1. Complainant's Employment Status and Protected Activity.

2. Respondent's alleged discriminatory conduct.

Testimonial Evidence

Complainant

   Complainant is married and has three children. He has a bachelor of science degree in physiology and biochemistry. In addition, Complainant earned a master's degree in general

biochemistry at Chelsea College and a doctorate degree in biochemistry at St. George's Hospital Medical School at the University of London. (Tr. 233-234; CX-3). Complainant worked at the University of Texas Medical Branch (UTMB) from January 1988 until August 1995 in the Department of Pharmacology and Toxicology as a Research Associate II. (Tr. 236). He explained that his job position ended when his supervisor and the grant project ended. (Tr. 314). While working at UTMB, Complainant received formal training for the use of radioactive material in university labs. (Tr. 251). Complainant worked with radioactive material such as iodine-125 and tritium while he worked on the tryanosomiasis project. (Tr. 344; CX-3). In addition, he worked with radioactive material while he was at the University of London. (Tr. 414). While in London for a total of fourteen years, Complainant was responsible for supervising the academic teachings of Gross and Micro Anatomy lecture classes, performed post-graduate work with trypanosome membranes, was the senior research medical laboratory scientific officer in histopathology of body tissues and in tumor histopathology. (CX-3).

   Prior to working at UTMB, Complainant worked at the University of Ife, Nigeria. Throughout the years, he supervised and conducted numerous projects and programs for the Health Sciences. (CX-3).

   In March 1996, Complainant was hired by Dr. Barbara Hayes, associate professor of pharmacology, to work at Respondent's institution as a temporary research associate. (Tr. 236). Complainant's responsibilities consisted of writing assignments concerning the technology being introduced at Respondent's institution and the development of the academic conditions. (Tr. 237).

   On April 9, 1996, Dr. Hayes assigned Complainant to work for Dr. Shirlette Milton, assistant professor in Respondent's College of Pharmacy and Health Sciences. After Complainant familiarized himself with Dr. Milton's research project, Dr. Milton instructed Complainant to work in laboratory 201 (herein the lab). Complainant informed Dr. Milton he could not work in the lab because as a temporary research associate he did not have medical insurance. (Tr. 237-238). After Complainant spoke with Dr. Milton and Dr. Hayes concerning his inability to work in the lab because of his lack of medical insurance, Dr. Hayes instructed Complainant not to perform work in the lab but continue assisting Dr. Milton outside of the lab in the same manner. (Tr. 238). Complainant was further instructed by Dr. Hayes not "to do any of that job which medical insurance might be involved." (Tr. 238, ln. 23).

explained that he recalled this date because it occurred when he went to watch another assistant perform a surgical operation on a rat. Because Complainant believed he was going to be hired as a permanent employee and receive medical insurance, he agreed to work in the lab. (Tr. 239).

   On this same day, Dr. Milton took Complainant into the lab to show him the facility. Upon entering the lab, Complainant placed his materials on the center island table. Complainant testified that Dr. Milton yelled at him to remove his materials because radiation studies had been performed on the table. Dr. Milton showed Complainant the lab and the equipment, including the fume hood where radioactive material was stored and the refrigerator which contained cultures. Dr. Milton showed him some boxes that were in a cupboard underneath the fume hood which contained test tubes holding "just waste" according to Dr. Milton. After Complainant informed Dr. Milton that the waste should be removed, Dr. Milton informed him that Respondent did not have "waste removal." (Tr. 240-241).

   Complainant told Dr. Milton that during his previous experience working with radioactivity, waste was always removed and not stored in the fume hood. (Tr. 241). Dr. Milton told Complainant not to worry about the waste because swab tests were performed regularly in the lab. (Tr. 242; See RX-N).

   After Dr. Milton left the lab, Complainant began to perform preliminary steps for conducting future radiation studies. He determined that the hood was not circulating air into the atmosphere but recirculating air into the room. He borrowed a crude instrument to test the hood for proper air circulation which "didn't read good." (Tr. 242).

   Complainant testified that on May 17, 1996, he first informed Dr. Milton of his concerns with the radioactive material stored and used in the lab. Based on the preliminary tests he performed earlier in the day, Complainant informed Dr. Milton that the hood was not a grade A hood which was necessary when using radioactive material. Complainant suggested to Dr. Milton that the hood be upgraded. Complainant again informed Dr. Milton that in his prior experience, the radioactive waste was disposed of regularly because of the potential safety problems. (Tr. 247). According to Complainant, Dr. Milton told him that she would consider his concerns and make any necessary adjustments in the lab. (Tr. 248). Complainant testified that he believed his concerns for the conditions in the lab posed a potential safety hazard for people using the lab. (Tr. 251).

   After Complainant's first visit to the lab in mid-May, he began to regularly work with Dr. Milton on her research projects. (Tr. 242). From May 1996 until the end of June 1996, Complainant ordered numerous lab supplies, which included iodine-125, tritium, and Phosphorus-32, all radioactive materials. In addition, Complainant conducted experiments in the lab that did not involve radioactive material. He worked on other activities in his office, which was a separate room from the lab. (Tr. 245-246). In early June 1996, Complainant had submitted his application to Dr. Milton for the research associate job position. (Tr. 253).

