Accordingly, my Order Amending Scheduling Order of October 7, 2002 advised the parties that I would review their evidentiary submissions and arguments and determine whether a genuine issue of material fact had been raised. If not, I would issue a decision on the merits, but if there were a genuine issue of material fact, I would set this matter for an oral hearing. Respondent was allowed until November 1, 2002 to submit any evidence in response to Complainant's submissions, limited to the new matters raised in Complainant's rebuttal. Complainant was permitted no further evidentiary response but was allowed to state whatever material issues of fact he believed to have been raised in Respondent's submission and what factual assertions he disputed. The parties were ordered to simultaneously submit their briefs or written arguments on or before December 2, 2002, and to include a statement of material facts as to which there was no dispute and a statement of material facts which were in dispute (if any) as a part of their submissions.

See also Rule 56, Fed. R. Civ. P. Under section 18.40(c) of 29 C.F.R., an administrative law judge may consider affidavits setting forth facts that would be admissible in evidence and establishing the competence of the affiant to testify as to the matters stated. The same section provides that a party opposing a summary decision motion "may not rest upon the mere allegations or denials of such pleading" and "must set forth specific facts showing that there is a genuine issue of fact for the hearing." Id.

Background

(RX 3). In the Supervisor section of the Condition Report, Mau disputed this account

and, although admitting that the package closure was his mistake, stated under "Why It Happened":

No turnover sheet was written up by crew and fls [first line supervisor] didn't make crew repeat information about doors. Fls was told that they finished the door they were on, but was not told that three more doors needed to be finished. Not all information in description is correct. FLS missed the three sign off[s] for the doors that were not done. Fls closed package that he believed was complete. No action required, use for trending only.

   (5) he was docked for attending a meeting with Corporate on September 25, 2001;

   (6) he was given unfavorable job assignments as punishment, including cleaning the shop, cleaning outbuildings, and being loaned out to other foremen;

   (7) he has been harassed by his supervisor, as evidenced by his supervisor stating that "he was going to get [Complainant]" and by his supervisor "continually focusing on [him]";

   (8) he was denied shift choice by seniority on October 5, 2001;

   (9) his supervisor told him that he would be written up for waiting for his partner while his partner was in the bathroom on October 8, 2001, even though he had to ask several times before he was given an assignment (to clean the shop), and his partner was not written up or assigned another job.

(Complaint). The factual bases for these allegations are discussed below.

   Alleged revoking of previously approved leave on May 10, 2001. The parties agree that Complainant was authorized to take a half-day of leave on the afternoon of Friday, May 11, 2001. (E.g., RX 8). Complainant alleges that on Wednesday, May 9, he asked for the half-day leave for Friday, May 11, and that Mau approved the leave the morning of May 10 but reneged later that day, after he saw Complainant filling out the Condition Report. (CX6, Rebuttal p. 3). Supervisor Mau asserts that "[o]n or about May 10, 2001" he had denied the Complainant's leave request for that same day but had approved it for May 11. (RX1, Mau. Aff.) According to Al Zucarello [the union steward], he was present on May 10 when Mau approved of Complainant's half day leave for May 11, and he was also present when Mau informed him that the leave "wasn't a done deal." (CX6(1), Zucarello Dec.; CX6). Zucarello claims that Complainant advised him that the leave had been "officially denied" by Mau later on May 10, prompting him to contact Human Resources, after which the leave for May 11 was granted. (Id.)

   Denial of rain gear requested in April or May 2001. Complainant asserts that one of the absences culminating in his August 2001 absence interview with Mau (discussed below) resulted from his having become ill after working in the rain without rain gear, which he had previously requested. (Complaint; CX6, Rebuttal p. 4). Mau acknowledges that Complainant requested rain gear in May 2001, at which time no rain gear was available, but claims that he ordered rain gear (as evidenced by a 5/21/01 Material Request form) and he provided Complainant and other workers with rain suits when they were received on or about June 21, 2001. (RX1, Mau. Aff. ¶7, Att.1; RX11, Mau Supp. Aff. ¶3). Complainant claims to have requested rain gear in April 2001 but denies having ever received it. (CX6, Rebuttal p. 2).

