The issues in this proceeding are:

1. Whether Complainant engaged in activities subject to protection under ERA?

2. Whether Respondent terminated Complainant in violation of ERA because he engaged in activities subject to protection under the statute?

Joseph J. Macktal, Jr.

    Complainant testified that he was employed by Brown & Root, Inc., at the Comanche Peak nuclear power plant from January, 1985 until January 1986. Complainant was first assigned as a journeyman electrician at Comanche Peak and was promoted to electrical foreman in May, 1985, overseeing a crew that installed conduit and electrical apparatus. After two weeks he was transferred to the night shift, and given a new crew. While on the night shift his immediate supervisor was Mr. Louis Cerda, a general foreman, who reported to the superintendent, Mr. John McPhate, who in turn reported to Mr. Charlie Britt, the electrical superintendent over Unit Two. Complainant stated that he had several safety concerns, regarding documentation of safety journals, training records, and proper use of tools, which he began bringing to Mr. Cerda one at a time. Within a couple of weeks he was brought into Mr. Cerda's

office, given a counseling report and demoted. Complainant testified that he was counseled on September 23, 1985 for certain actions as a foreman and informed that he was being reclassified. Complainant stated that he was shocked by this action because he had recently been praised for doing a good job. Complainant testified that he felt he had been demoted for bringing safety concerns to management. Complainant subsequently met with Mr. Turner, the assistant project manager, to discuss his concerns and to request reinstatement of his position. Mr. Turner immediately reassigned Complainant to Mr. Willard Robert's crew where he worked as a journeyman on the night shift for a couple of days. Complainant testified that he did not express any objection to being transferred to Mr. Roberts. However, Complainant testified that he had great difficulty working on Mr. Robert's crew because Mr. Roberts worked under Mr. Cerda whom he claimed continued to harass him. Complainant stated that Mr. Cerda began to follow him around during his entire shift and issued him a safety violation in October-.of 1985 for not wearing eye protection while operating a band saw. But, Complainant testified he was wearing the safety glasses. TR pp. 68, 79-82, 89-90, 116-122, 124-127, 230, 233-235, CX-9 and 11.

    After a couple of days on Mr. Roberts' crew, Complainant was transferred to the day shift under Mr. James Kiker, where he continued working as a journeyman electrician. Complainant testified that while on Mr. Kiker's crew he was asked to violate safety procedures and depart from design drawings. Complainant stated that he reported this information to SAFETEAM, an internal safety organization, Mr. Kiker and Mr. Rundell, the general foreman. TR pp. 57, 124, 128-133.

    Complainant testified that on January 2, 1986 he was given a counseling report for excessive absenteeism by Mr. Kiker with Mr. Rundell present. Complainant noted that he did not feel that he had an attendance problem, but felt he was being discriminated against because he was within the attendance policy and had excused absences which were counted as unexcused absences. On January 3, 1986, Complainant presented Mr. Kiker with his handwritten plan of action which stated in part that Complainant wished to be relieved of his duties to preserve his own mental health and avoid any further harassment until the TEC, NLRB, or NRC could resolve the matters. Complainant testified that he was trying to convey that he wished to be transferred. Later that same day, Mr. Kiker and Mr. Rundell approached Complainant and advised him that they had forwarded his plan of action to higher management, but it would be a couple of weeks before any response. Complainant then verbally requested to be relieved of his duties because violating safety procedures had become very stressful for him and he was under a lot of harassment. Complainant testified that Mr. Rundell then told Mr. Kiker to process him out. Complainant explained that he did not say anything to object to this action because he understood that he was being fired. Moreover, Complainant stated that he did not expect to be terminated because of his statement, but was requesting to be transferred to another area pending the investigation of his concerns. TR pp. 94-98, 136-138, 143-145, 309-311, 328-331, CX-2 and 17.

    Complainant testified to specific incidents of harassment against him such as receipt of an unwarranted safety violation, loss of tools which were his personal property, having a paycheck delayed, being denied an emergency phone call, and being refused time off without pay. Complainant reported to SAFETEAM that he felt he was being harassed and

discriminated against for bringing safety concerns to management. Complainant testified that he believed the finding of no substantiation for his complaint of harassment by SAFETEAM was a cover-up. TR pp. 110-116,146-154, 219-220, CX-3G.

    Complainant testif ied that he reported safety concerns to the NRC in'. February or March of 1986 after his termination. Complainant testified that after being terminated, he contacted Mr. Louis Austin, the chief executive officer of Brown & Root. Complainant had three meetings with Mr. Austin to discuss his safety concerns and his alleged wrongful discharge. As a result of these meetings, an unconditional of f er of reinstatement was made by Mr. Austin to Complainant. In mid-March of 1986, Complainant testified that he received a letter from Mr. Stephen Hoech, management of employee reactions for Brown & Root, confirming the unconditional offer of reinstatement. Complainant rejected the offer and made a counter-offer requesting back pay, legal costs and assurance of future employment and protection from harassment. Complainant testified that he considered the reinstatement offer a setup, whereby he would be terminated later for something else, and he therefore sought protection. TR pp, 90, 399-401, 435-444, 475477, RX-33.

