As a threshold matter, Respondent argues that Complainant is time-barred from pursuing her Complaint in accordance with 42 U.S.C.A. §5851 because she failed to timely appeal the Department's dismissal of her Complaint. Complainant did not address this issue in her brief.

   Upon receipt of a complaint under the Act, the Department's Wage and Hour Division is obliged to conduct an investigation into the merits of the allegations. §5851(b)(2); 29 C.F.R. §24.4(b). Once the Department issues its decision, the complainant has five days to request a hearing, by forwarding either a telegram or facsimile to the Chief Administrative Law Judge. 29 C.F.R. §24.4(d)(2)(i). Computation of this period requires that the day following

the receipt of the decision commences the time period, the fifth day is included in the computation, and intermediate Sundays are excluded since the prescribed period is less than seven days. 29 C.F.R. §18.4(a). If no request for a hearing is made, or the request is untimely or improper in form, the decision becomes final and can be disturbed only upon appeal to the Court of Appeals for the circuit in which the violation occurred. 29 C.F.R. §24.4, §24.6, §24.7. If such a request is properly made, then the Wage and Hour determination has no effect, and the matter is heard by this Office de novo.

   The Department dismissed Ms. Gale's complaint by letter dated April 4, 1997. (RX 4, TR 119). Ms. Gale forwarded a letter dated April 9, 1997, addressed to the Chief Administrative Law Judge, in which she requested a hearing. Examination of the letter as contained in the file forwarded for my consideration reveals that her request was transmitted via facsimile on April 11, 1997.

   The Department dismissed Ms. Gale's Complaint in accordance with 29 C.F.R. §24.4(d)(2)(i). Based on the dates as described above, it is apparent that Complainant's request was timely, even had the Department's letter of dismissal been mailed on the date which appears on its face (Friday, April 4, 1997), and been received the following day (Saturday, April 5). Excluding the day of receipt and Sunday, April 6, in accordance with the above regulations, Ms. Gale had until Friday, April 11 to send her request by facsimile to the Chief Administrative Law Judge, when the matter is considered under conditions most favorable to Respondent. She indeed filed her request on that date. I note that although Respondent addressed only the timing of the request in its brief, Ms. Gale's sentiment was clearly expressed (i.e., "Yes! I want a hearing.") as well. Since her unambiguous request for a hearing was timely submitted, the April 4, 1997 determination is not a Final Order, and the matter is properly before me for my de novo review.

    In order for Complainant to prevail under the Act through reliance upon circumstantial evidence, she must first establish a prima facie case of retaliatory action by Respondent, to wit: that (1) she was engaged in protected activity, (2) Respondent was aware of the conduct, and (3) Respondent took an adverse action against her. Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996); Dartey v. Zack Co. Of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 6-9; Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Complainant must also offer evidence sufficient to raise the inference that the adverse action was likely caused or contributed to by the protected activity. Id.; 42 U.S.C.A. §5851 (b)(3)(C).

    If Complainant establishes this prima facie case, Respondent must produce evidence that the alleged adverse action was motivated by legitimate, non-discriminatory reasons. The Respondent's burden is one of production only. Zinn, supra; Burdine, supra at 254-255.

   In the event that Respondent is successful in articulating the above, Complainant must then show that Respondent's proffered business reasons are mere pretext for discrimination. Id.; Frady v. Tennessee Valley Authority, 92-ERA-19 and 34 (Sec'y Oct. 23, 1995); Samodurov v. General Physics Corp., 89-ERA-20 (Sec'y Nov. 16, 1993). At all times during the above analysis, the burden of showing by a preponderance of the evidence that Respondent was motivated by illegal animus rests with Complainant. Samodurov, supra.

   If it is determined that a violation exists, i.e., that Respondent was motivated at least in part by discriminatory animus, then Respondent, in order to avoid liability, must show by clear and convincing evidence that it would have reached the same decision even in the absence of protected conduct. 42 U.S.C.A. 5851(b)(3)(B).

Testimony

   Complainant and her supervisor, Marilyn Ventura, were the only witnesses to testify at the hearing.

   Complainant testified that she has been a licensed and trained Nuclear Medicine Technician since 1974. (TR 21-22). She began working for Respondent in 1994, when it purchased her prior employer's business. (TR 23). At the time of her discharge, Complainant earned $22.58 per hour, and worked 40 hours per week. (TR 61). Ms. Gale stated that after the business was sold she was told it was going to move. It was then, in March 1994, that she began to ask the Health Physicist to "get the paperwork in order" for the transfer of the area in which she worked, which included a "hot" lab (i.e., one in which radioactive materials were present). (TR 28, 44). He failed to do so, since he did not perform a closeout survey. (TR 29-30). Additionally, in the Spring of 1994 she informed her supervisors, during a heated discussion in which Complainant lost "her cool," that the licenses were not properly transferred to the new facility, which was rectified in approximately August 1994. (TR 30-31).

