21 example, I'll let you tell me if there are any others.

22 A Well, if you show me, then I will say yes or no.

23 Q But you don't recall any other?

24 A No. I mean, I could have because this is during the

25 merger, everybody is trying to struggle to get somewhere.

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472

1 Q Do you know when the restructuring process in 2000

2 started? How early it was?

3 A I would say first, second quarter.

4 Q And it's your understanding that different

5 departments and organizations get their postings and selection

6 at different times during 2000?

7 A Could be the same time.

8 Q You're not sure?

9 A No.

10 Q But when you say the restructuring process started

11 within the first or second quarter, do you mean the ability to

12 apply for jobs in the new organization began as early as the

13 first or second quarter of 2000?

14 A Yes. I assume.

15 Q I'm sorry?

16 A I assume.

17 Q Okay. And did you talk to anyone during the first or

18 second quarter of 2000 about possibly nominating you for

19 positions in the organization?

20 A Not that I recall unless you show me something which

21 shows that I have signed or I have written e-mail. That's the

22 only way.

23 Q Is it possible you requested to be nominated during

24 the first or second quarter of 2000 for positions?

25 A Well, the possibility exists, but I cannot say for

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473

1 sure.

2 Q Do you know whether anyone nominated you for the vice

3 president of supply position that you interviewed for with

4 Mr. Padron?

5 A I thought as a good gesture, maybe Ruth Ann or Frank

6 Clark may have done it. But it was just on a very optimistic

7 side of my mind.

8 Q But you don't know if someone did or not?

9 A No.

10 Q I'm sorry, I didn't --

11 A No.

12 Q Do you know whether anyone nominated you for the

13 director of supply position that you were interviewed for?

14 A No.

15 Q Is it possible you just don't know?

16 A What I said, on the optimistic side, I thought maybe

17 Frank Clark or Ruth Ann Gillis.

18 Q But you don't know whether they did or not?

19 A No.

20 Q Turning back to Respondent's Exhibit 14, that August

21 17th e-mail, it indicates in there that you are requesting

22 Mr. Bastyr to nominate you for two positions in BSG, T&D and

23 Enterprise. Can you tell me is BSG the same as BSC?

24 A That time within the computer system, it was defined

25 as BSG. I don't know if this BSG is the same as the BSC which

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474

1 later I was working for.

2 Q What did you understand BSG to mean when you sent

3 this e-mail to Mr. Bastyr?

4 A BSG group, at that time, they were acquiring a lot of

5 suppliers to, and once I meet suppliers, I feel like I have

6 enough qualifications because I can help them with the specs.

7 Q Is this nuclear suppliers or other suppliers?

8 A It could be nuclear, it could be non-nuclear

9 suppliers.

10 Q And was BSG part of the nuclear operations or

11 somewhere else?

12 A It could be somewhere else.

13 Q You don't know?

14 A Because it was in the ECOS and it was pulled down and

15 it was right there. So, I did not have the background, you

16 know, survey done to see if BSG is nuclear or non-nuclear. It

17 was just -- on many.

18 Q And T&D stood for transmission and distribution?

19 A T&D is transmission and distribution.

20 Q And at this time, T&D was separate from nuclear,

21 correct?

22 A At this time, yes.

23 Q And in fact, it always was separate since this time?

24 A Well, presumably, yes. Transmission and distribution

25 is you create the electricity from the nuclear and you send it

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475

1 to the transmission and distribution. So, it is kind of one

2 entity, maybe you have different department names, but it's all

3 one entity to sell Exelon stocks. Nuclear produced it, it was

4 online, the end is you have production department, you have

5 overhead department, but all serve Exelon.

6 Q I understand that. But I'm just confirming that T&D

7 is separate from nuclear?

8 A Yes.

9 Q And Enterprise is also an organization that's

10 separate from nuclear, correct?

11 A Yes.

12 Q And you're asking Mr. Bastyr to nominate you for

13 positions in "supply, HR, or other areas"?

14 A Yes.

15 Q Could you please turn to Respondent's Exhibit 8 and

16 tell me if that is the e-mail on the bottom half of the first

17 page of Respondent's Exhibit 8 that you sent to Ruth Ann and

18 Frank Clark requesting their assistance?

19 (Whereupon, the document referred

20 to as Respondent's Exhibit No. 8

21 was marked for identification.)

22 A Yes, that's the one I was talking about.

23 Q And you sent that, I'm sorry?

24 A That's the one I was previously talking about.

25 Q And you sent that to Frank and Ruth Ann on August

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476

1 9th, 2000, correct?

2 A Yes.

3 Q If you can look at the second line of the text of the

4 e-mail, a few words in, the sentence starts "I need your help."

5 Do you see that?

6 A Yes.

7 Q Then you said because I am "not getting it at our

8 nuclear side." And when you wrote this you meant you were not

9 getting promoted, correct?

10 A Right.

11 Q And you then refer in the next line towards the end

12 to the fact that you had expressed your "desires." And those

13 desires you had expressed was your desire to get promoted,

14 correct?

15 A Yes.

16 Q Now, you also indicate later that you would like both

17 of them to stay as your mentors?

18 A Right.

19 Q I take it at the time of this, you considered both

20 Ruth Ann and Frank Clark your mentors?

21 A Good friends, good mentors, yes.

22 Q Mentors for the purpose of helping you develop your

23 career, I take it?

24 A These are the officers that I met and they were more

25 acquainted to me than the other officers. So, it's just like a

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477

1 good cushion that I feel like these are the two officers I can

2 say I'm fond of them. That's all.

3 Q But did you in fact ask both Ruth Ann and Frank Clark

4 to be your mentors?

5 A Yes.

6 Q And they accepted?

7 A Yes, they did.

8 MR. GROSS: Move to admit Respondent's Exhibit 8.

9 MR. McDERMOTT: No objection.

10 JUDGE LESNICK: 8 accepted.

11 (Whereupon, the document referred

12 to as Respondent's Exhibit No. 8

13 was received into evidence.)

14 BY MR. GROSS:

15 Q Mr. McDermott asked you about any e-mail or phone

16 communications you had with Ruth Ann Gillis between the date

17 you sent this memo in Exhibit 8 and the date you received an

18 offer on December 7th. And you said you had not, correct?

19 A Offer?

20 Q You indicated in your testimony that on December 7th,

21 2000, Ms. Gillis presented you with a job offer, correct?

22 A Yes.

23 Q And between August 8th, the date of the memo, Exhibit

24 8, and the December 7th meeting, you've testified on direct

25 that you had had no e-mail or phone communications with

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478

1 Ms. Gillis, correct?

2 A Regarding jobs, yes. I might have seen her at the

3 AACES meetings or -- but nothing related to the job application

4 or e-mail.

5 Q Well, you in fact did have two meetings in her office

6 during that time period, correct? One on September 8th and

7 October 20th, right?

8 A Yes, it was on my calendar I submitted to you. Yes.

9 Q You did?

10 A Yes.

11 Q And those meetings were in her office?

12 A It could be in her office.

13 Q But they were with her?

14 A Yes.

15 Q At the December 7th, 2000 meeting, you testified that

16 Ms. Gillis gave you a piece of paper with some salary

17 information on it and I believe you showed us an exhibit that

18 had that, correct?

19 A Yes.

20 Q The first thing you said to her after she showed you

21 that piece of paper and offered you a position was "This is not

22 a promotion." Correct?

23 A Yes.

24 Q And you also asked her to give you more salary to

25 accommodate commuting issues, correct?

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479

1 A Not on December 7th.

2 Q On a different day?

3 A Yes.

4 Q After you told Ms. Gillis this is not a promotion,

5 what did she tell you?

6 A She says, Oscar, what difference does it make? It's

7 E-3, E-4, E-5, I'm just giving you more money.

8 Q If you could turn to what's marked as Respondent's

9 Exhibit 21, which is already in the record as Complainant's

10 Exhibit 27? I just saw it. I'm sure of that.

11 (Whereupon, the document referred

12 to as Respondent's Exhibit No. 21

13 was marked for identification.)

14 BY MR. GROSS:

15 Q I believe Complainant's Exhibit 27 is the document

16 that has the December 2000 and the October 2001 e-mails between

17 you and John Rowe.

18 A Yes.

19 MR. GROSS: Is that right, Mr. McDermott?

20 MR. McDERMOTT: I think so. Just a minute.

21 MR. GROSS: Your Honor, would you mind if I would

22 enter it as our exhibit as well just to be sure we have it in

23 here?

24 JUDGE LESNICK: Okay.

25 MR. GROSS: Okay. Respondent's Exhibit, we'll just

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480

1 refer to it as Respondent's Exhibit 21 for our purpose right

2 here.

3 JUDGE LESNICK: Admitted.

4 (Whereupon, the document referred

5 to as Respondent's Exhibit No. 21

6 was received into evidence.)

7 BY MR. GROSS:

8 Q These are various e-mail communications between you

9 and Mr. Rowe?

10 A The same date.

11 Q Well, okay, let's look at them chronologically. The

12 last e-mail in the exhibit is dated December 20th, 2000 and

13 time 12:59 p.m. Do you see that?

14 A Yes.

15 Q And you received that from Mr. Rowe after you had

16 accepted your position with Ruth Ann Gillis?

17 A The night before.

18 Q I'm sorry?

19 A The night before.

20 Q The night before what?

21 A Before this date. December 19 from --

22 Q Oh, you accepted December 19th, you got this e-mail

23 from Mr. Rowe the next day?

24 A The next day.

25 Q Okay. That's what I want to confirm, I'm sorry. So,

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481

1 the December 20th, 12:59 p.m. e-mail you received from Mr. Rowe

2 the day after you accepted the offer of Ms. Gillis?

3 A Yes.

4 Q And then, above that is an e-mail that you sent in

5 response to Mr. Rowe a little over a half hour later?

6 A Yes.

7 Q And then, Mr. Rowe responded to your response 1:36

8 p.m. on December 20th, correct?

9 A Three minutes right after that.

10 Q And then, the next e-mail chronologically is your

11 October 30th, 2001 e-mail to John Rowe, correct?

12 A Yes.

13 Q And you sent that to him a few days after you were

14 informed that you did not get selected for the management job

15 and were being terminated, correct?

16 A For the E-4 position.

17 Q The E-4 position is the principal auditor manager

18 job, correct?

19 A After it was massaged, yes.

20 Q Okay. But for massaging?

21 A Yes.

22 Q My point is you sent this e-mail to Mr. Rowe after

23 you were told you were not selected for the position and that

24 you were being terminated, correct?

25 A Yes.

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482

1 Q You also sent this e-mail to various members of

2 AACES, correct? AACES?

3 A Yes.

4 Q And you did that by blind carbon copy?

5 A Yes.

6 Q Do you know approximately how many people you sent

7 this blind carbon copy, your best estimate?

8 A Probably less than 50-60 people.

9 Q But more than 40 or so?

10 A Probably between 40 to 50. At that time, AACES was

11 reduced to the very minimum amount.

12 Q So, you blind carbon copied at least 40 people on

13 this October 30th e-mail. Was that just the AACES people or

14 was that everyone you blind carbon copied?

15 A AACES.

16 Q How many other people did you blind carbon copy who

17 weren't associated with AACES?

18 A To AAMA president -- and potentially the new

19 president of AAMA because we were working very closely together

20 and they were considering, Mr. Frank was considering Ms. Ruth

21 Ann Gillis an ally. So, I wanted to just show there the face

22 of the ally.

23 Q To all of these individuals?

24 A To the people who was representing AACES. She was

25 the executive sponsor of the AACES, and I think as their

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483

1 president, I had the right to show who our executive sponsor

2 is.

3 Q After you began working in Ruth Ann Gillis' internal

4 audit organization in January 2001, you participated in a

5 number of audits, correct?

6 A I begged them to put me, yes.

7 Q And with all your begging, you were put on them

8 eventually?

9 A Toward sometimes at the middle, sometimes toward the

10 end. I was not involved with the, at the time that they were

11 making the question, that's the time that if they really want

12 to teach you, you have to start from scratch. So, I was just

13 pieces here, pieces there.

14 Q And, in fact, you participated in an audit of the

15 energy delivery organization during your tenure in internal

16 audit, correct?

17 A Yes.

18 Q And that was an organization that was under

19 Mr. Helwig, correct?

20 A Yes.

21 Q At that time.

22 A Yes.

23 Q And I believe you testified in your deposition that

24 that was the longest audit you participated in during your

25 tenure in internal audit at BSC.

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484

1 A At BSC, yes.

2 Q And it's about three to four weeks long?

3 A Yes.

4 Q Denise Miller is with Arthur Andersen, correct, or

5 was at the time?

6 A Yes. She was at the time.

7 Q And she helped you in preparing questions to ask

8 during that audit, correct?

9 A For portions of it, yes.

10 Q And you found her assistance valuable to you during

11 that audit, correct?

12 A Anyone who teach me, and I would always appreciate

13 anybody that I can learn from, yes.

14 Q Let me ask you to turn to Exhibit 2, Respondent's

15 Exhibit 2.

16 (Whereupon, the document referred

17 to as Respondent's Exhibit No. 2

18 was marked for identification.)

19 BY MR. GROSS:

20 Q The first three pages are a review completed by

21 Darren Zurowski about you regarding your performance on an

22 audit, correct?

23 A Yes.

24 Q And Darren Zurowski discussed this review with you,

25 correct?

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485

1 A But I objected to it.

2 Q But he nevertheless did discuss it with you?

3 A I said I am evaluated by your company which I am not

4 working for and I'm not familiar with your system. He says,

5 this is the way we do it. I said, I don't have no training.

6 So, I don't know how you guys put technical performance, they

7 said usually nobody gets fired -- three to four. And I said,

8 okay, that's correct. I assume this is my evaluation process

9 which is not fair. That's what I told him.

10 Q Now, the second page of the evaluation by

11 Mr. Zurowski has a section entitled Overall Statement of

12 Performance, do you see that?

13 A Yes.

14 Q And on the bottom half of that section it refers to

15 areas for further development, do you see that?

16 A Yes.

17 Q Did Mr. Zurowski discuss those areas that he believed

18 you could develop in?

19 A That's his belief.

20 Q That's his belief. But you did not belief that you

21 could develop in those areas or should?

22 A I take feedback and I take it to the heart. And if

23 somebody can tell me how can you improve it, I take it very

24 serious and I appreciate the feedback.

25 Q And you took this particular feedback from him very

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486

1 seriously?

2 A And I did, yes.

3 Q And you attempted to improve based on his

4 recommendations?

5 A I attempted and I did and he acknowledged that I did

6 improve. On the next one, he did say that.

7 Q The Respondent's Exhibit 2 also contains an

8 evaluation by a DM or Denise Miller. Do you see that one?

9 A Yes.

10 Q And she also discussed this particular evaluation

11 with you, correct?

12 A Arthur Andersen evaluation form, yes.

13 Q And she provided you in that discussion

14 recommendations on how you can improve as an auditor in

15 internal audit, correct?

16 A As this is used for accountants, yes, I was not an

17 accountant.

18 Q You were an internal auditor, correct?

19 A Yes, but that job, I found out once Ruth Ann, I mean,

20 Caya says this is an accounting job.

21 Q Regardless of the title, did the recommendations that

22 Ms. Miller give you during this discussion provide advice to

23 you on how you can improve in the job duties you were

24 performing?

25 A And I did appreciate it to her, I told her I do

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487

1 appreciate it and I'll take it seriously and I do improve.

2 Q And the recommendations did relate directly to the

3 kind of work you were doing in internal audit, correct?

4 A In her opinion, yes.

5 Q In your opinion, they did not?

6 A That's her evaluation of me. I did not say I agree

7 with your --

8 Q In your opinion, did her recommendations to you

9 during this discussion apply to the kind of job duties you were

10 performing in internal audit?

11 A In her opinion, yes.

12 Q In your opinion, did they?

13 A I don't have to agree with her opinion, no.

14 Q I'm only asking if you believed that these

15 recommendations provided you with any assistance in performing

16 your job in internal audit that you were doing.

17 A I took her advice, I say yes.

18 MR. GROSS: I move to admit Respondent's Exhibit 2.

19 JUDGE LESNICK: Any objection?

20 MR. McDERMOTT: Just a question. DM is Miller, is

21 that correct?

22 THE WITNESS: Denise Miller.

23 MR. McDERMOTT: Denise Miller. And I'm having a hard

24 time finding, it may be my copy only, recommendations for

25 improvement. This is not her page numbers, correct?

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488

1 MR. GROSS: I think the document speaks for itself

2 but I'd be happy to point out all of the specific entries that

3 provide areas for improvement. It speaks for itself though.

4 MR. McDERMOTT: Maybe I don't have it.

5 MR. GROSS: That's what I have. Then I focused upon

6 it and I asked, I directed her attention to that and we

7 discussed it.

8 MR. McDERMOTT: But she --

9 MR. GROSS: I directed her attention.

10 MR. McDERMOTT: That's Zurowski, this is Zurowski,

11 right?

12 MR. GROSS: The first one is Zurowski, correct.

13 MR. McDERMOTT: And are you saying the statement of

14 performance is a recommendation for improvement?