   In June 1996, Complainant wanted to prepare the lab for the use of iodine-125 in future experiments. (Tr. 257). Complainant testified that he attempted to obtain the protocol for

in the library conducting research. According to Complainant, he and Dr. Milton engaged in friendly conversation the entire time they were together. They did not discuss the research associate job position. (Tr. 272). He further testified that Dr. Milton did not inform him that she had placed his appointment on hold. (Tr. 268).

   On July 11, 1996, Complainant notified Dr. Milton that she had not addressed all of his complaints concerning the conditions in the lab. Complainant explained that he confronted Dr. Milton at this time since she was leaving for two weeks and he wanted the lab conditions remedied. (Tr. 272). In addition, he was concerned that the iodine-125 he ordered in the past would arrive while she was away. (Tr. 308). Complainant asked to use Dr. Milton's Geiger counter to show her that there were measured amounts of radioactivity from the fume hood, the cupboard, and the refrigerator. Complainant testified that the Geiger counter made loud clattering noises around these objects which indicated the presence of radioactive substances. According to Complainant, Dr. Milton told him that she understood his concern and that all the conditions would be remedied upon her return on July 29, 1996. Complainant testified that Dr. Milton remained calm throughout the heated discussion. (Tr. 272-273, 290). During the discussion, Complainant informed Dr. Milton that he had contacted the Texas Department of Health, Radiation Department informing the office that Dr. Milton was not operating a safe lab. Moreover, he told Dr. Milton that the lab would be inspected. (Tr. 290).

   On July 12, 1996 Complainant was conducting the work assigned to him by Dr. Milton when she informed him that she could not work with him because he gave her "heartache and headache" with all of his concerns. (Tr. 274). Dr. Milton told Complainant that he repeatedly told her about the same concerns and that she was "ready to set fire . . . to all the work we've done together . . ." (Tr. 274, ln. 19). Dr. Milton instructed Complainant to pack his books and leave the lab and not enter it while she was away. (Tr. 275, 318, 351). Complainant explained that he was very upset upon learning that the offer of employment was withdrawn. (Tr. 274).

   Complainant explained that he continued to work for Respondent from July 12 through July 31, 1996 performing "general typing of [sic] what Dr. Hayes asked me to do." (Tr. 319, ln. 14). He did not perform any work for Dr. Milton after July 12, 1996. (Tr. 319).

   On July 22, 1996, Complainant sent a letter to Dr. Milton asking for written verification that the research associate position was being eliminated. (Tr. 282; CX-11). In addition, Complainant requested that Dr. Milton continue to investigate the safety concerns he mentioned to her in the past. (CX-11). According to Complainant, this was the first time he had provided written notification to Respondent of his concerns about the conditions in the lab. (Tr. 304). On this same day, Complainant received a memorandum from Dr. Hayes as a reminder that his temporary appointment would end on July 31, 1996. (CX-12).

   On July 23, 1996, Complainant wrote a letter to the Texas Department of Health, Radiation Department describing the conditions of the lab. In addition, Complainant

contacted the same department and spoke with Brad Caskey, radiation control inspector. (Tr. 289; CX-13). On September 24, 1996, a representative of the department conducted an investigation of the lab. The report indicated that the lab was in compliance with pertinent regulations. (RX-I; RX-J). Complainant testified that as of July 11, 1996, radioactive waste was stored in the fume hood, in a cupboard underneath the fume hood, and in the refrigerator unlabeled. The waste in the cupboard was stored in test tubes and other containers which were contained in a cardboard box. (Tr. 397). He further testified that neither the door to the lab nor the refrigerator door were labeled with a cautionary sign indicating radioactive material. There were no cautionary signs located on the work tables where radioactive studies were performed. Lastly, Complainant never saw an operating and safety manual pertaining to radiation safety. (Tr. 398-399).

   Complainant testified that he informed Dr. Hayes of his concerns with the conditions in the lab. (Tr. 305). He was unaware whether Dr. Hayes or anyone else conducted an investigation of his concerns. (Tr. 403). As of July 12, 1996, the radioactive waste was not removed. (Tr. 323). On July 29, 1996 he noticed that radiation cautionary signs had been placed on the entrance door to the lab. (Tr. 331, 417).

   On August 3, 1996, Complainant submitted a grievance form to Respondent describing the alleged employment discrimination he experienced. (Tr. 295; CX-15). Complainant's grievance was rejected because he was not a full-time regular employee. (Tr. 299; CX-18). On August 8, 1996, Complainant submitted his complaint against Respondent to the Department of Labor. (Tr. 297; CX-16).

   Although Complainant actively sought employment from July 31, 1996, Complainant was unable to obtain full-time employment until August 13, 1997. (Tr. 231; 301). He occasionally worked part-time at the Brazosport College teaching emergency medical sciences. Complainant taught evening courses on an "as needed basis." He earned a total of $900.00. (Tr. 232).

