DATE: January 6, 1992
CASE NO. 87-ERA-27



IN THE MATTER OF

MILTON SHUSTERMAN,

          COMPLAINANT,

    v.          
                
EBASCO
SERVICES,INC.,
RESPONDENT.


BEFORE:  TNE SECRETARY OF LA80R


                          FINAL DECISION AND ORDER
                                      
    Before me for review is the Recommended Decision and Order
(R.D. and 0.) issued by the Administrative Law Judge (ALJ) in this
case arising under the Energy Reorganization Act of 1974, as
amended (ERA), 42 U.S.C.  5851 (1988).  The ALJ found that
Complainant had not met his burden to establish that his discharge
was discriminatory under the provisions of the ERA, and
accordingly recommended that the complaint be dismissed.
    I.  Background.
        Complainant, pro se, 1/ initiated these
proceedings by filing a complaint under the ERA with the
Department of Labor in which he alleged that his termination from
employment on March 4,


1/  Complainant has represented himself at all stages of these
proceedings, and, before me, has filed a Brief in Opposition to
the ALJ's R.D. and 0.  Respondent, represented by counsel below,
has not filed a brief before me.
1987, was in retaliation for his refusal to falsify the 
[PAGE 2]
qualifications of several unsatisfactory vendor5 supplying
materials for Respondent's nuclear projects.  Investigation
by the Wage and Hour Division found merit to the complaint.
Respondent contested this determination by requesting a
hearing on the case before an administrative law judge,
which was conducted from July 6-9, 1987.
    The evidence 2/ in the case established that Complainant was
hired by Respondent as a senior engineer on August 7, 1978, T.
65, and assumed the duties of vendor evaluation group leader in
the quality assurance engineering department in September 1980,
CX 7.  He held this position until July 1983, when he requested
reassignment to other duties.  T. 224, 290, 315.  While group
leader, Complainant had occasion to find several vendors
unsatisfactory because they were not producing materials in
conformity with federal regulations governing quality assurance.
T. 70, 144, 162, 174, 189, 218.  Such unsatisfactory ratings
prevented Respondent from purchasing needed materials from the
vendors.  Complainant testified that this situation created
hostility between himself and management, T. 101-102, 184, 192,
241, 316, and resulted in management overriding his evaluations,
either by illegally placing the vendor on a supplemental list of
purchasers, T. 168-170, 174, 198, 201, 225, or by having the



2/ Complainant's Exhibits will be referred to as CX Respondent's
Exhibits as RX _ , and ALJ Exhibits as ALJX References to the
Hearing Transcript will be designated as T. _ .
vendor reaudited and thereafter satisfactorily rated.  T.
144145, 162, 189, 225.  subsequent satisfactory ratings
were, however, often approved by Complainant himself.  T.
152, RX 10, CX 4Gl, CX 4G.
    In July 1983 Complainant requested that he no longer be
required to do vendor evaluations and that he be reassigned from
his position as vendor evaluation group leader.  T. 224, 290, 315. 
Complainant testified that his reason for this request, which he
communicated to his supervisor, Mr. Gibson, related to his having
to approve unsatisfactory vendors because of management pressure
to do so.  T. 315-316.  Mr. Gibson, however, testified that at the
time Complainant requested reassignment, he did not mention vendor
evaluation; rather, Complainant disclosed to Mr. Gibson only that
he was upset at being overruled by a coworker, Al Strazza, with
whom Complainant had a personality conflict.  T. 462-464.  Mr.
Gibson reluctantly transferred Complainant within the quality
assurance division to a position in which Complainant performed
internal auditing but no vendor evaluations.  T. 319, 597.