15 MR. GROSS: The document speaks for itself. If you

16 want to ask further questions, I'm not going to --

17 MR. McDERMOTT: Okay.

18 MR. GROSS: I don't think that we should waste the

19 court's time.

20 MR. McDERMOTT: I'm not suggesting we waste the

21 court's time. It's just I read this and I don't see what

22 you're asking. But go ahead --

23 MR. GROSS: I'm sorry, I didn't mean to say waste.

24 Go ahead and finish.

25 MR. McDERMOTT: No objection, Judge.

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489

1 JUDGE LESNICK: All right. 2 will be admitted.

2 (Whereupon, the document referred

3 to as Respondent's Exhibit No. 2

4 was received into evidence.)

5 BY MR. GROSS:

6 Q If you could turn to Respondent's Exhibit 4 please?

7 (Whereupon, the document referred

8 to as Respondent's Exhibit No. 4

9 was marked for identification.)

10 BY MR. GROSS:

11 Q And do you recognize this e-mail?

12 A I recognize Ellen Caya and myself.

13 Q Do you recall that you received this e-mail on

14 October 2nd, 2001?

15 A Yes.

16 Q And based on this e-mail, it was your understanding

17 that in order to be considered for a position during that

18 restaffing process, you needed to apply for the position,

19 correct?

20 A Yes.

21 MR. GROSS: I move to admit Respondent's Exhibit 4.

22 MR. McDERMOTT: No objection.

23 JUDGE LESNICK: 4 will be admitted.

24 (Whereupon, the document referred

25 to as Respondent's Exhibit No. 4

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490

1 was received into evidence.)

2 BY MR. GROSS:

3 Q If you could turn to Respondent's Exhibit 35 which is

4 already in evidence as Complainant's Exhibit 23?

5 (Whereupon, the document referred

6 to as Respondent's Exhibit No. 35

7 was marked for identification.)

8 BY MR. GROSS:

9 Q And I believe we've already stipulated, the parties

10 have stipulated that everything after page 1 of that exhibit is

11 an application that you did submit for the position of

12 principal auditor, correct?

13 A Correct.

14 Q The only position you applied for during the

15 restaffing of internal audit in October 2001 was this principal

16 auditor position, correct?

17 A Yes.

18 Q And that was a position that had a salary grade level

19 E-4?

20 A Yes.

21 Q And you decided to apply for that position because it

22 was an E-4 and because it had the title of principal auditor,

23 correct?

24 A That was the title that Ruth Ann Gillis gave me once

25 she hired me on December 7th, 2000.

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491

1 Q And you decided to apply for the position because you

2 did not want to change your title, correct? Or your salary

3 grade?

4 A This was the position I had since 1996 and I said I

5 have been on this job, I'm not going to apply for a higher

6 position. I applied for the same position which I held for

7 five years.

8 Q I understand. I just want to make sure that I know

9 what you mean by that when you say same position. You applied

10 for the principal auditor position in October of 2001 only

11 because you did not want to change your title or salary grade,

12 correct?

13 A I had to apply for this. I didn't have any choice.

14 Q You had to apply for that.

15 A I had to apply.

16 Q You could not apply for any other position during the

17 restaffing process?

18 A I could not meet any of the requirements of this one

19 or the --

20 Q Let me ask the question again because I didn't get an

21 answer. The only reason you applied for this principal auditor

22 E-4 position was because you did not want to lower your salary

23 grade and you did not want to change your job title, correct?

24 A And also the job salary of E-3 was very close to what

25 I had.

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492

1 Q Any other reason?

2 A And I was not qualified for either job so I had to

3 choose the one I got.

4 Q Let's jump now to the October 26th meeting you when

5 you were informed that you were not selected for the position

6 you applied for. You were there with Martha Garza and Ellen

7 Caya, correct?

8 A Yes.

9 Q And one of the things that Ellen told you in that

10 meeting was you were not selected for the principal auditor

11 position because you did not have the competency she was

12 looking for?

13 MR. McDERMOTT: Objection, Judge. This is outside

14 the scope of direct. Now, I know you're interested in getting

15 this done expeditiously and as cleanly for the record as it's

16 possible. I suggest that if he's going to ask questions that

17 are not related to anything directly testified to by him, that

18 the questions be non-leading or misleading than permitted in

19 cross-examination.

20 MR. GROSS: Your Honor, he testified about the

21 October 26th meeting.

22 JUDGE LESNICK: I'm going to overrule the objection.

23 BY MR. GROSS:

24 Q Should I ask the question again?

25 A Please.

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493

1 Q At the October 26th meeting with Martha Garza and

2 Ellen Caya, one of the things that Ellen said was that you were

3 not selected for the position because you did not have the

4 competency she was looking for, correct?

5 A That's how she phrased it.

6 Q That's how she phrased it?

7 A Yes.

8 Q And another thing she said to you was you're a smart

9 guy but you have a listening problem, is that correct?

10 A That's her opinion, yes.

11 Q After you finished that meeting with Martha and

12 Ellen, you then had a conversation with another person, a woman

13 in the office, do you recall that?

14 A HR.

15 Q It was HR?

16 A Was it HR or one of these agencies that they're going

17 to assign you to outside agencies that they can assist you for

18 looking for jobs.

19 Q Was that --

20 A -- I guess.

21 Q So, that woman you talked to that day was related to

22 the outplacement service?

23 A Yes.

24 Q If you could turn to Exhibit -- excuse me. I'm going

25 to ask you about the time period January 2001 when you started

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494

1 in internal audit in December 26th, 2001.

2 A Yes.

3 Q Let's talk about the entire period. During that time

4 period, you applied for one position through ECOS, correct?

5 A From that period of time, to October 3rd not to

6 December 26th. I was kicked out.

7 Q You applied for one position in ECOS during that

8 period of time, correct?

9 A The requirement, standard requirement for the company

10 is you have to have two years minimum at the job before you can

11 apply for another job. And I was only seven, eight months so I

12 cannot officially apply for any job. I need to get a release

13 from the supervisor.

14 Q During the period January 2001 and after, you only

15 applied to one position through ECOS, it was the position in

16 transmission and distribution, is that correct?

17 A Officially, yes.

18 Q Meaning that is the only position you filled out an

19 application for on ECOS, is that correct?

20 A To the best of my knowledge.

21 Q And that position in transmission and distribution

22 was in the energy delivery services company, correct?

23 A Transmission and distribution, the other name for

24 transmission and distribution is energy delivery.

25 Q And again, that was Dave Helwig's organization at

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Free State Reporting, Inc.

 

 

 

 

 

 

495

1 that time?

2 A Yes.

3 Q If you could turn to Exhibit 31 for Respondent? If

4 you could turn instead to Complainant's Exhibit 28? Or I'll

5 give you my copy, that would probably be easier. Complainant's

6 Exhibit 28, not Respondent's. And the first page of

7 Complainant's Exhibit 28 is the e-mail communication regarding

8 your request to Mr. Kingsley to come back to nuclear in July

9 2001, correct?

10 A Yes.

11 Q The subsequent documents in Complainant's Exhibit 28

12 are printouts from the ECOS system, correct?

13 A Yes.

14 Q Can you tell me how you got all those?

15 A From the outplacement agency.

16 Q That's the service that you went to after you were

17 terminated, you were told you were being terminated?

18 A Yes.

19 Q And that service was located physically where?

20 A On Lombard, Illinois, next to --

21 Q And you were able to access the computer there to

22 print these particular positions out?

23 A I was able to access and I asked them to

24 electronically send it to my house.

25 Q And I take it these are posted on the ECOS system on

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496

1 the posting start date that's identified, is that correct?

2 A 10/18, that's what it says, and 10/17. 10/17/01 and

3 10/18/01, I'm still employed with the company.

4 Q And just so I'm clear though, these positions do not

5 even make it to the ECOS database unless they are posted,

6 correct?

7 A Its requisition detail requirement number, it could

8 be in this format or it could be in ECOS. However they had it

9 in their computer, that was in this format.

10 Q Okay. And this has postings that go as late as

11 November 29th, 2001, I see. See that?

12 A Right.

13 Q So, these are documents that the outplacement people

14 sent you on November 29th or after that?

15 A These are just the samples. There could be hundreds

16 of these.

17 Q That they sent to you?

18 A Yes. I just print out the related ones that is

19 describing the E-4 positions.

20 Q Meaning you only printed out those that had a

21 compensation level of E-4?

22 A That's the one I was, my own level. They have a lot

23 of E-5's, E-6's, E-3's, E-2's, whatever. I just printed out

24 the ones which is related to my title, E-4.

25 Q So, you did not ask the outplacement service to print

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497

1 out anything below E-4?

2 A No. Electronically it's there, you can print out,

3 there's hundreds of them. I only went and just selected the E-

4 4's.

5 Q And the outplacement service electronically

6 transmitted to you all of the positions that are available?

7 A No, I only asked them from October time frame to

8 November time frame that I was using their outplacement agency.

9 Q Okay. And, so, you made that request to them either

10 on November 29th or shortly after that?

11 A Or before or after, yes, because I was using their

12 services.

13 Q Through November into December as well?

14 A Even through 2002.

15 Q You were using this outplacement service?

16 A Yes.

17 Q If you could turn now to Exhibit 32? Respondent's

18 Exhibit 32, and confirm for me that the bottom portion of that

19 sheet is the e-mail that Gerald Ellis sent to you on July 26th,

20 2001.

21 (Whereupon, the document referred

22 to as Respondent's Exhibit No. 32

23 was marked for identification.)

24 A Yes.

25 Q And this e-mail from Gerald Ellis is responding to

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498

1 your earlier e-mail to Mr. Kingsley to come back to nuclear?

2 A Yes, sir.

3 Q And Respondent's Exhibit 32 indicates that you

4 forwarded this July 26th Ellis e-mail to Eliecer Palacios on

5 September 5th, 2001, correct?

6 A Yes.

7 Q And you in fact had forwarded it to Mr. Palacios on

8 that date?

9 A Yes.

10 MR. GROSS: I move to admit Respondent's Exhibit 32.

11 JUDGE LESNICK: Any objection?

12 MR. McDERMOTT: No objection.

13 JUDGE LESNICK: All right. 32 admitted.

14 (Whereupon, the document referred

15 to as Respondent's Exhibit No. 32

16 was received into evidence.)

17 BY MR. GROSS:

18 Q If you could turn to Respondent's Exhibit 41 please?

19 (Whereupon, the document referred

20 to as Respondent's Exhibit No. 41

21 was marked for identification.)

22 BY MR. GROSS:

23 Q And confirm for me that Respondent's Exhibit 41 is an

24 e-mail that you sent to Xochitl which is spelled X-o-c-h-i-t-l,

25 Tasillas which is spelled T-a-s-i-l-l-a-s on October 31st, 2001

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499

1 from --

2 A Yes.

3 MR. GROSS: Move to admit Respondent's Exhibit 41.

4 JUDGE LESNICK: Any objection?

5 MR. McDERMOTT: No objection.

6 JUDGE LESNICK: 41 will be admitted.

7 (Whereupon, the document referred

8 to as Respondent's Exhibit No. 41

9 was received into evidence.)

10 BY MR. GROSS:

11 Q If you could turn now to Respondent's Exhibit 33 and

12 confirm for me that this is in fact the letter that was handed

13 to you at the October 26th, 2001 meeting.

14 (Whereupon, the document referred

15 to as Respondent's Exhibit No. 33

16 was marked for identification.)

17 A Yes.

18 Q And you read and reviewed this and signed that you

19 had received the various documents, correct?

20 A Read the first two lines.

21 Q But you had in fact received the various documents

22 referenced above, correct?

23 A Yes.

24 MR. GROSS: Move to admit Respondent's Exhibit 33.

25 JUDGE LESNICK: Any objection?

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500

1 MR. McDERMOTT: No objection, Judge.

2 (Whereupon, the document referred

3 to as Respondent's Exhibit No. 33

4 was received into evidence.)

5 BY MR. GROSS:

6 Q If you could turn now to Respondent's Exhibit 45 and

7 confirm to me that these are series of e-mails that you sent,

8 or received on the dates indicated in the various e-mails?

9 A Yes.

10 (Whereupon, the document referred

11 to as Respondent's Exhibit No. 45

12 was marked for identification.)

13 MR. GROSS: And I move to admit Respondent's Exhibit

14 45.

15 MR. McDERMOTT: Just looking at 45, Judge, just real

16 quick. No objection, Your Honor.

17 JUDGE LESNICK: 45 will be received.

18 (Whereupon, the document referred

19 to as Respondent's Exhibit No. 45

20 was received into evidence.)

21 BY MR. GROSS:

22 Q You gave an oral statement to the Department of Labor

23 in this case on February 1st, 2002, correct?

24 A I believe so.

25 Q And someone may have typed up that oral statement and

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501

1 you reviewed and signed it?

2 A She was rushing to leave in 20 minutes, so I had to

3 just very, very brief, just go through it quick and a couple of

4 statements that I missed from Mr. Landsman I included to be

5 more comprehensive statements from Mr. Landsman. Yes.

6 Q And that was your first written communication to the

7 Department of Labor, correct?

8 A Yes.

9 Q And that was the first time you provided any detailed

10 information about your complaint to the Department of Labor,

11 correct?

12 A Yes.

13 Q If you could turn to Respondent's Exhibit 44 and

14 confirm for me that the last page contains your signature under

15 oath?

16 (Whereupon, the document referred

17 to as Respondent's Exhibit No. 44

18 was marked for identification.)

19 A Yes.

20 Q And this is in fact the complaint that was actually

21 filed with the Department of Labor?

22 A To the best of my knowledge as I see it, yes.

23 Q And you signed this complaint on February 27th, 2002,

24 correct?

25 A Well, that's what it says.

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502

1 Q You certainly signed this after you had given that

2 oral statement to the Department of Labor that was reduced to

3 writing, correct?

4 A Yes.

5 Q So, sometime after February 1st, 2002?

6 A Yes.

7 MR. GROSS: I move to admit Respondent's Exhibit 44.

8 MR. McDERMOTT: No objection, Judge.

9 JUDGE LESNICK: Admitted.

10 (Whereupon, the document referred

11 to as Respondent's Exhibit No. 44

12 was received into evidence.)

13 BY MR. GROSS:

14 Q If you could turn to Complainant, let me show you

15 Complainant's Exhibit 30. Complainant's Exhibit 30, I'm sorry,

16 this one here. And confirm for me that's an e-mail or a memo

17 you received a copy of on or about May 22nd, 2000?

18 A Yes.

19 Q And that gave you certain authority, correct?

20 A Yes, sir.

21 Q Do you know how long that authority lasted?

22 A While he was out. This was only based on when I am

23 not available. It's not permanent. It's only from that week

24 that he was not there.

25 Q Okay. I just wanted to confirm that.

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503

1 A Yes.

2 Q At no time during your tenure with ComEd then Exelon

3 Nuclear then Exelon BSC was your actual annual salary

4 decreased, is that correct?

5 A The salary is not decreased because I would not.

6 Q So, the answer is it never was reduced, correct?

7 A Yes.

8 Q Now, you did go to complain to the NRC in November of

9 2001, correct?

10 A November 1st, 2001.

11 Q And that was the day after the October -- never mind.

12 And that was after you had already been informed of your

13 termination, correct?

14 A Yes.

15 Q And prior to that, the last time you had raised a

16 nuclear safety complaint or concern is in November of 2000 in

17 that Holtec presentation, correct?

18 A That's not correct.

19 Q You raised a nuclear concern at what point after

20 that?

21 A January 19, 2001.

22 Q That was in a conversation with Mr. Landsman?

23 A Yes.

24 Q And after that conversation, the next time you raised

25 a nuclear safety concern was in November of 2001 when you went

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504

1 to the NRC?

2 A Yes.

3 MR. GROSS: I have no further questions.

4 JUDGE LESNICK: Any redirect?

5 MR. McDERMOTT: Yes, Judge.

6 JUDGE LESNICK: Proceed.

7 REDIRECT EXAMINATION

8 BY MR. McDERMOTT:

9 Q Mr. Shirani, you answered a series of questions that

10 were prefaced with during the internal audit restaffing. This

11 period wasn't a restaffing at all, was it?

12 A Just one person in the organization was the

13 restaffing.

14 Q In fact, if you look at Respondent's Exhibit No. 4,

15 you were asked to identify that exhibit and you did, correct?

16 A Yes.

17 Q Is that word or two words, however it's presented,

18 restaffing ever, does it ever appear in that memo? I want you

19 to read this very carefully. I want you to go through it very

20 carefully. Is there any restaffing mentioned there at all?

21 A There's no restaffing.

22 Q Never mentioned at all, is it?

23 A No.

24 Q Did Ellen Caya ever say Oscar, or ever say

25 Mr. Shirani, we're going to do some restaffing here?

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505

1 A No.

2 Q Pardon me?

3 A No.

4 Q When you were into internal audit, was there anybody

5 in internal audit who worked directly for and not under

6 contract to Exelon?

7 A Finance? No. Only George Hurtz.

8 Q But did he work there before you did?

9 A I think he was shortly transferred before I got

10 there.

