September 25, 2008 DOL Home > OALJ Home > Whistleblower Collection |
USDOL/OALJ Reporter
SECRETARY OF LABOR
DATE: February 14, 1994 IN THE MATTER OF
JOSEPH R. CARTER, v.
FLUOR CONSTRUCTORS INTERNATIONAL, BEFORE: THE SECRETARY OF LABOR
Before me for review is the Recommended Decision and Order (R.D. and O.) of the Administrative Law Judge (ALJ) in this case arising under the employee protection provisions of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988). The ALJ recommended dismissal of the complaint for failure to establish the requisite elements of a prima facie case of discriminatory discharge under the ERA. Both parties have filed briefs before me. The ALJ thoroughly reviewed the procedural history and facts in this case and I adopt his factual findings and credibility determinations as fully supported by the record. R.D. and O. at 2-13, 15-17. For the reasons discussed herein, I accept the ALJ's recommendation to dismiss the complaint because Complainant has not shown by a preponderance of the evidence that his dismissal was motivated by his engaging in protected conduct. As the ALJ found, Complainant failed to satisfy his of establishing a prima facie case of discriminatory discharge. [Page 2]
To establish a prima facie case, the complainant must show that
he engaged in protected activity of which the respondent was
aware and that the respondent took adverse action against him.
The complainant must also present evidence sufficient to at least
raise the inference that protected activity was the likely motive
for the adverse action. Dartey v. Zack Company of Chicago, Case
No. 82-ERA-2, Sec. Dec., April 25, 1983, slip op. at 7-9. Here,
Complainant has shown only that Respondent took adverse action
against him. Complainant's alleged protected activity is
unclear,1 but there is no allegation that
Complainant had or
expressed safety concerns during his one week of employment with
Respondent either to management, or any outside agency. Further,
there is no evidence that Respondent was aware of any protected
activity when it made the decision to discharge Complainant.
Finally, Complainant has not presented any evidence which could
raise an inference that protected activity was the likely motive
for his discharge.
Moreover, even if Complainant could establish a prima facie
case on this record, Respondent has demonstrated that the
Complainant's discharge was based on a well documented incident
of sexual harassment which violated company policy. Complainant
has not shown that this legitimate reason for his discharge is
unworthy of credence and has not carried his ultimate burden of
showing that Respondent retaliated against him for protected
activity under the ERA. See Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981).
Accordingly, the complaint is dismissed.
SO ORDERED.
ROBERT B. REICH
Washington, D.C.
1 The record indicates that
Complainant did engage in protected
activity in the past during previous employment. However, the
issue of that protected activity need not be discussed further in
this case in light of Complainant's failure to establish other
essential elements of his prima facie case.
|
||||||||
|