THE UNDER SECRETARY OF LABOR
WASHINGTON, D.C.
20210
Case No. 82-ERA-5
In the Matter of
T. NORMAN BATTS,
Complainant
v.
TENNESSEE VALLEY
AUTHORITY,
Respondent
FINAL DECISION AND ORDER
This is a proceeding arising under a provision of the
Energy Reorganization Act of 1974 [ERA] which prohibits an
employer from discriminating against an employee because the
employee has engaged in certain protected activity. 42 U.S.C.
§ 5851.
There is no dispute in this case that for more than 4
years the functions of the complainant Batts were in
procurement, part of the quality assurance program at Respondent
TVA's Brown's Ferry Nuclear Power Plant in Decatur, Alabama.
His duties were to review procurement documents, or, as Batts
described these duties, "to insure that no inferior materials,
[Page 2]
no defective materials, no material for which we didn't have
proper documentation was even released out of the store room."
(Tr. 624). When he found problems, he would file corrective
action reports. He was classified as an SE-5, which is a
position on TVA's SE series, applicable to aides and technicians.
In October, 1981 he was reassigned to duties involving
surveillance of completed data. Additionally, he was refused promotion
to an engineering position on TVA's SD schedule, applicable to
scientific and engineering positions. He remains an SE-5.
Batts alleges that TVA reassigned him from the procurement
activities he had been performing and denied him a promotion
in retaliation for his performance of his quality assurance
duties, thereby violating the ERA.
In defense TVA, urges that Batts was not engaged in protected
activity, and, alternatively, if Batts's functions were protected
activity, that TVA's actions were not in any way discriminatory.
TVA argues that the denial of Batts's promotion and the reassignment
of his duties were valid personnel actions carried out
in order to upgrade the qualifications of quality assurance
personnel, part of TVA's overall efforts to upgrade and systematize
its quality assurance programs at all its nuclear power
plants.
The case was heard by Administrative Law Judge Charles
Rippey on January 19-21, 1982. In his Recommended Decision
and Order of May 3, 1982, Judge Rippey recommended the complaint
be dismissed. This matter is now before me for decision pursuant
to 29 C.F.R. § 24.6(b). After review of the record, I accept
the administrative law judge's recommendation that the complaint
be dismissed.
1 The ALJ's ruling is in accord with
the decision of the
Secretary that the filing of non-conformance reports is
protected activity under the ERA, which was accepted in Mackowiak
v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir.
1984), and rejected in Brown & Root, Inc. v. Donovan, No.
83-4486 (5th Cir. Dec. 10, 1984).
2 The administrative law judge's
ruling suggests that he was
of the view that, in order to establish a prima facie case, the
complainant must establish that he was treated differently from
other similarly situated employees. Insofar as Judge Rippey's
decision is inconsistent with DeFord v. Secretary of Labor,
700 F.2d 281 (6th Cir. 1983), it is not accepted.