[PAGE 3]
    During the remaining four-year period, from the July 1983
reassignment until Complainant's discharge in March 1987,
Complainant worked principally out of Respondent's New York City
office, where he preferred to be located, frequently doing routine
clerical work, even though he was a trained engineer, T. 319, but
sometimes going offsite to Respondent's client's nuclear
facilities for substantive engineering work.  T. 320-325
(Waterford); T. 473-476, RX 7 (South Texas).  At times when
he went offsite, Complainant imposed formidable conditions
on the assignment before he would accept it (Colorado).  T.
473-476, 597-600; CX 17; RX 7.  On several occasions
Complainant flatly refused offsite assignments, T. 325-326
(California), one of which (Comanche Peak), had he accepted
and been selected, would have guaranteed him a job
and avoided his discharge.  T. 389, 477-478; RX 8; CX lC21.
    Complainant testified that his discharge in March 1987 was in
retaliation for his disqualification of and refusal to qualify
unsatisfactory vendors during the period he performed the duties
of vendor evaluation group leader from September 1980 to July
1983.  T. 677-681.  Despite the four-year hiatus between his
asserted protected activity and discharge, Complainant contended
that a conspiracy among management officials to retaliate for his
vendor evaluation activity persisted throughout the period.  Id.
Respondent, through Complainant's supervisor, Brian Gibson,
testified that Complainant was discharged with three other
employees because of a reduction in force (RIF) occasioned
principally by a general slowdown in the nuclear industry, T. 421,
which hit the vendor evaluation function particularly hard.  That
division had nuclear application only and could not easily obtain
other non-nuclear independent contracts as other divisions could. 
T. 422.  Because the vendor evaluation group had many people not
working on billable contracts, whose time had to be charged to
overhead, the group's overhead budget was
"overrun," T. 423, requiring a staff reduction in force of
twenty percent.  To implement the RIF on behalf of
management, Mr. Gibson created specific criteria to evaluate
the retention worth of each of his nineteen employees, RX 1,
T. 426.  He wrote narrative evaluations under the criteria
for each employee, RX 4, and he numerically ranked each
employee under the evaluation given.  RX 2, T. 426-434.  The
four employees ranked lowest, which included Complainant,
were discharged. 3/  When notified by Mr. Gibson of the
discharge action, Complainant did not question the reasons
for the layoff, T. 381, but disclosed to his supervisor that
he had a serious medical condition (neuropathy) which he 
[PAGE 4]
felt ought to prevent his discharge.  T. 374-380, 482483.
II.  Discussion.
     A.  Under the whistleblower provision of the ERA, an employee
alleging retaliatory discharge can make out a prima facie case by
showing ~1) that the employee engaged in conduct protected by the
ERA; (2) that the employer was aware of that conduct and took some
adverse action against the employee; and (3) that the inference is
raised that the protected activity was the likely reason for the
adverse action.  Dartey v. Zack Co.,


3/  Complainant also implied that he was discharged because he was
only five months shy of vesting in the company pension plan. T.
379.  Complainant was employed for 8 years and 7 months, from
August 1978 to March 1984.  Respondent contended that vesting
occurs only at the tenth-year anniversary date, not at nine years,
and while twelve-month leaves of absence had been allowed to
provide vesting benefits for employees, no exception to the
twelve-month rule had been made.  Letter of April 27, 1987, of
Christopher Luis, Esq., to Employment Standards Administration.
Case No. 80-ERA-2, Sec. Order, Apr. 25, 1983, slip op. at
7-8; accord McCuistion v. Tennessee Vallev
Authoritv, 89-ERA-6, Sec. Dec. and Order, Nov. 13,
1991, slip op. at 6.  Respondent may rebut this showing by
establishing that the adverse action was motivated by
legitimate, nondiscriminatory reasons.  Respondent,
however, bears only a burden of production of the rebuttal
evidence; the ultimate burden of persuasion of the
existence of retaliatory discrimination rests with the
Complainant.  Once Respondent satisfies its burden of
production, Complainant then may establish that
Respondent's proffered reason is not the true reason,
either by showing that it is not worthy of belief or by
showing that a discriminatory reason more likely motivated
Respondent.  Dartey, slip op. at 8.
    In the present case, the ALJ concluded that Complainant had
not met his ultimate burden to establish the existence of a
retaliatory discharge.  R.D. and 0. at 5.  In reaching this
conclusion, the ALJ determined that the evidence did not
establish the element of the prima facie case that Complainant's
protected activity was a motivating factor in his discharge. R.D.
and 0. at 4.  The evidence which the ALJ cited in support of this
failure included Respondents's direct evidence of legitimate,
nondiscriminatory reasons for its adverse action, evidence which
normally is addressed only in the rebuttal stage of the case
after the prima facie case has been established. Dartey,
slip op. 
[PAGE 5]
at 8.  I recognize that the evidence in a particular case, such
as the one before me, may not always be so
"finely tuned and carefully orchestrated" as to fit neatly
within the analytical rules set forth in Dartey. 
Dartey, slip op. at 9.
    Upon review of the record in this case, I fully agree with
ALJ's ultimate determination that Complainant did not meet his
burden of establishing that his discharge was discriminatory under
the ERA.  In reaching this conclusion, moreover, I specifically
find that Complainant did not make out a prima facie case of
retaliatory discharge, as his evidence failed to raise the
inference that his protected activity was the likely reason for
his discharge.  Further, even assuming that a prima facie case had
been established, Respondent showed by a preponderance of the
evidence that its reasons for terminating Complainant were
legitimate and nondiscriminatory, and these reasons were not shown
by Complainant to be pretextual or unworthy of belief.~ As
discussed infra, I have adopted the credibility
determinations of the ALJ, to which special deference should be
given where, as here, those determinations are rational and within
the sound discretion of the factfinder.  See Pogue v.
United States Dept. of Labor, 940 F.2d 1287, 1289 (9th
Cir. 1991).
    B.  Preliminarily, there is no question that Complainant
engaged in protected activity when, purportedly against
Respondent's wishes, he disqualified, or refused to requalify,