   Ms. Gale also stated that while working for Respondent, she insisted on being given clear directives as to why a particular nuclear medicine diagnostic study was required, which led to job problems. (TR 33 - 34). The unclear directives led to a "misadministration" of a nuclear medicine test in August 1996, according to Complainant. (TR 35 - 37). A report was not immediately filed with the NRC regarding the incident despite her urging, but eventually such a report was submitted. (TR 38 - 40, 71 - 72).

   Complainant testified that when the facility moved from its prior location, the move was interrupted by an inspection by the Department of Transportation, and that she was informed by same that the transport of radioactive materials was conducted improperly. (TR 96 - 97).

   On September 12, 1995 Ms. Gale was informed by a construction worker that the hot lab was to be moved, although her supervisor, Ms. Ventura (see below), told her the lab would not be affected. (TR 43 - 45). Upon learning of the move, Ms. Gale informed her supervisor that State and Federal permission was required. (TR 45 - 46). When the foreman tried to enter the lab Ms. Gale initially denied access, then relented when she learned the foreman had the combination to the lock on the door. (TR 46). When Complainant informed Ms. Ventura of the need for proper permission, the latter had Complainant call the DEP in order to attain the proper permit. (TR 46 - 48, 77 - 78). Ms. Gale testified that the construction was stopped as a result of the contact with the DEP, although she also stated that Ms. Ventura did not halt the work. (TR 48, 81). Some construction work had been performed in the lab. (TR 79).

   Between September 12 and September 25 the NRC called Ms. Gale and asked her to appear in person and answer questions regarding the facility. (TR 56). She did not believe anyone at the facility was aware of the call. (TR 56 - 58). Subsequently, on September 25, DEP inspectors said they found record-keeping and lock infractions on the premises, according to Ms. Gale. (TR 49 - 50, 83 - 84). She did not see any violation reports, however, since she was discharged the next day. (TR 50, 83 - 84). After her discharge she spoke to the NRC as requested. (TR 58).

   Complainant stated that her employment evaluation had been delayed for 4 months, and she was told she would receive a raise once it was performed. (TR 43). On September 12 she received the document, which was critical of her work. (TR 51, 53). Her prior evaluation, issued May 26, 1995, was "very nice," and led to a raise in pay. (TR 51 - 52). Complainant's sole extended absence from work occurred when, on the advice of Dr. Gorczyca (staff radiologist and a principal owner, who also prescribe a tranquilizer to Complainant), she took a leave of absence due to stress. (TR 35). Her work attendance declined due to her increased stress, beginning in the Spring of 1996. (TR 71). Respondent did not address the issue of absences with Complainant. (TR 71).

   Ms. Gale also commented upon notes written by Drs. Lapidus and Rondina, Respondent's physicians. (TR 125 - 128, RX 10). On approximately September 25, 1996 Ms. Gale sought clarification of a test order from a physician at the facility, which was a routine practice. (TR 125, 132). Since she believed Dr. Lapidus was not a "licensed user," Complainant felt the doctor could not direct her as to the proper course of action, and she informed him of this conclusion. Rather, she waited until the arrival of Dr. Rondina, who was so licensed, to get the necessary advice. (TR 125). She based this opinion upon a prior incident of censure by the NRC caused by an unlicenced physician's injection of radioactive

material into a patient. (TR 127 - 128).

   On September 25, 1996 Complainant observed a defect with a bone scan machine that she felt posed a danger to the patients. (TR 59 - 60). A part of the machine fell, and struck a patient. (TR 89 - 90). Although one physician, Dr. Rondina, urged her to continue (Ms. Gale stated they had an argument over the issue), Dr. Gorczyca agreed that a hazard was present and stopped the tests. (TR 60, 84). Since no new equipment had arrived because Respondent lacked the proper permit, the department was unable to continue testing. (TR 60, 90). The following day Complainant was told by Ms. Ventura that she and Jack Colbert (Respondent's Chief Financial Officer) agreed that Ms. Gale should be terminated. (TR 60 - 61, 152).

   Complainant also testified as to a letter she signed on October 16, 1997 alleging discharge due to sexual retaliation which she sent to the Equal Employment Opportunity Commission (EEOC). (TR 105 - 117). However, she did not agree with this at the hearing, and stated that were she to have the opportunity, she would "not say [she] was fired because of not wanting to cooperate with (her superior)," but rather, she "was fired for safety reasons." (TR 108). She stated that she did not actively pursue the EEOC complaint. (TR 140).

   She further remarked that she was indeed the technician of a patient who complained about her in correspondence to Respondent (TR 120, RX 8). Additionally, Complainant was aware of, but had not seen, a memorandum dated July 22, 1996 authored by Ms. Ventura, which stated that Complainant had eaten in the nuclear medicine examination room. (TR 122 - 124, RX 9).

