Shirani v. Comed/Exelon Corp., 2002-ERA-28 (ALJ Dec. 4, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue Date: 04 December 2002

CASE NO.: 2002-ERA-28

In the Matter of:

OSCAR B. SHIRANI,
    Complainant

    v.

COMED/EXELON CORPORATION,
    Respondent

   A hearing was scheduled in the above-captioned matter for November 13 and 14, 2002, in Chicago, Illinois. On October 7, 2002, the Complainant, and attorneys for both parties submitted an Agreed Protective Order for consideration by the undersigned. On October 8, 2002, I issued a Protective Order, incorporating the parties' previously agreed-to submission.

   On October 24, 2002, the Respondent's attorneys filed a Motion for Summary Decision. Additionally, on October 28, 2002, counsel for the Respondent filed an Emergency Motion for a Protective Order Prohibiting the Deposition of Oliver Kingsley and a request for continuance to allow further briefing. Subsequently, I held a conference call with the parties' counsel.

   Accordingly, on November 7, 2002, I issued an Order Rescheduling Hearing and Setting Briefing Schedule. Pursuant to that order, the hearing in November was cancelled, and rescheduled to commence at 9:00 A.M. on December 17, 2002, in Chicago, Illinois. The parties were also ordered to submit briefs on the Respondent's two motions.

   Motion for Protective Order

   Counsel for the Complainant filed a response to the Respondent's Motion for a Protective Order on November 12, 2002. In that response, the Complainant identifies specific topic areas he would explore with Mr. Kingsley. Moreover, counsel offers to hold the deposition at Mr. Kingsley's office and on a date convenient for him. In its Reply Brief, filed November 18, 2002, the Respondent argues that Mr. Kingsley should not be deposed because the Complainant proposed to ask about five matters that could form the basis of a claim.

   I find the Complainant's arguments that Mr. Kingsley could offer relevant and material information more convincing. The Complainant is also willing to minimize the impact of this proceeding on Mr. Kingsley's schedule. Therefore, the Respondent's Motion for an Emergency Protective Order is denied and the deposition should proceed with maximum convenience for Mr. Kingsley.

   Motion for Summary Judgement

   On November 19, 2002, the Complainant filed a Response to Motion for Summary Decision. In that response, the Complainant alleges that there is a dispute of the material facts and that there is evidence, some discovered and some yet to be discovered, which establishes the Complainant's termination was in retaliation for his protected activity. On November 22, 2002, the Respondent filed its Reply Brief. In its brief, the Respondent argues that the Complainant cannot establish a causal connection between his alleged protected acts and the adverse action. The Respondent also asserts that there were legitimate reasons for the adverse action.

   Under the applicable law, any employer who "intimidates, threatens, restrains, coerces, blacklists, discharges, or in any manner discriminates against any employee because the employee has: (1) Commenced or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under one of the Federal statutes listed in § 24.1(a)..." is deemed to have violated federal law and the regulations.¹

   In a case involving an environmental whistleblower, the complainant has the burden of proof to make a prima facie showing that: (1) the complainant engaged in a protected activity; (2) the complainant was subjected to adverse action; (3) the respondent was aware of the protected activity when it took the adverse action; and (4) the evidence is sufficient to raise a reasonable inference that the protected activity was the likely reason for the adverse action.²

   If a complainant successfully establishes a prima facie case, the respondent must produce evidence of a legitimate, nondiscriminatory reason for the adverse action, in order to rebut the complainant's showing.³ The respondent bears only the burden of production of rebuttal evidence.⁴ The complainant may then counter the respondent's evidence by proving by a preponderance of the evidence, that the respondent's reasons are not the true reasons for the adverse action, but rather, a pretext for discrimination.⁵ Likewise, at all times, the complainant bears the burden of demonstrating, by a preponderance of the evidence, that the adverse action was in retaliation for the protected activity, in violation of the law.⁶

¹29 C.F.R. § 24.2(b).

² Glenn v. Lockheed, 1998-ERA-35 &50 (ALJ July 15, 1999).

³ Carroll v. Bechtel Power Corp., 1991-ERA-46 (Sec'y Feb. 15, 1995).

⁴ Shusterman v. Ebasco Servs., Inc., 1987-ERA-27 (Sec'y Jan. 6, 1992).

⁵ Id.

⁶ Id.