4/ Because Complainant has at all times contended that
Respondent's motives were wholly retaliatory, and
Respondent contended that its motives were wholly
legitimate, I have employed the "pretext" legal
discrimination model in the analysis of this case. 
See McCuisition, slip op. at 2 n.1.  It
is therefore unnecessary to employ a dual motivation
standard.  Id.
vendors not adhering to federal regulations governing
quality assurance.  See 10 C.F.R. Part 50 (1990). 
That Complainant did not report these matters to the Nuclear
Regulatory Commission (NRC) or ~o any other government
authority is irrelevant, so long as he communicated his
concerns, as was done here, internally to the employer. 
Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505,
1510-1513 (lOth Cir. 1985), cert. denied, 478 U.S.
1011 (1986); Mackowiak v. University Nuclear Systems.
Inc., 735 F.2d 1159, 1162-1163 (9th Cir. 1984);
Consolidated Edison Co. of 
[PAGE 6]
New York v. Donovan, 673 F.2d 61, 63 (2d Cir.
1982).  Moreover, it is further evident that Respondent was
aware of Complainant's protected conduct and that in 1987,
it took adverse action against him.
    The remaining element in Complainant's prima facie case,
connecting the protected activity to the adverse action, was
severely and perhaps irreparably undercut by the long period that
elapsed between Complainant's protected activity and his
discharge.  The record shows that Complainant's protected activity
occurred only while he was group leader for vendor evaluations
from September 1980 to July 1983.  CX 7; T. 224-225, 290, 315. 
Yet his termination from employment occurred in March 1987, nearly
four years after his reassignment from group leader to internal
auditing.  Where an adverse action closely follows protected
activity, the inference of causation may be sufficiently
established.  See, e.g., Couty v. Dole, 886
F.2d 147, 148 (8th Cir. 1989); Mitchell v. Baldridqe, 759
F.2d 80, 86 (D.C. Cir. 1985).  Conversely, where a significant
period of time elapses between the protected activity and the adverse
action, the absence of a causal connection between the
protected activity and the adverse action may be
sufficiently established.  Burrus v. United
Telephone Co. of Kansas. Inc., 683 F.2d 339, 343 110th
Cir.), cert denied, 459 U.S. 1071 (1982) (three-year
time interval established absence of causation).  In the
present case, I conclude that the four-year interval,
without credible evidence to the contrary, establishes the
absence of any causal connection between Complainant's
vendor evaluation activity and his discharge.
    Complainant's evidence on the causation element was largely
circumstantial and speculative.  While Complainant alleged that
there was a conspiracy among management officials Mazo, Williams,
and Gibson to retaliate against him based on his vendor evaluation
activity from 1980 to 1983, T. 680, he could point to no concrete
evidence that Respondent's alleged dissatisfaction with
Complainant resulted in any adverse action.  Id.  For example,
Complainant conceded that management officials never actually told
him to change any of his reports, although Complainant believed
that he was being pressured implicitly to do so.  T. 101-102.  His
reassignment from group leader to internal auditing in July 1983
was not initiated by Respondent as a retaliatory action.  Rather,
it was Complainant who voluntarily resigned his vendor evaluation
duties and requested reassignment, which Respondent accommodated.
    During the period from July 1983 until his discharge,
                                                        