   After she was released, Ms. Gale forwarded a letter to the NRC regarding her complaint; she stated that she did not have a copy of the letter, however. (TR 92). She also received a letter from the NRC and disputed certain of the statements therein. (TR 93 - 95). Subsequently, she searched for work in her field at Southern Ocean Hospital and a Jersey Shore facility, without success. (TR 63 - 64). She is also on two headhunter lists. (TR 63 - 64). However, the nearest jobs were more than an hour away, and she thus could not accept the positions. (TR 64). Currently, Ms. Gale is a waitress. (TR 64). Since she lost her Nuclear Medicine Technician position she received unemployment compensation payments for a period, and then she began her waitress position, at which she earns approximately $300 weekly. (TR 64). Additionally, she has spent approximately $41,300 in savings and IRA funds in order to meet her expenses since she was terminated. (TR 65 - 68).

   Marilyn Ventura, Respondent's office manager, also testified at the hearing. (TR 146 - 202). She was Complainant's supervisor from approximately October 1995 to September 26, 1996. (TR 147). Ms. Gale was a satisfactory employee (with the exception of her stated mistrust of Employer's main office) until Spring of 1996, and her file contained no patient complaints, other than that of Ms. Meara. (TR 147 - 148, 188, RX ). Complainant then began to

criticize Employer before patients and staff, creating a morale problem. (TR 148 - 149). Although Ms. Ventura addressed Complainant's concerns, she did not react positively. (TR 149).

   According to Ms. Ventura, Complainant was absent for "the week" (apparently for a total of four sick days) in early May 1996 due to neck pain. Ms. Ventura was unable to reach Complainant by telephone during this period, and upon her return she did not provide a physician's note, despite her supervisor's request. (TR 150 - 151). Office policy required such a note for sick leave in excess of three days. (TR 180 - 181). Ms. Gale's testimony regarding her leave of absence in late May 1996 was essentially accurate. (TR 151 - 152). Compared to Employer's other technicians from the Spring of 1996 to September 26, 1996, Ms. Gale's attendance was poor. (TR 154). Her absences led to rescheduling problems with patients and difficulties with referring physicians. (TR 154 - 155). Complainant usually arranged for a substitute when she was absent. (TR 183). Ms. Ventura also stated that Complainant's only violation of Employer's absentee policy was her failure to produce the above-mentioned note, required by the use of one extra sick day over three days, and that she "probably did" have much sick time accumulated when she was dismissed. (TR 180 - 181).

   The August 1996 misadministration of the bone scan (see above) occurred because the test order was not investigated, despite the presence of an apparent inconsistency in the order. (TR 156). Ms. Gale did not seek clarification of its contents, and admitted that she was unable to interpret the abbreviation it contained. (TR 156). Moreover, Ms. Gale injected the dye into the patient. (TR 157). Dr. Rondina believed Complainant was responsible for the misadministration, according to Ms. Ventura. (TR 157 - 158). Ms. Ventura agreed that "the misadministration occurred . . . as a result of Ms. Gale's attempt to interpret an unclear scrip from a referring physician," and added that she should have sought clarification from a staff physician if it was unclear. (TR 185). The incident was reported to the NRC. (TR 160, RX 13).

   The employee evaluation of September 5, 1996 (see below) reflects a notation by Ms. Ventura that Complainant voiced criticism and failed to offer solutions. (TR 171). Dr. Mezzacappa completed the numerical ratings contained therein, which were based on a scale of 0 to 60 (a score rarely attained). (TR 172). Ms. Ventura discussed Complainant's unsatisfactory score of 19 with Complainant on September 25, 1996. (TR 172). In general, the office manager and the staff doctors may contribute to an evaluation. (TR 190). However, no physicians offered input into Complainant's prior evaluation. (TR 191).

   With regards to the aforementioned hot lab incident of September 12, 1996, Ms. Ventura confirmed that Complainant expressed concerns over the pending construction due to the absence of the requisite approvals. No work occurred in the lab while Ms. Gale sought the approval at Ms. Ventura's behest, and the lab was not damaged. (TR 174 - 176). Ms. Ventura stated Complainant's concerns were appropriate and that Ms. Ventura was not

angered because Ms. Gale raised these issues. (TR 174). The fault for failing to obtain the proper permits to transfer the hot lab rested with two staff employees (a doctor and a physicist), and was not Complainant's responsibility. (TR 186 - 187). Had the move been executed without the proper permits, Ms. Ventura believed, it would have been a violation. (TR 195).

   Ms. Ventura also recited the occurrence of September 25, 1996, which she was "told," and which echoed, in large part, the notes at RX 10 and 11 (see below). (TR 177 - 178). According to Ms. Ventura, on that day Dr. Lapidus' name was not on the license in the office, but he was on the Freehold Radiology Group license, which was comprised of the office radiologists. (TR 192). Thus, Dr. Lapidus was permitted to make nuclear medicine decisions. (TR 192). Ms. Ventura perceived that the main discrepancy in that instance was the manner in which Ms. Gale expressed her belief in Dr. Lapidus' lack of authority to make such decisions. (TR 200).

