DATE:  April 2, 1992
CASE NO. 90-ERA-1


IN THE MATTER OF
RAMESH JAIN,
          COMPLAINANT,

v.

SACRAMENTO MUNICIPAL UTILITY
DISTRICT,
RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                           FINAL DECISION AND ORDER
                                      
    Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C.  585} (1988).  The ALJ recommended that the
complaint be dismissed, finding that Complainant failed to
establish that his discharge was in retaliation for his protected
activity.  Complainant, proceeding pro se, submitted a brief
opposing the ALJ's decision.
    Based on a review of the entire record in this case, I find
that the ALJ's factual findings are fully supported by the record,
and I agree with the ALJ's conclusion that Complainant failed to
establish retaliatory discharge in violation of the ERA.  The
following discussion is added to further clarify the ALJ's
decision, which I adopt and append hereto.
    Generally, in order to establish a prima facie case under the
employee protection provisions implemented by 29 C.F.R. Part 24, a
complainant must show that he engaged in protected activity of
which respondent was aware and that the respondent took some
adverse action against him.  Additionally, the complainant must
present evidence sufficient to at least raise an inference that
the protected activity was the likely motive for the adverse 
[PAGE 2]
action.  See Dartey v. Zack Company, Case No.
82-ERA-2, Sec. Decision, Apr. 25, 1983, slip op. at 7-9.  If the
complainant establishes a prima facie case, then respondent has
the burden of producing evidence that the adverse action was not
motivated by legitimate, nondiscriminatory reasons.  See
Dartey at 8.  If so produced, complainant, as the party
bearing the ultimate burden of persuasion of discrimination, has
the opportunity to show that the proffered reason was not the true
reason, but a pretext for retaliation.  See Dartey
at 8-9.
    The complainant here established a prima facie case.   It is
undisputed that Complainant established protected activity and
adverse action by the Respondent, who had knowledge of the
protected activity.  Additionally, Complainant presented evidence
sufficient to raise an inference that the adverse action was
motivated by this protected activity, i.e. evidence of his
seniority at the time of the lay-offs and raising questions
concerning the procedures employed by Respondent in identifying
positions which would be eliminated.
         In response, Respondent established that its Rancho
Seco plant, where Complainant was employed, was being closed
down and that massive lay-offs were effectuated as a result. 
Respondent presented documentary and testimonial evidence of
its procedures in effectuating these lay-offs, and
established that positions rather than individuals were
targeted, and that the Plant Performance Associate Nuclear
Engineer positions were targeted from the outset of this
operation.  RX 2-RX 14; Tr. at 123-125; 138-140; 149;
156-166; 198-205; 234-238; 256-2S7.  Complainant who held
one of these engineering positions, failed to show that
Respondent's reasons for targeting his position
classification for lay-off were pretextual, and that the
challenged actions were motivated by his protected activity. 
The evidence does not show that Respondent had a
discriminatory motive for the lay-offs which led to
Complainant's Voluntary Separation Agreement, or for
targeting Complainant's position.
    For the foregoing reasons and based on the additional relevant
factual findings by the ALJ, I agree with the ALJ's conclusion
that Complainant did not demonstrate a discriminatory motive by
Respondent in violation of the ERA.  See ALJ's R.D. and 0.
at 3-4.
    Accordingly, the complaint is dismissed.
    SO ORDERED.
                             LYNN MARTIN
                             Secretary of Labor                 


Washington, D.C.