1 These regulations were
amended to provide, inter alia, for review of ERA and other environmental
"whistleblower" complaints only upon the filing of an appeal by a party aggrieved by an
Administrative Law Judge's decision. See 63 Fed. Reg. 6614 (Feb. 9, 1998). Here, the
Administrative Law Judge issued a recommended decision and order on December 3, 1997; accordingly,
this matter is before the Board pursuant to the previous automatic review provision of the regulation at 29
C.F.R. §24.6(a) (1997).
2 According to the
testimony presented to the ALJ, an RDR is generated so that management can make a first-hand
assessment of the situation at issue and determine whether or not further action, by way of a
"Condition Report," is warranted. The ladder incident was subsequently determined not to
rise to the level of concern necessitating a "Condition Report." R. D. and O. at 4.
3 Upon his transfer to the
tool room, Paynes experienced a reduction in his hourly rate of pay from $17.00 to $12.64. R. D. and O.
at 7. However, Paynes was eventually returned to duty in the Radiation Protection Group as the result of
an arbitrator's decision which concluded that as a matter of contract law under an applicable union
agreement, the transfer to the tool room was not justified.
4 The employee
protection provisions of the ERA relevant to the instant action, found at 42 U.S.C. §5851 (1994),
provide in pertinent part:
(a) Discrimination against employee
(1) No 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 . . .
(A) notified his employer of an alleged violation of this chapter or
the Atomic Energy Act of 1954 . . .
5 The burden of proof is
on the complainant. Thus, it is not as the ALJ opined (R. D. & O. at 31), respondent's burden to
prove that the complainant was subjected to adverse action for legitimate, non-discriminatory reasons.
6 Before the ALJ and this
Board, Gulf States argued that Paynes failed to demonstrate that the filing of the RDR in September, 1992
was a protected activity, because at that time, the filing of internal complaints was not deemed protected
under the ERA in the Fifth Circuit where this matter arose. SeeBrown and Root v.
Donovan, 747 F.2d 1029, 1036 (5th Cir. 1984). However, the ERA was amended to specifically
include the filing of internal complaints by the Comprehensive National Energy Policy Act of 1992
(CNEPA), enacted on October 24, 1992. Pub. L. No. 102-486, 106 Stat. 2776 (Oct. 24, 1992).
Subsection 2902(i) of the CNEPA provides:
The amendments made by this section shall apply to claims filed under section 211(b) of
the Energy Reorganization Act of 1974 (42 U.S.C. 5851(b)(1)) on or after the date of the
enactment of this Act.
Thus, the ALJ properly concluded that Paynes' filing of the RDR in September 1992 although prior
to enactment of the ERA amendments was nevertheless protected activity because the complaint in this
matter was filed in June 1993, after the ERA was amended.
7See also R. D.
and O. at 27, ¶150 and Respondent's Exhibit (RX) -20 (insubordination); R. D. and O. at 27,
¶¶154 and 155 and RX-30 (punctuality and tardiness); R. D. and O. at 27, ¶155 and
RX-35 (producing and possessing objectionable drawings, loafing and neglect of duties; R. D. and O. at
28, ¶157 (possession of a portable television while on duty); R. D. and O. at 28, ¶158 and
RX-36 (failure to respond to numerous plant pages while on duty).
8 The Nuclear Regulatory
Commission (NRC) subsequently levied a fine of $100,000 against Gulf States, in large part for the 14 R
bag incident. The ALJ found, based on the testimony of one of Respondent's vice-presidents, that
"Complainant was directly or indirectly responsible for 9 of the remaining 14 violations [found by the
NRC]. Most of these violations were 'cascading' from the initial improper survey of the 14 R bag."
R. D. and O. at 12; Transcript (T.) 357, 363.
9 The first three elements
of a prima facie case are: (1) that the complainant engaged in protected activity; (2) that the
employer was aware of that conduct; and (3) that the employer took some adverse action against the
employee. Bechtel Construction Company v. Secretary of Labor, 50 F.3d 926, 933 (11th Cir.
1995); Dean Darty v. Zack Company of Chicago, Case No. 82-ERA-2, Sec'y Dec., Apr. 25,
1983, slip op. at 7-8.
10 This element
requires evidence sufficient to raise the inference that the protected activity was the likely reason for the
adverse action. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); DeFord v. Secretary
of Labor, 700 F.2d 281 (6th Cir. 1983).
11 In the former
proceeding, Paynes alleged that the transfer was illegal racial discrimination based on the fact that he is
African American; in the latter, Paynes alleged that the transfer was a violation of his employment
contract.