   The determination to terminate Complainant was made by Ms. Ventura, Mr. Colbert and the staff doctors, according to Ms. Ventura. It resulted from Ms. Gale's unexplained absences, insubordination and outbursts before patients and coworkers. (TR 179 - 180). Ms. Gale's expressed concerns over possible violations of the Nuclear Regulatory Act or DEP regulations played no part in her dismissal, according to Ms. Ventura. (TR 179). She further stated that Ms. Gale's termination was conducted like any other. (TR 197).

   I find that Complainant's testimony was, in large part, credible and was offered with a candor that I accept. I note that at times she conveyed inconsistencies which diminished her credibility as to that portion of her testimony. For example, the shift in her position that her discharge was motivated, at least in part, by sexual discrimination suggested a certain flexibility in her testimony, an impression which was not completely dispelled by her explanation. Additionally, her response to questions regarding the incident in which she consumed food in the lab conveyed evasiveness. However, the flaws which were present were not so substantial as to undermine her testimony as a whole. Additionally, her testimony for the most part was not contradicted by that offered by her supervisor. Thus, I find Complainant's testimony worthy of weight in this instance. Ms. Ventura's testimony was convincing and lacked contradiction, and I therefore accord her testimony substantial weight in my consideration of this matter.

Documentary Evidence

   The parties submitted the following documents for my consideration of this matter:

   Certification documents for Complainant's position as a nuclear medicine technician, as well as her resume, appeared in the record. (CX 1, 2). Additionally, letters of recommendation from Stanley W. Siegler, M.D. and Robert J. Gorczycz, M.D. attesting to the

high quality of Ms. Gale's work were presented, as were documents which showed she had given presentations relating to her field. (CX 3). The record also contained a letter dated August 24, 1996, apparently written by a patient, which commended Ms. Gale's work. (CX 15). Moreover, Complainant's employee evaluations of May 26, 1995 and September 5, 1996 were presented. (CX 6, 7). In May 1995 Ms. Gale summary score, based upon criteria such as knowledge, courtesy, cooperation and attendance, fell between "exceptional" and "clearly outstanding." (CX 6). She was said to "handle all aspects of her department" and was given a raise. Her September 5, 1996 evaluation reflected a summary score between "some deficiencies present" and "satisfactory," and accompanying notes related that her judgement, stability, unscheduled absences, lack of doctor's notes for same and vocal criticism of the office were issues of concern. Ms. Gale was given a 2% raise. (CX 7).

   Complainant's 1994 and 1995 tax forms, mutual fund statements and September 26, 1996 and September 28, 1997 pay stubs (the former for her nuclear medicine technician job, the latter for her waitress position) were included as well. (CX 8, 10 - 13). Further, a balance statement for a January 24, 1996 test performed upon Complainant at Respondent's facility was in the record. (CX 9).

    A letter dated October 27, 1995 from the DEP to Dr. Mezzacappa was submitted, which reflected that no noncompliance was detected after a recent inspection. (CX 5).

   The record contained a letter from the NRC to Peter M. Mezzacappa, M.D., in his capacity as Medical Director and Radiation Safety Officer (RSO). (RX 6). It stated that, upon investigation, Complainant's allegation of discharge due to contact with regulatory officials lacked sufficient evidence, and that a final decision regarding enforcement action was withheld, pending my decision on the matter. (RX 6).

   Complainant, dated February 25, 1997. (RX 5). It set forth fourteen concerns raised by Ms. Gale, including the issues of lack of approval for moving the facility, unauthorized injection of a radiopharmaceutical, unapproved relocation of the hot lab and a misadministration of a test procedure. After inspecting the facility and considering the information she provided, the NRC found only one violation, namely, the absence of the RSO's initials on certain documents. The letter referred to the infraction as "minor." (RX 5).

   A copy of Complainant's charge of discrimination pursuant to Title VII of the Civil Rights Act of 1964 appeared at RX 7. Therein Ms. Gale alleged sexual misconduct toward her and other employees at X-Ray Associates. (RX 7).

   Various documents drafted on behalf of Respondent were also in the record. (RX 8 - 14). These included a letter dated April 29, 1996 from Dr. Mezzacappa and Ms. Ventura to a patient apologizing for the manner in which she was treated by the technologist

during an office visit appeared at RX 8. Also submitted was a personnel note indicating that Complainant was seen eating in the nuclear medicine examination room, and notes by Drs. Lapidus and Rondina conveying that on September 25, 1996 Ms. Gale chose not to observe Dr. Lapidus' instructions as to how to clarify a test order, since he was "not on the license." (RX 11, 12). A report addressed to the NRC dated August 21, 1996 was in the record as well. It set forth the details of the August 16, 1996 misadministration of a radiopharmaceutical into a patient. Complainant injected the wrong isotope because she assumed the patient needed a bone scan, and the referring physician's note was not clear. Corrective actions were set forth in the report. (RX 13). Letters from Respondent to the NRC requesting amendment of its license and setting forth the intended changes to its hot lab are in the record as well, and are dated from September 16 to October 2, 1996. (CX 16).

