Date Issued: JUL 22 1985
Case No. 85-ERA-15

In the Matter of:

Waseel Ansari
    Complainant

    and

Illinois Power Company
    Respondent

    This matter arises under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §§ 5851 et seq., hereinafter called the Act. Under the "whistle blower" provisions of the Act, an employee working for a Nuclear Regulatory Commission (NRC) licensee cannot be discharged or discriminated against

for engaging in activity protected under the Act. An employee who believes his protected activity resulted in a retaliatory discharge or discrimination by his employer may file a complaint within 30 days of the incident with the Secretary of Labor.

    Respondent in this case, Illinois Power Company (IPC), is an NRC licensee currently constructing a nuclear power plant in Clinton, Illinois. IPC employed the complainant, Mr. Ansari, as a project engineer until he was discharged on April 8, 1985. on April 23, 1985, Mr. Ansari filed a complaint with the Secretary of Labor, alleging that he was discharged for engaging in protected activities and in violation of the Act. On May 23, 1985, Mr. Ansari requested d hearing on his complaint, and the case was referred to the office of Administrative Law Judges for such hearing. A hearing notice was issued June 17, 1985, with the hearing scheduled for July 23, 1985. On June 24, 1985, counsel for IPC filed a Motion for Summary Decision. Complainant submitted a response through counsel on July 15, 1985. By Order dated July 18, 1985, the scheduled hearing was cancelled and the parties were informed of my decision to grant IPC's Motion for Summary Decision pursuant to 29 C.F.R. § 18.41.

    With some small degree of disagreement, the motions and affidavits filed by the parties reveal the same facts, and I find they raise no genuine issue of material fact. My findings are based on these submissions. In examining the submissions, I viewed them in the light most favorable to the complainant.

    Mr. Ansari was hired by IPC on January 28, 1985 as a project engineer. His primary responsibility was to review non-conformance reports (NCR), those being reports of constructive work not done in compliance with IPC standards, and making the correct disposition of these reports, or "signing off". Mr. Ansari was given the IPC training materials and two weeks of on-the-job training, and began active unsupervised work on March 6, 1985.

    Mr. Ansari states in his affidavit that he was not assigned any work for the first month of his employment. IPC contends through the affidavits of Mr. Ansari's superiors that he was expected to review NCR's independently and without direct supervision. This problem appears to have led to mutual dissatisfaction, and Mr. Ansari requested a transfer to a different

IPC department of April 8, 1985. IPC states that it attempted to comply with this request but was unsuccessful. Mr. Ansari was discharged later that date. A memo placed in his personnel file that day stated that Mr. Ansari was discharged due to poor work performance.

    The affidavits of IPC supervisory personnel filed by IPC list a series of problems with Mr. Ansari's work initiative and review of NCR's. Among the problems were:

(a) using the wrong forms;

(b) not addressing each item on the NCR as called for by Company procedures;

(c) not obtaining the correct signature approvals for appropriate disposition;

(d) not seeing to it that dispositions requiring design changes were approved by two different groups as required by the applicable standards (those groups being IPC and contractor Sargent and Lundy); not posting design changes to applicable drawings as required by applicable engineering procedures; and,

(e) using white-out ink on NCR's to make corrections. (Affidavit of Floyd Edler, page 10).

The affidavits contain several pages of specific allegations of the above conduct. (Affidavit of Floyd Edler, pages 11-13; affidavit of Richard Schlosser, pages 4-5).

    29 C.F.R. § 18.40(c) states:

When a motion for summary decision is made and supported by affidavit, a party opposing the motion may not rest upon the mere allegations or denials of such pleading. Such response must set forth specific facts showing that there is a genuine issue of fact for the hearing.

    Mr. Ansari's response and allegation do not set out specific facts which raise a genuine issue as to why he was discharged.

The affidavit of Mr. Ansari lists only the following as relevant responses to the motion:

¶ 8. I was fired because I would not approve non-conforming work performed by the General Contractor Baldwin Associates, and Sargent and Lundy, Sub-contractor in-charge of architectural engineering. I often complained to my superiors that Sargent and Lundy were dispositioning non-conformance reports without supporting calculations.

¶ 10. The alleged errors in my performance being assented by Respondent as the reason for my discharge is a pretext to hide the real reason, and that is my refusal to approve errors in the performance of the General and Sub-contractors at the power plant.

    Such statements are clearly insufficient under the requirements of 29 C.F.R. § 18.40(c), as they constitute only mere allegations. Mr. Ansari does not list a single specific fact to support his allegation that he was discharged for a refusal to certify non-conforming work during this brief two and one-half month employment. Nor does he give any specific facts to show that he was engaged in activity protected by the "whistle blower" provisions of the Act.

    Respondent IPC has set out numerous specific instances of mistakes Mr. Ansari made while employed at IPC. Mr. Ansari has not submitted any specific facts showing that his discharge was for engaging in protected activity. Finding no genuine issue of material fact has been raised, and that Respondent is entitled to Summary Decision, I hereby order the complaint of Waseel Ansari is dismissed.

       RICHARD D. MILLS
       Administrative Law Judge