   In July 1997, Complainant obtained an alternate certification for teachers. Complainant testified that he has been employed as a full-time teacher by Ball High School since August 13, 1997. (Tr. 228). He explained that $25,000.00 is his base salary for the job position, however, he believed he would receive a salary of $30,000.00 because he has two graduate degrees, and based on his experience at UTMB and the University of Ife. (Tr. 229-230).

Katherine Agbe

   Katherine Agbe has been married to Complainant for fifteen years. (Tr. 421). Mrs. Agbe testified that she and Complainant worked, in different departments, at the University of Ife for five years. She explained that the departments were within walking distance such that she saw Complainant daily. (Tr. 445). Mrs. Agbe testified that during the time Complainant worked for Respondent, he related his concerns about the safety conditions of the lab. (Tr. 420-421). He mentioned that the radioactive waste was not being disposed of as regularly as it had at UTMB and at the University of London, and the radioactive material was not handled in the manner that he

learned at UTMB and at the University of London. In addition, Complainant had mentioned the incident in which he used a Geiger counter in the lab. Mrs. Agbe could not recall the dates when she and Complainant had these discussions. (Tr. 430-432).

   Mrs. Agbe testified that Complainant was devastated when he learned he would not be appointed as a research associate for Dr. Milton. She explained that Complainant was very upset and concerned for the well being of their family. (Tr. 424).

that he would receive the higher salary. Dr. Milton testified that Complainant appeared not to trust her because she would say one thing, yet do something else. (Tr. 93-95).

Complainant used the Geiger counter. The iodine-125 was under the hood, behind a lead shield. In addition, there was material in the refrigerator and the freezer. (Tr. 105).    Dr. Milton testified that an outside agency performed monthly wipe tests which showed that the lab was in compliance with Respondent's license for the use and storage of radioactivity. (Tr. 133-135; RX-N). The wipe tests were performed from March 1996 through July 1996. (RX-N). In addition, Dr. Milton testified that Respondent's "radiation inspection report" showed that the lab was inspected and exhibited radiation levels less than 0.1 millirem per hour, which was in compliance with "safety." (Tr. 136-137). Similarly, Complainant's radiation exposure level was monitored from April 5, 1996 through July 4, 1996, and indicated a .005 REM level of total exposure. (RX-P). Dr. Milton testified that a 5.00 level is considered "caution" and Complainant was well under the cautionary level for radiation exposure. (Tr. 145-148). Lastly, the Texas Department of Health, Bureau of Radiation Control conducted a spot check of the lab on September 24, 1996 for proper radiation storage and usage. (Tr. 151; RX-I). Dr. Milton testified that until September 24, 1996, she was unaware that Complainant filed a complaint with the Texas Department of Health. (Tr. 156).

   Dr. Milton testified that there has always been caution radioactive material stickers on the entrance door to the lab. She was unaware whether there was a caution sign on the refrigerator door as of July 1, 1996. The sign was placed on the refrigerator as the result of Complainant expressing his concerns with the radioactivity in the lab. (Tr. 214).

   Dr. Milton testified that the research associate position no longer exists due to budgetary cuts beginning on September 1, 1996. (Tr. 159).

Barbara Hayes, Ph.D.

concerns, Dr. Hayes felt compelled to address them and instructed Complainant not to work with radioactive material. (Tr. 461-462).

The Contentions of the Parties

   Complainant contends that he engaged in protected activity under the employee protection provision of the ERA when he repeatedly voiced internal and external safety concerns about the conditions in the lab for the use of radioactive material.

   Complainant further contends that he was subjected to adverse employment action when Respondent withdrew an offer of employment for a permanent job position which was motivated by his repeated complaints about the safety conditions in the lab.

   Respondent contends that Complainant did not engage in protected activity under the employee protection provision of the ERA because he did not act in good faith when he verbally complained about the condition of the fume hood in the lab. Respondent argues that Complainant's safety complaints should have been submitted in writing to a government agency.

   Respondent contends that it was unaware of the external complaints Complainant made to the Texas Department of Health, Radiation Department, which occurred after the offer of employment was withdrawn.

   Respondent further contends that the offer of employment was withdrawn for legitimate, nondiscriminatory reasons.

   Lastly, Complainant contends that he is entitled to damages encompassing back pay, lost benefits, compensatory damages, and reasonable costs and attorney fees.

   Prefatory to a discussion of the issues presented for resolution, it must be noted that I have thoughtfully considered and evaluated the rationality and consistency of the testimony of all witnesses and the manner in which the testimony supports or detracts from the other record evidence. In doing so, I have taken into account all relevant, probative and available evidence and attempted to analyze and assess its cumulative impact on the record. See Frady v. Tennessee Valley Authority, Case No. 92-ERA-19 (Sec'y Oct. 23, 1995)(Slip Op. p. 4).

   Credibility of witnesses is "that quality in a witness which renders his evidence worthy of belief." Indiana Metal Products v. NLRB, 442 F.2d 46, 51 (7th Cir. 1971). As the Court further observed:

Evidence, to be worthy of credit, must not only proceed from a credible source, but must, in addition, be credible in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates, as to make it easy to believe ...Credible testimony is that which meets the test of plausibility.