   A memorandum written by Ms. Ventura to Mr. Colbert dated June 15, 1996 was also submitted. Described therein were incidents and observations from May 6, 1996 to June 10, 1996, including Ms. Gale's absences beginning on May 6 (and her failure to provide a doctor's note for same), May 29 and June 4, her concerns voiced before patients regarding the low supply of x-ray film, and her agitation in the office. The final note, dated June 10, indicated that Complainant returned to work, presented a doctor's note for the absence and "appears to be much calmer." (RX 14).

   Respondent's admissions, rendered pursuant to Complainant's request, were submitted for my consideration as well. (CX 17). They reflected that Ms. Ventura directed Complainant to contact the DEP during the aforementioned hot lab alteration, and that Respondent retained the proper permits, without which no procedures could be performed. Further, Respondent denied knowledge of citations having been issued due to Complainant's actions. Respondent also stated that employee evaluations occur as close as possible to an employee's hiring anniversary date, although delays are not uncommon. Complainant received hers on September 5, 1996. (CX 17).

   In light of the above summarized testimony and documentary evidence, and the aforementioned considerations as to credibility, I find that Complainant is an experienced, thoroughly skilled nuclear medicine technician, and she worked for Respondent from 1994 to September 26, 1996. She was generally (but not entirely) well regarded by patients, staff and management, although by September 5, 1996 general concerns were raised by two staff physicians and her supervisor regarding Complainant's judgement, stability and work attendance. On July 22, 1996 Ms. Gale was observed eating in the nuclear medicine examination room. After a four day leave of absence from late May to early June, 1996 Complainant failed to produce a doctor's note, contrary to Respondent's policy that a note is required for absences in excess of three days. On August 16, 1996 Ms. Gale incorrectly administered a

radiopharmaceutical into a patient, and the incident was reported to the NRC. Shortly thereafter, the chief financial officer essentially informed her that her position was secure. On September 12, she was given her written evaluation, which was drafted on September 5, and which was less favorable than that issued previously. Further, on that day she informed Respondent that it would be in violation of State and Federal laws and regulations if it proceeded with its plan to move the "hot lab" without the requisite approvals. At her supervisor's direction, she called the DEP to attempt to obtain the necessary permits. On September 25, 1996 Ms. Gale attempted to obtain clarification of a written order, and in doing so informed a physician that she could not follow his advice on the matter since his name was not on the business' radiology license. The following day, Ms. Gale was discharged.

   I find that Complainant has satisfied her prima facie case. That she was engaged in protected activity is apparent.

   Complainant contends that she engaged in two actions that constituted protected activity pursuant to the Act, namely, her notice to Ms. Ventura that the move of the hot lab required permit approval, and her subsequent call to the DEP to obtain said approval. Complainant's Brief at 5. Respondent did not address whether these actions were protected by the Act.

   Ms. Gale's communication of the need for proper State and Federal approval for the lab alterations/move constituted protected activity. Notifying an employer of an alleged violation of the Act is explicitly protected by the Act. 42 U.S.C.A. §5851(a)(1)(A). Moreover, it is established that reporting defects related to permits and licenses is protected. Abu-Hjeli v. Potomac Electric Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993). Since Complainant indicated to her supervisor that the proper permits pertaining to movement of the nuclear medicine laboratory were absent, an assertion confirmed by her supervisor's testimony, the incident was protected by the Act. Moreover, contacting Federal and local authorities regarding alleged violations of the Act is protected as well, so long as the perception of their occurrence or presence is reasonable. Pensyl v. Catalytic, Inc., 83-ERA-1, slip op at 7 (Sec'y Jan. 13, 1984); see Ivory v. Evans Cooperage, Inc., 88-WPC-2 (Sec'y Feb. 22, 1991). "Whether the belief is reasonable depends on the knowledge available to a reasonable [person] in the circumstances with the employee's training and experience." Pensyl, supra. Therefore, it is apparent that Ms. Gale's contact with the DEP, a State authority, regarding the lack of proper approval was indeed protected. The facility had not acquired the requisite approvals, as shown by the testimony of Ms. Gale and Ms. Ventura, and Respondent's admissions, and thus it is evident that Complainant's belief was reasonable. Although Complainant was directed by her supervisor to call to acquire the proper permission, it is not apparent from the record that the call was thereby rendered unprotected, particularly since it was a consequence of her raising the permit absence issue. For these reasons, and in the absence of argument to the contrary, I find that Complainant engaged in protected activity within the meaning of the Act when she performed these actions.

   That Respondent was aware of Complainant's protected activity is not in dispute. Complainant expressed her concerns directly to Respondent's employee, i.e., her supervisor. Indeed, the supervisor acted upon Complainant's notification, and directed her to attempt to rectify the situation by calling the DEP. Respondent did not contest this issue in its argument, and I find it clear from the testimony and exhibits that Respondent was aware of Complainant's expression of her concerns of relocation/alteration of the nuclear medicine laboratory without proper NRC and DEP approval, which, as stated above, was protected activity. She therefore satisfies this element of his prima facie case.

