Case No. 84-ERA-29

In the Matter of

SARGENT PODWORNY
    Claimant

    v.

HARTFORD STEM BOILER INSURANCE AND INSPECTION
    Employer

APPEARANCES:

On behalf of Complainant

DOUGLAS CASSEL, Esq.
    TIMOTHY W. WRIGHT III, Esq.
    109 N. Dearborn Street #1300
    Chicago, IL 60602

On behalf of the Employer

ROBERT F. CASEY, Esq.
    315 James Street
    Genena, IL 60134

Before: GLENN ROBERT LAWRENCE
    Administrative Law Judge

    This is a proceeding under the Energy Reorganization Act of 1974, as amended (42 U.S.C. § 5851), hereafter called the Act. The Act (42 U.S.C. § 5851 (a)) prohibits a Nuclear Regulatory Commission (NRC) licensee from discharging or discriminating against an employee who has commenced a proceeding to carry out the purposes of the Act. The Act is implemented by regulations designed to protect so-called "whistle-blower" employees from retaliatory or discriminatory actions by their employers. 45 Fed. Reg. 1836 (January 8, 1980) (29 C.F.R. Part 24). An employee who believes that he or she has been discriminated against in violation of that section may file a complaint within 30 days of the alleged act.

    In a discrimination complaint filed May 15, 1984 under 10 CFR 50.7 with area Director of the Wage and Hour Division Madison, Wisconsin, complainant alleges:

    On March 6, 1984, while working as Atomic Nuclear Inspector (ANI) for H.S.B. I & I Company at the Byron Nuclear Plant, (Contractor, Hunter Corporation) he contacted Mr. J.M. Hinds Jr., Senior Resident Inspector, Nuclear Regulatory Commissioner (NRC). He arranged a meeting to discuss, and turn over to him facts and documentation, whereas he felt the intent of the Atomic Safety Mechanical Engineering Code, Section 3 was not being met. Nine other A.N.I's felt this way also. They did not want to come forward, for fear of losing their jobs. The meeting took place on March 13, 1984.

    On April 16, 1984 he was terminated. On April 17, 1984 the Chicago branch office of H.S.B., assistant regional manager, Mr. Bob Rainery called the Byron site where he had formerly worked. He asked if anyone knew if Mr. Sargent Podworny had contacted the N.R.C,, and if so, what documentation had been turned over. The office personel who were contacted by Mr. Rainey were: The lead A.N.I., Jeff Hendricks and A.N.I., David Reynolds. Mr. Reynolds then contacted complainant to inform him of this matter.

    On May 14, 1984 he called the chief at the Chicago Branch office, as to reconsideration of his returning to employment of H.S.B. His answer was "No".

    On June 12, 1984, the Area Director of the United States Department of Labor Wage and Hour office denied the complaint and stated in part:

Our initial efforts to conciliate the matter revealed that the parties would not at that time reach a mutually agreeable settlement. An investigation was then conducted. Our investigation did not verify that discrimination was a factor in the actions comprising your complaint. Conversely, it is our conclusion that your allegations are unprovable for the following reasons:

No evidence was uncovered substantiating the firm's knowledge of your contact with the NRC prior to your termination. Consequently, said contract could not have been a factor in your termination. The termination was found to result from administrative problems and personality differences between you and the company.

    By telegraph received on June 18, 1984, Complainant appealed the determination.

    The matter came on for hearing in Chicago, Illinois on December 12, 1984. Complainant did not appear contending that he had a broken leg (T 7). An offer to reconvene at the house of the complainant was declined (T 7).

    Counsel for the Complainant stated that if the parties are unable to settle this case within 30 days than the complaint would be withdrawn (T. 14). Inasmuch as no settlement has been reported, it is recommended that the matter dismissed with prejudice based on the voluntary withdrawal.

       GLENN ROBERT LAWRENCE
       Administrative Law Judge

Dated: MAR 28 1985
Washington, D.C.