DATE:  October 3, 1994
CASE NO. 92-ERA-58


IN THE MATTER OF

JOHN KAHN,

          COMPLAINANT,

     v.

COMMONWEALTH EDISON CO.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                            DECISION AND ORDER    

     The Administrative Law Judge (ALJ) recommended dismissal of
this complaint arising under the employee protection provision of
the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. §
5851 (1988).  This case is now before me on review of the ALJ's
Recommended Decision and Order (R.D. and O.).   Although I find
that the complainant established a prima facie case of a
violation of the ERA, I agree with the ALJ that the complaint
should be dismissed because Complainant has not sustained the
ultimate burden of persuasion.
     I. Facts
     Starting in July 1991, Complainant John Kahn worked as a
quality control auditor at Respondent Commonwealth Edison's
(Edison's) Zion nuclear station.  T. 21-22.  On Kahn's first day,
he was so sarcastic, argumentative and condescending to
Industrial Relations employee Susan White that White complained
to her boss about it.  T. 163-164.  On two other occasions that
month when Kahn inquired about a delay in receiving his initial
paycheck, his demeanor was loud and abusive and consequently
Cheryl Orsini complained to her department's assistant manager. 
T. 155-158.  Kahn's supervisor, David Bump, counseled him about 
[PAGE 2]
the inappropriateness of his conduct toward Orsini and White.  
T. 196-197; RX 1.  Kahn blamed Orsini for any problem and
complained that he did not appreciate the "kangaroo court" that
faulted him for his behavior.  T. 196-97; RX 1.
     Shortly thereafter, clerical worker Kathy Wagner complained
about Kahn's use of suggestive language and inappropriate
touching.  T. 172- 174.  Kahn admitted touching Wager.  T. 38,
204.  Human Resources supervisor Norman Breseman warned Kahn that
his behavior violated the company's policy against sexual
harassment and that further incidents could lead to his
discharge.  T. 424-425; RX 14.     
     Bump received complaints that Kahn was not getting prior
approval for working overtime and that Kahn was abrasive with  
workers in organizations that he audited.  T. 211-214; RX 7. 
Kahn blamed the "undue resistance" of the audited organizations
for the complaints about his attitude.  T. 215; RX 4.
     During the course of his employment, Kahn complained to his
managers about several safety issues.  T. 53-56, 59-60, 67-70,
72.     

     In April 1992, team leader Robert Whittier spoke with Kahn
about certain audit work that had not been completed as required. 
T. 336-337; RX 9.  Kahn got loud, verbally abusive, and twice
poked Whittier in the chest.  T. 339-340; RX 9.  In turn,
Whittier also used loud, offensive language.  T. 340-341.  Other
workers attempted to intervene and calm Kahn and Whittier.  
T. 285, 341; RX 5, 8.  
     A short time after the Kahn-Whittier confrontation,
supervisors met with Kahn to get his version of the incident.  
T. 232-234.  Kahn blamed Whittier for the shouting match.  
T. 234.  After speaking with Kahn, the supervisors decided to
discharge Kahn because of the number of incidents of his
arrogant, unacceptable behavior during ten months of employment. 
T. 405-406; RX 12.  Edison offered Kahn the choice of resigning
or being fired, and Kahn chose to resign.  T. 235.  
     After Kahn's termination, he reported safety concerns to the
Nuclear Regulatory Commission (NRC).  T. 118.  He filed this
complaint alleging that Edison forced him to resign because he
had made safety complaints.  
     II. Analysis
     Under the ERA's employee protection provision, an employer
may not discharge or discriminate against an employee because the
employee:
     (1) commenced, caused to be commenced, or is about to
     commence a proceeding under [the ERA] or the Atomic
     Energy Act of 1954 . . . or a proceeding for the
     administration or enforcement of any requirement 
[PAGE 3]
     imposed under [the ERA] or the Atomic Energy Act of 1954 . . .;

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

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

42 U.S.C. § 5851(a) (1988). [1]   There is no dispute that
Kahn is an employee and Edison is an employer subject to the ERA. 

