DATE: February 7, 1994
CASE NO. 89-ERA-24
IN THE MATTER OF
JAMES L. STEELE,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the Recommended Decision and Order
of Dismissal (R.D. and O.) of the Administrative Law Judge (ALJ)
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). The ALJ concluded that Complainant
failed to establish that his failure to pass the requisite
testing needed to gain certification in the Nuclear Quality
Control Inspector Program (NQCI) and the resulting discharge
under a reduction in force (RIF) were in retaliation for his
protected activity.
I adopt the ALJ's factual findings. R.D. and O. at 2-6.
For the reasons stated herein, I agree with the ALJ's
recommendation to dismiss the complaint for failure to establish
retaliation in violation of the ERA. [1] Briefly, the pertinent
facts are as follows. Complainant was employed by Respondent
(TVA) as an engineering associate in the Division of Nuclear
Quality Assurance (DNQA) at the Browns Ferry Nuclear Plant (BFNP)
until he was terminated as part of a reduction-in-force effective
October 28, 1988. At the time of his discharge Complainant was a
[PAGE 2]
quality control inspector and subject to new requirements
established under a Nuclear Quality Control Inspector Program
(NQCI) which entailed training and testing. The NCQI Program was
developed and implemented by TVA's Division of Nuclear Training
and all permanent TVA nuclear inspectors had to successfully
complete the program by an established date in order to continue
performing inspections (the date set for BFNP was September 30,
1988). Complainant failed the dimensional measurement tools test
three times, the last time was on September 14, 1988, and was
informed immediately of his failure to pass the examination on
his last possible attempt. TVA policy did not provide for a
fourth attempt at any examination, and therefore, Complainant
could not gain certification under the NQCI Program. As a
result, Complainant was included in a reduction-in-force (RIF)
when the deadline for implementation of the NQCI program for BFNP
arrived in September 1988. Complainant was notified in writing
on September 27, 1988, that his RIF was effective October 28,
1988. He filed his ERA complaint on October 18, 1988.
A complainant in a whistleblower case under the ERA has the
burden of proving that he engaged in protected activity and that
an adverse action was taken against him was motivated at least in
part by that protected activity. Dartey v. Zack Company of
Chicago, Case No. 82-ERA-2, Sec. Dec., April 25, 1983, slip
op. at 6-9. In the present case, although Complainant has
presented sufficient evidence to establish the elements of a
prima facie case of retaliation under the ERA, [2] Complainant
failed to carry his ultimate burden of establishing that
Respondent took adverse action against him in retaliation for his
protected activity. SeeTexas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Complainant made allegations that Respondent retaliated
against him for raising protected safety and quality concerns, by
establishing new testing procedures and using Complainant's
failing results on the tests as grounds for his discharge. In
response, Respondent demonstrated legitimate reasons for
developing the testing program at issue and for establishing the
standards employed in administering the testing, i.e. to
insure constant standards within TVA and proper certification and
training of all quality control inspectors. Respondent also
established that the testing procedure and standards were not
designed to discriminate against Complainant, and that the tests
were not administered in a discriminatory manner with respect to
Complainant. To the contrary, the evidence indicates that
Complainant was provided additional assistance and training to
help him pass the requisite test needed to retain his position,
and that efforts were made on his behalf to allow him an
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extraordinary fourth attempt at passing the dimensional
measurement tools test. Moreover, the evidence indicates that
the test was administered under the same conditions on the same
date to other employees who passed, and that the test results and
the equipment used were double-checked for accuracy.
Complainant has failed to show that Respondent's reasons for
its actions were pretextual. It is undisputed that the testing
was implemented for all TVA inspectors, that Complainant's
failure to pass the test was not the result of any discrimination
by TVA, and that Complainant's RIF because of his failure to pass
the test in three attempts and gain certification by the deadline
was in accordance with established TVA policy.
Based on this record, I agree with the ALJ's conclusion that
Complainant has failed to show that TVA discriminated against him
in violation of the ERA. Additionally, I conclude that
Complainant was afforded ample opportunity before the ALJ to
present all relevant evidence in support of his complaint. At
Complainant's request the formal hearing was continued from May until July and the record was kept open for additional
submissions until September 11, 1989.
Accordingly, the complaint is dismissed.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] I cannot accept Respondent's assertions in its brief before
me that the complaint must be dismissed as untimely based on this
record.
[2] Considering the evidence in the light most favorable to
Complainant, I find it sufficient to show protected activity,
knowledge of the protected activity by some of Respondent's
personnel, and adverse action against Complainant which was
sufficiently close in time to the protected activity to raise an
inference that the protected activity was the likely motive for
the adverse action. SeeDartey at 6-9; Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989).