(RX4, Polaine Aff. ¶3, Att. II, III). Exelon Nuclear's Absence Control Policy effective July 16, 2001 requires an Absence Interview to be conducted by an employee with that employee's supervisor if the employee had more than three occurrences of a disability absence (Code 22) in a rolling 12-month period. (RX4, Polaine Aff. ¶3, Att. I). Complainant asserts that there were only three absences during the 12-month period (based

   Loitering in locker room on October 8, 2001. As noted above, Complainant asserts that he was harassed by his supervisor (Mau), who continually focussed on him. (Complaint). An example Complainant gives of such harassment took place on October 8, 2001. Mau claims that on that date he found Complainant "loitering in the locker room at a time when he was off the job without supervisor permission." (RX 1, Mau Aff. ¶9). Mau's Performance Appraisal Data Sheets confirm that account, and note that Complainant "was away from the job and didn't call her supervisor." (RX 1, Att. 2). Complainant asserts that he advised Mau that he was waiting in the locker room after having used the restroom (for which no permission was necessary) and that he was waiting for his partner to finish before returning to work. (CX6, Rebuttal p. 2-3).

   Unfavorable job assignments as punishment. As noted above, Complainant asserts that during the course of his supervision by Mau, he has been assigned a disproportionate number of undesirable jobs, including cleaning the shop, cleaning outbuildings, and being loaned out to other foremen. (Complaint). Complainant acknowledges that cleaning the shop and outbuildings are job assignments for an "A" mechanic but asserts that he was given these assignments more often than other "A" mechanics as a form of punishment and was assigned to clean areas outside of his supervisor's responsibility. (CX6, Rebuttal p. 1). Three of his coworkers have also stated their perception that Complainant has frequently been assigned less desirable job assignments as a type of punishment or retaliation, but no specifics have been provided. (CX6(1), Zucarello Dec.; CX6(2), Bregar Dec.; CX6(3), Thouvenin Dec.; CX6(4), Thouvenin Supp. Dec.) Mau denies having treated Complainant differently from the other "A" mechanics and states that during 2001, he had approximately nine MMD "A" mechanics assigned to him, that he routinely assigned each of them to clean the outbuildings with the same frequency he asked Complainant, and that he could only recall one occasion when he asked Complainant to clean the shop. (RX 11, Mau Supp. Aff. ¶ 2).

   The employee protection provisions of the Energy Reorganization Act (ERA) provide the following:

(a) Discrimination against employee

(1) No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or person acting pursuant to a request of the employee) --

(A) notified his employer of any alleged violation of this chapter or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.);

(B) refused to engage in any practice made unlawful by this chapter of the Atomic Energy Act of 1954, if the employee has identified the alleged illegality to the employer;

(C) testified before Congress or at any Federal or State proceeding regarding any provision (or proposed provision) of this chapter or the Atomic Energy Act of 1954;

(D) commenced, caused to be commenced, or is about to commence a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

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

(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended.

42 U.S.C. § 5851(a)(1).

   Subsection (b) of the same section, which was amended in 1992, sets forth specific procedures for addressing "whistleblower" complaints filed under the ERA and provides for burdens of proof unique to the ERA. Specifically, subparagraph (A) of subsection (b)(3) provides that the complaints shall be dismissed unless the complainant has made a prima facie showing that the behavior complained of was a contributing factor in the unfavorable personnel action alleged in the complaint and subparagraph (B) of subsection (b)(3) provides that no investigation shall be conducted if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior. The criteria for ultimately prevailing is set forth in subparagraphs (C) and (D) of subsection (b)(3):

(C) The Secretary may determine that a violation of subsection (a) of this section has occurred only if the complainant has demonstrated that any behavior described in subparagraphs (A) through (F) of subsection (a)(1) of this section was a contributing factor in the unfavorable personnel action alleged in the complaint.

(D) Relief may not be ordered under paragraph (2) [of subsection (b)] if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.

42 U.S.C. § 5851(b)(3).

   Initially, a complainant must "pass a gatekeeper test" and must establish a prima facie case before an investigation is commenced. Stone & Webster Engineering Corporation v. Herman, 115 F.3d 1568 (11th Cir 1997). To establish a prima facie case under the ERA, a complainant must establish:

1) the complainant engaged in protected activity; 2) the respondent employer was aware of complainant's engagement in protected activity; 3) the respondent employer subjected complainant to an adverse employment action with respect to her compensation, terms, conditions, or privileges of employment; 4) the respondent is within the term "employer" as defined by ERA § 5851(a)(2)[;] and 5) a nexus exists between the protected activity and the adverse employment action.

Bauer v. U.S. Enrichment Corp., ARB No. 01-056, 2001-ERA-9 (ARB May 30, 2003). See also Bartlik v. U.S. Department of Labor, 73 F.3d 100, 103 n. 6 (6th Cir. 1996) (listing different standards applied by Courts and finding "slight variation," in that "the common thread is that plaintiff must set forth facts which justify an inference of retaliatory discrimination").

