ARB CASE NO. 02-104
ALJ CASE NO. 2001-ERA-28
DATE: January 30, 2004
In the Matter of:
MARK PAFFORD and
PHILLIP PAUL HUSKY,
COMPLAINANTS,
v.
DUKE ENERGY CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: John W. Gresham, Esq., Ferguson, Stein, Chambers, Wallas, Adkins, Gresham & Sunter, P.A., Charlotte, North Carolina
For the Respondent:
Donn C. Meindertsma, Esq., Gina M. Petro, Esq., Winston & Strawn, Washington, D.C.
FINAL DECISION AND ORDER
Mark Pafford and Paul Husky worked as electricians for Duke Energy Corporation. In July 2000 an accidental electrical fire and small explosion occurred at Duke's Catawba (S.C.) nuclear power plant. Duke investigated the accident. Shortly thereafter, it terminated the employment of Pafford and Husky after concluding that they had made false and misleading statements about their role in the accident. But Pafford and Husky contend that Duke fired them because they engaged in protected activity. Therefore, they filed whistleblower complaints alleging that Duke violated the employee protection provisions of the Energy Reorganization Act (ERA).1
1 The ERA provides, in pertinent part, that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . [notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C.A. § 2011 et seq. (West 2003)), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA]." 42 U.S.C.A. § 5851 (a)(1) (West 1995).
2See 29 C.F.R. § 24.8. See also Secretary's Order No. 1-2002, 67 Fed Reg. 64272 (Oct. 17, 2002) (delegating to the Administrative Review Board (ARB) the Secretary's authority to review cases arising under the ERA). The Board reviews the ALJ's findings of fact and conclusions of law de novo. See 5 U.S.C.A. § 557(b) (West 1996); Masek v. Cadle Co., ARB No. 97-069, ALJ No. 1995-WPC-1, slip op. at 7-8 (ARB Apr. 28, 2000) and authorities there cited.
3See 42 U.S.C.A. § 5851 (b)(3)(C); Kester v. Carolina Power and Light Co., ARB No. 02-007, ALJ No 2000-ERA-31, slip op. at 6-8 (ARB Sept. 30, 2003).
4 Complainant's Brief at 18, 27. The ALJ found that Husky, but not Pafford, engaged in protected activity. R. D. & O. at 13, 15. For purposes of this opinion, we have assumed, without finding, that both Husky and Pafford engaged in ERA-protected activity.
5 The ALJ stated: "Where the [ERA] complainant produces direct evidence of discrimination, and the employer does not effectively rebut this evidence, the employer can avoid liability only by showing by clear and convincing evidence that it would have taken the same action in the absence of protected activity." R. D. & O. at 13. The ALJ is referring to the so-called "dual motive" analysis. See 42 U.S.C.A. § 5851 (b)(3)(D). We recently held that, to trigger dual motive analysis, the ERA "requires only that the complainant prove by a preponderance of sufficient evidence, direct or circumstantial, that the protected activity contributed to the employer's decision." Kester v. Carolina Power and Light Co., ARB No. 02-007, ALJ No. 2000-ERA-31, slip op. n. 19 (ARB Sept. 30, 2003) (emphasis added). Cf. Desert Palace Inc. v. Costa, 123 S. Ct. 2148 (2003) (Title VII plaintiff not required to present direct evidence of discrimination in order to obtain a mixed-motive [dual motive] jury instruction).