11 Q Like a week?

12 A Maybe a week, yes.

13 Q When he'd been there, had he had that title at all?

14 A Six years prior to that.

15 Q Do you know where he was transferred from?

16 A Ethics office.

17 Q All right. And how long did he stay?

18 A Three months.

19 Q And then what became of him?

20 A He got laid off.

21 Q Did he get laid off or did he retire?

22 A I think they, he put it that way that he was not

23 selected so they told him nicely that you retire but he told me

24 he got laid off.

25 Q That's what he told you?

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506

1 A Yes.

2 Q All right. What was your understanding with Ruth Ann

3 Gillis when you went over to an agency that really only, and am

4 I correct, you knew that there only Arthur Andersen people over

5 there, right?

6 A That's what she told me.

7 MR. GROSS: Object, leading question.

8 JUDGE LESNICK: I don't understand.

9 BY MR. McDERMOTT:

10 Q Did she discuss what was happening in internal audit?

11 I'm talking about she meaning Ruth Ann Gillis, in your December

12 meeting and telephone conversation?

13 A December 19, you mean?

14 Q Both.

15 A Regarding?

16 Q Regarding what her expectation was for internal

17 audit?

18 A No.

19 Q This is a year after the merger, correct?

20 MR. GROSS: Objection, being argumentative.

21 JUDGE LESNICK: This is your witness, Mr. McDermott.

22 MR. McDERMOTT: I'm sorry. I apologize, Your Honor.

23 BY MR. McDERMOTT:

24 Q You had these conversations with Ms. Gillis in her,

25 I'm sorry. What's the date of your conversations with

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507

1 Ms. Gillis?

2 A December 7th and December 19th, 2000.

3 Q What's the date of Exhibit No. 4?

4 A October 2, 2001.

5 Q Almost a year later?

6 A To be accurate, 11 months.

7 Q You had clerical, I'm sorry, did you have clerical

8 support when you went over or you came downtown in January of

9 2001?

10 A No.

11 Q Did you have a receptionist?

12 A No.

13 Q Did you have a secretary?

14 A No.

15 Q Any administrative assistance?

16 A No.

17 Q What did you observe when you came downtown from

18 Downers Grove in January 2001?

19 A I was, from Downers Grove, I went to AT&T building.

20 I believe up until April, like about four months, I was at the

21 AT&T building, Monroe Street on the 12th floor. George Hurtz

22 and I had just conversations and Tim Makris.

23 Q Pardon me, and what?

24 A Tim Makris from Arthur Andersen.

25 Q All right. So, that's when you went, who was on this

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Free State Reporting, Inc.

 

 

 

 

 

 

508

1 12th floor?

2 A Different organizations which I didn't recognize.

3 Q Well, do you remember what they were?

4 A No.

5 Q Pardon me?

6 A No.

7 Q Did these different organizations belong to a

8 company?

9 A Most of the desk was filled with the Arthur Andersen

10 people that they were just borrowing cubes. But there was no

11 name or assignment because they had their own office and unless

12 they were doing audits, they would just come in to do typing or

13 whatever. Just cubes available.

14 Q Did the Arthur Andersen people have clerical support?

15 A Not over there.

16 Q Was there any signage anywhere on this 12th floor?

17 A No. The elevator says 12th floor, that's all. But I

18 don't have no sign what group this is. I know that one part of

19 it was HR. Martha Garza --

20 Q Was there signage on HR Martha Garza?

21 A Saying Martha Garza. I don't even remember it saying

22 that this is HR department. It's just office of Martha Garza,

23 Ann Banks, the secretary for her, and Mario Bastista working in

24 the same department.

25 Q HR?

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509

1 A HR. Martha --

2 Q There's no question. You answered Mr. Gross'

3 question about Exhibit 4 as, I think your answer was you

4 recognized your name, is that correct?

5 A That's all I know and Ellen Caya. I knew the people

6 from cc only, Martha Garza, and Carol Asalta, I only met her

7 one time. But the rest of the names that it is to, I believe

8 they were from Philadelphia office but I never knew any of

9 them.

10 Q But you don't know that?

11 A No.

12 Q You don't know who those people are?

13 A No, I don't know.

14 Q Were you ever introduced to anybody bearing these

15 names?

16 A No.

17 Q So, the statement in there, "I have committed to

18 keeping you informed as to changes in the audit department," do

19 you believe that to be true?

20 A I never believed it because --

21 Q Did she keep you, as she said, informed as to changes

22 in the audit department?

23 A Based on this. Nothing before that.

24 Q Nothing before?

25 A No.

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Free State Reporting, Inc.

 

 

 

 

 

 

510

1 Q Did you have a conversation with Ms. Caya related to

2 this memorandum?

3 A No.

4 Q What did you do after receiving this memorandum?

5 A I called the only woman that I recognized, Martha

6 Garza cc, because apparently, it says, the second page, "I'm

7 always available for questions, counseling. Feel free to call

8 me or stop by. In addition, both Martha Garza and Carol Asalta

9 have offered their assistance." So, I figure that the only

10 person that I knew more than Ellen Caya was Martha Garza.

11 Ellen Caya and I had less than four conversations throughout

12 the whole year and all this resentment.

13 Q I'm sorry?

14 A All this, you don't even belong here.

15 Q Who, Martha Garza, you mean?

16 A No, Ellen Caya. From the day one in April --

17 Q There is no question. So, how did you follow up with

18 Martha Garza then?

19 A I called Martha Garza and I said the requirements

20 that, I said what kind of restructure in organization is this

21 when she is my first boss? I was at AT&T building for a while.

22 She came here, I hardly met her. She was only meeting Arthur

23 Andersen people. Arthur Andersen people knew that we're going

24 to be restructured. And I said, the first time she told me

25 that I belong, so what is this restructuring? The merger was

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Free State Reporting, Inc.

 

 

 

 

 

 

511

1 last year. I was coming, brought here for her to be my

2 supervisor. Then I referred to my conversation that I had with

3 Ruth Ann Gillis and Ellen Caya on July 20th.

4 Q And that's the same day you got this memo?

5 A Yes. I was kind of in disbelief. I was kind of, so

6 the only friend that I can talk to is Martha Garza to see if

7 she can give me some sense of what's going on with this.

8 Q What did she say to you?

9 A She says, Oscar, based on what you're telling me with

10 the conversation you had with Ellen Caya and Ruth Ann Gillis on

11 July 20th, that you called an urgent meeting is that Ruth Ann

12 Gillis asked Ellen Caya that Oscar is complaining that you have

13 told her that his salary is too high, you don't belong to this

14 organization because you don't have eight to 15 years financial

15 experience, who brought you here? I think you should go to

16 lower level. So, I said, let's have a meeting.

17 So, I said, we had the meeting with Ruth Ann Gillis

18 and Ruth Ann confronted her and says, is that what you told

19 Oscar? She says yes. She says, Ellen, did we discuss these

20 things apply to Oscar or not? She says no. She says, then why

21 you told him? And then, she says, I apologize.

22 So, once it came in the reality, I came and said she

23 apologized, that does not apply to you. Based on this, I have

24 to reapply for a position which I'm not qualified, so why

25 should I apply?

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1 Q And that's what you're telling Ellen Caya?

2 A Yes. And then she says --

3 Q Did you call anybody else at this time?

4 A No.

5 Q Did you talk to anybody else about the content of

6 that letter in Exelon?

7 A I may have shared it with Mona Love (ph.) as a co-

8 worker, friend, but no. Nobody else.

9 Q You identified Exhibit No. 41.

10 JUDGE LESNICK: Respondent's?

11 MR. McDERMOTT: Yes. I don't think I have a 41.

12 JUDGE LESNICK: Okay. Probably not.

13 BY MR. McDERMOTT:

14 Q You identified that, correct?

15 A Yes, I did.

16 Q Are you proud to have authored that?

17 A No. I think Xochitl and I, we became good friends

18 and I told her, please don't share this information. And I was

19 very frustrated, in disbelief. So, I said, please don't share

20 this information. But I reminded her -- well, okay. Yes, I'm

21 not proud of this and I apologized for this e-mail.

22 Q Who did you apologize to?

23 A To Ellen Caya, and I said this would not happen and I

24 apologized. I did not mean it, but it was not fair. But you

25 know about I'm a good auditor and it's not fair.

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513

1 Q My point is you're not proud of having written this

2 but you admit to having written it.

3 A No, I was naive to say that. I was upset.

4 Q How old is Ms. Miller?

5 A Ms. Denise Miller?

6 Q Yes.

7 A I would say low 40's. Mid 40's.

8 Q Look at Exhibit No. 2, if you would. These are two

9 performance evaluations, professional audit staff. Are these

10 forms Exelon forms?

11 A No.

12 Q Whose forms are these, if you know? Because they

13 bear no --

14 A Some have nothing but I asked Darren Zurowksi, is

15 this one of our forms? He says, no, this is Arthur Andersen's.

16 And I said, you guys never gave me the training for the whole

17 year and Ruth Ann Gillis promised me on December 7th that we're

18 going to put you through months of training, that you're going

19 to have a short-term MBA degree like MBA, on-the-job training

20 from Arthur Andersen.

21 Not a single hour of the training I received. Not a

22 single hour. No training, nothing. No description of the job,

23 nothing. Then I find out I have to, need 15 years of financial

24 experience with a CPA license. I think it's absurd.

25 Q With respect to the Zurowski evaluation, he

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514

1 considered you diligent, and then he wants you to work on

2 areas, and in the first area that Zurowski, this is Arthur

3 Andersen who was once a player in this town, am I correct?

4 A In his first statement, he says, "Although questions

5 that Oscar asks are valid, Oscar may appear as a compliance cop

6 type auditor." Arthur Andersen could have been a little better

7 compliance cop like auditor themselves, couldn't they?

8 MR. GROSS: Need I object, Your Honor, to that?

9 JUDGE LESNICK: Sustained. You've got to stop

10 leading your witness.

11 MR. McDERMOTT: I'm sorry.

12 BY MR. McDERMOTT:

13 Q You read that when he wrote that about you, did he

14 not?

15 A Yes.

16 Q Are you ashamed of presenting yourself as a

17 compliance type cop auditor?

18 A Not at all.

19 Q And again, that date is 10/11/01, correct?

20 A Yes.

21 Q And again, did that person get hired by Exelon?

22 A Once I lost my job, he was the one selected to take

23 my place. They knew it the whole year that they're going to be

24 gone, so Darren Zurowski had to look very good for Ellen Caya.

25 That's why I don't think these are really fair evaluation of my

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515

1 real performance.

2 Q Did you discuss that particular phrase, compliance

3 cop type auditor, with him?

4 A I think it's more accusation but I take it like I am

5 doing my job right.

6 Q Did you discuss it with him? Would you listen to the

7 question? Did you discuss it with him?

8 A Yes.

9 Q What did you say to him and what did he say to you?

10 A I said exactly this statement is kind of bothersome,

11 but he says, Oscar, because you've been in nuclear for a long

12 time, nuclear is regulated and that's why you have to be so

13 adamant about the rules. Then, I said, you're saying that this

14 is no rules here? Ruth Ann Gillis herself said, no, these

15 audits don't have no regulators, and I reminded Ms. Gillis and

16 Darren Zurowski that PUKA and SEC because I studied on the

17 site, we have a requirement to the PUKA and SEC.

18 Q What is PUKA? What does that stand for?

19 A PUKA is the unregulated bodies, the government bodies

20 to make sure --

21 Q What does it stand for if it stands for something?

22 A I guess it's Procurement Utilities --

23 Q Spell it.

24 A P-U-K-A or P-U-L-K-A. Once the utility, I believe,

25 this is my understanding, that utilities, once they put their

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516

1 expense report and income and cost and everything else, they

2 have to charge the regulated business versus the non-regulated

3 business. The nuclear is a regulated business so they can get

4 the money from the taxpayer, and based on the regulations

5 imposed by the NRC or other regulators. The non-regulations is

6 governed by PUKA to make sure there is no cheating in that

7 which we found Arthur Andersen and Enron was exactly doing

8 that.

9 On top of it, I told Ruth Ann Gillis, once she said

10 Arthur Andersen, these are not a regulated business, I said I

11 disagree. SEC has rules. PUKA has rules. But I'm not going

12 to get into further argument with you that these are, you've

13 got to follow certain guidelines. The first month that I was

14 at the new office, Mr. George Hurtz gave me some of the

15 findings, of the previous findings that Arthur Andersen had

16 issued. I read it and I said, where is the follow up? Where

17 is the closure of these findings?

18 Mr. Tim Makris said Arthur Andersen was kind of

19 bothered with that question. I said, where is the response?

20 He says, Oscar, you're not a cop. I said, you are put in this

21 audit finding and I would challenge you, not only the nuclear

22 and also with SEC and PUKA, once you say audit finding, you

23 have to put a closure to that. If you do not want to do the

24 follow up, you got to make sure this is a recommendation.

25 Q Did you ever see any of those audits that you

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517

1 examined on your arrival get closed?

2 A They never did follow up. And I said, why? They

3 said --

4 Q Can you answer the question?

5 A I'm sorry, go ahead.

6 Q Please, do you understand the question?

7 A Yes.

8 Q Did you ever, you reviewed certain audits according

9 to your testimony. Did you ever see them get closed?

10 A No.

11 Q And I'm correct, it's your testimony that

12 Mr. Zurowski who was at that point an Andersen contract

13 employee, he's servicing Exelon, said that there are no

14 regulations, no audit regulations?

15 A Yes.

16 Q Thank you. Now, to the next one of these two, this

17 is the one by just DM who you've identified as Denise Miller,

18 right?

19 A Yes.

20 Q Is this a different form or a modified form or just a

21 different configuration as a form? I guess why I'm asking is

22 why does the last page of this one look so much different than

23 the second to the last page of the other? Is it just because

24 there's an overall statement --

25 A I believe either that or this is cut and paste. I

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518

1 was kind of bothered to see that all the gradings that I got

2 was 3 and 2, not 4 or 5. And this is the billing adjustment

3 which I found $100,000 Commonwealth Edison mistakenly credited

4 City of Batavia. And those that were complex calculations that

5 ComEd's, there was a computer system, I forgot the name of it

6 since, could not calculate. And these calculations were going

7 to people with 20 years plus experience and you have a lot of

8 rules, regulations, different counties, things. I spent about

9 a week or two weeks and I found calculations, mistakes where

10 these people with the 20 to 30 years were making.

11 And I found out and I said, this is the first finance

12 audit that I did. One and only. And I brought $100,000 back

13 to ComEd. And I was not graded 4 or 5 by the exit meeting at

14 the billing adjustment. The vice president of that billing

15 department told Denise Miller that's very good, I wish you guys

16 have an engineer to find out these things for you.

17 Q You were asked by Mr. Gross when you became a quality

18 assurance administrator, correct?

19 A Yes.

20 Q And yet, we know that title changed again, correct?

21 A Yes.

22 Q So, when you answered his questions that you were,

23 when he asked you you've been a quality assurance administrator

24 from 1996 until the day you left and went over to internal

25 audit, that is not true, is it?

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1 MR. GROSS: Objection. I never asked him his title.

2 I asked him specifically about his duties on audits.

3 Mischaracterization of testimony.

4 MR. McDERMOTT: And I apologize. And I certainly do

5 apologize.

6 BY MR. McDERMOTT:

7 Q But if I heard that wrong and if you heard that

8 wrong, your job classification is changed, correct?

9 A Classification of the job and reporting is changed.

10 Q And salary grade level is changed?

11 A Yes.

12 Q All, I'm sorry, with your permission or without?

13 A Without. I had nothing to say.

14 Q You came to work for Commonwealth Edison in 1970,

15 correct?

16 A Commonwealth Edison? 1990.

17 Q '90, I'm sorry, 1990. Your first title was what?

18 A Principal engineer.

19 Q Second title?

20 A Senior lead engineer.

21 Q Third title?

22 A Quality assurance administrator, January 1st, 1996.

23 Increment to E-4.

24 Q Next title?

25 A Principal auditor again.

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1 Q Let's look at Exhibit --

2 A Once you go back like another cycle of 12 years loss

3 in your, you know, education, you disrespect your education.

4 MR. McDERMOTT: Can we look at the exhibit again,

5 Judge? I don't have an extra set here. I think -- if I could

6 be given just a moment please?

7 JUDGE LESNICK: Are you looking for his resume?

8 MR. McDERMOTT: No, Judge. I'm looking for the, I

9 may have just handed them to our reporter. I don't know.

10 MR. GROSS: Your Honor, we'll stipulate that his job

11 titles changed from '96 to January 2001. I have no problem

12 with that.

13 MR. McDERMOTT: And it occurred in '97 as far as we

14 know.

15 JUDGE LESNICK: Okay. All right. We have a

16 stipulation.

17 MR. McDERMOTT: Thank you.

18 BY MR. McDERMOTT:

19 Q And then, you become a principal auditor in finance,

20 is that correct?

21 A Yes.

22 Q So, you carried the title quality assurance

23 administrator from 1996 to sometime in December in 1997,

24 correct?

25 A Yes.

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1 Q And that's the one that's changed with Mr. Bastyr's

2 name at the bottom with CTEAM indicating where he's located,

3 correct?

4 A Yes.

5 MR. McDERMOTT: Thank you. I have no other

6 questions.

