Eiff v. Entergy Operations Inc., 96-ERA-42 (ARB Oct. 3, 1997)

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USDOL/OALJ Reporter> Eiff v. Entergy Operations Inc., 96-ERA-42 (ARB Oct. 3, 1997)

U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

ARB CASE NO. 97-022
ALJ CASE NO. 96-ERA-42
DATE: OCT -3 1997

In the Matter of:

WILLIAM C. EIFF,
COMPLAINANT,

ENTERGY OPERATIONS, INC.,
RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

FINAL DECISION AND ORDER

This case arises under the employee protection provision of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §5851 (1988 and Supp. V 1993). Complainant, William C. Eiff, alleges that Respondent, Entergy Operations, Inc. (Entergy), violated the ERA when it eliminated his position and reclassified him as a Senior Engineer, which allegedly will limit the amount of bonuses available to him. In a Recommended Decision and Order (R. D. and O.), the Administrative Law Judge (ALJ) recommended that the complaint be denied because "there is no evidence to support an allegation that any of the actions by the Respondent were motivated by or as a result of an intent to discriminate or retaliate against Complainant for having engaged in alleged protected activities." R. D. and O. at 9.

We accept the ALJ's recommended decision. With the exception of one finding discussed below, we adopt the attached R. D. and O.¹

[Page 2]

The ALJ found that Eiff failed to make out a prima facie case of discriminatory treatment. Where, as here, the respondent has introduced evidence to rebut a prima facie case of a violation of the ERA's employee protection provision, it is unnecessary to examine the question of whether the complainant established a prima facie case. Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Final Dec. and Ord., Feb. 15, 1995, slip op. at 11 and n.9, aff'd sub nom. Carroll v. United States Dept. of Labor, 78 F.3d 352 (8th Cir. 1996). Accordingly, we make no finding on whether Eiff established a prima facie case.

We affirm the ALJ's ultimate conclusion that Eiff did not establish that his protected activity was a contributing factor in the unfavorable personnel actions Entergy took with respect to him. Accordingly, we DISMISS the complaint.

SO ORDERED

DAVID A. O'BRIEN
Chair

KARL J. SANDSTROM
Member

JOYCE D. MILLER
Alternate Member

[ENDNOTES]

¹We appreciate the ALJ's questioning of Eiff, who appeared pro se.