   Moreover, based on the unique advantage of having heard the testimony firsthand, I have observed the behavior, bearing, manner and appearance of witnesses from which impressions were garnered of the demeanor of those testifying which also forms part of the record evidence. In short, to the extent credibility determinations must be weighed for the resolution of issues, I have based my credibility findings on a review of the entire testimonial record and exhibits with due regard for the logic of probability and the demeanor of witnesses.

   Generally, of the two primary witnesses in this matter, Complainant was an impressive witness in terms of confidence, forthrightness and overall bearing on the witness stand.

His testimony was straight-forward, detailed and presented in a sincere, consistent manner. On the other hand, Dr. Milton presented inconsistent and vague testimony as specifically discussed below.

A. Respondent's Alleged Discriminatory Actions

   An employee must establish the following to show unlawful discrimination: (1) the employer is governed by the Act, (2) the employee engaged in protected activity as defined in the Act, and (3) as a result of engaging in such activity, the employee's terms and conditions of employment were adversely affected. 42 U.S.C. § 5851.

   The Secretary of Labor has repeatedly articulated the legal framework within which parties litigate in retaliation cases. Under the burdens of persuasion and production in whistleblower proceedings, the complainant first must present a prima facie case. In order to establish a prima facie case, a complainant must show that: (1) the complainant engaged in protected activity; (2) the employer was aware of that conduct; and (3) the employer took some adverse action against the employee. Bechtel Construction Company v. Secretary of Labor, 50 F.3d 926, 933 (11th Cir. 1995). The complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Id. See also McCuistion v. TVA, Case No. 89-ERA-6 (Sec'y Nov. 13, 1991)(Slip op. at 5-6); MacKowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (6th Cir. 1983).

   The respondent may rebut the complainant's prima facie showing by producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Complainant may counter respondent's evidence by proving that the legitimate reason proffered by the respondent is a pretext. Yule v. Burns International Security Service, Case No. 93-ERA-12 (Sec'y May 24, 1994)(Slip op. at 7-8). In any event, the complainant bears the burden of proving by a preponderance of the evidence that he was retaliated against in violation of the law. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993); Dean Darty v. Zack Company of Chicago, Case No. 82-ERA-2 (Sec'y Apr. 25, 1983) (Slip op. at 5-9) (citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981)).

Instead, the relevant inquiry is whether Complainant prevailed by a preponderance of the evidence on the ultimate question of liability. See Reynolds v. Northeast Nuclear Energy Co., Case No. 94-ERA-47 @ 2 (ARB Mar. 31, 1997); Boschuk v. J&L Testing, Inc., Case No. 96-ERA-16 @ 3, n.1 (ARB Sept. 23, 1997); Eiff v. Entergy Operations, Inc., Case No. 96-ERA-42 (ARB Oct. 3, 1997). If Complainant did not prevail by a preponderance of the evidence, it matters not at all whether he presented a prima facie case.

   The undersigned finds that as a matter of fact and law, Respondent has articulated a legitimate, nondiscriminatory reason for its actions. Zinn v. University of Missouri, Case No. 93-ERA-34 @ 4 (Sec'y, Jan. 18, 1996). Dr. Milton testified that she withdrew the offer of employment because Complainant would not unequivocally accept the job position as of July 12, 1996, ten days after she formally selected him for the job position. In addition, Dr. Milton testified that other factors such as Complainant's unwillingness to follow her instructions and his repeated harassment regarding the future loss of his office space contributed to her decision to withdraw her offer of employment. Thus, I find and conclude that Respondent met its burden of production to articulate a legitimate, nondiscriminatory basis for its adverse employment action.

   Once Respondent has articulated a legitimate, nondiscriminatory reason for its withdrawal of the employment offer to Complainant, the burden shifts to him to demonstrate that Respondent's proffered motivation was not its true reason but is pre-textual and that its actions were actually based on discriminatory motive. Leveille v. New York Air National Guard, Case No. 94-TSC-3 and 94-TSC-4 @ 7-8 (Sec'y Dec. 11, 1995)(Slip op. at 7-8); Carroll, supra, @ 6; See Bechtel Construction Company, supra, at 934. Complainant may demonstrate that the reasons given were a pretext for discriminatory treatment by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence. 42 U.S.C. § 5851(b)(3)(c); Zinn, supra @ 5; Yellow Freight Systems, Inc., 27 F.3d 1133, 1139 (6th Cir. 1994). Complainant retains the ultimate burden of proving, by a preponderance of the evidence, that the adverse action was in retaliation for the protected activity in which he was allegedly engaged in violation of the ERA. Id. (citing Texas Dep't of Community Affairs, supra. See also Creekmore, supra.

1. Respondent is governed by the Act.

Act's employee protection provision as a job applicant.

2. Complainant engaged in protected activity.

   The second issue for discussion is whether Complainant was engaged in protected activity when Complainant made internal complaints to Respondent regarding the safety condition in the lab for the safe use of radioactive material. On October 9, 1992, Congress passed H.R. 776, the Comprehensive National Energy Policy Act which was signed into law on October 24, 1992. The Comprehensive National Energy Policy Act made several significant amendments to the whistleblower provision of the Energy Reorganization Act of 1974 including explicit coverage of internal complaints as protected activity.