   To prevail in a whistleblower case under the ERA, a complainant must establish that he was employed by an employer covered by the ERA; that he engaged in protected activity during the course of that employment; that the employer was aware of his involvement in the protected activity; that he was subjected to an adverse employment action; and that there is a nexus between the protected activity and the adverse employment action. See Bauer, supra. See also Fugate v. Tennessee Valley Authority, ARB No. 96-100, 1995-ERA-50 (ARB Dec. 12, 1996).

   At the outset, I note that the Respondent has not disputed that it is covered by the term "employer" under the ERA. See 42 U.S.C. § 5851(a)(2) (defining employer as including Nuclear Regulatory Commission licensees or applicants, or contractors or subcontractors thereof, and certain Department of Energy contractors or subcontractors).

   It is also clear from the undisputed facts that the Complainant engaged in protected activity while employed by Respondent and that the Respondent was aware of his involvement in protected activity. In this regard, it is undisputed that Complainant filed a May 10, 2001 Condition Report (#D2001-02550, "Inappropriate closure of package") alleging that his supervisor improperly reported that safety inspections and preventative maintenance on various security doors and turnstiles within the Dresden Nuclear Generation Station had been completed, when, in fact, they had not been completed. The Condition Report also alleged document falsification associated with the improper reporting. Although the supervisor has disputed certain of the matters alleged by Complainant in the Condition Report, it has not been disputed that the Condition Report was prepared in May 2001 and that Complainant's supervisor was aware of its contents, and in fact prepared the supervisory section of the Condition Report. I find that, as the filing of the Condition Report by Complainant was ostensibly in furtherance of safety compliance within a nuclear plant, it falls within the broad purview of the Energy Reorganization Act. See generally Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568 (11th Cir. 1997) (communications made in furtherance of safety compliance held to constitute protected activity under ERA). I also find that, as the Condition Report was an official record completed in part by Complainant's supervisor, Respondent had notice of Complainant's protected activity. See generally Jenkins v. EPA, ARB No. 98-146, 1988-SDW-2 (ARB Feb. 28, 2003) at 17 (knowledge by employer of both internal and external protected activity may be assumed from circumstances).

    Complainant cannot, however, prevail in this matter, because he has not alleged adverse employment actions cognizable under the ERA. In this regard, a close examination of the acts of which Complainant complains reveals that they did not individually have tangible job consequences. See generally Berkman, supra. "A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 760-61 (1998) (Title VII case defining standard without adopting it). Moreover, when considered in the aggregate, the series of events chronicled by Complainant do not reflect harassment sufficiently pervasive so as to create a hostile work environment or otherwise alter the terms, conditions, or privileges of employment. See Berkman, supra.

   The actions that Complainant alleges were taken against him in retaliation for filing the Condition Report fall into several categories. The first category relates to leave and attendance, and he claims that he was either denied leave, was charged the wrong kind of leave, or was wrongfully disciplined based upon his attendance record. The second category relates to counseling for job performance, and he claims he was wrongfully counseled on a single occasion. The third category relates to his work assignments, and he claims he was assigned less favorable job assignments, and that he was denied a shift change to which he was entitled based upon his seniority. The last category relates in general to harassment by his supervisor, including the assertion that his supervisor continually focused on him and had commented that he was going to "get" him.

   In considering the substance of these allegations, I am guided by the Administrative Review Board ("Board" or "ARB") decision in Shelton v. Oak Ridge National Laboratories, ARB No. 98-100, 1995-CAA-19 (ARB March 30, 2001). In that case, after a lengthy trial over which I presided, I found that a senior health physics technician had been subjected to an adverse action when she was issued an oral reminder – which was the first step in a formal disciplinary process that could ultimately lead to her termination – but that the employer had established by clear and convincing evidence that it would have taken the same action against her even if she had not engaged in the protected activity. In so finding, I relied upon the case of Helmstetter v. Pacific Gas and Electric, 1986-SWD-2 (Sec'y Sept. 9, 1992), which found a disciplinary letter to constitute an adverse action under the environmental whistleblower statutes. In Shelton, however, the ARB modified the Secretary's ruling in Helmstetter, adopting instead the standard espoused in Title VII cases postdating my decision such as Oest v. Illinois Dept. of Corrections, 240 F.3d 605 (7th Cir. 2001), which held that oral or written reprimands issued under a progressive discipline system do not sufficiently implicate "tangible job consequences" so as to form a basis for liability. But see Gutierrez v. Regents of the University of California, ARB No. 99-116, 1998 ERA-19 (ARB Nov. 13, 2002) (negative comments in performance evaluation are actionable when accompanied by subsequent limitation of pay increase.) In Oest, 240 F.3d at 613-14, the U.S. Court of Appeals for the Seventh Circuit noted that "adverse actions must be materially adverse to be actionable, meaning more than a ‘mere inconvenience or an alteration of job responsibilities' [citation omitted]." See also Jenkins, supra at 19 ("Not every action taken by an employer that renders an employee unhappy constitutes an adverse employment action.")