7 JUDGE LESNICK: Any further cross?

8 MR. GROSS: Only one issue, Your Honor.

9 RECROSS EXAMINATION

10 BY MR. GROSS:

11 Q If you could turn to Respondent's Exhibit 4 please?

12 MR. GROSS: Your Honor, I'm not trying to be cute on

13 this, I'm just trying to make a point to make sure the

14 testimony is as it stands.

15 BY MR. GROSS:

16 Q At the end of the second full paragraph, the first

17 word on that last line is restaffing, correct?

18 MR. McDERMOTT: At the end of?

19 MR. GROSS: The second full paragraph.

20 BY MR. GROSS:

21 Q Do you see the last line of the second full

22 paragraph, it begins with --

23 A Oh, I didn't see it.

24 Q That's fine. And the last line on the next paragraph

25 refers to staffing the positions?

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522

1 A Staffing the positions.

2 Q The only point I want to make and ask you is when I

3 referred to restaffing in my questions, you did understand that

4 I was referring to the restructuring that was occurring in

5 October 2001, correct?

6 A That's implied. I took it that --

7 Q You understood that to mean what I mean?

8 A Yes.

9 Q Thank you.

10 A I took it as implied.

11 MR. GROSS: I have no further questions.

12 THE WITNESS: I mean, I was going through here to see

13 if I can see restaffing and going quick I couldn't see. Now, I

14 see the point you're making.

15 MR. GROSS: I understand.

16 MR. McDERMOTT: One final question.

17 FURTHER REDIRECT EXAMINATION

18 BY MR. McDERMOTT:

19 Q On this date, the department has how many employees?

20 Exelon's department has how many employees? Not contract

21 workers, employees.

22 A Exelon overall?

23 Q Yes. No, no. This department.

24 A Oh, this department, to the best of my knowledge is

25 Ellen Caya and me in Chicago. Two.

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1 Q Thank you. That's why I asked you how many. What's

2 the answer?

3 A It's two.

4 MR. McDERMOTT: Thank you.

5 MR. GROSS: I have no follow up.

6 JUDGE LESNICK: Mr. Shirani, you are excused. Thank

7 you, sir.

8 MR. GROSS: Off the record if we could?

9 JUDGE LESNICK: Okay. Let's go off.

10 (Off the record at 4:00 p.m.)

11 (On the record at 4:09 p.m.)

12 MR. GROSS: The Respondents call Ellen Caya to the

13 stand.

14 JUDGE LESNICK: Okay. Would you raise your right

15 hand please?

16 (Whereupon,

17 ELLEN DEE CAYA

18 was called as a witness by and on behalf of the Respondent and

19 after having been first duly sworn, was examined and testified

20 as follows:)

21 JUDGE LESNICK: You may question the witness.

22 DIRECT EXAMINATION

23 BY MR. GROSS:

24 Q Ms. Caya, can you state your full name and spell your

25 name for the record?

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1 A Ellen Dee Caya, E-l-l-e-n D-e-e C-a-y-a.

2 Q When were you first hired by Exelon?

3 A April 23rd, 2001.

4 Q And from where did you come to Exelon?

5 A From PricewaterhouseCoopers.

6 Q Where geographically were you working for

7 PricewaterhouseCoopers prior to coming to Exelon?

8 A In Knoxville, Tennessee.

9 Q What is your current position with the company?

10 A Vice president, internal audit.

11 Q And that's with what corporate entity?

12 A I believe it's technically the business services

13 group of Exelon Corporation.

14 Q That's BSC?

15 A Yes.

16 Q When did you get the position that you're currently

17 in?

18 A I was promoted January of this year, January 2002.

19 Q And between April of 2001 when you first came to BSC

20 and January of 2002, what was your position?

21 A I was the director of internal audit.

22 Q Can you tell us what your responsibilities were in

23 that position?

24 A I was responsible for defining what the strategic

25 direction would be of the internal audit department. Previous

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525

1 to me coming on board, it had been outsourced to Arthur

2 Andersen and they wanted to take a look at what they wanted to

3 do with the internal audit department. So, I was primarily

4 responsible for defining what that strategic direction would

5 be, how that could align with Exelon's strategic objectives and

6 then implementing that strategic plan.

7 Q Prior to your hiring by Exelon in April of 2001, did

8 you have any connection whatsoever with Exelon or any of its

9 subsidiaries, Unicom or ComEd?

10 A No.

11 Q Prior to your hiring in April of 2001, did you have

12 any communications whatsoever with anyone in Exelon Nuclear?

13 A No.

14 Q Who did you first report to when you came to Exelon

15 BSC?

16 A Ruth Ann Gillis.

17 Q Where physically were you officed?

18 A The Bank One building on 10 South Dearborn here in

19 Chicago.

20 Q What employees reported to you when you first began

21 at Exelon?

22 A I had five, excuse me, six individuals in the

23 Philadelphia office of Exelon and one individual here in

24 Chicago.

25 Q And the individual in Chicago was Mr. Shirani?

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526

1 A Mr. Shirani.

2 Q What positions were the six people in Philadelphia in

3 when you first began?

4 A Staffing senior auditors with one administrative

5 assistant.

6 Q Can you tell me why the staff at Chicago was so small

7 compared to the staff in Philadelphia?

8 A The Philadelphia office had never been outsourced to

9 Arthur Andersen. So, in our merger with PECO, the audit

10 department was retained there. The department here in Chicago

11 had been outsourced to Arthur Andersen several years ago, I

12 think five or six years ago. So, the entire group here,

13 probable 20 people were all Arthur Andersen employees with the

14 exception of Mr. Shirani.

15 Q When you began with Exelon BSC, what was the job

16 title of Mr. Shirani's position?

17 A Principal auditor.

18 Q What were his duties?

19 A To be part of the audit team, doing, you know, part

20 of the audit plan, financial operation work, compliance audits.

21 Q What were his duties with respect to specific audits?

22 A Just to be a team member, to follow the audit

23 program, carry out the audit program, perform the steps and

24 draft the audit report.

25 Q Can you explain to us the kinds of internal audits

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527

1 that your organization was responsible for?

2 A There is guidance out in the internal audit community

3 called the Committee of Sponsoring Organizations and it pretty

4 much dictates what most audit departments follow. And what

5 that is is that you do financial audits which deal with the

6 accuracy and completeness of information. You do operational

7 audits which deal with the effectiveness and efficiency of a

8 process and safeguarding company assets. And you compliance

9 audits which deal with regulatory legislative matters and any

10 guidelines from the company that you would need to comply with

11 like internal guidelines.

12 Q Does your organization ever audit anything relating

13 to nuclear safety?

14 A No.

15 Q When you began your employment with Exelon BSC, what

16 areas did you consider Mr. Shirani to have experience in? That

17 is, what kinds of audits as he described them?

18 A Well, his background was primarily in operational

19 auditing. So, generally, when he first came on board, those

20 were the types of audits that we thought he could add the most

21 value with because that's where his experience was.

22 Q When you say first come on board meaning when you

23 first came on board?

24 A When I first came on board, yes.

25 Q At any time, did he lead any financial audits during

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528

1 your tenure or during his tenure in internal audit?

2 A Not that I'm aware of, no.

3 Q Overall, how did Mr. Shirani perform, from your

4 perspective, in his position in internal audit when he was

5 there?

6 A Good. I thought he did a good job.

7 Q Let me turn your attention to Respondent's Exhibit 1

8 in the book in front of you.

9 (Whereupon, the document referred

10 to as Respondent's Exhibit No. 1

11 was marked for identification.)

12 BY MR. GROSS:

13 Q Can you tell me what that document is?

14 A It is the July 2001 mid-year evaluation of

15 Mr. Shirani.

16 Q Who completed this evaluation?

17 A I did.

18 Q When did you complete this evaluation?

19 A On July 19th, 2001.

20 Q And did you discuss this evaluation with Mr. Shirani?

21 A I did.

22 MR. GROSS: I move for the admission of Respondent's

23 Exhibit 1.

24 JUDGE LESNICK: Any objection?

25 MR. McDERMOTT: No objection.

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1 JUDGE LESNICK: Admitted.

2 (Whereupon, the document referred

3 to as Respondent's Exhibit No. 1

4 was received into evidence.)

5 BY MR. GROSS:

6 Q If you could turn your attention to the second page?

7 You'll note on the second, third and fourth page, there is a

8 header to the various chunks called "Exelon/Business Unit

9 Goal:" Who actually filled in those specific goals?

10 A I did.

11 Q How did you come up with those?

12 A Well, in most departments, people would have set

13 their business unit goals ahead of time at the beginning of the

14 year. And in both Philadelphia and Chicago, because there was

15 no directors or managers in place, that did not occur. So,

16 when it came to the mid-year evaluation, I spoke to the HR

17 folks and they said, since the group as a whole had not set any

18 goals, then just based on my 20 years of audit experience, what

19 would be the kinds of things that I would look for in

20 individuals. And so, I came up with the six items that I

21 thought was important in each auditor.

22 Q Underneath each of those goal titles, there is an

23 importance weighting placed in, and then there are specific

24 goals listed. Who placed the importance and goals in those

25 sections?

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530

1 A I did.

2 Q Were the goal titles, the importance and the specific

3 goals listed under importance, in each of those sections, the

4 same for all of the auditors that worked for you in July of

5 2001?

6 A Yes, they were exactly the same. The only exception

7 was there was one staff auditor that I can't remember the

8 percentages might have been a little different in the

9 leadership area because it wasn't, so much that wasn't expected

10 from her in that area. But for the most part, all the other

11 seniors and principal auditors had the exact same percentages

12 and the exact same competencies or goals.

13 Q You had worked with Mr. Shirani at this point how

14 long?

15 A Just a couple of months. May and June and a portion

16 of July.

17 Q How did you determine whether individuals are on

18 track or not?

19 A Well, because none of the individual goals had been

20 set up front, you know, it was very, I didn't think it was

21 right to call people accountable to something that they weren't

22 even, know that they were going to be accountable for. So,

23 basically, I talked to HR and we determined that every person

24 was going to be graded on track in every category because we

25 didn't think it was fair to say you were off track on something

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531

1 you didn't know you were going to be measured against.

2 Q Now, in each of these six goal sections, there's a

3 competencies needed section, do you see that?

4 A Yes, sir.

5 Q Who wrote the handwriting in all of those sections?

6 A I did.

7 Q How did you make those judgments at this point?

8 A Based on some evaluations that I had received on each

9 of the individuals, in particular Mr. Shirani, from the

10 managers that he worked for. And then, based on my own working

11 with that person.

12 Q When did you actually handwrite this information in

13 those six competencies needed sections?

14 A My guess it was probably the day before or the Friday

15 before. I can't remember what day July 19th falls on. But it

16 would have been done beforehand.

17 Q And those handwritten statements are specific to

18 Mr. Shirani?

19 A Yes. They're specific to Mr. Shirani.

20 Q Did they differ as to other auditors, the

21 Philadelphia auditors, that is?

22 A Yes, because everybody has different strengths and

23 opportunities.

24 Q On the second page of Exhibit 1, on the first goal

25 section, you wrote increasing financial skills. Can you tell

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532

1 me what you meant and what you discussed with Mr. Shirani about

2 that particular issue?

3 A Yes. As I had mentioned earlier, we look for

4 auditors that do both financial auditing, operational auditing

5 and compliance auditing. And I wanted to see Oscar get some

6 more experience on his financial auditing. He had not done a

7 lot of it in the past and I thought that if he wanted to

8 continue to grow in the audit department and for his own career

9 development, that it would be important to branch out and do

10 additional types of audits in the financial auditing area.

11 Q What did you do to help or coach him in that area

12 after this review?

13 A We put him on several audits that had financial

14 backgrounds. One was the City of Chicago which was on audit on

15 the reimbursement of expenses to the City of Chicago where you

16 would look at the accuracy and completeness of the expenses.

17 He was on a ComEd or energy delivery project management product

18 audit which is another financial audit which deals with capital

19 expenditures and how you account for accounting for the capital

20 expenditures.

21 Q What training did you set up or provide or make

22 available in that area?

23 A All the auditors are, in both Philly and Chicago were

24 responsible for their own training. Basically, our policy is

25 you're allowed to take about 80 hours of training and people

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533

1 were responsible for looking on the institute of internal

2 auditor website, the MIS website, looking for different courses

3 and applying and taking their own training, and the Exelon pays

4 for it.

5 Q Did you ever turn down any request from Mr. Shirani

6 to take any of these continuing education or training that you

7 described?

8 A No, I did not.

9 Q You then, refer to the next section, the generation

10 issues, can you tell me what you meant and what you discussed

11 with Mr. Shirani on that topic?

12 A Well, his background had primarily been in the

13 generation area. And again, to expand his knowledge and

14 further develop his career at Exelon, I thought it was

15 important to get experience in our business units which is our

16 energy delivery business unit and our business services which

17 is our shared services group and our corporate sector.

18 Q And are you aware that Mr. Shirani did in fact work

19 on audits outside the generation area during your tenure?

20 A Yes. The City of Chicago audit was not a generation

21 audit. The energy delivery capital projects audit was not a

22 generation audit either.

23 Q Did anyone ever tell you not to put Mr. Shirani on

24 generation audits?

25 A No.

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1 Q The next page at the top refers to supervisory

2 experience. Can you tell me what you meant by that and what

3 you told Mr. Shirani?

4 A Yes. He was primarily part of the team and a team

5 member on most of the audits. And again, for his career

6 development, I thought it was important that we start to give

7 him people to lead and he starts to supervise individuals.

8 Q Did you take any specific action to help him in that

9 respect?

10 A At one point, we talked about trying to get an intern

11 into the department so that he would be able to get some

12 supervisory experience.

13 Q Do you know why that intern assignment happened or

14 not?

15 A The intern assignment did not happen and it was

16 mostly because the period that the intern was going to be

17 available which I believe was mid-June or beginning of July

18 until the end of August. Mr. Shirani was going to be out a lot

19 of those weeks. I believe he had vacation planned for two

20 weeks and then he had a convention with the mechanical

21 engineers for, I think, two or three of those weeks. So, you

22 know, I'm a big believer that you don't bring an intern audit

23 and let them sit there or let them photocopy, you know, stuff.

24 So, if there wasn't going to be somebody to actively monitor

25 the intern and lead and guide the intern, I didn't think it

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1 would be fair to the intern to bring them on if someone wasn't

2 going to be there. So, he was not available for most of the

3 time.

4 Q The next competencies needed section refers to

5 staying focus, not going off in a direction and listening

6 skills, can you tell me what you explained to Mr. Shirani on

7 those issues?

8 A Right. Mr. Shirani has a tendency to not stay

9 focused on the issues at hand, and this is particularly

10 important for a auditor because what we do is actually look at

11 a set of facts or look at documentation and draw conclusions.

12 And so, you have to be very focused on the issues and not go

13 off in a direction. In other words, not ready an opinion

14 prematurely without having a good command set of the facts. I

15 also felt that his listening skills needed improving. When I

16 would speak with him or talk to him about something, I don't

17 think it registered a lot of the time.

18 A good example is he was doing an officer's T&E audit

19 and we talked about clearly defining the population that needed

20 to be audited because the requirement was that we only audit

21 Section 16 officers. And we had a clear conversation about

22 that and then he walked out of my office and sent an e-mail to

23 every administrative assistant of just about every officer in

24 the company. And then, I got a flurry of a thousand e-mails

25 from these panicked administrative assistants. So, he wasn't

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536

1 good at listening in a conversation about what the direction

2 should be.

3 Q If you could turn to Exhibit 2, Respondent's Exhibit

4 2, that is? Do you recognize this document?

5 A Yes, sir.

6 Q Who was Mr. Zurowski at this time?

7 A Darren Zurowski was an audit manager with Arthur

8 Andersen.

9 Q And who was Denise Miller?

10 A Denise Miller was also a manager with Arthur

11 Andersen.

12 Q Did you yourself receive copies of these performance

13 evaluations from those individuals?

14 A I did.

15 Q Can you tell me when the audits that are reflected or

16 discussed in these two evaluations actually occurred?

17 A Based on the dates above, I believe that the first

18 one done by Darren, the energy delivery project manager, was in

19 the September-October time frame. And the one --

20 Q Of 2001?

21 A Of 2001, I'm sorry. And the one done by Denise would

22 have been in the July-August of 2001 time frame.

23 Q Who else was evaluated using these particular forms,

24 to your knowledge?

25 A Well, Arthur Andersen evaluated their own people

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537

1 using these particular forms. But Mr. Shirani was the only

2 Exelon employee that it was used.

3 Q When you say their own people, do you mean their own

4 auditors that were participating in these same audits?

5 A Right. Their staff and their seniors were evaluated

6 using these same forms.

7 Q Can you tell me why you, did you request that you

8 receive these with respect to Mr. Shirani?

9 A I did.

10 Q Why?

11 A Well, because I was going to be doing his mid-year

12 evaluation and I felt that it was important for me to get input

13 beyond when I would just work with him.

14 Q Okay. I refer you now to the duties you described

15 that you had when you started. Can you tell me what your

16 understanding was of the changes that were to be made in

17 internal audit when you first became employed in April of 2001?