[PAGE 7]
Complainant contended that he was given a great deal of
clerical work, T. 318-319, though the evidence in the
case credibly showed that there was little quality
assurance contract work available at this time.  T.
421-424.  Complainant's contention that his refusal to
accept a vendor evaluation assignment in California in
1984, T. 325-327, resulted in a less than satisfactory
performance appraisal ignores the unrefuted fact that
only Complainant's 1987 performance appraisal was
considered in the retention criteria underlying
Respondent's determination to discharge.  RX 1, RX 2,
RX 4; T. 433.
    When Respondent notified Complainant of his discharge, he
failed to make any mention to management of a possibly unlawful
discrimination underlying the RIF.  T. 372-379.  Complainant
instead discussed only his poor physical condition, which he
apparently felt should alter Respondent's decision.  T. 378-380.
Moreover, Complainant failed to present any evidence regarding
Respondent's motive for discharging three other employees under
the same RIF, or to otherwise question the propriety of those
layoffs.  On these facts, considered in light of the four-year
hiatus between the protected activity and discharge, I agree with
the ALJ that it is not believable, and Complainant did not
establish, that Respondent waited silently and conspiratorially
during this long period for an opportunity to retaliate against
Complainant.  Accordingly, I find that the inference that
protected activity was the likely reason for Complainant's
discharge was not raised.
         C.  Even were I to assume, arguendo, that
Complainant made a prima facie case, I find that the record
evidence convincingly establishes that Respondent's reasons
for the adverse action were legitimate and were applied in a
nondiscriminatory fashion. Dartey, slip op. at 8.  It
was wholly within the ALJ's discretion to find credible the
testimony of Complainant's supervisor, Mr. Gibson, whose
demeanor the ALJ observed at the hearing, and I will not
upset that determination.  ALJ R.D. and O. at 4.  See
Pogue, 940 F.2d at 1289.  Witness Gibson credibly
testified that the RIF was occasioned by lack of billable
contract work in the quality assurance division due to a
general slowdown in the nuclear industry.  T. 421. 
Employees not working on contract work accordingly overran
the group's overhead, creating a financial drain on
Respondent not otherwise recoupable. T. 423.  Since
additional billable work could not be found, a twenty
percent reduction in force became necessary, and four of the
quality assurance group's 
[PAGE 8]
nineteen employees were required to be RIFed.  T. 425.
    The manner in which the RIF was conducted was shown to be
nondiscriminatory through the credible testimony of witness
Gibson.  A total of four employees, including Complainant, were
RIFed.  No suggestion was made that the other three employees were
also targets of retaliation or that their selection for discharge
was in any way improper.  Any implication that these employees
were sacrificed in a retaliatory conspiracy aimed solely at
Complainant is simply not credible.  While Complainant
strenuously objected to the ratings he was given under
the criteria Mr. Gibson formulated, T. 608-619, the ALJ
found, and I agree, that the ratings given were reasonable. 
T. 426-441.  In particular, Complainant's low flexibility
rating was significantly influenced by his refusal to accept
offsite contract assignments.  RX 4; T. 452.  See
also RX 6; T. 469-470.
    Complainant's discharge was shown to be a result of employer's
business judgment of specific employment retention factors
unrelated to any protected activity concerning vendor evaluations
performed by Complainant from 1980-1983.  While Complainant
contended that Respondent's entire RIF procedure was a pretext and
a sham, T. 685, a preponderance of the evidence -including
Gibson's credible testimony; the criteria formulated, RX 1; the
narrative evaluations, RX 4; the rankings, RX 2; and the conduct
of management officials surrounding the RIF, T. 438441 -- shows
otherwise.  On this record, I conclude that the evidence showed
that Complainant's termination was motivated by legitimate
business reasons, nondiscriminatorily applied, which Complainant
did not show were pretextual or unworthy of credence.
    Complainant's contrary arguments before me must be rejected.
Complainant contends that the April 27, 1987, letter at p.4, to
the Wage and Hour Division from a management official of Ebasco
affirmatively established that Complainant was RIFed for refusing
to do vendor evaluations.  Complainant is incorrect.  The ALJ
could, sua sponte, and, as in this case, with
Complainant's consent, T. 554, inquire into the relevance of the
statement in that letter that Complainant was rated low on flexibility
and marketability due in part to his refusing to do vendor
evaluations.  See 29 C.F.R. 5 18.401, 18.402 (1991~. 
The witness guestioned about the letter's statement was the
supervisor who actually determined the ratings.  Moreover,
the hearing before the ALJ is de novo,
Smith v. Tennessee Valley Authoritv, Case No.
87-ERA-20, Sec. Order, Apr. 27, 1990, slip op. at 4 n.2, and
thus a document prepared by Respondent in response to
investigative proceedings before 
[PAGE 9]
the Wage and Hour Administrator is not dispositive.  Witness
Gibson's repudiation of the letter's statement is both
relevant and admissible in the manner provided by the ALJ. ~
    Complainant's contention that the ALJ's failure to contact the
NRC by letter to determine the validity of a list (CX 6) of
unsuitable suppliers unfairly prejudiced his case must be
rejected.  The list was relevant only to further establish the
existence of protected activity, but confirmation of the