   The record also establishes that Respondent effected an adverse act upon Complainant. Her employment was terminated on September 26, 1996, a fact on which all parties agree. Discharge of an employee is clearly an adverse act in accordance with the Act. 42 U.S.C.A. §5851(a)(1). I note that Ms. Gale's most recent and rather disparaging evaluation does not satisfy this element, since it was completed prior to the asserted protected activity. Although Complainant received the report on September 12, the document is dated September 5, 1996, and Complaint offered no evidence suggesting that the date was incorrect. However, Respondent has not contested the issue of Ms. Gale's discharge, and I thus find that Complainant has satisfied this element of her prima facie case as well.

   Complainant has also satisfied the final element of her prima facie case, that is, she presented evidence sufficient to raise the inference that the adverse action occurred as a result of her protected activity. Where protected activity and an adverse action occur within a close period of time, that coincidence constitutes solid evidence of causation, an inference of a retaliatory motive is justified, and a prima facie case of retaliatory discharge is established. Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996). The actions which Complainant asserted were protected preceded her adverse evaluation and termination by approximately two weeks. This proximity between her protected activity and Respondent's adverse action is sufficiently close in time so as to raise the inference of retaliatory motive, thereby satisfying Complainant's prima facie case. See Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994) (six month period between protected activity

and adverse action sufficient to raise inference of causation); Thompson v. Tennessee Valley Authority, 89-ERA-14 (Sec'y July 19, 1993) (two week period). Contrary to her assertion, however, the manner in which the September 1996 evaluation was completed does not support Complainant in this regard. The record did not reveal that input by the staff physicians was significantly unusual; Complainant did not so testify, and her supervisor stated that sometimes the evaluations of the staff at large included such comments, when the physicians believe the case warrants it. Similarly, no evidence was presented which showed that the delay was particularly or unusually lengthy, nor to counter Respondent's admission that such delays were not uncommon. However, since Complainant established the aforementioned proximity between protected activity and adverse action, I find that she satisfied this element of her prima facie case.

   The inquiry does not end there, however, for while establishment of this temporal nexus is sufficient for the purposes of Complainant's prima facie case, it is only one factor for consideration of the ultimate question as to whether a complainant has proved by a preponderance of the evidence that retaliation was a motivating factor in the adverse action. Jackson v. Ketchikan Pulp Co., 93-WPC-7 and 8 (Sec'y Mar. 4, 1996). Employer is next afforded the opportunity to rebut this inference by producing evidence of a legitimate, nondiscriminatory reason for the adverse action. Zinn, supra at 4. Respondent's burden in this regard is one of production, not persuasion; that is, Respondent need only produce evidence of such a rationale to satisfy its burden, and need not convince the trier of its verity. Bausemer v. TU Electric, 91-ERA-20 (Sec'y Oct. 31, 1995), citing Kahn v. United States Secretary of Labor, 64 F.3d 271, 278 (7th Cir. 1995).

   Respondent has done so here. It contends that Complainant was discharged for being rude to a patient, violating hygiene and safety procedures, absenteeism and confrontational and disrespectful behavior toward a staff physician, rather than for whistleblowing activity. Respondent's Brief at 5 - 6. In support of these contentions, Respondent presented evidence of a written apology issued for Complainant's treatment of a patient, file notes documenting eating in an improper area, a radiopharmaceutical misadministration and missed workdays in May and July 1996 (supported by testimony), and notes and testimony by physicians and Complainant's supervisor reflecting a conflict with a staff doctor on September 25, 1996. The verity of the documentary evidence was not challenged in this respect. With these proofs, Respondent has satisfied its evidentiary burden, and has adequately articulated legitimate, nondiscriminatory reasons for its adverse action.

   At this point it is incumbent upon Complainant to show that Respondent's proffered reason is mere pretext for the actual motive, i.e., to discriminate against Complainant because she undertook protected activity. Zinn, supra; Frady, supra. This is so because the burden of showing that the employer's adverse action was discriminatory rests at all times with the complainant. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). She may show the reason to be pretextual by showing that an unlawful reason was more likely the cause of the discharge, or that the proffered explanation is unworthy of credence. St. Mary's, supra; Nichols v. Bechtel Construction, Inc., 87-ERA-44 (Sec'y Oct. 26, 1992), slip op. at 13.

   Complainant so proved here. I find the reasons asserted above were pretextual in nature, and do not counterbalance Complainant's prima facie case. Ms. Gale's exemplary skills and record of service were well documented in the record by her resume, prior evaluation, letters from her prior employer, a staff physician and a patient. These convey an impression of Complainant that substantially outweighs the single incident which prompted the letter at RX 8. Moreover, I note that Respondent did not counter Complainant's assertion that on September 5, 1995 (which was after the incident) Mr. Colbert conveyed to her that "nobody wants to get rid of or fire" her. (TR 43). No other such encounter was

documented or attested to by Respondent's witness. When considered together, I conclude that this incident did not lead to her discharge. Additionally, Complainant's meal in the lab appears a pretextual rationale; on this record I discern that it was an isolated occurrence, no disciplinary action was taken at the time, no evidence was presented showing that it was mentioned to Complainant, and it preceded her release by over two months.

