DATE:  February 13, 1992
CASE NO. 87-ERA-lo


IN THE MATTER OF

RICHARD COUTY,

          COMPLAINANT,

    v.               
ARKANSAS POWER AND
LIGHT CO.,
RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            FINAL DECISION AND ORDER ON REMAND
                                      
    A Final Decision and Order was issued in this case arising
under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. ~ 5851
(1988), agreeing with the Administrative Law Judge's (ALJ)
conclusion that Respondent did not violate the ERA when it
discharged Complainant in October 1986.  The decision was based on
the ALJ's finding that Complainant failed to establish a prima
facie case that his protected activity was a motivating factor in
Respondent's decision to fire him.
    On appeal, the United States Court of Appeals for the Eighth
Circuit held that the record evidence was sufficient as a matter
~f law to establish a prima facie case of retaliatory discharge.
Couty v. Dole, 886 F.2d 147, 148 (1989).  The court of
appeals vacated the earlier decision and remanded the case for the
Secretary to consider whether Respondent articulated a
legitimate reason for discharging Complainant, and
whether Complainant proved that Respondent violated the
Act when it discharged him. Id. at 148-49.
    The record in this case has been reviewed again.  I find that
the ALJ's factual findings set forth at pp. 2-8 of his Recommended
Decision and Order (R.D. and 0.) and further factual 
[PAGE 2]
determinations referenced throughout the conclusions portion of
the R.D. and O. are supported by the record and I adopt them. [1] I
find that the record fully supports the ALJ's conclusions that
Respondent articulated legitimate business reasons -- e.g.
Complainant's abusive, disruptive, profane and threatening
behavior towards supervisors on at least three occasions -- for
its action in discharging Complainant, R.D. and O. at 11; that
Complainant has not proven that retaliation for protected activity
was a motivating factor in Respondent's action, id.; and that
Complainant would have been discharged even if he had not engaged
in protected activity.  Id. at 12.  See Darty v. Zack Co. of
Chicago, Case No. 82-ERA-2, Sec. Dec. April 25, 1983, slip op.
at 6-9.  The ALJ goes on to hold that the evidence "overwhelmingly
supports the conclusion that Complainant would have been
discharged regardless of his protected activity."  R.D. and O. at
12.  I agree with the ALJ's factual discussion and conclusions on
this point, id. at 11-13, and I find, applying the burdens of proof as
set forth in Dartey v. Zack Co., (see also Mt.
Healthy City School Dist. 3d. of Educ. v. Doyle, 429 U.S. 274,
287 (1977), that Respondent has proven that it would have
discharged Complainant even if Complainant had
demonstrated that Respondent was motivated in part by
Complainant's protected activity.  See Price
Waterhouse v. Hopkins, 490 U.S. 228, 258 (1988)
(plurality opinion). 2/ I also adopt the ALJ's
determination that Complainant failed to establish his
blacklisting allegation.  R.D. and O. at 13-4.
Accordingly, the complaint in this case is DISMISSED.
S0 ORDERED.

                         LYNN MARTIN                               
                         Secretary of Labor             
            



Washington, D.C.





[PAGE 3]
[ENDNOTES]

[l] In the ALJ's finding No. 17, the date of November 11, 1986, is
corrected to October 11, 1986.  Transcript 840.


[2] The Secretary's prior decision in this case noted (June 20,
1988, decision, p.1 n.l) that the ALJ's analysis of the shifts in
burden of proof was not entirely consistent with the decision in
Dartey v. Zack.  This comment was directed to the ALJ's
discussion (R.D. and O. at 12) of "but for" causation, which has
overtones of a "mixed-motive" analysis; to the extent the ALJ was
employing such an analysis, his decision arguably fails to place
the burden on the employer to disprove that claimant would have
been discharged even if he had not engaged in protected activity.
See Mt. Healthy City School Dist. Bd. of Educ.
v. Doyle, 429 U.S. at 287; Mackowiak v. Universitv Nuclear
Svstems. Inc., 735 F.2d. 1159 (9th Cir. 1984); Dartey v.
Zack, p.9 ("if protected activity was a motivating factor in
the employer's action, the employer, in order to avoid liability,
has the burden of proof or persuasion to show by a preponderance
of the evidence that it would have reached the same decision even
in the absence of the protected conduct").  See also
Price Waterhouse v. Hopkins, 490 U.S. at 258 (plurality
opinion).