DATE:  January 5, 1994
CASE NO. 91-ERA-2


IN THE MATTER OF

MICHAEL R. CROSIER,

          COMPLAINANT,

     v.

PORTLAND GENERAL ELECTRIC CO.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            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 employee protection provision of the Energy
Reorganization Act, as amended (ERA), 42 U.S.C. § 5851
(1988).  Complainant Michael Crosier alleges that Respondent
Portland General Electric Company (PGE) violated the ERA when it
denied him access to its Trojan Nuclear Power Plant.  The ALJ
found that Crosier did not establish a prima facie case of a
violation of the ERA.  R.D. and O. at 11.  In the alternative,
assuming that Crosier established a prima facie case, the ALJ
found that Crosier did not sustain the burden of proving that he
was discharged for a reason prohibited by the ERA.  R.D. and O. 
at 12.
     As explained below, although I do not agree fully with the
ALJ's legal analysis, I agree with his recommendation to dismiss
the complaint.  Based on a thorough review of the entire record,
I find that the ALJ's statement of facts, R.D. and O. at 3-8, is
supported by record evidence, and I adopt it.  Relevant facts are

[PAGE 2]
included here to focus the discussion.
     1. The facts
     As an independent contractor, Michael Crosier worked as a
scheduler of outages, or shutdowns, at the Trojan nuclear plant
in 1990.  T. 11, 67.  His supervisor was PGE employee Michael
Lorden.  T. 67.
     While working at Trojan, Crosier became possessive of the
personal computer at which he worked and accused his coworkers of
tampering with it.  T. 76, RX 2 pp. 48, 51, 53, 56, 57, 58, 59. 
He often showed intense anger toward his coworkers, T. 69-70, 
RX 1, Wilson aff., and called them incompetent.  T. 72, RX 2 
p. 61.  Crosier several times threatened his colleague,
Theresa Wilson, with bodily harm.  RX 1, Report of Wilson
Interview at 
2-3, Wilson Aff. at 3, 6, 8-10.  Coworkers Ford, Giard, and
Wilson reported to Lorden that they were frightened of Crosier's
angry outbursts.  T. 71.  When Lorden learned of the coworkers'
complaints and fears concerning Crosier, he spoke with Crosier,
who responded that his coworkers were incompetent.  T. 76-77.  
     Pursuant to an established employee program, a co-worker
telephoned a complaint about Crosier's aggressive behavior to
Dick Magnusson of PGE's security management office.  T. 82-83. 
Magnusson asked Lorden to observe Crosier's behavior and note the
results on a standard form for evaluating aberrant or suspect
employee behavior.  T. 83; RX 7 p. 13.  Lorden checked boxes on
the form and did not make any judgments or comments.  T. 84, 86. 
Pursuant to the form's instructions, the number of boxes he
checked about Crosier's behavior led Lorden to notify the human
resources department about Crosier.  T. 87-89.
     The human resources department arranged for a licensed
clinical psychologist, Larry Friedman, to interview Crosier.  
T. 89.  When Crosier told Friedman that he had regular contacts
with PGE senior executives, Friedman asked for names and details. 
T. 155.  Crosier became vague and evasive and offered very little
information.  Id.  Crosier bragged to Friedman about
intimidating other people, T. 156, and showed that he was
suspicious about the motivations of others.  T. 158.  Crosier did
not mention to Friedman any health or safety concerns, or any
intention of reporting such concerns to the Nuclear Regulatory
Commission or any other regulatory agency.  T. 159.  
     Friedman believed that many of Crosier's claims were
unreliable and decided to recommend to PGE management that it
immediately deny Crosier access to Trojan's secured facility
pending further investigation.  T. 156-157.  When Friedman
informed Crosier of his recommendation, Crosier told Friedman
that a few weeks earlier he inadvertently had carried a loaded
.45 caliber pistol through the security checkpoint into the
secured area at the Trojan plant and had showed the pistol to his

[PAGE 3]
colleague, Bill Pike.  T. 157.  Crosier had not reported the
pistol incident to the security department at the time it
occurred.  T. 158.
     In Friedman's written report to PGE, he questioned Crosier's
trustworthiness and reliability and mentioned the claim about
bringing a gun into the secured area.  RX 6.  Friedman also noted
Crosier's claims that only he was qualified for his job and that
his coworkers were incompetent.  The report concluded:
          I believe that there is a significantly
          grandiose and paranoid character to this
          man's ideation, and I do not find his
          representation of "high-level" influence to
          be credible.  Moreover, he has been accused
          by co-workers of being threatening and
          verbally abusive, and he acknowledged that he
          purposely engages in these behaviors to
          intimidate and manipulate others for whom he
          has "no respect".  