   Turning to the first category of charges, no facts have been adduced showing that Complainant was treated differently from other employees with respect to leave policies or that the policies were inherently unfair. Although Mau's alleged May 10 denial of leave may have been retaliatory in nature, it was promptly reversed by Human Resources, so no tangible job consequences are involved. See Griffith v. Wackenhut Corp., ARB No. 98-067, 1997-ERA-52 (ARB Feb. 29, 2000) (suspension that was promptly rescinded had resulted in no tangible job consequence). Complainant's perception of disparate treatment based upon the August 22, 2001 absence interview was mainly based upon his failure to consider whether there were more than three disability absences during any rolling 12-month period as opposed to the 12-month period prior to the interview. With respect to his being charged time for visiting a company doctor or for litigation-related activities, Complainant has merely indicated his disagreement with the policies asserted, not that the policies were not uniformly applied. None of the allegations relating to leave have substance.

   At this point, a word should be said about Complainant's assertion that one of the absences (apparently that of May 23, 2001) was due to his becoming ill after having worked in the rain without raingear, which he had previously requested. Complainant has not asserted that he was assigned to work in the rain as a result of his protected activity or that he was denied the raingear based upon his protected activity. He has, however, argued that his particular absence was misclassified and that it and two other absences (which he claims were related to a July 2000 work injury) should have been deemed work-related. He does not assert that he pursued this matter with Human Resources, or even that he raised the matter with his supervisor. Under these circumstances, I also find this allegation to fall short of stating a cognizable adverse action.

   The second category of allegations, which includes the single allegation of counseling for poor rigging practices, also lacks substance, regardless of whether the counseling was warranted. Complainant was counseled for his work by a different supervisor from the one involved in the protected activity, and that supervisor was unaware of the protected activity at the time he did the counseling. Moreover, he counseled the two other employees on the same work team as Complainant in the same manner and there has been no allegation of disparate treatment. Finally, the counseling had no tangible job consequence, as it has not been shown to have led to any disciplinary action or reduction in pay. It is not, accordingly, actionable. See Shelton, supra. This case is clearly distinguishable from Gutierrez, supra, in which the ARB found "unfavorable customer feedback" in an employee's performance assessment (prepared by the employee's supervisor) to be an adverse action when the comments related to the employee's protected activities under the ERA, were taken into account in determining the employee's pay increase, and suggested that future pay increases would be dependent upon the cessation of protected activities. None of those factors are present in the instant case, which involves a single allegation of counseling based upon work performance. "Employer criticism, like employer praise, is an ordinary and appropriate feature of the workplace. . . [T]o permit discrimination lawsuits predicated only on unwelcome day-to-day critiques and assertedly unjustified negative evaluations would threaten the flow of communication between employees and supervisors and limit an employer's ability to maintain and improve job performance." Shelton at 7, quoting Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1242 (11th Cir. 2001).

   The third category of allegations, relating to the assignment of less desirable job tasks and the denial of a shift change, also lacks tangible job consequences. As a general rule, an allegation of loss of prestige on account of a change in work assignments, without any tangible harm, does not constitute protected activity. Davis, 245 F.3d at 1245. A "bruised ego" is insufficient. See Flaherty v. Gas Research Institute, 31 F.3d 451, 457 (7th Cir. 1994) (age discrimination case). Moreover, as the ARB noted in Jenkins at 20, citing Ledergerber v. Stangler, 122 F.3d 1144 (8th Cir. 1997), as a general proposition job transfers not involving a demotion do not rise to the level of a materially adverse employment action, and reassignment of duties falls within the purview of that rule. Compare Stone & Webster, supra (finding demotion followed by transfer to constitute adverse action). A fortiori, a failure to provide a requested shift transfer would also be insufficient. But cf. Mondzelewski v. Pathmark Stores, Inc., 162 F.3d 778, 786-89 (3d Cir. 1998) (assignment to less desirable shift perceived by co-workers as a "punishment shift" may constitute an actionable change in terms and conditions of employment.) Here, Complainant's perception (shared by some of his coworkers) that he has been more frequently assigned less desirable work coupled with his assertion that on a single occasion he was not provided with a requested temporary transfer to a different shift fall short of constituting an adverse action. Complainant has simply failed to assert the type of tangible harm that would make his work or shift assignments actionable.