18 A Well, when Ruth Ann had hired me, there was no firm

19 definitive direction for the internal audit department. I was

20 tasked with finding out what the best direction would be for

21 the internal audit group. That might have meant to leave it

22 outsourced to Arthur Andersen. It might have meant to bring it

23 in-house. We weren't sure what direction that was going to go.

24 And we did what we called a strategic performance assessment

25 and we basically went out and talked to members of the audit

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1 committee and the senior management group and said, what would

2 you like from the audit department? How can we better align

3 our goals and objectives with the companies?

4 And then, along those same lines, what should the

5 resources be? What kind of skill sets should people have?

6 What kind of background should they have? How have we done in

7 the past? What would you like to see in the future? What

8 should be our communication protocols? Do you want written

9 reports? Do you want verbal?

10 And so, we went through a host of information and

11 came up with a proposal about what to do with the internal

12 audit department. That proposal was to bring the whole

13 function back in-house in both Philadelphia and Chicago and try

14 to staff it according to the changing business environment and

15 the skill sets that we now needed to be successful.

16 Q During what time period did the strategic performance

17 assessment that you described actually occur?

18 A July and August of 2001.

19 Q Could you please turn to Respondent's Exhibit 3 and

20 tell me if you recognize this document?

21 (Whereupon, the document referred

22 to as Respondent's Exhibit No. 3

23 was marked for identification.)

24 A Yes, sir. This is an organizational chart that I

25 created after the end of that assessment.

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1 Q And how does this organizational chart relate to the

2 actual staffing of positions that occurred in October of 2001?

3 A This is what we used to staff. And this, by the way,

4 was based on a lot of bench-marking statistics, answers to

5 internal auditors, has a lot of statistics about the size of an

6 audit department based on assets and revenues and then what the

7 ratio should be, how many managers there should be to staff and

8 that kind of thing.

9 MR. GROSS: Move to admit Respondent's Exhibit 3.

10 MR. McDERMOTT: Your Honor, I really can't object

11 except I can't read it and never have been able to read it. I

12 don't know if you're in any better condition than I am.

13 JUDGE LESNICK: I was looking at it. It's a little

14 tough, but I think I can read it.

15 MR. GROSS: We're going to go through the key parts

16 of it, Your Honor, that apply to Mr. Shirani.

17 JUDGE LESNICK: Okay.

18 MR. McDERMOTT: That would have been my other

19 objection, I don't know what it means to this case.

20 MR. GROSS: Can you explain to --

21 JUDGE LESNICK: Admitted.

22 (Whereupon, the document referred

23 to as Respondent's Exhibit No. 3

24 was received into evidence.)

25 MR. GROSS: Thank you.

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1 BY MR. GROSS:

2 Q Can you explain what decision you made on how Chicago

3 would be structured as a result of the strategic performance

4 assessment?

5 A Okay. The right side of the chart that's difficult

6 to read shows a director in Chicago, two managers in Chicago

7 and 11 seniors.

8 Q You're familiar with the salary grade levels E-3, E-

9 4, E-5, et cetera?

10 A I am.

11 Q At the outset when you came up with the structure,

12 what grade level did you propose for the director position?

13 A The director position was proposed to be an E-6.

14 Q What did you propose at the outset for the manager

15 position?

16 A E-5's.

17 Q And what did you propose at the outset for the senior

18 position?

19 A E-4's.

20 Q Senior auditor?

21 A Yes, senior auditor.

22 Q And as manager principal auditor --

23 A Principal manager auditor.

24 Q What compensation levels were ultimately given to

25 those three positions?

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1 A All three were downgraded a level.

2 Q Why is that?

3 A Much to my dismay because I at the time was a

4 director and I was a level E-6. HR has a policy that E-6 can't

5 report to an E-6. So, everybody below me was downgraded a

6 level even though it was not consistent with the rest of, you

7 know, the finance group, I lost that argument.

8 Q What process did you initiate to staff these

9 positions?

10 A We followed an internal process that had been used in

11 the merger where every department had gone through a selection,

12 a deselection-selection process. And that basically involved

13 writing the job descriptions associated with this position and

14 then posting on an internal Exelon HR placement system called

15 the ECOS.

16 Q Why didn't you just assign people to the jobs?

17 A I wasn't allowed to do that.

18 Q If you could turn to Respondent's Exhibit 4 please?

19 And tell me if you recall sending this e-mail to the

20 individuals listed on the To line.

21 A Yes. I sent this e-mail, it was to try to keep

22 everyone in both Philadelphia and Chicago informed about the

23 process and the time line for the job postings and the

24 selection process.

25 Q You indicate at the beginning that you had been

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1 "committed to keeping you informed as to changes." How did you

2 do that?

3 A Well, there were several e-mails that had gone out

4 over the period of time while I was doing the strategic

5 performance assessment. People obviously were very curious and

6 sort of in a stage of they didn't know what was going to happen

7 to their job. And then, I also had a lot of informal

8 conversations with individuals where they would call me or step

9 into my office and I would make them aware of what we were

10 doing and how the process was going.

11 Q Prior to sending this e-mail, what information did

12 you give to your employees regarding the jobs you were expected

13 to fill and their salary grades?

14 A I'm not sure I understand that question.

15 Q Prior to October 2nd when you sent this e-mail, what

16 information did you provide to your staff, Mr. Shirani and the

17 employees in Philadelphia, regarding the actual positions and

18 actual salary grades in the restructured organization?

19 A Well, the position descriptions were readily

20 available from HR and they had assigned those positions, those

21 E-3's, E-4's. So, they were all aware of those levels and

22 those position descriptions.

23 Q The posting date is indicated in this e-mail as

24 October 5th, 2001?

25 A Yes, sir.

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1 Q Do you know whether that is the date in fact when the

2 positions in the organization were posted for staffing?

3 A I believe it was.

4 Q Prior to the date October 5th, can you tell me what

5 conversations you had with Oscar Shirani about his prospects

6 for the manager E-4 job?

7 A Well, in between the mid-year evaluation in July and

8 this time, Oscar had stopped into my office several times and

9 in one occasion he wanted to better understand what his

10 prospects were for the manager position. And we basically went

11 through those same six criteria which I evaluate against. And

12 I told him that it was unlikely that I was going to give him

13 the manager job and that he should probably apply for the

14 senior position.

15 Q Senior position being the senior auditor?

16 A Senior auditor position, yes.

17 Q The E-3 position?

18 A Yes.

19 Q Did he make any request of you in that conversation?

20 A Well, he asked me if I would be willing to leave the

21 position open for a year and let him grow into it. And while

22 that wouldn't have maybe been a bad idea if we were an audit

23 department that was up and running and going, I had a concern

24 that with 28 new people, a new audit process, a new whole

25 department, a new audit technology, that I just really couldn't

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544

1 afford to leave a position open for a whole year and that we

2 really needed to have a full complement of staff and they had

3 to be able to hit the ground running.

4 Q How did he respond to your suggestion that he apply

5 for the E-3 senior auditor position?

6 A He indicated that he was not interested in that

7 position because the salary wasn't high enough.

8 Q You state in this October 2nd e-mail in the third

9 paragraph of text at the end, "Core competencies will service

10 these selection criteria." Do you see that?

11 A Yes.

12 Q And then, you state, "Additionally, technical

13 knowledge, skills and previous experience will be considered

14 when staffing the positions."

15 A That's correct.

16 Q Were technical knowledge, skills and previous

17 experience essential prerequisites for the position?

18 A Not essential prerequisites. I was going to use my

19 judgment. Basically, the core competencies is what we've used

20 for most of the selection, but some of those things were great,

21 you know, pluses if you had those.

22 Q What was the deadline for submitting applications?

23 A October 16th.

24 Q And what was the policy as to whether a person could

25 be considered for a position for which that person did not

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545

1 apply?

2 A You are not allowed to be considered for a position

3 you did not apply.

4 Q Can you turn please to Respondent's Exhibit 5 which

5 is, I believe, in the record already as Complainant's Exhibit

6 16?

7 (Whereupon, the document referred

8 to as Respondent's Exhibit No. 5

9 was marked for identification.)

10 BY MR. GROSS:

11 Q Tell me what that is?

12 A It's the job posting for the principal manager

13 position.

14 MR. GROSS: I've been told that Complainant's Exhibit

15 16 is probably not in so I'm going to ask that Respondent's

16 Exhibit 5 be admitted.

17 JUDGE LESNICK: Any objection?

18 MR. McDERMOTT: No objection, Judge.

19 JUDGE LESNICK: Admitted.

20 (Whereupon, the document referred

21 to as Respondent's Exhibit No. 5

22 was received into evidence.)

23 BY MR. GROSS:

24 Q What portions of this job description did you

25 yourself write?

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546

1 A I wrote all of it, except for some of the HR stuff at

2 the time like the requisition number or the compensation

3 level --

4 Q Can you summarize briefly what the expected duties of

5 the manager job were when you were making decisions to select

6 for that position?

7 A Well, I mean, basically, a manager leads an audit, so

8 that they do the whole risk assessment part of it up front.

9 They guide and lead the planning. They have an overall

10 responsibility for the audit scope objectives, the audit

11 program. They have direct communication with a lot of the

12 management and senior management. They are responsible for

13 supervising everybody on the engagement, and then they are the,

14 you know, last person responsible for the audit report itself.

15 Q With respect to supervision, how did Mr. Shirani's

16 duties up to that point differ from the supervisory duties of

17 the principal/manager, audit position that you were expecting

18 to fill?

19 A We required that the manager has supervisory

20 experience because each manager was going to have five people

21 or six people directly reporting to them, but could be up to

22 even more because we have a matrix environment. So, you could

23 have a couple audits with a combination of seven, eight, nine

24 auditors working for you.

25 Q With respect to financial internal audits, can you

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547

1 tell me what the difference was between the work Mr. Shirani

2 had done in that area and what your expectation was for the

3 duties of the manager?

4 A I was only going to have two business process

5 managers, and so they had to have a full depth and breadth of

6 auditing. So, I was looking for, if I could get them, people

7 that had both financial auditing experience, operational

8 auditing experience and compliance auditing experience because

9 they were going to have all those kinds of audits under their

10 purview in the business process area.

11 Q If you could turn to the second page of Respondent's

12 Exhibit 5 and look at the section that's entitled position

13 requirements? There is a subsection entitled Level of

14 Education/Certification/Years of Experience. Do you see that?

15 A Yes.

16 Q Were those all in that section absolute prerequisites

17 to be selected for the manager job?

18 A No.

19 Q Was an applicant automatically excluded if he or she

20 did not have one or more of those listed there?

21 A No. I mean, there's different people that bring

22 different experiences and different abilities to the table, so

23 we were flexible.

24 Q Your e-mail of October 2nd referred to the core

25 competencies that are required. Can you tell me where on

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1 Respondent's Exhibit 5 those core competencies are required?

2 A The core competencies are under technical

3 competencies and enabling competencies.

4 Q Were you the sole decision maker in determining the

5 job duties of the manager?

6 A Yes. And if you look at those competencies, you'll

7 see they fairly closely align to the six categories that I

8 evaluate against. They're very similar because I wrote both.

9 Q I'm sorry, evaluated against in what context?

10 A In the earlier evaluation where we had six categories

11 of technical and industry experience and communication skills,

12 these are the same competencies that are reflected here.

13 Q You're referring to Respondent's Exhibit 1?

14 A Yes. So, the technical skills relate to the

15 technical competencies. The industry one that I evaluate

16 against is down here as industry experience of best practices.

17 Written and verbal communication skills which were in the

18 evaluation are here, so it's the same group.

19 Q Were you the sole decision maker in selecting who to

20 make a manager during the restructuring process?

21 A Yes.

22 Q Did Ruth Ann Gillis ever direct you, ask you or even

23 suggest to you who you'll place in the manager position during

24 this process?

25 A No.

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1 Q Did anyone direct you or suggest to you or ask you

2 who to place in this manager position?

3 A No.

4 Q Did anyone ever direct you, ask you or suggest to you

5 that you not select Mr. Shirani for this manager position?

6 A No.

7 Q If you could turn now to Respondent's Exhibit 6 and

8 tell me what this document is?

9 (Whereupon, the document referred

10 to as Respondent's Exhibit No. 6

11 was marked for identification.)

12 A This is my candidate assessment after the interview I

13 had with Mr. Shirani.

14 Q Who filled this out?

15 A I did.

16 Q Can you tell me when relative to the actual interview

17 you filled this out?

18 A Right after the interview.

19 Q On what date?

20 A October 22nd.

21 MR. GROSS: Respondents move for the admission of

22 Respondent's Exhibit 6.

23 JUDGE LESNICK: Any objections?

24 MR. McDERMOTT: Just one minute, Your Honor. Your

25 Honor, I observe that it is entirely in print and there is no

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550

1 individual's signature apparent anywhere.

2 MR. GROSS: She's already identified it as the

3 document that she completed on October 22nd, 2001.

4 MR. McDERMOTT: Did she sign it and what did she do

5 with it, I guess?

6 MS. CAYA: Well, I did it online, so that's why the

7 name is typed in there instead of physically signed. And it

8 was sent to HR and this form was done on every individual that

9 I interviewed.

10 MR. McDERMOTT: I guess that answers it, doesn't it?

11 JUDGE LESNICK: Yes.

12 MR. McDERMOTT: It's all done on --

13 JUDGE LESNICK: On line.

14 MR. McDERMOTT: On line, I'm sorry. And no paper

15 trail at all.

16 MR. GROSS: Excuse me?

17 MR. McDERMOTT: There's no paper trail at all, and

18 you retrieved it from HR, I take it? Is that correct?

19 MR. GROSS: I'm not going to answer questions here

20 about what I did.

21 MR. McDERMOTT: I'm sorry. I guess no objection,

22 Your Honor.

23 JUDGE LESNICK: All right. 6 will be admitted.

24 (Whereupon, the document referred

25 to as Respondent's Exhibit No. 6

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551

1 was received into evidence.)

2 BY MR. GROSS:

3 Q In the interview on October 22nd, 2001, what did you

4 tell Mr. Shirani regarding his applying for the senior auditor

5 E-3 position?

6 A In this interview?

7 Q Yes.

8 A I told him that it was unlikely again that he was

9 going to get the manager position and I asked why he hadn't

10 applied for the senior position.

11 Q Senior auditor position?

12 A Senior auditor position.

13 Q E-3?

14 A E-3.

15 Q What did he tell you?

16 A He told me that the salary wasn't high enough.

17 Q Did you explain anything about salary to him in that

18 conversation?

19 A I did. He was currently making $98,000 a year and

20 the band on the E-3 was $100,000. So, we had a couple of

21 things that we thought we could do for him. Number one, we get

22 bonuses every year and I'm at liberty to move some of those

23 bonuses around, so I could reward him more in the bonus area if

24 he was tapped out on the salary level. But in essence, he

25 actually still did have some room in the salary level. In

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1 addition, each year those bands are re-evaluated, so as the

2 cost of living goes up, HR re-looks at whether the band should

3 be widened or the top of the band should go up based on the

4 cost of living or some index that they use. So, I thought that

5 there was still room for him to get additional increases if he

6 wanted.

7 Q The second page has a note typed in there, "You did

8 not apply for the senior accountant position." What position

9 is that referring to?

10 A That was a mistake on my part. It should read he did

11 not apply for the senior auditor position.

12 Q Why did you decide it was worthy to note that on

13 this?

14 A Because we had discussed it in the interview, so I

15 thought I should note it down.

16 Q On the first page at the bottom, there's the

17 common/general impression section that continues briefly on the

18 second page. Does that accurately set forth the reasons you

19 made your decision not to select Mr. Shirani for a manager?

20 A Yes.

21 Q Can you tell me generally why you made that decision

22 not to select him?

23 A Well, the first one talks about the financial

24 auditing experience and I think I've said a couple of times I

25 wanted someone with broad experience in financial, operational

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553

1 and compliance auditing. And while Oscar was a pretty good

2 process auditor, I hadn't seen much of his financial or

3 compliance auditing. The second one talks about supervisory

4 experience which was required for the position. He did tell me

5 he had some supervisory experience way back when, but it had

6 not been recent and I had not observed it within the internal

7 audit department because he had not led any audits in the

8 internal audit department.

9 The third one dealt with communication skills. I

10 thought his verbal communication skills were good, but we

11 needed some work on the written communication skills. The

12 manager position is critical because it's the last person who

13 sees the report before it goes out.

14 Q Okay, before you go on, jumping back to the first

15 one, it refers to a "tendency to be a bit confrontational."

16 And in the Darren Zurowski report or evaluation, it refers to

17 issues of compliance cop. Can you explain to us what that

18 means in the context of internal audit and what you were saying

19 here?

20 A Well, you know, we were striving very hard to

21 redevelop this internal audit department, and old school kinds

22 of audit departments where they look over your shoulder and

23 they're sort of this compliance cop really aren't well received

24 in a business environment. So, we try to be of a more

25 consultative nature of talking about, you know, here are the

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554

1 facts, here are some recommendation. Mr. Shirani has a

2 tendency to get some facts, not fully ferret them out, and then

3 just run with them and be very confrontational. I had seen it

4 myself but it was also confirmed by the evaluation of

5 Mr. Zurowski.

6 Q Why is that a problem or a difficulty in your

7 judgment?