   I find that Complainant engaged in protected activity under the Act of which Respondent had knowledge before withdrawing the offer of employment to him. Complainant and Dr. Milton testified that he informed her sometime before she withdrew the offer of employment of the following conditions in the lab which made it unsafe for the use and handling of radioactive material: (1) inadequate flow in the fume hood; (2) the improper storage of radioactive material in the lab; (3) the need for cautionary signs to be placed in specific areas in the lab; and (4) the need to remove radioactive waste material from the lab. I further find that Complainant repeatedly informed Dr. Milton of his safety concerns regarding the condition of the lab. Complainant credibly testified that he repeatedly informed Dr. Milton of his safety concerns before July 12, 1996. In addition, Dr. Milton testified that Complainant informed her on more than one occasion of his safety concerns with the conditions in the lab.

   An employee's informal complaints to an employer constitute protected activity. See Bechtel, supra, (A complainant verbally informed a supervisor that he believed the handling of contaminated tools violated safety requirements.) Respondent incorrectly argues that Complainant was required to place his safety concerns in written format or relate his concerns to a government agency. Based on the testimony of Complainant and Dr. Milton, I find and conclude that Complainant engaged in protected activity and Respondent had knowledge of his protected activity before Dr. Milton withdrew the offer of employment to Complainant.

   A complainant is not required to prove an actual violation of the underlying statute. Yellow Freight System, Inc., supra, at 357; Crosier v. Westinghouse Hanford, Case No. 92-CAA-3 @ 4 (Sec'y Jan. 12, 1994). Instead, a complainant's complaint must be made in good faith and "grounded in conditions constituting reasonably perceived violations of the environmental acts." Crosier @ 4; Johnson v. Old Dominion Security, Case No. 86-CAA-3 (Sec'y May 29, 1991). I find that Complainant's internal complaints to Dr. Milton were reasonably perceived as violations under the Act based on his work experience and educational degrees. Complainant has a doctorate degree in biochemistry and has conducted experiments with radioactive material while he worked at UTMB and the University of London. In addition, Complainant testified, without contradiction, that he received training for the use of radioactive material and special training for the use of iodine-125. Thus, I find and conclude

that Complainant's complaints of safety concerns to Dr. Milton were made in good faith and were reasonable and rational in light of his academic credentials and work experience.

   As noted above, the investigation conducted by the Texas Department of Health, Radiation Department, which indicated that Respondent was in compliance with pertinent regulations as of September 24, 1996, one and one-half months after its discriminatory action, does not preclude a finding of liability for adverse employment action in response to an employee's protected activity under the extant circumstances. Notwithstanding the proximity of time between Complainant's complaints of safety concerns and the compliance report, Complainant credibly testified, in contradiction to the report, that as of July 11, 1996, the day before his employment selection was withdrawn, the following conditions existed in the lab: (1) the waste remained in the lab; (2) all of the waste material was not stored in the fume hood behind the lead shield but underneath the fume hood in a cupboard and in the refrigerator; (3) he never saw the Policies and Procedures Pertaining to Radiation Safety Manual; and (4) there were no cautionary labels on the lab entrance doors, the refrigerator door, nor the workbenches where radioactive material was used. Furthermore, Dr. Hayes testified that she learned as of July 22, 1996, that the areas in the lab where radioactive experiments took place did not have cautionary signs.

   Accordingly, I find and conclude that Complainant engaged in protected activity from May 1996 through July 11, 1996 when he reported his safety concerns to Dr. Milton regarding the alleged unsafe conditions in the lab for the use of radioactive material.

3. Adverse employment action.

   Employer asserted that the offer of employment to Complainant was withdrawn because Complainant did not unequivocally accept the offer of employment and he lacked professionalism and demeanor toward Dr. Milton when he responded to the discrepancy over his salary and the loss of office space.

   Dr. Milton testified that she was concerned with Complainant's demeanor because of his reaction to the salary discrepancy on July 8, 1996. However, Dr. Milton did not terminate discussions with Complainant once she learned that she did not have the authority to offer the higher salary, but rather she persuaded Dr. Hayes to authorize the higher salary for Complainant. Moreover, it should be noted that Dr. Milton did not inform Dr. Hayes until July 29, 1996, that she did not want Complainant to work as her research assistant.

   I find that Complainant credibly denied expressing reservation about accepting the job position which is amply supported by the record. Complainant is married with three children and obtained employment with Employer after seven months of unemployment. In addition, the record indicates that Complainant had been continuously employed for the past seven years and only left his previous job position because his supervisor retired causing the grant to end. Complainant credibly testified that he was very upset upon losing the job position. Moreover, Mrs. Agbe credibly testified that he was devastated upon losing the job position and concerned about the well-being of their family. Thus, I find it improbable that Complainant would have expressed reservation about accepting the permanent job position.