John McPhate

    Mr. McPhate also testified at the hearing and stated that in 1985 he was the general foreman and electrical superintendent for Brown & Root at Comanche Peak. Mr. McPhate testified that Complainant was a journeyman electrician and a foreman while under his control. Mr. McPhate testif ied that several employees had problems with Complainant. Therefore, Mr. McPhate spoke to Complainant and advised him to get along with the employees. Mr. McPhate testified that Complainant had once submitted a pay increase of two dollars an hour for an employee which was outside the company's policy limit of fifty cents quarterly. Mr. McPhate testified that Mr. Cerda sought and received his permission to reclassify Complainant from foreman to journeyman electrician. Mr. McPhate stated that Complainant approached him about a conference report dated September 23, 1985 that Mr. Cerda had written regarding his reclassification. Mr. McPhate testified that Complainant wanted him to remove the conference report, but he refused to do so. During this conversation, Mr. McPhate noted that Complainant did not discuss the actual reclassification or voice any safety concerns to him at this time, nor at any other time. Mr. McPhate stated that at Complainant's request he set up a meeting between Mr. J.D. Turner, the assistant project manager and Complainant. TR pp. 738, 741-742, 746-753, 762, 767-774, CX-33.

    After the meeting with Mr. Turner, Mr. McPhate was called into Mr. Turner's office and asked to look into safety concerns that Complainant had related to him. Mr. McPhate testified that this was the first time he had heard of any concerns about safety procedural violations or deviations from Complainant. Mr. McPhate investigated the complaints and concluded that the concerns were being handled according to procedures. Mr. McPhate testified that he did not learn that the conference report had been removed from Complainant's file until Mr. Bob Pfleuger, the SAFETEAM investigator, mentioned it to him. Mr. McPhate testified that he had a casual conversation with Mr. Pfleuger, lasting less than five minutes, during which Mr.

Pfleuger did not take notes. The only evidence in the record which suggests that Respondent considered Complainant a whistleblower is contained in CX-3D, an exhibit which contains notes made by Mr. Pfleuger during that conversation with Mr. McPhate. In that exhibit the following statement was made: "McPhate contends that when Mactal (Complainant) went to Turner he identified numerous(unreadable word) which were recorded and investigated by management all of which were unfounded". He also states that management was afraid not to investigate as Mactal would go to the NRC etc. and that he was an alligator. Then, in parentheses there was a notation to Complainant being a snake in the grass-whistleblower. Mr. McPhate told Mr. Pfleuger that he thought the reason Mr. Turner had pulled the conference report was because they thought Complainant was going to be an "allegator", which Mr. McPhate explained was an employee who makes unsubstantiated claims. Mr. McPhate testified that during this conversation he never referred to Complainant as a snake in the grass or a whistleblower. Mr. McPhate testified that he had no knowledge nor suspected that Complainant was going to the NRC, Department of Labor, National Labor Relations Board, Texas Employment Commission or any other government entity. TR pp. 773784, 786-789, 791-792, 843-849, CX-3D.

    Under the ERA's employee protection provision under which this case is brought:

(1) No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)--(A) notified his employer of an alleged violation of this chapter or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);

(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(E) testified or is about to testify in any such proceeding or;

(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.

42 U.S.C. 5851(a)(1988).

    To establish a prima facie case of retaliatory discharge under the whistleblower provision invoked here, a complainant must show that: (1) the complainant engaged in protected activity; (2) the employer was aware of that protected activity; and (3) the employer took some adverse action against the complainant. The complainant must present

evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec. Ord., Apr. 25, 1983, slip op. at 8. In this case, there is no issue of the fact that Employer did take some adverse action, termination, against Complainant. The presence or absence of a retaliatory motive is provable by circumstantial evidence even if witnesses testify that they did not perceive such a motive. See Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563, 566 (8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981). Circumstantial evidence may raise the inference that a protected activity was the likely reason for an adverse action. Schweiss v. Chrysler Motor Corp., 987 F.2d 548, 549 (8th Cir. 1993).

    If the employee establishes a prima facie case, the employer has the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate, nondiscriminatory reasons. The employer bears only a burden of producing evidence at this point. The ultimate burden of persuasion remains with the employee If the employer rebuts successfully the employee's prima facie case, the employee still has the opportunity to prove that the proffered reason was not the real reason for the employment decision. The employee may succeed in this either by directly persuading the court that a discriminatory reason more likely motivated the employer or by showing indirectly that the employer's proferred explanation is unworthy of credence. The trier of fact may then conclude that the employer's proferred reason for its conduct is a pretext and rule that the employee had proved actionable retaliation for protected activity. However, the trier of fact may conclude that the employer was not motivated, in whole or in part, by the employee's protected conduct and rule that the employee has failed to establish his case by a preponderance of the evidence. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    The Secretary of Labor has held consistently that an employee who makes an internal safety complaint or an external complaint to government officials is protected under the whistleblower provisions of environmental statutes. See Mackowiak v. University Nuclear-Systems, Inc., 82-ERA-8(Sec'y, Apr. 29, 1983), aff'd 735 F.2d 1159 (9th Cir. 1984); Couty v. Dole, 886 F.2d 147 (8th Cir. 1989). However, the Fifth Circuit has held that the filing of an intracorporate quality control report is not protected activity under the Energy Reorganization Act. Brown v. Root, Inc. v. Donovan, 747 F.2d 1079 (5th Cir. 1984). Therefore, within the Fifth Circuit during the time frame of the case sub judice, internal complaints did not satisfy one of the requirements of a prima facie case. In order to prove that Complainant engaged in "protected activity" under Section 210, he must demonstrate that he raised safety concerns with a "competent organ of government". Id.