8 A I mean, auditing is our core job and if everybody is

9 going to be aggravated for the auditors to come in all the time

10 and if it's going to be confrontational, we're not going to be

11 able to help them and we're not going to be able to get our

12 recommendations. And at the end of the day, you want the

13 process to get better. You want the internal controls to get

14 better. So, that's very old school auditing to be sort of this

15 compliance person that looks over your shoulder with a

16 checklist.

17 Q The fourth bullet point refers to "tooting his own

18 horn." Can you tell me why that was an issue for you during

19 this interview?

20 A Well, during the interview, I asked him a lot of

21 questions about his background and his experience. And again,

22 the listening, he wasn't answering the questions that I was

23 asking him. And instead, he pulled out this whole binder of

24 his, you know, stack of documents of all the courses he's ever

25 taken and all the certifications he had in engineering. And

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1 while they were impressive of some of the things that he had

2 done, it wasn't relevant to the questions that I was asking and

3 it wasn't relevant to what we were talking about at the time.

4 Q How does his promoting himself somehow impact his

5 prospects to be a manager?

6 A Well, I think it's fine to promote yourself some, but

7 I think that, you know, you try to sell yourself in an

8 interview, you try to explain why you can meet the competencies

9 and why you can meet the qualifications of the job. And he was

10 very bent on just telling me all the things he had done in the

11 past for around engineering mostly. Some of them were --

12 papers that he had published on certain engineering topics that

13 while impressive to have something published was not relevant

14 to the auditing position he was applying for.

15 Q The last, this bullet point on the top of the second

16 page refers to an A + B = C. Can you tell me what point you

17 meant there?

18 A You know, the key, one of the key things in auditing

19 is problem solving and being able to take a set of facts and

20 reach a sound conclusion. I had some significant concerns

21 where Oscar would have a set of facts or two sets of facts and

22 the conclusion he would draw from those facts did not make any

23 sense. I think you call it deductive reasoning but I'm not

24 sure if it's inductive or deductive but it's just A + B,

25 somehow he got to C and it didn't match up.

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1 Q Do you have any examples of that?

2 A Well, one example is, you know, I know from speaking

3 with him, now I've never confirmed this with Ruth Ann, but from

4 speaking with him, Ruth Ann had told him that there was a lot

5 of opportunities in audit, that the audit department sees all

6 different parts of the company, you get exposure to a lot of

7 management. So, being in that department offers people a lot

8 of opportunities for, you know, doing other things in the

9 company or meeting the right people.

10 I think she also mentioned on a different occasion

11 that, you know, there's a lot of officers positions opened at

12 Exelon. We were a growing company. We had merged. Some

13 people had left in the merger and that there were a number of

14 directors and officers position. And somehow he got from that

15 that if he went into the audit department he would be a vice

16 president.

17 Q Who ultimately did you select for the two manager

18 positions in Chicago?

19 A I selected Darren Zurowski and Marcos Kuskov.

20 Q Can you tell me why you selected Darren Zurowski?

21 A Darren Zurowski had a dual degree in accounting and

22 computer science. He was an MBA, a CPA and I believe he's also

23 a CIA. He had 11 years of both public accounting and private

24 experience. For a period of that, he had directed work at

25 ComEd. Then when he was in public accounting, he had worked

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557

1 for a number of other utilities in Chicago, so he had very

2 sound industry experience as well. He had led a team of up to

3 eight to ten auditors in his role with Arthur Andersen, so he

4 had also had supervisory experience.

5 Q What type of internal auditing experience did he

6 have?

7 A He had done financial, operational and compliance

8 auditing.

9 Q Why did you select Mr. Kuskov?

10 A Mr. Kuskov came from Sara Lee. He also had

11 financial, operational and compliance auditing experience. He

12 also was a CPA, had some public experience and private. Had

13 worked at McDonald's Corporation and Alberto-Culver V05. Also

14 supervisory experience in most of those jobs.

15 Q Can you turn to Respondent's Exhibit 7?

16 (Whereupon, the document referred

17 to as Respondent's Exhibit No. 7

18 was marked for identification.)

19 BY MR. GROSS:

20 Q Can you tell me what this document is?

21 A This is the job posting for the senior staff auditor.

22 Q And what was the salary range for that job?

23 A $53,000 to $100,000.

24 Q And where did Mr. Shirani's salary fall at the time?

25 A Within that band.

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558

1 Q If you could turn to the second page and directing

2 your attention to the level of education/certification/years of

3 experience section, do you see that?

4 A Yes.

5 Q Can you tell me which of those in your view

6 Mr. Shirani did not possess at the time of this restructuring

7 process?

8 A I think the only one was I'm not sure he had a

9 professional accreditation in CPA, CIA or CISI. And I was

10 willing to waive that.

11 Q When you say you were willing to waive that, how?

12 A Well, it was up to my judgment on what different

13 things people brought to the table. And he had an engineering

14 background and had done a lot of operational auditing. And so,

15 I thought that compensated for it, for not being an accountant.

16 These are very specific to accounting and auditing.

17 Q It indicates five to eight years internal audit

18 experience. Did Mr. Shirani have that at the time?

19 A He didn't have internal auditing experience, but he

20 had done some work in the nuclear arena in auditing, so I

21 thought that counted.

22 Q And it indicates supervisory experience is a plus.

23 A Right. We didn't require it at the senior staff but,

24 you know, they probably would be supervising staff individuals,

25 so if they had it, that would be great.

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559

1 MR. McDERMOTT: I'm going to object to this line of

2 questioning. It sounds speculative. She has testified that he

3 didn't apply for this job and now she's saying I was going to

4 do this, I was going to do that. It's all speculative.

5 JUDGE LESNICK: I'll allow it. Go ahead.

6 (Whereupon, the document referred

7 to as Respondent's Exhibit No. 7

8 was received into evidence.)

9 BY MR. GROSS:

10 Q How many slots, I believe you testified there were 11

11 senior auditor spots to be filled in Chicago?

12 A Yes.

13 Q During this restructuring?

14 A Yes.

15 Q Can you tell me how many were actually filled during

16 the selection process in October of 2001?

17 A One.

18 Q What about in Philadelphia?

19 A In Philadelphia, there were five slots and two were

20 filled.

21 Q Were there any applicants for the director position

22 who applied for a position that was below their then current

23 salary level?

24 A Yes.

25 Q Who was that?

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560

1 A A gentleman Don Ariga, he was in our Enterprises

2 organization. I believe he was a 6 or a 7 and he applied for

3 the director which was a level 5.

4 Q Who else was terminated from the organization after

5 not having been selected for a position during this October

6 2001 restructuring process?

7 A There were three other individuals in Philadelphia

8 who were incumbents to the position who I did not select.

9 Q What are their names?

10 A John Heren, Fred Watson and Jim Kelly.

11 Q Were they considered for any positions for which they

12 did not apply?

13 A No, they weren't.

14 Q Were they offered the same separation pay as

15 Mr. Shirani was offered?

16 A Yes, they were.

17 Q Do you have any knowledge as to whether those

18 individuals had ever raised any nuclear safety concerns or

19 complaints?

20 A No.

21 Q When did you first inform Mr. Shirani about your

22 decision that he would not become a manager? And when I refer

23 to manager throughout, I've meant the E-4 position, correct?

24 Is that your understanding?

25 A Yes. Well, we had talked about it before the

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561

1 interview that I thought it was unlikely. But then after the

2 interview, we had a meeting with him on October 26th where we

3 told him he did not get the position.

4 Q Where did that meeting occur?

5 A In the AT&T building.

6 Q Who else was there?

7 A Martha Garza.

8 Q What did you yourself tell him regarding your

9 decision?

10 A That I had gone through the criteria. It was

11 basically the same thing I had been evaluating against this

12 whole time in that while I thought, you know, he brought a lot

13 of good skills to the table, I didn't think it was going to be

14 enough for the manager slot.

15 Q Who explained to Mr. Shirani during that meeting what

16 that decision by you meant in terms of his continued employment

17 with the company?

18 A Martha.

19 Q Whose decision was it to terminate Mr. Shirani's

20 employment?

21 A Mine.

22 Q Did Ruth Ann Gillis ever direct you, ask you or

23 suggest to you that you should terminate Mr. Shirani?

24 A No.

25 Q Did anyone ever direct, ask or suggest to you that

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562

1 you terminate Mr. Shirani?

2 A No.

3 Q After the October 26th meeting, did you meet with him

4 again?

5 A Yes, we met on October 30th.

6 Q Who all was there?

7 A Martha Garza and myself.

8 Q Can you tell me to the best of your recollection what

9 happened at that meeting?

10 A Well, Oscar had wanted to talk to us once again about

11 why he didn't get the manager position. And in fact, I wanted

12 to also have some conversations because he had sent a note to

13 our CEO John Rowe about this whole process. So, we had a

14 meeting in my office.

15 Q What did you say at that meeting if anything?

16 A We talked through once again the different criteria

17 that we had used and why we thought or why I thought, I didn't

18 think that he met that criteria and why we weren't selecting

19 him for the manager slot.

20 Q What did Mr. Shirani say to you at that meeting?

21 A He got very upset. He got very vocal. He started

22 ranting and raving that there was this whole big conspiracy

23 against him and he had five or six propositions. One was that

24 we were trying to get him out of nuclear. You know, one was

25 that Ruth Ann had tricked him and that she had promised him.

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563

1 One was that we thought he was a terrorist and we didn't want

2 him in the company. One was that I was discriminating against

3 him because I hated all minorities. I mean, it just went on

4 and on.

5 Q What happened ultimately at that meeting?

6 A Well, his voice got louder and louder. He obviously

7 was getting very angry and I got concerned and so I excused

8 myself from the meeting and I called corporate security.

9 Q Have you ever had any responsibility over ComEd's or

10 Exelon nuclear reactors or operations?

11 A No.

12 Q Have you ever worked in nuclear operations at any

13 utility?

14 A No.

15 Q Do you know who Russ Bastyr is?

16 A No.

17 Q Have you ever had any communication with him about

18 Oscar Shirani?

19 A No.

20 Q Do you know Dave Helwig?

21 A I do know Dave.

22 Q Have you ever had any communication with Dave Helwig

23 about Mr. Shirani?

24 A No.

25 Q Did Dave Helwig ever direct, ask or suggest to you

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564

1 that you do anything in particular to Mr. Shirani?

2 A No.

3 Q Do you know Oliver Kingsley?

4 A I do.

5 Q Have you ever had any communication with Mr. Kingsley

6 about Oscar Shirani?

7 A No.

8 Q And did Mr. Kingsley ever direct you, ask you or

9 suggest to you that you take any particular action with respect

10 to Mr. Shirani?

11 A No.

12 Q Anyone in Exelon Nuclear ever talk to you about

13 Mr. Shirani?

14 A Did anyone in Exelon Nuclear ever tell you that he or

15 she or someone else harbored any animosity or hostility toward

16 Mr. Shirani?

17 A No.

18 Q Did you ever become aware of any work that

19 Mr. Shirani did in nuclear?

20 A Just one time, when we were having lunch one time, he

21 told me about an audit that he had done that was not favorably

22 received.

23 Q What if anything did he tell you in addition to that

24 about, did he tell you who the audit was for?

25 A Yes. He told me it was for GE, and he basically just

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565

1 said he had done an audit and it had not been favorably

2 received.

3 Q Did he identify who did not favorably receive that

4 audit in that or any other conversation?

5 A No.

6 Q Did you discuss that GE audit he brought up with

7 anyone else at any point?

8 A No.

9 Q Do you have any knowledge as you sit here today as to

10 what he audited in that audit and what the results were?

11 A No.

12 Q And did that audit or anything else Mr. Shirani did

13 in nuclear have anything to do with your decision not to select

14 him for manager and to terminate him?

15 A No. It was based on a defined process that we were

16 using.

17 MR. GROSS: No further questions.

18 JUDGE LESNICK: Mr. McDermott, you may cross examine.

19 MR. McDERMOTT: Thank you, Judge.

20 CROSS EXAMINATION

21 BY MR. McDERMOTT:

22 Q Ms. Caya, looking at your, I believe you called it

23 strategic --

24 A Performance assessment?

25 Q No. Your Exhibit No. 3, strategic analysis, was that

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566

1 what you're calling it?

2 A Oh, this is the organizational chart.

3 Q Okay. And the organizational chart was compiled

4 during, I think you said, the summer of 2001, is that correct?

5 A Right. It was compiled at the completion of the

6 strategic performance assessment.

7 Q At the completion of the strategic, that's what I was

8 looking for.

9 A Right.

10 Q Who did this strategic performance assessment?

11 A I did with a consultant from PricewaterhouseCoopers.

12 Q Okay. Your former employers, correct?

13 A Yes.

14 Q So, you hired consultants to come in and advise you.

15 At that time --

16 A No, excuse me.

17 Q I'm sorry?

18 A I hired consultants to help me do the process.

19 Q All right. And you get this chart, correct?

20 A Well, this was only one small piece of the results of

21 that strategic performance assessment.

22 Q I understand. I'm sure many more things were done.

23 But this is one of the items that you've identified as the

24 operations chart for that department, correct?

25 A Correct.

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567

1 Q Now, this certainly isn't the chart as it exists

2 today, is it?

3 A No, it is not.

4 Q Because you now are a vice president, correct?

5 A That's correct.

6 Q But if I look at this chart, you said you were the

7 director, am I correct?

8 A Well, it was a director level position but my title

9 was general auditor.

10 Q Oh, so you're not even on this chart?

11 A I am, I'm the top box in the middle.

12 Q Oh, general auditor.

13 A Yes, sir.

14 Q So, that was your title, you weren't director?

15 A Correct. It was a director level according to HR, it

16 was a level 6 which was equivalent to a director band at

17 Exelon.

18 Q Well, when you answered Mr. Gross' question, you said

19 you came in in April, a very specific date in April, as

20 director of internal audit. Well, which were you?

21 A I was the general auditor and the director of

22 internal audit. It was all one title.

23 Q So, you were confused when you were answering his

24 question or you forgot?

25 A Neither. I was the general auditor and director of

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568

1 internal audit.

2 Q Did you have conversations with Mr. Shirani about him

3 never being able to get a director's position because a

4 director cannot report to a director and that's all you were

5 was a director?

6 A No.

7 Q Never had that conversation?

8 A No.

9 Q All right. You testified that you did a mid-year

10 evaluation on, a performance evaluation of Mr. Shirani in

11 7/19/2001, correct?

12 A Yes.

13 Q And that you utilized the, that was Exhibit No. 1,

14 that you utilized the Andersen evaluations, is that correct? I

15 want to just understand your testimony. Your performance

16 evaluations on Exhibit No. 2.

17 A Well, these were used as formal documentation for the

18 evaluation, Denise Miller's was because it was within that time

19 frame. Darren Zurowski, this was a pretty long audit, the

20 ComEd one, had verbally talked to me about the progress of

21 Oscar and this was the evaluation that came after the mid-year.

22 Q So, you didn't use these, am I correct, you did not

23 use these documents to --

24 A I did use the ones from Denise Miller.

25 Q Well, it has an end date of 8/17.

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569

1 A That is the date that the report was issued.

2 Q Yes?

3 A But the field work was done.

4 Q When was the field work done from this document that

5 I'm looking at?

6 A I believe it was --

7 Q It says it doesn't start until 7/30/01.

8 A Yes.

9 Q We're going to have trouble with this document,

10 aren't we?

11 A I would receive input from both --

12 Q Please, you identified this document and you

13 testified under oath that these are two documents that you used

14 during Mr. Shirani's mid-year evaluation. And that mid-year

15 evaluation is Exhibit No. 1, your entire Company's No. 1

16 Exhibit. And your entire Company's No. 2 Exhibit, you've

17 identified as something you've used to create Exhibit No. 1 for

18 your entire Company -- this exhibit that the start date for

19 Denise Miller's evaluation occurs after your mid-year

20 evaluation. Am I right or is this a mistake?

21 A I think the start date is incorrect.

22 Q I see. But the start date on Mr. Zurowski's is

23 correct or is it also incorrect? The start date --

24 A Well, the total hours on --

25 Q Please, I'm asking you a question. Please listen.

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570

1 MR. GROSS: I'll object, Your Honor, to the extent

2 he's interrupting her in her answer.

3 MR. McDERMOTT: Well, I didn't have the question out.

4 JUDGE LESNICK: Well, both of you.

5 MR. McDERMOTT: Thank you.

6 BY MR. McDERMOTT:

7 Q What's the start date for Mr. Zurowski's?

8 A It reads December, excuse me, it reads October 4th

9 but it can't possibly be correct because if you add 120 total

10 hours to an October 4th start date, it would not end on October

11 11.

12 Q So, maybe these are performance evaluations that are

13 so incorrect, they shouldn't be seen by this Administrative Law

14 Judge, correct?

15 A No, I disagree with you.

16 Q Why would you disagree?

17 MR. GROSS: I'll object to the argumentative nature

18 of the question.