   As of July 9, 1996, Dr. Milton had not informed Dr. Hayes that she did not want Complainant to work as her research associate. Although Dr. Milton expressed concerns about Complainant to Dr. Hayes, Dr. Hayes testified that she believed Dr. Milton wanted Complainant to work as her research associate despite the concerns mentioned above.

   Dr. Milton testified that Complainant was unwilling to follow her instructions although he would eventually complete the work as instructed. Dr. Milton did not provide any specific examples demonstrating such unwillingness. Furthermore, Dr. Milton did not document this concern in her memorandum placing Complainant's appointment on hold. It should be noted that although Dr. Milton did not specify the time period in which Complainant refused to follow her instructions, such concern, if it arose prior to July 2, 1996, did not dissuade her selection of Complainant for the job position.

   Consequently, I find and conclude that Dr. Milton's concerns as discussed above, are not supported by record evidence and her actions are clearly motivated by Complainant's repeated safety complaints of the conditions in the lab. Respondent has not met its burden to show that Complainant's internal safety complaints did not motivate Dr. Milton to withdraw the offer of employment to Complainant.

   Finally, I find that Dr. Milton withdrew the employment offer to Complainant because he repeatedly requested her to remedy the alleged unsafe conditions in the lab. On July 11, 1996, Complainant discussed with Dr. Milton the alleged unsafe lab conditions and her inattentiveness to his repeated requests to remedy the conditions. Moreover, Complainant attempted to show Dr. Milton that the presence of radioactivity was measurable by Geiger counter and unsafe for anyone using the lab. Furthermore, Complainant informed Dr. Milton that he had contacted the Texas Department of Health, Radiation Department, concerning her lab. The following day, July 12, 1996, Dr. Milton withdrew the offer of employment to Complainant. As a matter of law,

proximity in time between the protected activity and the adverse employment action is solid evidence of causation sufficient to justify an inference of retaliatory motive. Bechtel, supra, at 934; Couty v. U.S. Dept. of Labor, Sec'y Dole, 886 F.2d 147, 148 (8th Cir. 1989)(Complainant was discharged approximately thirty days after he engaged in protected activity.); White v. The Osage Tribal Council, Case No. 95-SDW-1 @ 4 (ARB Aug. 8, 1997). To the extent Dr. Milton was reconsidering her selection of Complainant, I find and conclude that her decision to withdraw the offer of employment to Complainant was tainted by her concern for his insistence that his safety concerns be addressed.

   In addition, Complainant testified that Dr. Milton informed him she could not work with him because Complainant was causing her problems with his repeated safety concerns. Dr. Milton testified, but without elaboration, that she informed Complainant, on July 12, 1996, she could not work with him if they were going to experience "these kind of issues." Dr. Milton did not inform Complainant that she was withdrawing the employment offer because he acted unprofessional, failed to follow her instructions, or that his demeanor changed such that she could not work with him. I find that Dr. Milton's shifting reasons for the withdrawal of the employment offer to Complainant indicate that the more probable reason Dr. Milton withdrew the employment offer to Complainant was retaliation for his protected activity. See James, supra @ 4; Hobby v. Georgia Power Co., Case No. 90-ERA-30 (Sec'y Aug. 4, 1995). Accordingly, I further find and conclude that Respondent failed to establish a legitimate and non-discriminatory reason for its employment action against Complainant.

   Based on Dr. Milton's inconsistent and vacillating testimony concerning her satisfaction with Complainant's job performance, professionalism, and demeanor, her shifting reasons, albeit vague and unsupported, for withdrawing the employment offer to Complainant, and the proximity of time between Complainant's protected activity and Respondent's adverse employment action, I find and conclude that the adverse employment action was in retaliation for Complainant's protected activity.

4. Conclusion

   In conclusion, I find that Complainant has sustained his burden of persuasion by a preponderance of evidence that Respondent is governed by the Act as a licensee, Complainant was an employee protected under the Act engaged in protected activity for which Respondent had knowledge, and Respondent's withdrawal of the employment offer to him was in retaliation for Complainant's protected activity. Accordingly, I find and conclude that Complainant is entitled to relief under the Act because adverse employment action was taken by Respondent in retaliation for his protected activity.

B. Damages & Remedy

   A successful ERA complainant is entitled to affirmative action to abate the violation, reinstatement to his former job position, back pay, costs, and attorney fees. 42 U.S.C. § 5851(b)(2)(B). In addition, the Secretary may award compensatory damages. Id.