   Further, the record does not show Complainant was discharged due to a confrontational and disrespectful encounter towards Dr. Lapidus on September 25, 1996. Respondent's Brief at 5. I find the two letters at RX 10 and 11 do not adequately convey these sentiments, but rather, indicate her belief that she is bound to follow a certain policy. Neither physician testified at the hearing to indicate otherwise. Ms. Ventura's perspective was derived from an unspecified source, and I thus accord little weight to her characterization of the encounter. Additionally, although she stated that Complainant was the source of "constant outbursts in front of the patients and other coworkers" and created a morale problem, the only incident she specified was Complainant's May 24, 1996 statement in front of patients that the office lacked x-ray film. (TR 148 - 149, RX 14). Ms. Ventura's memorandum of June 15, 1996, which was drafted much closer in time to the occurrence than her testimony, conveys little more than that Ms. Gale believed the office was low on the supply of film. In sum, I do not find factual support in the record for Respondent's contention that Complainant was released for insubordination, disrespect and displaying poor attitude in the workplace.

   Moreover, I find that the misadministration of the radiopharmaceutical on August 16, 1996 lacked credibility as a basis for Ms. Gale's discharge as well. Complainant's contention that her superior informed her that "there was no problem; it wasn't a misadministration and [she] shouldn't worry about it" and that she should do "nothing," was uncontradicted, and indicates that while an infraction took place, it was not deemed sufficiently errant to warrant disciplinary action. (TR 36 - 37). That this reaction followed shortly after the error occurred further tends to show that the scope of Complainant's infraction was not of a scale that warranted discharge in Respondent's view. The lapse of over one month between the misadministration and Respondent's adverse act also lends support for so concluding. Moreover, I find no indication in the record that the infraction was raised with Complainant subsequent to her conversation with Mr. Murphy for the purposes of completing his report of the incident to the NRC. The unsigned letter at RX 12 addressed Ms. Gale's culpability for the mistake and the doctor's actions toward the patient thereafter, and does not address the gravity of the from Respondent's perspective. It is therefore of limited probative value on this issue. Thus, for the aforementioned reasons, I find the "misadministration rationale" is unworthy of credence, and served as a pretext in this matter.

   Complainant's work attendance appears similarly pretextual. Although Respondent conveyed that Complainant's "record of absenteeism" was a reason for her discharge, and that her attendance was "poor," the record refers with specificity only to Complainant's absences in May and early June, 1996. There is no indication that

Complainant violated Respondent's policy with regard to using sick leave; rather, it is clear from Ms. Ventura's testimony that the sole infraction of Respondent's sick leave policy was that Ms. Gale failed to procure a physician's note for using one additional sick day, which was not cited as a reason for her discharge. Complainant's excess sick days at the time she was released supports this view, as does the fact that she mitigated Respondent's inconvenience by scheduling a substitute technician during these absences. Respondent's contention that Ms. Gale's use of sick leave caused trouble with patients and referring doctors was vague and conveyed the impression that any use of sick leave would have been inconvenient, given the nature of Complainant's work. Absences due to illness may not be well timed and are usually inconvenient when taken by a valued employee; that they are grounds for dismissal is not assumed, particularly where, as here, no showing has been made that they run counter to the employer's sick days policy. Additionally, the approximately 3.5 months between these absences and Complainant's termination lends further support for concluding that Respondent's explanation in this respect is unworthy of credence. Frady, supra.

   For the foregoing reasons, I find that Complainant has shown Respondent's proffered reasons for the discharge to have been pretextual in nature. A decision to discharge violates the ERA only if it was motivated by discriminatory animus, and Complainant bears the burden in this respect. Id.; Dysert, supra. In light of the above, I find that the preponderance of the evidence weighs in Complainant's favor, and she has thus established that she was discharged because she undertook protected activity. Zinn, supra.

   An employer may avoid liability, however, if it demonstrates that it would have taken the same adverse action even were the complainant not to have engaged in protected activity. 42 U.S.C.A. §5851(b)(3)(A). The employer must do so by means of clear and convincing evidence. Id; Yule v. Burns Int'l Security Serv., 93-ERA-12, slip op. at 7-13 (Sec'y May 24, 1995).

   Respondent has made no such argument here. Additionally, as stated above, the sole reasons presented for Complainant's release lack sufficient indicia of their contribution to the discharge in the record. Since Complainant established that her whistleblowing activity contributed to Respondent's adverse action, and Respondent did not present evidence adequate to show an alternate legitimate cause for Complainant's dismissal, and did not argue this issue, no dual motive appears to have been present. Moreover, although the September 5 evaluation and Ms. Ventura's testimony convey dissatisfaction with certain aspects of Ms. Gale's work, both were unspecified, general assertions for the most part. As discussed above, those examples that were specified were not shown to have contributed to her discharge.

