DATE: MAY 21 1992
CASE NO: 91-ERA-55

IN THE MATTER OF

CHARLES J. MERRIWEATHER
    COMPLAINANT

    v.

TENNESSEE VALLEY AUTHORITY
    RESPONDENT

    This proceeding arises under Section 210 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 (1988) (ERA). Complainant Charles J. Merriweather alleges that respondent Tennessee Valley Authority discriminated against him in violation of the ERA when it terminated his employment at TVA's Sequoyah Nuclear Plant (Sequoyah) on August 2, 1991, for the stated reason that he had sexually harassed a female TVA employee. Pursuant to 29 C.F.R. § 18.41 (1991), TVA has moved for summary judgment of dismissal, supported by the affidavits of Christopher L. Kelley and Philip R. Wallace. As a ground for its motion, TVA asserts that complainant cannot prove an essential element of a prima facie case, i.e., that Mr. Kelley and Mr. Wallace, the responsible decisionmakers, were aware of complainant's claimed protected activity when they decided to terminate him.

    Based on a review of all of the evidence of

record in a light most favorable to complainant, it is the conclusion of the undersigned that there is no genuine issue of material fact and that TVA's motion should be granted. The facts of record pertinent to TVA's motion may be summarized as follows.

    Complainant, who had been a security officer at Sequoyah, mailed the complaint initiating this ERA proceeding on July 15, 1991, which was received by the Department of Labor's Wage and Hour Division (W&H) on July 17, 1991. The complaint was mailed by W&H on July 19 to TVA's corporate offices in Chattanooga, Tennessee, where it was received on July 22. That office sent a copy of the complaint to Sequoyah where it was received on July 24 (Kelley aff. ¶ 6 & exh. F).

    Mr. Kelley's affidavit reflects that on June 11, 1991, Rebecca A. Stanfield, a female TVA employee, reported to Mr. Kelley, Sequoyah Site Security Manager, that complainant had sexually harassed her outside the Sequoyah gatehouse on June 10, 1991. Ms. Stanfield gave Mr. Kelley two signed statements, one by her, and one by Diane Law, documenting the report (id. ¶ 3 & exhs. B, C).

    Based on an investigation of the report, Mr. Kelley determined that complainant had violated TVA's policies on sexual harassment--which are required by Federal statute and regulation--and gave him written notice of proposed termination on June 26, 1991. At the time, Mr. Kelley was entirely unaware that complainant had ever raised a nuclear safety concern or engaged in any activity protected by the ERA (id. ¶¶ 5, 6 & exh. E).

    Complainant was given the opportunity to present matters in opposition to his proposed termination to Mr. Wallace, Mr. Kelley's supervisor. Although complainant and his attorney met with Mr. Wallace on July 10 and 17, 1991, they did not identify any of the witnesses they claimed were in the vicinity of the Sequoyah gatehouse at the time in question, and did not present any written statements to support complainant's denial of the events reported in the signed statements of Ms. Law and Ms. Stanfield. Neither complainant nor his attorney even suggested at these meetings that anyone was motivated to

take action against complainant because of any protected activity (Wallace aff. ¶¶ 2, 3). Nor was Mr. Wallace aware on or prior to July 17 that complainant had ever engaged in such protected activity.¹

    Based upon Ms. Stanfield's and Ms. Law's signed statements, the matters presented to Mr. Wallace at the July 17, 1991, meeting, and complainant's disciplinary history, Mr. Wallace concluded that complainant had sexually harassed Ms. Stanfield in violation of TVA's policies. Accordingly, on July 17, 1991, Mr. Wallace directed that a termination letter be prepared for his signature. When he returned from vacation a week later, on July 24, he signed the letter, and complainant's TVA employment was terminated effective August 2, 1991 (Wallace aff. ¶¶ 3, 4, exh. A).

    Knowledge by the deciding officials of the complainant's claimed protected activity is an essential element of his case. The Secretary of Labor recently made this clear in her remand order in Bartlik v. Tennessee Valley Authority, No. 88-ERA-15 (Dec. 6, 1991), setting aside as unlawful a recommended decision and order (RDO) which had found an ERA violation without specific findings that the TVA officials who made the challenged decision had known of the complainant's alleged protected activity. The Secretary held:

Knowledge of the protected activity on the part of the alleged discriminatory official is, of course, an essential element of Complainant's case. See Atchison v. Brown & Root, Inc., Case No. 82-ERA-9, Secretary's Decision and Final Order June 10, 1983, slip op. at 15-16, revd on other grounds, Brown & Root, Inc. v. Donovan, 747 F.2d 1029; Frazier v. Merit Systems Protection Bd. 672 F.2d 150, 166-68 (D.C. Cir. 1982) [slip op. at 7 n.7].

See also Ledford v. Baltimore Gas & Elec. Co., No. 83-ERA-9, RDO at 9 (Nov. 29, 1983), adopted Secretary (Sept. 17, 1984) ("Without prior knowledge, the employer's decision to discipline [complainant] could not have been motivated by his protected activity."); Riden v. Tennessee Valley Authority, No. 89-ERA-49, at 4 (July 18,

here is that TVA, in fact, acted on its good faith belief about [complainant] . . . . " Pesterfield v. Tennessee Valley Authority, 941 F.2d 437, 443 (6th Cir. 1991).² Accord Jones v. Orleans Parish School Bd., 679 F.2d 32, 38 (5th Cir.), modified on other grounds, 688 F.2d 342 (5th Cir. 1982), cert. denied, 461 U.S. 951 (1983) ("Whether the Board was wrong in believing that Jones had abandoned his job is irrelevant . . . as long as the belief, rather than . . . animus, was the basis of the discharge."); Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1036 (5th Cir. 1980). Complainant's failure to point to any evidence that the decisionmaker was aware of his claimed protected activity precludes any suggestion that TVA's articulated reason for his discharge was pretextual, a burden which complainant bears.

    Since complainant has come forward with no evidence that raises a genuine issue of material fact as to whether Mr. Kelley or Mr. Wallace were aware of his protected activity, TVA's motion must be granted (Howard v. Tennessee Valley Authority, No. 90-ERA-24, slip op. at 3 n.3 (July 3, 1991), aff'd, No. 91-3738 (6th Cir. Apr. 2, 1992)). In view of the foregoing it is recommended that the complaint upon which this proceeding is based be DISMISSED.

       MICHAEL P. LESNIAK
       Administrative Law Judge

Hampton, Virginia

¹ Both Mr. Wallace and Mr. Kelley have testified that they did not learn that complainant claimed to, have engaged in activity protected by the ERA until they saw his July 15 complaint letter, which was not received at Sequoyah until July 24, 1991, after the decision to terminate had been made (Kelley aff. ¶ 6, exh. F; Wallace aff. ¶ 3).

² The Secretary's final decision in Howard v. Tennessee Valley Authority, No. 90-ERA-24, slip op. at 3 n.3 (July 3, 1991), aff'd, No. 91-3738 (6th Cir. Apr. 2, 1992) sets out the binding nature of Sixth Circuit decisions in cases like this arising in Tennessee.