19 JUDGE LESNICK: I'll allow it on cross.

20 MS. CAYA: Because the fact that they got the dates

21 incorrect doesn't invalidate the whole evaluation. And it

22 doesn't invalidate the feedback that I would get from these

23 managers throughout the process that they used Mr. Shirani on

24 the jobs.

25 BY MR. McDERMOTT:

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571

1 Q You understand my problem?

2 A I do.

3 Q You're not Mr. Zurowski, so I can't ask you specific

4 questions related to that document which you've already seen

5 displays some pretty crippling error or unexplainable displays,

6 correct?

7 MR. GROSS: I'll object to the mischaracterization.

8 JUDGE LESNICK: I'll allow it, go ahead.

9 MS. CAYA: I don't think getting the dates wrong is

10 crippling. I think the core pieces of this are the technical

11 performance, the communications, the administration, the

12 customer focus, the accountabilities. And the critical piece

13 is the comments on page 2 which is the overall statement of

14 performance.

15 BY MR. McDERMOTT:

16 Q But the overall statement of performance can only

17 have been made an overall statement of performance if it's over

18 and its end date is 10/11/01.

19 A It doesn't preclude the manager from coming in during

20 the audit and talking to me about performance. I can't account

21 for the dates.

22 Q That wasn't what you testified to, Ms. You testified

23 that you used these documents to do Mr. Shirani's mid-year

24 evaluation. Now, you either did or you didn't. You did use

25 these documents?

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572

1 A I used the input from the managers --

2 Q That's not my question.

3 A Well, I'm correcting it then. I used the --

4 Q You're correcting your testimony?

5 A I used the input from the managers who subsequently

6 did these evaluations.

7 Q So, you cannot identify these as documents you used

8 to do your mid-year evaluation, correct?

9 A Possibly.

10 Q Well, I'm asking you. Do you understand that

11 question?

12 A I do.

13 Q You cannot use these documents to support the

14 statement that I accessed these documents to do my mid-year

15 evaluation in July.

16 A I do not know.

17 Q So, now you don't know?

18 A I don't know.

19 Q You don't know if you used these documents or you

20 don't know --

21 A I used the input from these documents.

22 Q All right. Let's find out how they get input. How

23 do we get input from Darren Zurowski who now works for you,

24 correct?

25 A Yes, he does.

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573

1 Q He is in fact --

2 A A manager.

3 Q A manager. He in fact has the job that Mr. Shirani

4 applied for, correct?

5 A He does.

6 Q Now, did Darren make a mistake in any of this? Do

7 you think Darren's work here is, this document authored by

8 Darren that you've identified is probably correct and it's

9 probably the case that you just used the input from Darren,

10 correct?

11 A Yes.

12 Q All right. So, you go to Darren in July, right?

13 Prior to the writing of this document is when you wrote --

14 which was put a couple of days before it was actually signed,

15 am I correct?

16 A What is --

17 Q You put it together a couple of days before it's

18 signed?

19 A The mid-year evaluation? I don't know that for a

20 fact. It could have been put together that morning. I don't

21 know.

22 Q Did you do it in Oscar's presence?

23 A No.

24 Q Did you do it after his --

25 A The mid-year evaluation?

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574

1 Q Yes.

2 A No, I did it beforehand.

3 Q You did the mid-year evaluation, so you had the input

4 from these two people, Ms. Miller and Mr. Zurowski. Do you

5 recall when --

6 A And some other verbal input from Tim Makris who was a

7 director.

8 Q These are all Arthur Andersen people, correct?

9 A They are.

10 Q All right. Is there --

11 A And my own input.

12 Q I understand. So, now you're adding a third person

13 who gave you verbal input. Did you get verbal input or written

14 input from Mr. Zurowski prior to your evaluation? Mid-year

15 evaluation?

16 A I believe I got verbal input.

17 Q Do you recall how that verbal input was solicited?

18 A I do not recall.

19 Q And did you do any mid-year evaluations for anybody

20 else?

21 A Yes. I did mid-year evaluations for the entire staff

22 in Philadelphia.

23 Q All right. And were they exactly these same kinds of

24 forms or did Philadelphia having had a genesis in PECO be

25 different?

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575

1 A They were the exact form behind Tab 1.

2 Q Behind Tab 1, this Exelon form?

3 A Yes.

4 Q And you did them in the same, in a way that was for

5 five people?

6 A Yes.

7 Q One or two I believe survived restructuring?

8 A Six people. Five professional staff and one

9 assistant.

10 Q And you did them all?

11 A Yes.

12 Q Is there a general auditor now in the audit

13 department?

14 A Yes. I'm the general auditor and vice president of

15 internal audit.

16 Q So, your title is vice president and, what is your

17 title?

18 A It's a matter of semantics, sir. I'm the vice

19 president of internal audit. Some companies call it the

20 general auditor. Some companies call it vice president. It's

21 one and the same position.

22 Q But you testified when you started your testimony

23 here today that you were the vice president of internal audit.

24 A Correct.

25 Q So, nobody holds the post of general auditor?

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576

1 A It is one and the same. I am the general auditor and

2 vice president of internal audit.

3 Q So, then, the only difference in this hard to read

4 chart is that the change in the title name of general auditor

5 to vice president and general auditor?

6 MR. GROSS: I'll object as to vague. Difference

7 between what and what?

8 BY MR. McDERMOTT:

9 Q Well, I'm looking at your exhibit that you've

10 identified as being part of the strategic evaluation, right?

11 A Yes, sir.

12 Q Your Exhibit No. 3, correct?

13 A Yes, sir.

14 Q Now, how is it different, how does it exist today?

15 Are you now the senior vice president/general auditor?

16 A I am vice president and general auditor.

17 Q Is there an administrative assistant, Philadelphia?

18 A Yes, there is.

19 Q Specialist, Chicago?

20 A Yes, there is.

21 Q Director of Chicago?

22 A Yes.

23 Q Director of Philadelphia?

24 A Yes.

25 Q Everything else the same? IT manager?

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577

1 A Yes.

2 Q Everything else is the same?

3 A Everything else is not exactly the same on this chart

4 today.

5 Q What's different?

6 A We moved, we added another position in Philadelphia

7 because we found that there was too much work there in

8 Philadelphia so we added another senior auditor. We also added

9 another manager position in Chicago because we found that this

10 was too much volume for one person to handle.

11 Q So, there are three managers in Chicago?

12 A There is.

13 Q Are all three positions filled?

14 A Yes, it is.

15 Q Are they E-5's now or are they E-4's?

16 A They're all E-5's.

17 Q They're now E-5's?

18 A Yes.

19 Q And is the director of Chicago an E-7?

20 A No, the director of Chicago is an E-6.

21 Q An E-6. All right. And what are you?

22 A An E-7.

23 Q So, we finally got 6, 7 and 5, 4 the way you wanted

24 it in -- correct?

25 A Right. The way it should have been in the beginning.

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578

1 There's also one additional senior auditor, IT auditor.

2 Q So, there's been some change in, it's more than a

3 year since this was put together.

4 A Well, I did my best out of the box.

5 Q Did Ruth Ann Gillis have to approve this chart?

6 A Actually I don't think Ruth Ann did approve this

7 chart.

8 Q Did she take it to any senior officers or managers?

9 I mean, were you absolutely free to put your audit organization

10 together?

11 A Yes.

12 Q Absolutely free?

13 A Absolutely free.

14 Q They gave you a budget and told you to do it?

15 A Yes.

16 Q And you had clerical support?

17 A Actually, initially I had no clerical support in

18 Chicago.

19 Q How long did it take for them to give you clerical

20 support?

21 A Ms. Washington was hired, gosh, I think the fourth

22 quarter of 2001, but I could not be sure of the exact date.

23 Q Well, the fourth quarter of 2001 would encompass

24 October as well of 2001.

25 A Sometime after the structure had been developed.

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579

1 Q But sometime when you're sending the e-mails and the

2 October 5th cutoff date for applying for jobs and the end of

3 October --

4 A She was not hired prior to that, I do not believe,

5 but don't hold me to it. We posted that job as well. I

6 believe we posted that job as well. Martha could tell you

7 more.

8 Q So, it would be the end of the fourth quarter?

9 A I do not know, sir, exactly.

10 Q All right. But up until that time, you're the only

11 person making any of these decisions under any circumstances?

12 A That's correct. With the exception of guidance from

13 HR to be consistent with policy.

14 Q With the law -- and policy. And again, you admit

15 that you made an error in your evaluation, the candidate

16 assessment, when you used the word accountant, you meant to use

17 the word auditor, is that correct?

18 A Yes, sir.

19 Q And again, since you weren't asked that, I'm going to

20 ask you. Is this done by e-mail as well or was this done

21 electronically to HR?

22 A I typed it up electronically.

23 Q I understand. And sent it to ER? Not to ER, HR?

24 A Sent it to HR, yes.

25 Q All right. Mr. Shirani never received a copy of this

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580

1 from you?

2 A I do not believe he received a copy of this from me

3 but it was discussed with him.

4 Q Mr. Shirani never, the document was in front of him?

5 A It was discussed with him.

6 Q Was the document in front of him?

7 A Not to my knowledge. I do not know.

8 Q So, what is "it" was discussed with him?

9 A The results of the interview.

10 Q Right. What was discussed was the fact that he was

11 not selected, correct?

12 A And the specific reasons and categories of why he was

13 not selected.

14 Q I understand that. I heard your testimony and you

15 did --

16 MR. GROSS: Please let the witness finish.

17 MR. McDERMOTT: Sure.

18 MR. GROSS: Thank you.

19 MS. CAYA: And the specific categories and reasons

20 behind why he was not selected.

21 BY MR. McDERMOTT:

22 Q I'm asking you, did Mr. Shirani ever see that

23 exhibit?

24 A I do not know. I do not believe that I showed it to

25 him. I cannot respond for HR.

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581

1 Q And did HR ever tell you whether they gave that to

2 him?

3 A No.

4 Q Did you see a copy or did you get a copy of the

5 letter dated October the 26th explaining that he is no longer

6 employed and will be terminated on the 26th of December? Did

7 you see that copy of the letter from HR?

8 A What, a letter from HR? I don't recall.

9 Q His termination letter.

10 A Yes, I don't recall if I specifically saw that

11 letter.

12 Q What triggers the creation of that termination

13 letter? If you know?

14 MR. GROSS: Objection, lack of foundation.

15 MR. McDERMOTT: If you know.

16 JUDGE LESNICK: I'll allow it.

17 MS. CAYA: We went through a deselection/selection

18 process, and if you're not selected for your position and you

19 do not apply for any other positions, I believe that triggers

20 the preparation of the termination letter.

21 BY MR. McDERMOTT:

22 Q When you say, again, what is that? Is there an

23 instrument, a document, is it the document that you identified

24 here as candidate assessment? Is that what does it?

25 MR. GROSS: Can you --

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582

1 JUDGE LESNICK: What number?

2 MR. McDERMOTT: No. 6.

3 BY MR. McDERMOTT:

4 Q Your Exhibit No. 6?

5 A This document supports the fact that a person is or

6 is not selected because on page 2, there is a line item to

7 either hire for the position or hold, reject or refer. So, I

8 am speculating that when the person is rejected, it triggers

9 the termination letter. But I do not know, I'm not in HR.

10 Q And did you go through this process with people in

11 HR? I mean, you're looking at a document that's dated October

12 the 22nd, right? The date of the interview?

13 A Correct.

14 Q The date of, I guess, without a signature, the date

15 of the rejection is October the 22nd?

16 A The date of the rejection is October 22nd?

17 Q That's what it says on your page 2.

18 A This is the date of the interview and my assessment.

19 Q All right. And he's rejected for that position the

20 same day?

21 A Correct.

22 Q And I'm asking you, does this get, like the other

23 document, electronically sent to HR?

24 A Yes.

25 Q All right. And who in HR would be receiving this and

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583

1 what would that person in HR be doing?

2 A It would be Martha Garza and you'd have to ask her.

3 Q All right. So, you don't know what she'd be doing?

4 A Well, I would imagine that she was compiling --

5 Q I'm just asking you with respect to Mr. Shirani. You

6 did not know what she was going to do?

7 A I know that she was going to terminate him as part of

8 the selection/deselection process.

9 Q What's, this is something you didn't testify on

10 direct. What is selection/deselection?

11 A As part of the merger between PECO and Unicom, every

12 single department in the company went through a

13 deselection/selection process. So, every single individual had

14 to reapply for their positions.

15 Q Yes, but that essentially occurred in the year 2000.

16 We're now in the year 2001.

17 A Correct. It did not occur for the audit department

18 because there was no general auditor/director of internal

19 audit. So, they --

20 Q I understand that there was no audit department, that

21 your only contract --

22 A There was an audit department in Philadelphia. They

23 did not go through deselection/selection --

24 Q Okay. I understand that. So, was the, you didn't

25 come until April of the year 2001, correct?

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584

1 A Yes, sir.

2 Q Was there a determination, did you do any research as

3 to how to handle Philadelphia and how to handle Chicago? I

4 mean, they gave you this great deal of freedom. You've also

5 now testified that you know the practical workings of

6 selection/deselection, correct? That's what you call it?

7 A Yes.

8 Q All right. Mr. Shirani knows that process because he

9 was here and working here as you were not during the year 2000.

10 Do you understand that?

11 A Yes, sir.

12 MR. GROSS: Objection. Asking her to speculate as to

13 what he knows.

14 JUDGE LESNICK: I'll allow it.

15 MR. McDERMOTT: Thank you, Judge.

16 BY MR. McDERMOTT:

17 Q When you come on board in April, do you find out how

18 that was done? And you never had any -- let me just ask you.

19 Exelon had never been a client of yours?

20 A Correct.

21 Q I mean, you had no contact with Exelon?

22 A Correct.

23 Q So, did you do, was it after April that you learned

24 about the selection/deselection process?

25 A Yes.

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585

1 Q Okay. And it had never, and that's when you learned

2 that it had never occurred in Philadelphia with respect to the

3 audit department?

4 A Or Chicago.

5 Q Could you answer just that question, Philadelphia?

6 A It had never occurred in the Philadelphia.

7 Q And it had never occurred in Chicago?

8 A Correct.

9 Q But those were apples and oranges, correct? I mean,

10 you had employees who are now Exelon employees in Philadelphia

11 who had been PECO employees prior to Exelon and many of them

12 had been there for years, am I correct?

13 A Yes.

14 Q All right. And in Chicago, you had Oscar Shirani who

15 had started in January of the year you come in April, correct?

16 A Correct.

17 Q All right. So, those are two different sets of

18 players, am I correct, for the selection/deselection?

19 A No, you're not correct. They're all auditors and

20 they all currently work in the Exelon internal audit

21 department.

22 Q All right. That, when you say they are all auditors,

23 what did you do between April and October of the year 2001 to

24 bring Oscar into the fold along with those other people? Did

25 you ever take him to Philadelphia with you?

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586

1 A I never took him to Philadelphia with me because

2 there was no reason to take him to Philadelphia.

3 Q Did you ever encourage any kind of contact between

4 Mr. Shirani and the people in Philadelphia?

5 A No, there would be no reason to do that unless they

6 were working on some audits together.

7 Q Are the people in Chicago and the people in

8 Philadelphia currently working on some audits together?

9 A They are.

10 Q Yes. Couldn't that have happened in the year 2001?

11 A Not in the time frame that you're talking about.

12 When I arrived on April 23rd, there was no manager nor any

13 director in Philadelphia. So, one my first tasks was to sort

14 of get that department going. They had not produced hardly any

15 reports for the whole year. They had only issued five audit

16 reports the entire audit year from five people. So, I spent a

17 couple of days a week or every other week going over there and

18 redoing the audit plan, helping them with audits, reviewing

19 work papers.

20 While it might have been interesting to bring him

21 over, it was not, it would have been not effective at that

22 point in time. They were in shambles. We needed to get them

23 up and running and get them going before I started introducing

24 people from Chicago.

25 Q So, how long did it take you to effect this emergency

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587

1 intervention in Philadelphia?

2 A The last week of April, most of May and part of June.

3 Q All right. And you then got a manager hired there,

4 am I correct?

5 A No, you are not correct. There was no manager hired

6 there because the goal was to do the strategic performance

7 assessment and not hire anyone until we made a determination of

8 what we were going to do with the internal audit department.

9 Q So, was Chicago smooth by comparison?

10 A Very smooth.

11 Q Because of Arthur Andersen?

12 A Correct.

13 Q And it didn't require much of your attention, is that

14 correct?

15 A Well, it required some attention because I wanted to

16 make sure I got a handle on what Arthur Andersen was doing.

17 Q But by comparison, nowhere near the attention

18 Philadelphia required?

19 A Except for the fact that I was there day to day, I

20 mean, if you look at a two-week --

21 Q You were where?

22 A In Chicago. So, if you look at a two-week period, I

23 was there eight out of ten working days.

24 Q You mean you were here?

25 A Chicago, yes, sir.

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588

1 Q Not there, here.

2 A Here. Chicago.

3 Q We're here.

4 A We're here.

5 Q And you were there only two out of ten working days,

6 is that true?

7 A Well, I'm estimating. I mean, you'd have to pull my

8 schedule but I tried to get there every other --

9 Q I mean -- every other week?

10 A Right, I tried to get there every other week so that

11 I could have some very direct input into what was going on and

12 to help them along.