   The final category consists of allegations of harassment by Complainant's supervisor, including overly zealous supervision. In addition to the work and shift assignment allegations discussed above, the only specific allegations falling within this category concern the incident when Complainant's supervisor reprimanded him (verbally and in performance appraisal data sheets maintained by the supervisor) for "loitering" when he did not return promptly from the rest room and the assertion by a coworker that Complainant's supervisor verbally reprimanded Complainant (and not the coworker) for talking when the coworker initiated the conversation. Those specific allegations do not rise to the level of tangible job consequences, as they involve treatment that is not materially adverse. See Hilt-Dyson v. City of Chicago, 282 F.3d 456 (7th Cir. 2002) (demeaning uniform inspection insufficient to constitute an adverse employment action.) The more general assertions of harassment – specifically, allegations that Complainant's supervisor said that he was going to "get" him and that his supervisor continually focused on him – are best considered in the context of cases relating to a hostile work environment. In considering whether Complainant was subjected to a hostile work environment, I will consider all of the alleged adverse actions discussed above.

   The elements that a complainant must establish in a hostile work environment claim under the ERA were set forth in Williams v. Mason & Hanger Corp., ARB No. 98-030, 1997-ERA-14 (ARB Nov. 13, 2002):

1) that he engaged in protected activity;
2) that he suffered intentional harassment related to that activity;
3) that the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment;
4) that the harassment would have detrimentally affected a reasonable person and did detrimentally affect the Complainant.

To evaluate the "level of hostility" required to establish the existence of a hostile working environment, the factfinder should consider factors such as the frequency and severity of the harassment; whether the harassment was physically threatening or humiliating, or merely offensive; and whether it unreasonably interfered with the complainant's work performance. Id. As the Supreme Court noted in Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (in the context of a title VII sex discrimination case), a hostile work environment is one that is "both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so."

(Berkman at p. 21). The Board pointed out that these harassing actions were taken by his supervisors but when he complained to a higher level, the Academy did not put an end to his abuse.

   The case before me is strikingly different from Berkman. While multiple adverse actions are complained of in the instant case, Complainant has not established that he was subjected to treatment that altered his work environment or was "pervasive and regular," and his treatment cannot reasonably be considered to have been "harsh, abusive and discriminatory." Here, only sporadic, minor events are involved and all actions taken were consistent with policies applicable to all workers. Thus, this case lacks either the "pervasive and regular" element or the "discriminatory" element present in Berkman. Also, the treatment Complainant received was annoying rather than "harsh or abusive." Unlike Berkman, the Complainant here has not had any job responsibilities taken away from him. Finally, as noted above, Complainant has failed to show (or even allege) that he was detrimentally affected by his work environment, or that a reasonable person would have been detrimentally affected, although Berkman established each of those elements.

   Based upon the above, I find that the Complainant cannot establish an essential element of his case – that he was subjected to an adverse employment action – and that summary decision in favor of the Respondent is appropriate, even if the facts are construed in the light most favorable to the Complainant. See Moore v. U.S. Dept. of Energy, ARB No. 99-094, 1999-CAA-14 (ARB July 31, 2001); Williams v. Lockheed Martin Corp., ARB Nos. 99-54, -64, 1998-ERA-40, -42 (ARB Sept. 29, 2000). In so finding, I am cognizant of the Complainant's pro se status. However, Complainant has indicated his desire to proceed on a paper record. My previous Orders directed him to advise of the material facts supporting his claim and of the facts asserted by the Respondent that he disputes. However, even if I construe all of the facts in the light most favorable to him, there simply is not enough here to show that Complainant has been subjected to any adverse actions that are cognizable under the employee protection provisions of the ERA. Inasmuch as Complainant cannot establish this essential element of his claim, there is no reason to conduct an oral hearing in this matter.

   As Complainant cannot establish that he was subjected to an adverse employment action, even if his allegations are assumed to be true and the factual record is construed in the light most favorable to him, he cannot prevail in this action. It is therefore unnecessary to consider any other issues. Accordingly, I recommend that Complainant' motion for summary decision be denied, that Respondent's motion for summary decision be granted, and that the complaint in this matter be dismissed.

   IT IS HEREBY RECOMMENDED that the complaint in this matter be, and hereby is DISMISSED.

      PAMELA LAKES WOOD
      Administrative Law Judge

Washington, D.C.

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, 200 Constitution Avenue, NW, Washington, DC 20210. To be timely filed, a petition for review must be filed within ten (10) business days of the date of this Recommended Decision and Order and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7, 24.8.