DATE:  September 23, 1994
CASE NO. 90-ERA-39


IN THE MATTER OF

RANARD FLOYD,

          COMPLAINANT,

     v.

ARIZONA PUBLIC SERVICE CO./
PALO VERDE NUCLEAR GENERATING STATION,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            DECISION AND ORDER

     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), Complainant alleged that Respondent
took adverse action against him because he made safety complaints
and was a potential witness in the ERA case of a co-worker.  The
Administrative Law Judge (ALJ) found that Complainant did not
establish a prima facie case of a violation of the ERA.  In the
alternative, assuming that Complainant established a prima facie
case, the ALJ found that Respondent did not violate the ERA
because it legitimately disciplined Complainant based on his
conduct.  Accordingly, the ALJ recommended dismissal of the
complaint.  This case is now before me for a final decision.  
     I. Facts 
     Complainant Ranard Floyd is an instrumentation technician at
the Palo Verde Nuclear Generating Station ("Palo Verde"), 
T. I 94, [1]  which is owned by a consortium of utilities for
whom 
[PAGE 2]
Respondent Arizona Public Service Co. ("APS") is the managing
agent.  In 1988, Floyd's supervisor observed that his behavior
was causing his work performance to suffer and referred Floyd to
the Employee Assistance Program.  T. III 106.  In turn, Employee
Assistance Program counselor Max Arbolida referred Floyd for a
psychological evaluation because of Floyd's expressed unhappiness
with his job.  T. III 107.  Floyd revealed that he was having
difficulties with his finances, his marriage, and his use of
alcohol.  T. I 98, 177, T. III 108.  
     In 1989, Floyd's friend and fellow worker, Steven "Pat"
Cable, raised several issues with the Palo Verde Employee
Concerns Department, [2]  T. I 28, and the Nuclear Regulatory
Commission.  T. I 30-34; CX 1.  Cable mentioned Floyd several
times in his employee concerns.  T. II 54.  Cable also filed an
ERA complaint against APS.  T. I 35. [3] 
     Mike Mann, the Employee Concerns representative who was
assigned to investigate Cable's concerns, interviewed Floyd for
several hours on January 12, 1990, to obtain more information
about the issues Cable raised.  T. II 54-55.  Floyd was reluctant
to provide written answers to Mann's questions and claims he told
Mann that he expected to be a witness in Cable's ERA case.  
T. I 116, 124. [4]   During the interview, Floyd revealed that he
and Cable had given documents concerning a safety problem at Palo
Verde to a newspaper reporter.  T. I 102-04, 113-114, 201.  Floyd
also mentioned to Mann the same safety problem that he earlier
had revealed to his direct supervisor and to the newspaper
reporter. T. I 104-106, 201.  
     Floyd told Mann that he believed that APS was trying to harm
him and Cable.  T. I 112-113, T. II 63-64; RX 4 at 11.  According
to Mann, Floyd also stated that he and Cable had a pact that if
something bad happened to one of them, the other would start
shooting corporate executives, starting with the head of APS's
parent company.  T. II 72, 137; CX 11.  Floyd said that nobody
"messes with" him and that he would shoot anyone who bothered
him.  T. II 84; CX 11; RX 4 at 9.  Mann promptly reported Floyd's
threatening statements to his supervisor.  T. II 75.  
     Floyd denied telling Mann about a pact to kill executives. 
According to Floyd, he told Mann that Cable had an "insurance
policy" such that if anything happened to Cable or Floyd,
"evidence would come out that would reconfigure the heads of
APS."  T. I 118.  Mann testified, however, that Floyd did not
mention the term reconfiguration of corporate heads during the
interview.  T. II 80.  
     Based on his prior knowledge of Floyd's disappointment with
his work, Arbolida advised Mann and APS managers to take Floyd's
threats seriously and authorized the staff of the Employee
Concerns Department to quit work early that day to avoid leaving 
[PAGE 3]
at the same time as Floyd.  T. II 88.  
     Pursuant to an established "fitness for duty" observation
program, APS temporarily "expired" the badge that authorized
Floyd to enter the secured area at Palo Verde.  T. II 153-154. 
Consistent with the policy, corporate security officers
interviewed Floyd.  T. III 8.  Floyd denied having a pact to kill
corporate officers if something bad happened to him or to Cable,
RX 10 at 2, but admitted that he told Mann that "no one threatens
me."  T. IV 77.  Floyd also revealed to the officers that he had
a gun in his car in the Palo Verde parking lot.  Id. at
78.  Floyd told the security officers that APS owed him money for
a stock dividend that had been paid to employees and that he was
going to take steps to collect it.  T. III 182; RX 10 at 3.  He
also blamed APS for his earlier marital problems.  Id.  
     Consistent with the fitness for duty procedure, APS had
Floyd provide a urine sample for alcohol and drug screening,
ordered a psychological evaluation, and suspended him with pay
pending completion of an investigation.  T. III 10.  The drug
screen was negative.  T. II 11.  After interviewing Floyd, the
psychologist told the head of the Human Resources Department that
he thought Floyd "was not a danger currently."  T. III 13.  Based
on Floyd's anger, however, the psychologist concluded his written
report:  "I cannot state that there is no evidence of significant
aberrant behavior."  RX 5; T. III 48.
     APS gave Floyd a written reprimand and suspended one day's
pay for "threats made towards executive management."  RX 12.  APS
also assigned Floyd to the day shift for a month at no loss in
pay and assigned him less stressful work for a time.  T. IV 14.
     Floyd filed this complaint alleging that because he was a
potential witness in the Cable case, raised safety concerns, and
gave documents to a newspaper reporter, APS suspended him for a
week with loss of one day's pay, temporarily revoked his security
clearance, made him undergo alcohol and drug screening and a
psychological evaluation, and transferred him to the day shift.
He seeks restoration of one day's pay, compensatory damages,
costs, and an attorney's fee.
     II. Analysis
     The ERA's employee protection provision proscribes
discharging or discriminating against an employee because he has
"assisted or participated or is about to assist or participate 
in any manner" in a proceeding brought under the provision.  
42 U.S.C. § 5851(a)(3).
     To make a prima facie case, the complainant in an ERA case
must show that he engaged in protected activity, that he was
subjected to adverse action, and that respondent was aware of the
protected activity when it took the adverse action.  Complainant
must also raise the inference that the protected activity was the