   For the above reasons, I find that Complainant is entitled to relief pursuant to the Act.

Damages

   If a violation of the Act is determined to have occurred, the complainant

may be reinstated to her former position, and may recover compensatory damages. §5851(b)(2)(B). Additionally, back pay/lost wages may be awarded, provided it is intended to make the employee whole, i.e., to restore the employee to the same position she would have been in if she had not been discriminated against. See Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y Oct. 30, 1991), slip op. at 11; Artrip v. Ebasco Services, Inc., 89-ERA-23 (Sec'y Mar. 21, 1995). The burden of so proving rests with the complainant. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y July 19, 1993). Unemployment compensation received in the interim is not deducted when calculating the back pay award, although interim earnings (and earnings reasonably capable of being earned) are so deducted. See Sprague v. American Nuclear Resources, Inc., 92-ERA-37 (Sec'y Dec. 1, 1994), slip op. at 7. The Secretary requires that interest on back pay be awarded as well. Sprague, supra. Further, costs and expenses, including attorney's fees, reasonably incurred in bringing the complaint may be awarded. See generally Wells v. Kansas Gas & Elec. Co., 85-ERA-72 (Sec'y Mar. 21, 1991), slip op. at 17; DeFord v. Secretary of Labor, 700 F.2d 281, 288-289, 191 (6th Cir. 1983).

   In the instant matter, neither party has suggested that Complainant be reinstated, and the testimony of Ms. Ventura clearly shows that such a remedy is not plausible here. Complainant has requested $71,047.11 for lost wages compensation. She submitted uncontradicted, probative evidence that she was granted a 2% raise in her last evaluation, she earned $22.58 per hour when she was terminated, and she earned $45,430.28 in her prior full year of employment. (CX 7, 10, 12). She credibly calculated a 1996 wage loss from September to December, 1996 of $12,339.11. I find this amount to be credibly based on the remaining days of 1996. Based on these prior earnings, with no additional raise assumed, Complainant contends that she would have earned $46,966.40 in 1997 and $11,741.40 in the first quarter of 1998, for a gross total of $71,047.11 in lost wages. These amounts adequately approximate her losses during these periods. Ms. Gale has earned $4,462 as a waitress since she was discharged. When deducted from her foregone wages, Complainant's adjusted lost wages amount to $66,585.11. I note that Respondent submitted no evidence or argument regarding an offer to reinstate Complainant, or her ability to mitigate her back pay losses through procurement of other employment in her field.

   Complainant also contends that she is entitled to recompense for her diminished savings, as follows: her mutual fund ($2,350.68) and IRA account ($34,213.74) was liquidated in order to meet expenses, and to refinance her residential mortgage, as a result of her discharge. (CX 8, TR 65 - 68). Her credit union savings account was also depleted as a result. ($3,865.16). Ms. Gale stated that her entire lost savings amounts to $40,429.57. Complainant, therefore, contends that she is entitled to a total of $98,014.68 as a result of Respondent's discriminatory act. I do not find sufficient support for such an award in the record, as she indicated that these amounts were expended due to the absence of income provided by

Respondent. In light of her aforementioned recovery of back pay, payment for such losses would amount to a double recovery, since these funds were a substitute for her lost salary. Such exemplary damages are not provided for by the Act. While there may be additional expenses incurred by Complainant as a result of her discharge (e.g. foregone income from her mutual funds, home refinancing charges, etc.), I cannot discern such amounts from the insufficient evidence, and the argument provided.

   Complainant has established that she engaged in protected activity in accordance with the Act, that Respondent was aware of the activity, and that it undertook adverse action against Complainant as a result. Although Respondent articulated legitimate, nondiscriminatory reasons for its action, they were pretexts for its discriminatory acts, which was shown by a preponderance of the evidence to have been motivated solely by Complainant's whistleblowing activity. Consequently, she has shown that Respondent violated the Act, and that Complainant is therefore entitled to relief pursuant thereto. Her attorney is entitled to fees for services reasonably associated with the prosecution of this matter. However, I have not been supplied the requisite petition therefore.

   In accordance with the above findings of fact and conclusions of law, and the requirements set forth at 29 C.F.R. §24.7(c)(1) and (2), Respondent is hereby ORDERED to pay Complainant Katherine A. Gale $66,585.11 in compensation for back pay, and interest on same in accordance with 29 C.F.R. §20.58(a), at the rate specified in the Internal Revenue Code at 26 U.S.C. §6621.

   For the foregoing reasons I recommend that Complainant Katherine A. Gale's request for relief pursuant to the ERA be granted in the amount set forth in the above preliminary order. Upon the filing of a petition for attorney fees, costs and disbursements in conjunction with this litigation by Complainant's attorney, Respondent will have fifteen (15) days to file objections and exceptions pertaining thereto. The petition is to be filed with this office within fifteen (15) days of the receipt of this decision by Complainant's counsel. Respondent will be afforded a like period to assert any objection or exception.

       Ainsworth H. Brown
       Administrative Law Judge

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, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received within ten 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. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).