1. Reinstatement and Back pay

   Although Complainant does not specifically argue in brief that he should be reinstated to his former position as a permanent research associate, reinstatement is an appropriate, statutory remedy under the circumstances. In the absence of a strong reason for not returning to his former position, reinstatement should be ordered. Dutile v. Tighe Trucking, Inc., Case No. 93-STA-31 (Sec'y Oct. 31, 1994); West v. Systems Applications International, Case No. 94-CAA-15 (Sec'y Apr. 19, 1995). However, Dr. Milton testified that the former position has been abolished for budgetary reasons. If Complainant's former position no longer exists, Respondent shall unconditionally offer him reinstatement to a substantially equivalent position in terms of duties, functions, responsibilities, working conditions, and benefits. Respondent's back pay liability terminates upon the tendering of a bona fide offer of reinstatement, even if Complainant rejects the offer. See Dutile, supra; Blackburn v. Metric Constructors Inc., Case No. 86-ERA-4 (Sec'y Oct. 30, 1991) aff'd in relevant part and rev'd on other grounds, Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992).    Complainant is entitled to back pay from the date of termination until reinstated to employment. Creekmore, supra; Sprague v. American Nuclear Resources, Inc., Case No. 92-ERA-37 (Sec'y Dec. 1, 1994). In addition, Complainant is entitled to interest on the back pay amount at the rate specified for underpayment of federal income tax at 26 U.S.C. § 6621. Creekmore, supra @ 10; Blackburn, supra. The purpose of back pay is to make the employee whole and restore him to the position that he would have occupied in the absence of the unlawful discrimination. Doyle v. Hydro Nuclear Services, Case No. 89-ERA-22 (ARB Sept. 6, 1996). The employee discriminated against should only recover damages for the period of time he would have worked in the absence of the unlawful discrimination. Id. @ 2.

   I find that Complainant is entitled to back pay and interest from July 1, 1996 to the present based on the research associate annual salary of $31,338.00. Dr. Hayes approved Complainant's appointment to the research associate job position as of July 3, 1996 to be retroactive to July 1, 1996. Thus, I find that Complainant would have received the permanent research associate salary as of July 1, 1996 absent Respondent's adverse employment action. Accordingly, I find and conclude that Complainant is entitled to back pay from July 1, 1996 through the present. Respondent shall receive credit for the wages paid to Complainant as a temporary research associate through July 1996 and any interim earnings earned thereafter.

   Although the RCMI grant reached its three year term in August 1997, Dr. Hayes sought its renewal and continued the employment of research associates thereafter. Therefore, in the absence of evidence that the RCMI grant was not renewed, I find Respondent's liability for back pay to Complainant extended beyond August 1997 to the present or the date of termination (non-renewal) of the RCMI grant.

   Along with back pay, Complainant may recover health, pension, and other related benefits which are conditions and privileges of employment. Creekmore, supra. Such compensable damages include medical expenses incurred because of the loss

of medical benefits, including premiums for family medical coverage. Id. Complainant testified that he expended $189.00 per month toward his retirement plan or $2,268.00 per year which he would have saved absent the Respondent's discrimination, and $920.00 per year to maintain a life insurance plan. Mrs. Agbe's uncontradicted testimony showed that they paid $7,200.00 for medical insurance until Complainant obtained his current job position. In addition, Mrs. Agbe testified that they incurred $600.00 worth of medical expenses. Based on Complainant's and Mrs. Agbe's uncontradicted testimony, I find and conclude that Complainant is entitled to reimbursement for the above listed benefits totaling $10,388.00.

   Respondent has the burden of establishing that the back pay award should be reduced because Complainant did not exercise diligence in seeking and obtaining other employment. West, supra @7. Evidence that Complainant failed to mitigate his damages would reduce the amount of back pay owed, however, Respondent failed to put forth evidence showing that Complainant failed to mitigate his damages. In addition, Complainant credibly testified that he actively sought employment from July 31, 1996 through August 13, 1996. As of June 1997, Complainant enrolled in a certification course to become certified to teach at the high school level and broaden his employment opportunities. Thus, I find and conclude that Complainant exercised diligence in seeking and obtaining other employment.

   Complainant earned a total of $978.00 from August 1, 1996 through August 13, 1997 while teaching evening courses. Deductible interim earnings are earnings that a complainant could not have earned if he had not suffered unlawful discrimination. Marcus v. U.S. Environmental Protection Agency, Case No. 92-TSC-5 (Sec'y Sept. 27, 1994). I find that it cannot be determined from the record evidence whether these earnings are interim earnings or collateral earnings which Complainant could have earned while working for Respondent as a research associate. Although Complainant's and Mrs. Agbe's uncontradicted testimony indicates that he taught these courses in the evenings, presumably after regular work hours, Complainant's regularly scheduled hours as a research associate are unknown. Based on the lack of evidence, I cannot determine whether these earnings would have been supplemental. Any uncertainties in establishing the amount of back pay are resolved against the discriminating party. Creekmore, supra @ 8. Thus, I find and conclude that these earnings shall not be deducted from the award of back pay.

   Complainant received $5,800.00 in unemployment compensation. As a matter of law, this amount will not be deducted from Complainant's award. Keene Ebasco Constructors, Inc., Case No. 95-ERA-4 @ 9 (ARB Feb. 19, 1997); Artrip v. Ebasco Services, Inc., Case No. 89-ERA-23, @ 5 (ARB Sept. 27, 1996).