[PAGE 4]
likely reason for the adverse action.  Dartey v. Zack Co. of
Chicago, Case No. 82-ERA-2, Sec. Ord., Apr. 25, 1983, slip
op. at 8.
     Floyd engaged in a protected activity when he met with a
newspaper reporter and provided him documents concerning safety
at Palo Verde.  See Pooler v. Snohomish County
Airport, Case No. 87-TSC-1, Fin. Dec. and Ord., Feb. 14,
1994, slip op. at 5 (speaking to newspaper reporter about safety
issue is a protected activity).  Cf Crosby v. Hughes
Aircraft Co., Case No. 85-TSC-2, Sec. Dec. and Ord., Aug. 17,
1993, slip op. at 23 n.15 (contacting the news media not
protected under environmental acts' analogous whistleblower
provisions only because the subject matter raised with the media
was not an environmental concern), pet. for review filed,
No. 93-70834 (9th Cir. Oct. 18, 1993) and Donovan v. R.D.
Andersen Const. Co., Inc., 552 F. Supp. 249, 251-253(D. Kan.
1982) (employee's communication to the media protected because it
could result in institution of Occupational Safety and Health Act
proceeding).
     Floyd also revealed to his direct supervisor and to Mike
Mann that he had a safety concern with the work order for the
"annunciator system," which was the same subject that Floyd and
Cable had raised with the reporter.  T. I 104-106.  The ERA
protects internal safety complaints.  Mackowiak v. University
Nuclear Systems, 735 F.2d 1159, 1163 (9th Cir. 1984);
Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1510, 1513
(10th Cir. 1985), cert. denied, 478 U.S. 1011 (1986);
but see, Brown & Root, Inc. v. Donovan, 747 F.2d
1029 (5th Cir. 1984).  I therefore find that Floyd's safety
complaints to his supervisor and to Mann constituted protected
activities. 
     Floyd claims that he told Mann he expected to be a witness
in Cable's ERA case.  For purposes of analysis, I will assume
that his advising about being a witness for Cable constituted an
additional protected activity. [5] 
   The adverse actions APS took against Floyd included
suspension from work; a one day suspension without pay; drug and
alcohol urine screening; and a written reprimand for making
threats against corporate officers. [6]   See Ashcraft
v. University of Cincinnati, Case No. 83-ERA-7, Dec. and Fin.
Ord., Nov. 1, 1984, slip op. at 12 (suspension constituted
adverse action) and McMahan v. California Water Quality
Control Board, Case No. 90-WPC-1, Final Dec. and Ord., July
16, 1993, slip op. at 4 (reprimand constituted adverse action).
     To establish the element of knowledge of Complainant's
protected activities, the evidence must show that Respondent's
managers responsible for taking the adverse actions had knowledge
of the protected activities.  Merriweather v. Tennessee Valley
Authority, Case No. 91-ERA-55, Final Dec. and Ord., Feb. 4,
1994, 
[PAGE 5]
slip op. at 2; Bartlik v. Tennessee Valley
Authority, Case No. 88-ERA-15, Final Dec. and Ord., Apr. 7,
1993, slip op. at 4 n.1, petition for review
docketed, No. 93-3616 (6th Cir. June 4, 1993). 
     Members of the Employee Concerns Department were aware of
Floyd's protected activities.  Floyd told Mike Mann about his
safety concern and about giving information and documents to a
reporter.  Mann's supervisor, Clyde Stewart, knew that Cable had
filed a case with the Department of Labor and that Floyd had
information relevant to Cable's employee concerns.  T. II 226,
228.  The security officers who interviewed Floyd considered him
to be a "witness in some of the allegations made by Cable."  
T. 116, 124; RX 10 at 1.  Neither Mann, Stewart, nor the Security
officers ordered the adverse actions that were taken against
Floyd, however. [7] 
     James Levine, the Vice President of Nuclear Production at
Palo Verde, was responsible for the adverse actions.  He directed
that Floyd submit to a drug and alcohol screening and to a
psychological evaluation because of Floyd's comments about a pact
to harm corporate executives.  T. II 9.  Levine also suspended
Floyd with pay until APS received the results of the drug screen
and psychological evaluation and completed its investigation of
