Complainant did not prove by a preponderance of the evidence that her
termination was even partially motivated by protected activities. Indeed, Complainant
presented no evidence to support a conclusion that her purported protected activity played any
role whatsoever in her discharge from employment. Moreover, the record demonstrates that
[Page 8]
McMurtray -- the Emory official who fired Complainant -- was not even aware of
Complainant's safety complaints at the time of the termination decision. Thus, there is no
evidence suggesting that Emory's decision to terminate Complainant's employment was
motivated in part by Complainant's alleged protected activities, since McMurtray did not know
of Complainant's alleged protected activities.
Complainant proceeded in this case pro se, and was
accorded considerable latitude by the ALJ. Complainant did not meet the requisite standard
of proof that the adverse action taken against her was, even in part, motivated by protected
activity. We find, after reviewing the record and, notably, Complainant's own testimony at
the hearing, that the ALJ's recommendation that the complaint should be dismissed is correct.
CONCLUSION
The ALJ's Recommended Decision and Order of August 12, 1997 is
accepted because the Complainant did not establish that Emory violated the employee
protection provision of the ERA. Accordingly, the complaint is DISMISSED.
SO ORDERED.
KARL J.
SANDSTROM
Chair
PAUL
GREENBERG
Member
CYNTHIA L.
ATTWOOD
Acting Member
[ENDNOTES]
1 These regulations were
amended in 1998 to provide, inter alia, for review of ERA and other
"whistleblower" complaints before the Administrative Review Board 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). In this case, the Administrative Law Judge issued a recommended decision
and order on August 12, 1997; accordingly, this matter is before the Board pursuant to the automatic
review provision of the regulation at 29 C.F.R. §24.6(a) (1997).
2 Other record
citations used in this decision are "CX" (Complainant's Exhibit) and "RX"
(Respondent's Exhibit).
3 Complainant
testified that Zhao's remarks were to the following effect:
You are nothing. If you had been some -- if you had been somebody at Emory in
biology, here you are nothing. You are not getting results. I'm better with [sic] you.
I compete with you, I get better results than you and you are nothing.
4 So
that's
why I
refuse
to go to
his
office
and talk
about
the
fights.
I
needed
someone else
who
does
not
belong
to the
lab to
come
between us.
And I
unfortunately I
never
had that
one
person,
I never
had that
assistance from
Emory.
Tr. 83.
5 Lu testified that
she also informed Complainant that a copy of the paper -- which was apparently a document published
in a magazine -- could be obtained from the library or from Austin. Tr. 374.
6 In her grievance,
Complainant raised no issue that implicated retaliation for ERA-protected safety activities. Rather,
Complainant alleged that she had been insulted by Zhao; sexually harassed by Austin; and insulted and
assaulted by Lu. See Tr. 229; RX-23.
7 The ALJ also
noted that a "recent decision raised the employer's burden from a preponderance of the evidence
to clear and convincing evidence. Yule v. Burns International Security Service, 93-ERA-12
(Sec'y May 24, 1995)." R. D. and O. at 6. This standard was cited incorrectly by the ALJ. The
"clear and convincing evidence" standard is applicable only in a "dual motive"
case, i.e., a case in which the evidence suggests that both legitimate and discriminatory
motives played some role in the employer's action. See 42 U.S.C.A. §5831(b)(3)(D).
Because we find that there was no discriminatory motive in Respondent's action, a dual motive analysis
is unnecessary.
8 In denying
Complainant's grievance, Bryan "pointed out to [Complainant] that that any one of these
infractions alone would be grounds for disciplinary action and possible dismissal; and that taken together
they constituted a situation in the laboratory which could not be continued to be tolerated." Tr.
234.
9 The record actually
demonstrates at least three "altercations" between Complainant and her co-workers: the
radio incident; the episode over ordering of laboratory materials; and the scientific paper confrontation.
10 The ALJ also
noted that "[t]he evidence indicates that Complainant was terminated because of ... job
abandonment." This observation is based on the record evidence, including Complainant's
admissions, that Complainant did not return to work in Austin's lab following her altercation with Lu
over copying Zhao's research paper. See discussion at pp. 5, 6, supra. There
was record evidence that Emory prepared (and submitted to the Georgia Department of Labor for
unemployment insurance purposes) two written termination notices: one specified "job
abandonment" as a contributing cause to the termination(CX-8) while in the second the "job
abandonment" cause had been deleted (CX-9). Complainant's grievance of her termination was
decided on August 22, 1996 by Dr. John Bryan; he concluded that the termination was justified, in part,
by Complainant's job abandonment. CX-10.