          I believe that withdrawing unescorted access
          is the necessary and prudent thing to do at
          this time.

RX 6.  See also, T. 158-159.  PGE immediately suspended
Crosier's unescorted access to the plant, which had the effect of
preventing him from working there as a contractor to PGE.
     Lorden testified that Crosier once expressed a safety
concern about the number of hours employees worked in the
scheduling department, but did not otherwise mention safety or
any intent to contact a regulatory agency.  T. 96-98.
     The NRC performed a special inspection concerning PGE's
report of a firearm entering the plant's secured area and issued
a notice of violation to PGE, which instituted corrective action. 
CX N-2.  The NRC also informed PGE of a number of allegations
concerning safety at Trojan.  CX N-5.  The documentary evidence
Complainant submitted to show that he spoke with the NRC was
dated after he was denied site access.  CX N-2, N-4.  After an
investigation, the NRC determined that PGE had instituted
adequate protective measures concerning the various charges.  
CX N-5.
     Based on the psychologist's observations and a subsequent 
investigation into Crosier's personal history, PGE permanently
withdrew Crosier's authorization for unescorted access, which had
the effect of preventing him permanently from working at the
Trojan plant.  RX 14.
     2. Analysis
     Under the ERA's employee protection provision, an employer 
[PAGE 4]
may not discharge or discriminate against an employee because the
employee:
          (1)  commenced, caused to be commenced, or is
          about to commence a proceeding under [the
          ERA] or the Atomic Energy Act of 1954 . . .
          or a proceeding for the administration or
          enforcement of any requirement imposed under
          [the ERA] or the Atomic Energy Act of 1954 
          . . . ;

          (2)  testified or is about to testify in any
          such proceeding or;

          (3)  assisted or participated or is about to
          assist or participate in any manner in such a
          proceeding or in any other manner in such a
          proceeding or in any other action to carry
          out the purposes of [the ERA] or the Atomic
          Energy Act of 1954. . . .