the incident.  T. II 10.  Upon receiving the reports of the drug
screen and the psychologist and the recommendation of the human
resources department, Levine ordered that a written reprimand be
placed in Floyd's personnel file and ordered that one day of
Floyd's suspension be without pay, as punishment for making
threats against corporate officers.  T. II 13.
     At the time, Levine was unaware that Floyd was a potential
witness in Cable's ERA case or that Floyd had raised safety
concerns internally and had discussed them with a newspaper
reporter.  T. II 14-15.  Likewise, the Director of Human
Resources who recommended the reprimand and suspension without
pay was not aware of any of Floyd's protected activities.  
T. III 19-20 (Keith Davis).  
     Since I find that the managers responsible for recommending
and taking the adverse actions were not aware of Floyd's
protected activities, Floyd has not established a prima facie
case of a violation of the employee protection provision. 
See House v. Tennessee Valley Authority, Case No.
91-ERA-42, Fin. Dec. and Ord., Jan. 13, 1993, slip op. at 5 (lack
of evidence that respondent's employees involved in decisions to
take adverse action knew of complainant's protected activity
defeats prima facie case); Chavez v. Ebasco Services,
Inc., Case No. 91-ERA-24, Fin. Dec. and Ord., Nov. 16, 1992,
slip op. at 5.  See also, Merriweather, slip op. at
2-3 (summary judgment for respondent proper where complainant
admittedly could not produce any 
[PAGE 6]
evidence that managers responsible for the discharge decision had
any knowledge of his protected activities).
     Assuming for the sake of argument that Floyd established a
prima facie case, [8]  APS had the burden of coming forth with a
legitimate, nondiscriminatory reason for the adverse actions. 
See Dartey, slip op. at 8.  APS did so by
explaining that it followed the established fitness for duty
program when it ordered Floyd to submit to a drug and alcohol
screen and a psychological evaluation and suspended him with pay
pending the results of the evaluations.  T. II 162-163, III 39-
40; RX 14.  APS further explained that, consistent with past
practice, it issued a written reprimand and ordered a one day
suspension of Floyd's pay because the threat against corporate
executives was an inappropriate behavior.  T. IV 49-51.
     Once APS articulated a legitimate reason for taking the
adverse actions, Floyd had the burden of persuading that the
legitimate reasons articulated by APS were a pretext for
discrimination.  See Dartey, slip op. at 8.  At all
times, Floyd had the burden of showing that the real reason for
the adverse actions was discriminatory.  Thomas v. Arizona
Public Service Co., Case No. 89-ERA-19, Final Dec. and Order,
Sept. 17, 1993, slip op. at 20; St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742, 125 L.Ed. 2d 407 (1993).
     Floyd's denial that he told Mann about a pact to kill
corporate executives is the most significant evidence that would
tend to show that APS' stated reasons for taking adverse actions
against him were pretextual.  Based on a review of the entire
record, I agree with the ALJ that Floyd's denial is not credible. 
R.D. and O. at 7.  I adopt the ALJ's discussion of the reasons
for believing that Floyd physically threatened corporate
executives during the interview with Mann.  R.D. and O. 
at 7-8. [9] 
     A company may discipline a worker who makes threats against
other employees.  See, e.g., Homen
v. Nationwide Trucking, Inc., Case No. 93-STA-45, Sec. Dec.
and Ord., Feb. 10, 1994, slip op. at 6-7 (discharge for
insubordination legitimate where complainant told fellow employee
he was "messing with the wrong guy"); Couty v. Arkansas Power
& Light Co., Case No.  87-ERA-10, Fin. Dec. and Ord. on Remand,
Feb. 13, 1992, slip op. at 2 (discharge did not violate ERA where
complainant engaged in abusive and threatening behavior towards
supervisors).  I agree with the ALJ that revealing the pact to kill
executives if any harm came to Floyd or Pat Cable provided ample
reason for taking the adverse actions at issue here.  See R.D. and O. at 8. 

