Complainant alleged that he was offered
a position as a full time research associate, but that the offer was withdrawn in retaliation for
his repeated complaints about the unsafe handling of radioactive materials in one of the
Respondent Texas Southern University's (TSU) laboratories. The Administrative Law Judge
(ALJ) submitted a Recommended Decision and Order (R. D. and O.) finding that Respondent
discriminated against Complainant and recommending that Respondent reinstate Complainant
to his former or a substantially equivalent position with back pay and interest; that Respondent
reimburse Complainant for costs incurred for health insurance and other benefits; that
Respondent expunge any negative comments from Complainant's employment record; and that
Respondent pay Complainant $10,000 in compensatory damages. R. D. and O. at 31. In
addition, the ALJ submitted a Recommended Supplemental Decision and Order Awarding
Attorney's Fees in which he made some reductions in the number of hours claimed and
recommended an award of $33,183.75 in attorney's fees and $6,268.49 in costs.
The record in this case has been reviewed, and we find that it fully
supports the ALJ's thorough, well reasoned recommended decisions and, with one minor
exception discussed below, we adopt them in all respects.
The ALJ carefully set forth the legal standards governing proof of
discrimination in cases arising under the employee protection statutes in 29 C.F.R. Part 24
(1996). See R. D. & O. at 21-22. However, later in the decision when discussing the
motivation of Complainant's supervisor, the ALJ said "Respondent has not met its burden
to show that Complainant's internal safety complaints did not motivate Dr. Milton to withdraw
the offer of employment to Complainant." R. D. & O. at 26. Respondent does not carry
the burden of proving a negative proposition, that it was not motivated by Complainant's
protected activities when it took the adverse action. Throughout, Complainant has the burden
of proving that the employer was motivated, at least in part, by Complainant's protected
activities. Zinn v. University of Missouri , Case Nos. 93-ERA-34,36, Sec'y. Dec. Jan.
18, 1996, slip op. at 7. We find, however, that this isolated misstatement of the burdens of
proof did not affect the outcome of the R. D. & O. which we adopt in all other respects.
We also find that the Recommended Supplemental Decision and Order
Awarding Attorney Fees carefully examined all the requested hours and made appropriate
reductions for hours which were duplicative, excessive, unreasonable or unnecessary, and we
adopt it in all respects. We attach both recommended decisions.
SO ORDERED.
PAUL
GREENBERG Chair
CYNTHIA
L. ATTWOOD Member
[ENDNOTES]
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