42 U.S.C. § 5851(a) (1988). [1]   There is no dispute that
Crosier is a covered employee [2]  and PGE is an employer covered
by the provision. 
          a. Prima facie case
     To make a prima facie case, a complainant must show that he
engaged in protected activity, that the respondent subjected him
to adverse action, and that the respondent was aware of the
protected activity when it took the adverse action.  Complainant
also must raise the inference that the protected activity was the
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.  
      Crosier's supervisor, Lorden, testified that Crosier once
mentioned a concern relating to safety, that the schedulers
worked too many hours.  T. 96-97. [3]   Internal complaints are
protected under the ERA, Machowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159, 1163 (9th Cir. 1984), and an
informal safety complaint to a supervisor may constitute
protected activity.  See, e.g., Nichols v.
Bechtel Construction, Inc., Case No. 87-ERA-0044, Dec.
and Order of Rem., Oct. 26, 1992, slip op. at 10 (employee's
verbal questioning of foreman about safety procedures constituted
protected activity), appeal dismissed, No. 92-5176 (11th
Cir. Dec. 18, 1992); Dysert v. Westinghouse Electric Corp.,
Case No. 86-ERA-39, Final Dec. and Order,  Oct. 30, 1991, slip op.
at 1, 3 (employee's complaints to team leader protected).  I find that
here, as in Nichols and Dysert, the complainant's
questioning his supervisor about an issue 
[PAGE 5]
related to safety constituted protected activity.
     In addition, during the interview with Dr. Friedman, Crosier
stated that he had carried a gun through the security checkpoint
and into the secured area of the Trojan plant a few weeks
earlier.  Crosier's statement revealed a deficiency in the
plant's security.  Friedman, who was interviewing Crosier on
PGE's behalf, immediately notified the Trojan plant's security
office about the gun allegation.  In turn, PGE reported the gun
incident to the NRC.  The revelation of the security deficiency
to Dr. Friedman constituted another internal complaint about
safety.  See, Larry v. Detroit Edison Co., Case No.
86-ERA-32, Dec. and Order, June 28, 1991, slip op. at 2-3, 6
(internal and external complaints about breech in computer
security protected under ERA), aff'd, Detroit Edison
Co. v. Secretary of Labor, No. 91-3737 (6th Cir. 1992).
     Crosier also contends that he was preparing reports of
safety deficiencies at Trojan on the computer to which he was
assigned and that PGE discovered the reports and destroyed the
computer records of them.  T. 172-173.  There is record evidence
that prior to the time he was discharged, Crosier complained
about data being removed from the personal computer he used. 
See, e.g., RX 2 p. 51 (Report of interview of
William Pike).  Crosier did not testify in his own behalf,
however, to establish that the purportedly removed data concerned
safety deficiencies or concerns.  Thus, his allegation was
unsupported, R.D. and O. at 10.  
     There is no dispute that the suspension, and ultimate
removal, of authority for unescorted site access effectively
discharged Crosier as a contract worker at Trojan.  Thus, Crosier
established that PGE took an adverse action against him.
     At the time PGE permanently removed Crosier's site access
authority, Lorden was aware of Crosier's informal complaint about
the number of hours the schedulers worked, and several PGE
officials knew that Crosier had revealed that he once carried a
gun into the plant's secured area.  I therefore find that PGE was
aware of Crosier's protected activity when it discharged him.
     The final element of a prima facie case is raising the
inference that the employer took the adverse action because the
employee engaged in protected activities.  Temporal proximity
between the protected activity and the adverse action may be
sufficient to raise the inference that the protected activity
caused the adverse action.  Couty v. Dole, 886 F.2d 147,
148 (8th Cir. 1989); Thomas v. Arizona Public Service Co.,
Case No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip op. at 19. 
PGE discharged Crosier within a month of learning about the gun
incident and within at most three or four months of his complaint

[PAGE 6]
to Lorden about the number of hours the schedulers worked. [4]  
I find that the temporal proximity between Crosier's protected
activity and his discharge was sufficient to raise the inference
of causation in this case.  Therefore, I find that Crosier
established a prima facie case of a violation of the employee
protection provision.
          b. Respondent's burden of production
     When a complainant establishes a prima facie case, the
burden shifts to the respondent to articulate legitimate, 
nondiscriminatory reasons for the adverse action.  Dartey,
slip op. at 8.  I find that PGE met its burden of production when
Lorden and Friedman testified about Crosier's aggressive and
frightening behavior toward other employees.
          c. Complainant's burden of persuasion
     Crosier had the ultimate burden of persuading that the
legitimate reasons articulated by PGE were a pretext for
discrimination, either by showing that the unlawful reason more
likely motivated his discharge or by showing that the proffered
explanation is unworthy of credence.  Dartey, slip op. at
8.  At all times, Crosier had the burden of showing that the real
reason for the adverse action was discriminatory.  Thomas,
slip op. at 20; St. Mary's Honor Center v. Hicks, 113
S.Ct. 2742, 125 L.Ed. 2d 407 (1993).  
     When the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons, the dual
motive doctrine applies.  Dartey, slip op. at 8-9;
see Machowiak, 735 F.2d at 1163; Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S.
274, 287 (1977).  In such a case, the employer has the burden to
show by a preponderance of the evidence that it would have taken
the same action concerning the employee even in the absence of
the protected conduct.  Dartey, slip op. at 9;
Machowiak, 735 F.2d at 1164; Mt. Healthy, 429 U.S.
at 287; Price Waterhouse v. Hopkins, 490 U.S. 228, 252
(1989) (plurality opinion).  The employer bears the risk that the
influence of legal and illegal motives cannot be separated. 
Machowiak, 735 F.2d at 1164; Guttman v. Passaic Valley
Sewerage Comm'rs, Case No. 85-WPC-2, Final Dec. and Order,
Mar. 13, 1992, slip op. at 19, affirmed sub nom.
Passaic Valley Sewerage Comm'rs v. Martin, No. 92-3261 (3d
Cir. Apr. 16, 1993).
     Crosier did not testify or present other witnesses to
persuade that the reasons given for discharging him were not
credible.  The documentary and testimonial evidence
overwhelmingly showed that Crosier's work place behavior was
unacceptable.  Lorden explained that after Harry Anderson
complained to him on several occasions about Crosier's angry
outbursts, he met with Crosier's other coworkers, Ford, Giard,
and Wilson, to gather information about Crosier's behavior toward