2. Compensatory damages

   Complainant is entitled to compensatory damages under the Act. To recover compensatory damages, complainant must show that he experienced mental and emotional distress caused by Respondent's adverse employment action. Creekmore, supra, @ 12. An award may be supported by the circumstances of the case and testimony about physical or mental

consequences of the retaliatory action to include emotional pain and suffering, mental anguish, embarrassment and humiliation. Id.; Lederhaus v. Paschen, Case No. 91-ERA-13 (Sec'y Oct. 26, 1992). Complainant testified that he was upset when Dr. Milton informed him of the withdrawal of the offer of employment. In addition, Mrs. Agbe testified that Complainant was devastated when he learned he would not be appointed to the research associate position. She explained that Complainant was concerned for the well-being of their family. This evidence is unrefuted, credible, and is hereby accepted. In light of the demonstrated fear of losing employment following an extended period of unemployment from UTMB and the emotional stress and humiliation related to it such as concern for the welfare of his family, I find and conclude that Complainant is entitled to an award of $10,000.00 as compensatory damages. Gaballa v. The Atlantic Group, Case No. 94-ERA-9 (Sec'y Jan. 18, 1996).

3. Attorney fees, costs, expenses

   Lastly, Complainant is entitled to reasonable costs, expenses, and attorney fees incurred in connection with his complaint. 42 U.S.C. § 5851(b)(2)(B). Complainant did not submit an itemization of costs and expenses incurred in connection with his complaint. Moreover, Complainant's attorney did not submit a fee petition detailing the work performed, the time spent on such work, and the hourly rate of those performing the work.

   The Rules of Practice and Procedure before the Administrative Law Judge allow the administrative law judge to make part of the record any motion for attorney fees authorized by statute, any supporting documentation, and any determinations thereon. 29 C.F.R. § 18.54(c). Accordingly, the record will be reopened for the limited purpose of permitting Complainant to make application for his costs and expenses and to permit Respondent an opportunity to respond thereto.

IT IS HEREBY ORDERED THAT:

(1) Respondent reinstate Complainant to his former permanent research associate position or, if no longer available, to a substantially equivalent position with back pay from July 1, 1996 until his reinstatement and provide him with such other benefits as he would have been entitled to had he not been discriminated against. Employer shall receive credit for all compensation and wages heretofore paid, with the exception of his earnings from evening teaching and unemployment compensation, as and when paid.

(2) Respondent shall pay interest on the back pay at the rate specified in 26 U.S.C. § 6621 through the date of compliance with this order.

(3) Respondent shall reimburse Complainant for the costs he incurred for health insurance, medical costs, life insurance, and his retirement fund.

(4) Respondent shall expunge from Complainant's personnel records all derogatory or negative information relating to his employment with Respondent. Respondent shall provide neutral employment references for Complainant and shall not divulge any information pertaining to not continuing Complainant's employment.

(5) Respondent shall pay Complainant $10,000.00 in compensatory damages.

(6) Complainant is granted twenty (20) days from receipt of this Recommended Decision and Order in which to file and serve a fully supported application for costs and expenses including attorney fees. Thereafter, Respondent shall have ten (10) days from receipt of the application in which to file a response.

(7) Respondent shall post the attached Recommended Notice to Employees (Appendix 1) on all bulletin boards of the Texas Southern University campus, and laboratory 201, where Respondent's official documents are posted, for sixty days ensuring that it is not altered, defaced or covered by other material.

   ORDERED this 23rd day of January 1998, at Metairie, Louisiana.

       LEE J. ROMERO, JR.
      Administrative Law Judge

   This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Administrative Review Board, U. S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N. W., Washington, D. C. 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 61 Fed. Reg. 19978 and 19982 (1996).

   After a hearing in which all participants had the opportunity to present evidence, the Administrative Review Board, U.S. Department of Labor, has found that Texas Southern University (Respondent) violated the law, and has ordered the posting of this notice.

   The Employee Protection Provision of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851 (1992), prohibits an Employer from discharging or otherwise discriminating against any employee with respect to his/her compensation, terms, conditions, or privileges of employment because the employee:

(A) notified his employer of an alleged violation of the ERA;

(B) refused to engage in any practice made unlawful by the ERA, 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 the ERA;

(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under the ERA, or a proceeding for the administration or enforcement of any requirement imposed under the ERA;

(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 manner in such a proceeding or in any other action to carry out the purposes of the ERA.

   WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under the Employee Protection Provision of the ERA as enumerated above.

   WE WILL unconditionally offer Dr. Samuel A. Agbe immediate and full reinstatement to his former job as a permanent research associate, or if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges.

   WE WILL make Dr. Samuel A. Agbe whole for any loss of earnings, benefits or other forms of compensation he may have lost, plus interest thereon, because we discriminated against him.

   WE WILL pay Dr. Samuel A. Agbe $10,000.00 in compensatory damages because of the mental or emotional distress imposed upon him as a result of our discriminatory, adverse employment action.

   WE WILL expunge from our records all derogatory or negative information relating to Dr. Samuel A. Agbe.

   WE WILL reimburse Dr. Samuel A. Agbe for costs and expenses, including attorney's fees, incurred in the prosecution of his complaint against Texas Southern University.

         Texas Southern University
             Respondent

Dated:____________       By: ______________________
                            (Representative)  (Title)

(APPENDIX 1)