    In this case, the issue is whether Complainant engaged in protected activity and, if so, whether the protected activity was the likely reason for the alleged adverse action, if any. The undisputed facts demonstrate that Complainant only made internal complaints before his termination. on the day of his termination, Complainant, in a letter containing his plan of action regarding a counseling report he had received the day before, stated that he was going to the NRC and other governmental entities. The plan of action stated that Complainant wanted to be

relieved of his duties until the NRC and other agencies could resolve the matter. Later that day, Complainant was informed that the resolution of his plan would take a couple of weeks. Complainant then asked to be relieved of his duties. These facts prove that Complainant did not engage in any protected activity, under the relevant law, until the day of his termination. Moreover, Complainant admitted that he did not report safety concerns to the NRC until after he was terminated. Therefore, the Court finds that Complainant was about to engage in protected activity on the day of his termination.

    Complainant has not established that the protected activity, which he was about to initiate, was the reason for his termination. Complainant testified that after being told that the investigation into his complaints would take a couple of weeks he asked to be relieved of his duties. It was not until trial that Complainant stated that what actually he wanted was to be transferred to another area. The Court finds this late explanation questionable because Complainant could have corrected the impression the day he was processed out.

    Mr. McPhate testified that he had no knowledge nor suspected that Complainant was going to the NRC or any other external agency. Complainant tried to demonstrate that management suspected he had gone to the NRC prior to the day of his termination. The only evidence in the record which suggests that Respondent considered Complainant a whistleblower is contained in CX-3D, an exhibit which contains notes made by Mr. Pfleuger after a conversation with Mr. McPhate'. In that exhibit the following statement was made: I'McPhate contends that when Macktal(Complainant)went to Turner he identified numerous(unreadable word) which were recorded and investigated by management all of which were unfounded. He also states that management was afraid not to investigate as Macktal would go to the NRC etc. and that he was an alligator (snake in the grass-whistleblower) 11. Complainant relied on the handwritten notes in the parentheses to demonstrate that Respondent considered Complainant a whistleblower and therefore had some knowledge of Complainant's protected activity. However, Mr. McPhate testified that during his conversation with Mr. Pfleuger he never referred to Complainant as a "snake in the grass" or a "whistleblower" , but said he was going to be an "allegator", which he explained meant an employee who makes unsubstantiated claims.

    Initially, the Court declined to admit the hearsay document marked CX-3D. However, since Complainant lacks subpoena authority under this statute to compel the testimony of Mr. Pfleuger, the Court admitted the exhibit with the admonition that by itself it was of no evidentiary value. Complainant was thereby placed on notice that he needed to corroborate this exhibit or offer other evidence suggesting management suspected, prior to the date of termination, that he might contact the NRC or other government office. After reviewing the testimony of Mr. McPhate, the pertinent exhibits and the brief s of the parties, the Court remains convinced that CX-3D does not impeach the trial testimony of Mr. McPhate. The witness impressed the Court as being truthful with no animosity towards Complainant or any personal interest in the outcome of the case. Mr. McPhate testified that he had a casual conversation with Mr. Pfleuger, lasting less than five minutes, during which Mr. Pfleuger did not take notes. The notes, including those in parentheses, appear to be Mr Pfleuger's impression of what he was

hearing rather than a direct quote. In any event, the Court accepts the testimony of Mr. McPhate that he did not use the term "snake in the grass," or "whistleblower," with respect to Complainant nor did he suspect or state that the alleged safety violations might be reported to the NRC. TR pp. 852-853, 1199-1215.

    As the Court has found that management was not aware that Complainant was about to contact a government entity until the day of termination, any alleged harassment prior to that date could not have been in retaliation for any protected activity. In any case, Complainant's own testimony concerning his request to be relieved of his duties demonstrates that Employer had a legitimate, nondiscriminatory reason for terminating Complainant. By stating, in effect, that he could not continue performing his duties, he provided management with a legitimate basis for the termination. Respondent has no obligation to reassign Complainant on its own initiative or otherwise.

    In conclusion, Complainant has failed to prove all elements of his case. Accordingly, Complainant has not established a prima facie case. Therefore, this complaint must be dismissed.

   It is, theref ore, ORDERED, ADJUDGED and DECREED that the complaint of Joseph J. Macktal, Jr. is hereby DISMISSED.

      JAMES W. KERR, JR.
       Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 61 Fed. Reg. 19978 and 19982 (1996) .

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