13 MR. McDERMOTT: I have no other questions.

14 JUDGE LESNICK: Ms. Caya, at the time you dealt with

15 the non-selection of Mr. Shirani, you were holding the general

16 auditor position?

17 MS. CAYA: Yes, sir.

18 JUDGE LESNICK: Were you holding another position in

19 Chicago?

20 MS. CAYA: No, sir.

21 JUDGE LESNICK: You weren't also the director?

22 MS. CAYA: Correct. The confusion is that because I

23 was a director level salary band.

24 JUDGE LESNICK: Which is what?

25 MS. CAYA: A 6.

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589

1 JUDGE LESNICK: 6.

2 MS. CAYA: But they wanted me to have a title that

3 was different because I was going to be dealing with vice

4 presidents. So, they called it a general auditor. That's

5 very, very common with a lot of companies. They call them the

6 head auditor, the general auditor, the chief audit executive.

7 It's, you know, if you're not a vice president but you have to

8 deal with vice presidents all the time and you're trying to

9 tell them, you know, your recommendations on an audit, so it's

10 really semantics. It was a director level position and the

11 title was general auditor/director of internal audit.

12 JUDGE LESNICK: So, that's a 7 with the --

13 MS. CAYA: It's a 7 now. When we created the

14 structure, I was a 6.

15 JUDGE LESNICK: 6. But the director of Chicago, --

16 director of Philadelphia, they were?

17 MS. CAYA: They were 5 when they did that. I

18 believed they should be 6's but HR would not let a 6 report to

19 a 6 which I thought was silly but that was the rules.

20 JUDGE LESNICK: Okay. But now they are 6's?

21 MS. CAYA: Because I was promoted in January to a 7

22 and I was promoted to a vice president.

23 JUDGE LESNICK: Okay. Does that any questions?

24 MR. GROSS: Could I have one second? I have no

25 further questions.

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590

1 JUDGE LESNICK: You're excused.

2 MS. CAYA: Thank you, Your Honor.

3 MR. GROSS: Could we go off the record?

4 JUDGE LESNICK: Off the record.

5 (Off the record at 5:27 p.m.)

6 (On the record at 5:32 p.m.)

7 JUDGE LESNICK: Have a seat, sir. If you can raise

8 your right hand?

9 (Whereupon,

10 ELIECER PALACIOS

11 was called as a witness by and on behalf of the Respondent, and

12 after having been first duly sworn, was examined and testified

13 as follows:)

14 JUDGE LESNICK: All right. You may proceed.

15 DIRECT EXAMINATION

16 BY MR. GROSS:

17 Q Mr. Palacios, could you please state your full name

18 and spell your full name for the record?

19 A Eliecer Palacios. First name is E-l-i-e-c-e-r, last

20 name is P-a-l-a-c-i-o-s.

21 Q Who is your current employer?

22 A Exelon Corporation.

23 Q What is your current position?

24 A I'm the ethics and compliance director.

25 Q Since when you have been in that position?

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591

1 A Since 1998.

2 Q Prior to the merger, were you in that position with

3 Unicom?

4 A Yes, I was.

5 Q Can you tell me what your responsibilities had been

6 in that position?

7 A I am responsible for developing compliance programs

8 around certain areas of risk to the corporation such as the

9 anti-trust environmental -- employment areas. I am also

10 responsible for the code of business conduct for the company,

11 developing policies related to the code.

12 Q Let me direct your attention to September 5th, 2001,

13 do you recall a luncheon with Mr. Shirani at Reese's

14 Restaurant?

15 A Yes, I do.

16 Q Who initiated that luncheon meeting?

17 A Oscar actually called me to initiate the meeting.

18 Q What did he tell you during that luncheon?

19 A Well, we talked about maybe some personal items, but

20 the focus of the conversation was his concern that the

21 requirements for the job in internal auditing were ten years of

22 financial experience which he felt that he didn't have, so he

23 was very concerned about that. We talked about Ellen Caya's

24 relationship with him and Oscar said that his relationship with

25 Ellen Caya was very good. They have been communicating through

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592

1 e-mail and face to face. So, that relationship with her was

2 very good.

3 We also focused a little bit on the requirements of

4 ten years of financial experience and Oscar had mentioned that,

5 you know, he was trying to do whatever it took to certainly

6 educate himself for the position. He had actually taken out

7 some books related to finance and accounting, and he was trying

8 to just do whatever it took to educate himself. And he also

9 expressed the willingness to work and do whatever it took to

10 get the position or to get the promotion within the internal

11 auditing group because he felt that otherwise, there really was

12 no future for him there.

13 The conversation then turned to --

14 MR. McDERMOTT: Are we going to -- or are there going

15 to be some questions?

16 MR. GROSS: He's describing what happened at the

17 lunch. My question, he's answering my question.

18 JUDGE LESNICK: Just let it go for a while.

19 MR. McDERMOTT: Okay.

20 BY MR. GROSS:

21 Q Continue, Mr. Palacios.

22 A We focused on the, again on that requirement, but

23 then the conversation turned about the issue that he belonged

24 to nuclear. He talked about that that's where he belonged. He

25 wanted to go back to nuclear, but then he said that David

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593

1 Helwig had ruined his career there, but he still felt for him

2 to -- in an organization that he would want to go back there.

3 JUDGE LESNICK: Okay. Why don't we go on with a

4 question?

5 BY MR. GROSS:

6 Q Anything else discussed that you recall Mr. Shirani

7 said in that luncheon meeting?

8 A We talked about the selection process. He mentioned

9 that he wanted to certainly have an opportunity to be promoted.

10 We talked about, you know, applying for the positions which

11 when I mentioned that you have to apply for the positions, the

12 ones that are available, you know, E-3, E-4's and E-5's, if you

13 want to be considered for any of those positions. Oscar said,

14 you know, he felt that he wanted to be promoted. He felt that

15 he had those qualifications, so I said, well, you need to

16 apply.

17 We got to a point where, I asked him, you know, what

18 happens if you don't apply, you don't get the positions that

19 you want? You know, what's going to happen? And he said,

20 well, you know, I would have to take a different route and I'm

21 not sure that externally, that I can get what I want. He said

22 that he had received legal advice and he said he had a pretty

23 good case.

24 Q What did you tell him you would do?

25 A I did mention that I would, you know, talk to a few

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594

1 people, see what, try to get more information on the situation

2 and I told him that I would do that.

3 Q And did you talk to some people?

4 A Yes, I did.

5 Q Did you talk to Ellen Caya?

6 A Yes, I did.

7 Q Can you tell me what Ellen Caya told you in the

8 conversation regarding the E-4 position of manager?

9 MR. McDERMOTT: Now, that's leading, but, you know,

10 it's late.

11 MR. GROSS: Well, you've asked me to put structure on

12 the conversation and I'm doing that.

13 JUDGE LESNICK: It's all relevant. I'll allow it.

14 Go ahead. Even the narrative is relevant and on point. He's

15 not straying. So, go ahead.

16 MR. PALACIOS: Well, certainly, one question that I

17 started with Ellen Caya is about this requirement for Oscar

18 that he needed ten years of experience in the financial area.

19 And certainly that was a concern if that was true. And she

20 said, no, definitely not; she said she valued Oscar's input

21 into her organization, that he could apply for any of those

22 higher positions and including the E-3 and that he would be

23 considered for any of those. She said that she liked him and

24 that he would probably stay with the organization.

25 BY MR. GROSS:

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595

1 Q What did she tell you in that conversation regarding

2 his qualifications for the E-3 senior auditor position?

3 A She said that he was well qualified for that. He

4 was, he brought a different perspective to her organization

5 because he had been involved in different type of audits in the

6 past which our probably financial auditor will not have, that

7 she valued that.

8 Q After that September 5th, 2001 luncheon meeting with

9 Mr. Shirani, what conversations did you have with any of

10 Mr. Shirani's former supervisors in nuclear?

11 A I did have a conversation with Tom Joyce.

12 Q What did Tom Joyce say in that conversation?

13 MR. McDERMOTT: I'm going to object. I don't think

14 it's ever been established that Tom Joyce was Mr. Shirani's

15 supervisor. And I don't know --

16 MR. GROSS: I think it has been but I'd be happy

17 to --

18 MR. McDERMOTT: I don't know what the relevance of

19 any of this is. I mean --

20 JUDGE LESNICK: Well, I'd like to hear it but go

21 ahead, why don't you get some foundation?

22 MR. GROSS: Okay.

23 BY MR. GROSS:

24 Q Do you know where Tom Joyce fell within the

25 supervisory structure of Mr. Shirani's organization when he was

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596

1 in nuclear?

2 A Yes. He was responsible for the auditing group that

3 was, direct supervisor for the auditing group I believe was

4 Russ Bastyr who reported to Tom Joyce. So, my understanding

5 was that Tom Joyce would have known what had happened in there

6 so I wanted to get his story.

7 Q What happened within the conversation?

8 A Pretty much Tom Joyce indicated that he never wanted

9 Oscar or nobody wanted Oscar to leave nuclear, that basically

10 Oscar wanted to be promoted within the organization. He wanted

11 to get an opportunity and he decided to look outside of nuclear

12 for that opportunity.

13 Q Can you turn to Respondent's Exhibit 32 please? It's

14 in the binder in front of you. Do you recognize this e-mail?

15 A Yes.

16 Q When did you receive this e-mail relative to your

17 meeting with Mr. Shirani on September 5th, 2001?

18 A This was after our lunch meeting on September 5th.

19 Q And Mr. Shirani forwarded this to you?

20 A Yes.

21 Q Can you tell me who you contacted about this e-mail?

22 A I contacted Jerry Ellis, he's director of HR for

23 nuclear.

24 Q And in your conversation with Mr. Ellis, did he say

25 anything different from what's in the e-mail contained in

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597

1 Exhibit 32?

2 A No, he did not.

3 Q You mentioned you talked to Tom Joyce and Jerry Ellis

4 in nuclear. Did you talk to anyone else in nuclear after the

5 September 5th, 2001 luncheon meeting with Mr. Shirani?

6 A Yes, I spoke to a gentleman who at the time was

7 responsible for the employee concerns program.

8 Q Why did you decide to call that person?

9 A I just wanted to know if anyone had or Oscar had ever

10 contacted them regarding any type of retaliatory issue and I

11 wanted him just to look through the records just to make sure

12 that if there was anything, for them to let me know.

13 Q What did that person tell you?

14 A They looked and they did not, when he called me back,

15 he said they had not found anything related to Oscar Shirani.

16 Q After you completed your follow up interviews to that

17 September 5th, 2001 luncheon meeting, did you contact

18 Mr. Shirani to follow up?

19 A Yes, I did.

20 Q How did that meeting get arranged?

21 A I know that Oscar had spoken to Assir DaSilva, and

22 also Martha Garza, about his situation. So, I spoke to Assir

23 DaSilva and also Martha Garza because there was also an issue

24 that I forgot to tell you earlier regarding our meeting,

25 luncheon meeting.

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598

1 MR. McDERMOTT: Objection, there's no question.

2 MR. GROSS: I believe he's answering the question but

3 he's explaining --

4 MR. McDERMOTT: He's remembering something about the

5 luncheon meeting and we're --

6 JUDGE LESNICK: Let him proceed. I want to hear

7 this, go ahead.

8 MR. PALACIOS: Yes, I had spoken to Martha Garza

9 because one of the things that I remember that Oscar did

10 indicate, that he would be willing to accept some kind of a

11 package that would provide for him and his family and he would

12 just leave the company. I think the package was something

13 where it would have been his annual salary, I believe at the

14 time Oscar was 46, 47. He wanted about $100,000 a year which

15 was his annual salary to bridge him to the age of 50 when he

16 would be able to get his pension. And so, I had spoken to

17 Martha about that request.

18 BY MR. GROSS:

19 Q When did Mr. Shirani make that particular request?

20 A It was during our conversation on September 5th

21 luncheon meeting.

22 Q Okay. And how were the arrangements made for the

23 follow up with Mr. Shirani on September 5th, 2001?

24 A So, I discussed the issue with Martha and Assir and

25 told them, well, you know, certainly there's not a package

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599

1 available. His opportunity is in internal audit. You know,

2 Ellen will certainly keep him but the concern is that he needs

3 to apply. We all have heard that Oscar did not want to apply

4 for anything lower than E-5. And so, that was sort of a

5 concern for us because we knew that if he did not apply for an

6 E-3 and an E-4 position, he would not even be considered.

7 So, we decided to arrange a meeting with Oscar before

8 those -- would go out, that way he would apply for it.

9 Q Who arranged the meeting?

10 A We arranged the meeting, Assir DaSilva and I arranged

11 it. I think it might have been the 9th, the 8th, I can't

12 recall the exact date but it was prior to that we called Oscar

13 and we arranged a meeting to have it at the restaurant for

14 breakfast.

15 Q You indicated the date of the meeting was what?

16 A October the 10th, I believe.

17 Q October 10th. And you said that was at a restaurant?

18 A Yes.

19 Q Do you recall what restaurant that was?

20 A I don't recall the name. It's located right there on

21 Madison and Clark.

22 Q Why did you decide to have it there as opposed to in

23 the offices?

24 A We thought that it might be sort of a, better to take

25 it outside of the company location, some type of a friendlier

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600

1 setting, more comfortable.

2 Q What did Mr. Shirani tell you as the positions he

3 intended to apply for at that October 10th breakfast?

4 A He said he did not want to apply for anything less

5 than his position. And anything less, actually he wanted a

6 promotion, he didn't want to apply for anything less. He

7 really believed that he was qualified for the E-5 position.

8 Q What did you advice him regarding the E-4 and E-3

9 positions?

10 A I pretty much told him that, you know, he needed to

11 apply for the E-3 and E-4 positions because he would not be

12 considered.

13 Q And what specifically did Mr. Shirani tell you

14 regarding his intentions to apply for the E-3 position?

15 A He seemed very disappointed and said, you know, that

16 he was not going to apply for any of those.

17 Q Did he explain why?

18 A He said that he was just not going to take a

19 demotion.

20 MR. GROSS: I have no further questions.

21 JUDGE LESNICK: Any cross, Mr. McDermott?

22 CROSS EXAMINATION

23 BY MR. McDERMOTT:

24 Q How is it, sir, that you knew all the details with

25 respect to the principal manager's position?

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601

1 A The principal's manager?

2 Q Principal manager position, how did you know what the

3 requirements were for that position when you met with Oscar at

4 Reese's Restaurant?

5 A Okay, you're talking about, what do you mean by

6 principal?

7 A Well, you're talking E-4's, E-5's, you're using

8 shorthand that the Department of Labor may not quite

9 appreciate.

10 MR. GROSS: I'll object to mis-characterization of

11 his testimony. He explained to you what Mr. Shirani told him.

12 BY MR. McDERMOTT:

13 Q Well, I heard, you said Mr. Shirani told you what

14 these requirements were for the jobs he was applying for or the

15 job he was applying for?

16 A Initially, his concern was that for the positions

17 that were available, he needed ten years of financial

18 experience. That was his concern.

19 Q All right. Did he need any other kind of

20 prerequisites for these jobs that he told you about at this

21 meeting?

22 A No.

23 Q The only thing he told you or that you remembered him

24 telling you that he was worried about was ten years experience,

25 right?

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602

1 A Right.

2 Q As what?

3 A Ten years of experience in the financial arena.

4 Q In the financial arena as what?

5 A As an auditor.

6 Q As an auditor.

7 A Right.

8 Q And you subsequently learned that that would not be a

9 problem for him?

10 A According to Ellen Caya, yes.

11 Q And so, there were, in your first discussion with

12 Ellen Caya then there was going to be no problem, that could be

13 taken care of?

14 A Well, she said that his experience in auditing

15 certainly would be strongly considered because those skills

16 would be very valuable to her organization.

17 Q All right. So, that wasn't going to be a problem.

18 The one thing he brought to your attention, you got the correct

19 answer on, is that correct?

20 A Yes, I felt comfortable that Oscar was going to be

21 considered and most likely would remain with the department.

22 MR. McDERMOTT: No further questions.

23 MR. GROSS: I have no follow up.

24 JUDGE LESNICK: Thank you, sir. You're excused. Off

25 the record.

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603

1 (Whereupon, at 5:48 p.m., the hearing in the above-

2 entitled matter was adjourned, to reconvene the next day,

3 Thursday, December 19th, 2002 at 8:30 a.m.)

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Free State Reporting, Inc.
Free State Reporting, Inc.

 

 

 

 

 

 

604

C E R T I F I C A T E

This is to certify that the attached proceedings before the

Administrative Law Judge Robert J. Lesnick, Pittsburgh, PA
Insert Title of Officer Name and Office

In the matter of: Oscar B. Shirani v. ComEd/Exelon

Case/Docket Number: 2002-ERA-28

Place: Chicago, Illinois

Date: December 18, 2002

were held as therein appears, and that this is the original

transcript thereof for the files of the Department of Labor.

 

Free State Reporting, Inc.
(Name of Reporting Company)

 

By
(Official Reporter)

 

 

 

 

 

 

 

 

 

 

 

Free State Reporting, Inc.
Free State Reporting, Inc.