     I find that Floyd has not shown that the reason APS gave for
evaluating his fitness for duty and disciplining him was
pretextual or that APS disciplined him for reasons proscribed by
the ERA.  Accordingly, the complaint is DISMISSED.
     SO ORDERED.


                              ROBERT B. REICH                              
                              Secretary of Labor

Washington, D.C. 



[ENDNOTES]
           
[1] 
  "T. I 94" refers to page 94 of Volume I of the transcript of
the hearing before the ALJ.  Similar references will be to
volumes II, III, and IV of the transcript.

[2] 
  An employee at Palo Verde may raise with the Employee Concerns
Department any kind of "concern" he wants his 
employer to address, including concerns about safety.  T. II 51,
T. III 99.  

[3] 
  Cable's case eventually was dismissed voluntarily.  Cable v.
Arizona Public Service Co., No. 90-ERA-15, Final Dec. and
Ord., Nov. 13, 1992.  

[4] 
  Mann testified that Floyd did not mention being a witness in
Cable's case.  T. II 55.  

[5] 
  The ALJ analyzed whether Floyd was listed as a witness in
Cable's ERA case prior to January 12, 1990, which is the date
Mann interviewed Floyd.  R.D. and O. at 5.  

[6] 
  When Floyd returned to work after the suspension, he was
switched to the day shift without any loss in pay for a period 
of 30 days so that a different supervisor could observe him.  
T. III 14-15.  Absent evidence that the switch in shifts caused
difficulties for Floyd, I find that it was not an adverse action.

[7] 
  Floyd contends that it was reversible error for the ALJ not to
grant Floyd's request for a post-hearing deposition of Arbolida
concerning his knowledge of Cable's ERA case.  Brief in Opp. to
R.D. and O. at 9-10.  Other APS witnesses were deposed post-
hearing on the same issue.  I note at the outset that it may have
been more difficult to require Arbolida's deposition since he had
left APS's employ prior to the hearing.  Even if Arbolida knew
about Cable's ERA case and that Floyd potentially was a witness
for cable, however, it would not alter the analysis here because
Arbolida did not decide to take the adverse actions against
Floyd.  

[8] 
  The fourth element of a prima facie case is raising the
inference that the complainant's protected activities caused the
respondent to take the adverse action.  APS ordered the drug and
alcohol screening the same day that Mann learned about Floyd's
protected activities.  A few days later, APS issued Floyd a
written reprimand and suspended one day's pay.  I find this
temporal proximity sufficient to raise the inference that APS
took the disciplinary measures because of Floyd's protected
activities.  See Couty v. Dole, 886 F.2d 147, 148
(8th Cir. 1989) (temporal proximity sufficient as a matter of law
to raise inference of causation in ERA case); Thomas v.
Arizona Public Service Co., Case No. 89-ERA-19, Final Dec.
and Ord., slip op. 19 (elapse of three weeks to one year between
protected activities and adverse actions sufficient to raise
inference).

[9] 
  The ALJ found that APS reasonably could have construed 
as a threat the statement that Floyd admitted making:  that 
Cable had evidence that could "reconfigure" corporate executives. 
T. I 118.  Moreover, Floyd admitted saying that "no one threatens
me," T. IV 77, and that he had a gun in his car at the Palo Verde
parking lot.  T. IV 78.  The ALJ reasonably credited Mann's
testimony that Floyd said he "would take his pistol and put a lot
of holes in" anyone that bothered him.  RX 4 at 9.