[PAGE 7]
them.  T. 69, 71.  Lorden learned that Crosier's outbursts also
frightened the others.  T. 71.  When Lorden spoke with Crosier
about the issue, Crosier called his coworkers "incompetents."  
T. 72.  
     Theresa Wilson sent Lorden a lengthy note outlining
Crosier's demeaning, intimidating and threatening behavior toward
her.  T. 77-78; RX 2 p. 66-68.  Other documentary evidence
revealed additional occasions on which Wilson felt threatened by
Crosier, including his warning that when he has an enemy, he
always "gets even," and his statememt that Wilson would not even
see it coming when Crosier sought to get her.  RX 1 (report of
Wilson interview at p. 2); RX 1 (Wilson aff. at 6, 9-10).
     Likewise, Crosier again exhibited aggressive and threatening
behavior during his interview with Dr. Friedman.  T. 153-154. 
Crosier bragged about intimidating other people and said that he
enjoyed doing it.  T. 156.  Friedman further found it disquieting
that when Crosier discovered that he inadvertently had carried a
loaded gun into the secured area, he did not immediately report
it to security.  T. 157-158.  When asked for details about
claimed "direct and regular contacts" with PGE executives,
Crosier was vague and evasive.  T. 154.  Acting pursuant to PGE's
established policies and programs concerning work place behavior,
see RX 4 and RX 7, Friedman had ample reason to question
Crosier's trustworthiness and reliability and to recommend denial
of site access. [5]   RX 6.
     On the basis of all the record evidence, I find that Crosier
did not persuade that the reasons PGE gave for discharging him
were a pretext or that the real reason for the discharge was his
engaging in protected activities.  See R.D. and O. at 12. 
Even assuming for the sake of argument that Crosier established
that one of the motives for discharging him was his making safety
complaints, I agree with the ALJ that PGE proved by a
preponderance of the evidence that it would have discharged him
for legitimate reasons concerning his work place behavior even if
he had not engaged in protected activity.  R.D. and O. at 11. 
Accordingly, the complaint is DISMISSED.
     SO ORDERED.


                               ROBERT B. REICH 
                              Secretary of Labor

Washington, D.C.




[ENDNOTES]
           
[1]   Section 2902(b) of the Energy Policy Act of 1992, Pub. 
L. 102-486, 106 Stat. 2776, amended the employee protection
provision for claims filed on of after the date of its enactment,
October 24, 1992.  See Section 1902(i) of Pub. L. 102-486. 
Crosier filed his complaint in 1990.

[2]   Independent contractors such as Crosier may be covered
employees under the employee protection provisions of the ERA and
analogous statutes.  See, e.g., Royce v. Bechtel
Power Corp., Case No. 83-ERA-3, ALJ's Recommended Dec., Mar.
24, 1983, slip op. at 3, 9, aff'd, Sec. Dec. and Final
Ord., July 11, 1985 (temporary contract worker a covered
employee) and Faulkner v. Olin Corp., Case No. 85-SWD-3,
ALJ's Recommended Decision, Aug. 16, 1985, slip op. at 3, 9, aff'd,
Sec. Final Ord., Nov. 18, 1985) (under Solid Waste Disposal Act).

[3]   Crosier did not state an intent to raise the issue of the
number of work hours with the NRC or other regulatory bodies.
T. 97-98.

[4]   Crosier began work at Trojan in April 1990 and told 
Dr. Friedman about the gun incident in July 1990.  His 
authority for unescorted site access was suspended in July 
and permanently revoked in August of that year.

[5]   PGE has an established, written policy to "maintain a
continuous behavioral observation program which is designed to
[p]rovide prompt detection of aberrant behavior" and " [e]xclude
an individual displaying such behavior from the protected, vital
areas and restricted areas of the plant."  RX 7 p. 3.  It defines
"aberrant behavior" as "[o]bserved behavior which has been
determined to cast significant doubt on an individual's
trustworthiness and reliability such that he is considered a
security risk."  Id. at p. 6.