     To make a prima facie case, the complainant in a  
whistleblower case must show that he engaged in protected
activity, that the respondent subjected him to adverse action,
and that respondent was aware of the protected activity when it
took the adverse action.  Complainant must also raise the
inference that the protected activity was the likely reason for
the adverse action.  Dartey v. Zack Co. of Chicago, Case
No. 82-ERA-2, Sec. Ord., Apr. 25, 1983, slip op. at 8.
      As the ALJ found, R.D. and O. at 6, Kahn's internal safety
complaints to managers constituted protected activities under the
ERA.  Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1513
(10th Cir. 1985) cert. denied, 478 U.S. 1011 (1986);
Mackowiak v. University Nuclear Systems, Inc., 735
F.2d 1159, 1163 (9th Cir.)  But see, Brown & Root, Inc.
v. Donovan, 747 F.2d 1029 (5th Cir. 1984) (ERA protects only
complaints to governmental bodies). [2]      Edison took adverse
action against Kahn when it gave him the option of resigning or
being fired, which constituted a constructive discharge. 
See Earwood v. D.T.X. Corp., Case No.
88-STA-21, Dec. and Ord. of Remand, Mar. 8, 1991, slip op. at 6
(constructive discharge is when employee involuntarily quit or
was coerced into quitting).  In addition, Edison was aware of
Kahn's protected activities when it constructively discharged
him, since his safety complaints were made to his Edison
supervisors.
     The final element of a prima facie case is raising the
inference that the complainant's engaging in protected activities
motivated the adverse action against him.  Temporal proximity
between the protected activities and the adverse action may be
sufficient to establish the inference.  Couty, 886 F.2d at
148  (temporal proximity sufficient as a matter of law to
establish final element in a prima facie case).
     Kahn complained to his managers about safety issues during
the ten months of his employment with Edison.  R.D. and O. at 5. 
In view of the brief time that elapsed between the safety 
[PAGE 4]
complaints and the constructive discharge, I find that Kahn
introduced evidence sufficient to raise an inference that his
protected activities likely motivated the discharge.  See
Thomas v. Arizona Public Service Co., Final Dec. and Order, 
Sept. 17, 1993, slip op. at 19 (one year constituted sufficient
temporal proximity to raise inference of causation); Goldstein
v. Ebasco Constructors, Inc., Case No. 86-ERA-36, Case No.
86-ERA-36, Sec. Dec., Apr. 7, 1992, slip op. at 11-12,
reversed on other grounds sub nom.  Ebasco
Constructors, Inc. v. Martin, No. 92-4567 (5th Cir. Feb. 19,
1993) (passage of seven or eight months sufficient).  I therefore
find that Kahn established a prima facie case of a violation of
the ERA.
     Once Kahn established a prima facie case, Edison had the
burden of coming forward with a legitimate, nondiscriminatory
reason for the discharge.  See Dartey, slip op. at
8.  It did so by outlining Kahn's abusive and inappropriate
behavior toward White, Orsini, Wagner, and Whittier.
     Once Edison articulated a legitimate reason for taking the
adverse action, Kahn had the burden of persuading that the
legitimate reason was a pretext for discrimination. 
Dartey, slip op. at 8.  At all times, Kahn had the burden
of showing that the real reason for the adverse action was
discriminatory.  Thomas v. Arizona Public Service Co.,
Case No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip
op. at 20; St. Mary's Honor Center v. Hicks, 113 S.Ct.
2742, 125 L.Ed. 2d 407 (1993).
     The evidence of record overwhelmingly supports the reason
Edison gave for discharging Kahn, his inappropriate behavior and
language toward co-workers, which culminated in the shouting and
poking incident with his team leader, Whittier.  I adopt the
ALJ's discussion of the voluminous evidence indicating that
Edison constructively discharged Kahn because of his behavior and
not for reasons proscribed by the ERA.  R.D. and O. 8-12. [3] 
     I find that Kahn has not sustained his burden of persuading
that the reason Edison articulated for his discharge was not
credible or that Edison discharged him for an unlawful reason
under the ERA.  Accordingly, the complaint is DISMISSED.

     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]  Section 2902(b) of the Energy Policy Act of 1992, Pub. L.
102-486, 106 Sat. 2776, amended the employee protection provision
for claims filed on or after the date of its enactment, October
24, 1992.  See Section 2902(i) of Pub. L. 102-486.  This
complaint was filed in May 1992, so the 1992 amendment does not
apply.

[2]  Since Kahn's complaint to the NRC occurred after he was
asked to resign, it does not constitute a protected activity in
this case.


[3]   As the ALJ found, there was an "abundance and unanimity of
negative feelings toward" Kahn.  R.D. and O. at 9.  Workers in
departments that Kahn audited complained that they did not like
how Kahn treated them.  T. 456.   Kahn's witness, Darlene Murphy,
believed that Kahn could have done his work "without upsetting
everybody."  T. 456.  Another witness called by Kahn, Syed
Jaffery, mentioned that Kahn's "very short temper" was a
hindrance to his job.  T. 464, 467.