DATE: Apr 18, 1990
CASE NO. 89-ERA-30

IN THE MATTER OF

KENNITH L. BIVENS
    Complainant

    v.

LOUISIANA POWER & LIGHT
    Respondent

JOHN W. LINDNER, II, ESQ.
Adams and Reese
4500 One Shell Square
New Orleans, LA 70139
    For the Complainant

ERNEST L. BLAKE, ESQ
Shaw, Pittman, Potts &
    Trowbridge
2300 N. Street, N.W.
Washington, D. C. 20037
    For the Employer

BEFORE: KENNETH A. JENNINGS
    Administrative Law Judge

    This is a proceeding under 42 U.S.C. § 5851 (the Act) to adjudicate a complaint initiated by Complainant, Kennith J. Bivens, against his former Employer, Louisiana Power & Light (Employer) alleging that the latter harassed, demoted and transferred him because he engaged in conduct protected under the Act. Complainant alleges that such actions constituted violations of the Act and seeks back pay, compensatory damages,

and attorney fees.

    On March 20, 1990, Employer filed a Motion by Louisiana Power & Light To Dismiss (Motion To Dismiss) this proceeding. On April 10, 1990, Employer filed Louisiana Power & Light's Second Motion To Dismiss this case (Second Motion). Complainant filed responses objecting to both such motions.

    On March 8, 1989, Complainant filed his rebuttal to his 1988 performance appraisal covering the period December, 1987, to December, 1988. In that rebuttal he complained of safety violations. The rebuttal was submitted to Complainant's supervisor and an employee of Employer and was an internal complaint. On telephone conference between counsel for both parties and this Judge on April 12, 1990, Complainant's counsel acknowledged that no complaint of safety violations were made to the Nuclear Regulatory Commission or any government agency until the complaint was filed on April 5, 1989 with the Department of Labor.

    On March 31, 1989, after the rebuttal was filed, Employer found Complainant unable to perform the position of Field Engineer and transferred him to another position. On April 5, 1989, Complainant filed his complaint of such action with the Department of Labor which was denied by the District Director, and Complainant asked for a formal hearing.

    In its Motion To Dismiss, Employer contends Complainant has lost no wages and is on long term disability, so that he cannot be reinstated, and the case is moot. Employer also contends the complaint is time barred. I find these contentions are without merit. Under 29 C.F.R. § 24.6(a)(2) the Secretary may order Employer to provide compensatory damages to Complainant; therefore Complainant would be entitled to claim such, if successful and there is possible redress. Further, the official action of which he complains is dated March 31, 1989, and as his complaint was filed April 5, 1989, it is timely. This Motion should be denied.

    In its Second Motion Employer moves to dismiss the case

contending under the law of the 5th Circuit there is no jurisdiction under the Energy Reorganization Act. In Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. Dec. 1984) the 5th Circuit held that an internal report by an employee to employer is not conduct protected by the Energy Reorganization Act, 42 U.S.C. § 5851. Other circuits have disagreed holding that internal communications are protected activity. Mackowiok v. University Nuclear Systems, Inc., 735 F.2d 1159, (9th Cir. June 1984) upholding the Secretary, and Kansas Gas & Electric Co. v. Brock, 780 P.2d 1505, 1513 (10th Cir., 1985). The Secretary and Under Secretary of Labor have chosen to follow the Mackowiok and Kansas Gas & Electric Co. decisions supra; however, I have not found where hey have done so in an ERA case in the 5th Circuit. To the contrary Dunham v. Brock, 794 F.2d 1037, 1040 n.2 (5th Cir. 1986) indicates that the Secretary adheres to the Brown & Root decision, supra. In Hyatt v. Heckler, 807 F.2d 376, 379 (1986) the 4th Circuit stated that administrative agencies are required to follow the law of the circuit that has jurisdiction over the matter in the absence of a controlling decision by the Supreme Court.

    Complainant's safety complaints were only by internal memorandum, i.e. intracorporate and were not covered by § 5851 of the ERA. This case arises in the 5th Circuit and at this stage I must follow Brown & Root v. Donovan, supra, and dismiss this case as the Supreme Court has not passed on this issue.

    Hearing in this matter on April 30, 1990, is CANCELLED.

    It is hereby recommended that the Secretary issue an order in this matter as follows:

    The complaint of Kennith J. Bivens is DISMISSED.

       KENNETH A. JENNINGS
       Administrative Law Judge

DATED: APRIL 18, 1990 Metairie, Louisiana