5/ Complainant's allegation that the ALJ's sua
sponte inquiry into the relevance of the April 27 letter
unfairly put the ALJ in the role of Respondent's advocate,
Complainant's Opposition Brief at 4, is not well taken. 
Preliminarily, Complainant explicitly consented to the ALJ's
request to the parties that he be allowed to question witness
Gibson.  T. 554.  The ALJ's questioning reveals simply his
intention to understand the precise bases underlying the RIF and
to complete the record on that issue.

    Further, Complainant's unfairness allegation on this isolated
incident completely ignores that fact that throughout the hearing,
the ALJ showed sensitivity and concern regarding Complainant's
Pro se status.  The ALJ enabled Complainant to
develop his case by asking the very questions of Complainant-as-
witness that elicited his case in chief, and by trying to elicit
evidence tending to establish the elements of causation and other
issues helpful to Complainant's case.
suppliers' unsuitability had no relevance to the missing
element in Complainant's case, i.e. showing that his
vendor evaluation activity from 1980-1983 was the likely
reason for his March 1987 discharge.
    Complainant further contends that the testimony of witness
Gibson as to the economic reasons for the RIF is not worthy of
belief because immediately after the ALJ's decision was issued,
Respondent published help wanted advertisements for quality
assurance positions. 6/  Upon review of the record I conclude
that these advertisements do not alter the substance of Mr.
Gibson's testimony and other record evidence that a twenty
percent reduction in force was found to be necessary in January
1987 because of overrun overhead.  T. 424.  Moreover, the
inference that these advertisements were for jobs in precisely
the division where Complainant was employed is speculative.
    Complainant next argues that the ALJ's credibility
determinations are flawed since no witness testified for
Respondent in rebuttal of Complainant's allegation of falsified
qualifications of suppliers.  This argument again fails to 
[PAGE 10]
recognize that the element of the prima facie case which
Complainant failed to establish was not whether he engaged in
protected activity, but whether he raised the inference that his
protected activity was the likely reason for the adverse action.
Dartey v. Zack Co., slip op. at 8.  Thus, Respondent's
trial


6/  I note that these newspaper advertisements were not a part of
the record before the ALJ, but are appended to Complainant's
brief on review before me.
decision not to rebut the falsified qualifications
allegations may concede the protected activity element, but
does not affect Complainant's further burden to establish
that his protected activity likely caused his discharge.
    Complainant's remaining arguments question the ALJ's
determination to credit the testimony of witness Gibson over other
evidence in the case which Complainant alleges tends to show that
Respondent was motivated by Complainant's 1983 refusal to do
vendor evaluations.  I have determined that the ALJ's credibility
determinations were rational and within his discretion and they
shall be upheld on review.
     III.  Conclusion and Order
          For all of the foregoing reasons, I find that
Complainant failed to establish a prima facie case of retaliatory
discharge, and even if he had, I conclude that Respondent showed
by a preponderance of the evidence that its reasons for
terminating Complainant were legitimate and nondiscriminatory and
were not shown to be pretextual or unworthy of belief.
Accordingly, I accept the ALJ's recommendation that the complaint
be, and it hereby is, DISMISSlED.
     SO ORDERED.
                                   LYNN MARTIN  
                                   Secretary of Labor        



Washington, D.C.