DATE: June 3, 1987
CASE NO. 86-ERA-13

IN THE MATTER OF

CHARLES A. HENREY, III
    Complainant,

    v.

PULLMAN POWER PRODUCTS, CORP.,
    Respondent.

BEFORE: THE SECRETARY OF LABOR

    This proceeding arises under the employee protection (whistleblower) provision of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1982), which prohibits covered employers from discharging or otherwise discriminating against employees who have engaged in certain protected activities. This case is before me on the Recommended Decision and Order (R.D. and O.) of Administrative Law Judge (ALJ) Parlen L. McKenna, issued January 29, 1987.

    The record in this case has been thoroughly reviewed, and it fully supports the ALJ's statement of the case and findings of fact. R.D. and O. at 1-9. The record also supports the conclusion that the Complainant has failed to establish that he had engaged

in protected activity and that the Respondent terminated the Complainant for insubordination. R.D. and O. at 12-13.

    However, the ALJ's conclusion that this case is governed by dual motive discharge cases,¹ R.D. and O. at 10, is misleading. In order to utilize the dual motive analysis, the Complainant first must establish a prima facie case by showing that (a) he engaged in protected activity, (b) the employer was aware of the activity and took adverse action, and (c) the protected activity was the likely cause for the adverse action. Dartey v. Zack Company of Chicago, 82-ERA-2, slip op. at 7-8. Here the Complainant has failed to establish this prima facie case. Even if his complaint to a welding inspector for Pullman is considered a protected activity, there is no evidence any company official was aware of this complaint or that it played any role whatsoever in the decision to discharge. The ALJ found as a fact, and I agree, that the management officials involved were unaware of any of the activities on which Henrey based his complaint of discrimination. Since I find that the Complainant did not establish a prima facie case, the complaint IS DISMISSED.

    SO ORDERED.

       WILLIAM E. BROCK
       Secretary of Labor
Washington, D.C.

¹ Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977); Consolidated Edison Company of New York, Inc. v. Donovan, 673 F.2d 61 (2d Cir. 1982); Wright Line, a Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980); aff'd sub. nom. NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981); Dartey v. Zack Co. of Chicago, 82-ERA-2 (Apr. 25, 1983).