DATE: February 26, 1996
CASE NO. 94-ERA-36

IN THE MATTER OF

CARL M. REMUSAT,

          COMPLAINANT,

     v.

BARTLETT NUCLEAR, INC.,

          RESPONDENT.

    
BEFORE:   THE SECRETARY OF LABOR

                  
                         FINAL DECISION AND ORDER

     This case arises under Section 211, the employee protection
provision, of the Energy Reorganization Act of 1974 (ERA), as
amended, 42 U.S.C. § 5851 (1988 & Supp. V 1993).[1]  Before
me for review is the Recommended Decision and Order (R. D. and
O.) issued on March 1, 1995, by the Administrative Law Judge
(ALJ).  The ALJ concluded that Complainant, Carl M. Remusat
(Remusat), had failed to establish that Respondent, Bartlett
Nuclear, Inc. (Bartlett), had violated the ERA by taking adverse
action against  Remusat in retaliation for engaging in activity
protected under the ERA.   The ALJ therefore recommended that the
complaint be dismissed. 
     Following a thorough review of the record and the arguments
of the parties, I agree with the findings of fact and the
ultimate conclusion of the ALJ, as modified below.
                                DISCUSSION
A.   Factual background     
     The findings of fact rendered by the ALJ reflect a thorough
review of the record and a careful evaluation of the evidence of
record, taken as a whole.  R. D. and O at 2-23; see N.L.R.B.
v. Cutting, Inc., 701 F.2d 659, 667 (7th Cir. 1983);
Cotter v. 
[PAGE 2]
Harris, 642 F.2d 700, 706-07 (3d Cir. 1981); Dobrowlosky
v. Califano, 606 F.2d 403, 409-10 (3d Cir. 1979).  I
therefore adopt those findings of fact, as presented in the R. D.
and O.  
B.   Applicable legal standards
     In discussing the provisions of Section 211, the ALJ
concluded that the CNEPA amendments to the ERA, see n.1
supra, lessened a complainant's initial burden in
establishing a prima facie case of a violation of the
employee protection provision.  R. D. and O. at 17.  In rendering
this R. D. and O., the ALJ did not have the benefit of a recent
Secretarial decision regarding the effect of the CNEPA amendments
to the ERA.  In Dysert v. Florida Power Corp., Case No.
93-ERA-21, Sec. Dec., Aug. 7, 1995, appeal docketed Dysert v.
Sec'y of Labor, No. 95-3298 (11th Cir. Sept. 28, 1995), I
determined that a complainant's initial burden in establishing a
prima facie case under Section 211(b)(3), codified at 42
U.S.C. § 5851(b)(3), remains unchanged by the CNEPA
amendments to the ERA.   
     The ALJ also improperly concluded that the "clear and
convincing evidence" standard of Section 211, codified at 42
U.S.C. § 5851(b)(3)(D), was applicable to evidence of
legitimate reasons for Bartlett's adverse action that was
proffered in response to Remusat's prima facie case.  R.
D. and O. at 19-23.  The "clear and convincing evidence"
standard of Section 211 is reached only if the evidence
establishes that both legitimate and discriminatory factors
contributed to the decision to take the adverse action,
thus invoking the dual, or mixed, motive doctrine.  Under a
dual motive analysis, an employer escapes liability by
establishing that the adverse action would have been taken in the
absence of the protected activity.  Dysert, slip op. at 3-
7; Yule v. Burns International Security Service, Case No.
93-ERA-12, Sec. Dec., May 24, 1995, slip op. at 7-13; see Zinn
and Morris v. University of Missouri, Case Nos. 93-ERA-34,
93-ERA-36, Jan. 18, 1996; Johnson v. Bechtel Construction
Co., Case No. 95-ERA-11, Sec. Dec., Sept. 28, 1995, slip op.
at 2; see generally Yellow Freight System, Inc. v. Reich,
27 F.3d 1133, 1137, 1140 (6th Cir. 1994)(holding that St.
Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 125
L.Ed. 2d 407 (1993) did not disturb mixed motive
doctrine), aff'g Smith v. Yellow Freight System, Inc.,
Case No. 91-STA-45, Sec. Dec., Mar. 10, 1993;
Mackowiak v. University Nuclear Systems, Inc., 735
F.2d 1159, 1163-64 (9th Cir. 1984)(citing Mt. Healthy City
School District v. Doyle, 429 U.S. 274 (1977) [further
citations omitted]); Harrison v. Stone 
& Webster Engineering Group, Case No. 93-ERA-44, Sec. Dec., 
Aug. 22, 1995, slip op. at 9-10.  As indicated in the following
discussion, these errors do not affect the ultimate outcome of
this case and are thus harmless.   
     Initially, the ALJ properly required Remusat, who sought 

[PAGE 3]
to rely on circumstantial, rather than direct, evidence of
intentional discriminatory conduct, to present a prima
facie case by establishing that he engaged in protected
activity, that he was subjected to adverse action, that Bartlett
was aware of the protected activity when it took the adverse
action, and to present evidence sufficient to raise the inference
that the protected activity was the likely reason for his
termination.  R. D. and O. at 16, 18; see R. D. and O. at
14-18; Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th
Cir. 1995); Dartey v. Zack Co. of Chicago, Case No. 82-
ERA-2, Sec. Ord., Apr. 25, 1983, slip op. at 6-9 (citing Texas
Department of Community Affairs v. Burdine, 450 U.S. 248
(1981)).  Although the ALJ had improperly stated that the ERA now
places a lessened burden on a complainant in presenting evidence
sufficient to raise the inference that the protected activity was
the likely reason for the adverse action, a review of the
findings pertinent to this issue indicates that the ALJ's
reliance on the temporal proximity between the protected
activity, i.e., Remusat's raising of safety concerns on
February 19, 1994 and his termination by Bartlett on February 22,
1994, to support such inference, R. D. and O. at 18, is in accord
with complainant's initial burden under Section 211.  See
Simon, 49 F.3d at 389 (citing Couty v. Dole, 886
F.2d 147, 148 (8th Cir. 1989)); Kahn v. Commonwealth Edison
Co., Case No. 92-ERA-58, Sec. Dec., Oct. 3, 1994, slip op. at
5-6, aff'd, 64 F.3d 271 (7th Cir. 1995). 
     Under the burdens of proof and production applicable to this
whistleblower proceeding, if the Complainant succeeds in
establishing a prima facie case, the Respondent must
produce evidence of a legitimate, nondiscriminatory basis for the
adverse action.  Dartey, slip op. at 8.  The ALJ properly
concluded that Bartlett had presented evidence of such legitimate
basis for its termination of Remusat.  R. D. and O. at 20. 
Although the ALJ failed to specifically determine whether Remusat
had borne his ultimate burden of proving, by a preponderance of
the evidence, that the reasons proffered by Bartlett were not the
true basis for the adverse action, but were a pretext for
discrimination, see Yellow Freight System, Inc., 27 F.3d
at 1139; Thomas v. Arizona Public Service Co., Case
No. 89-ERA-19, Sec. Dec., Sept. 17, 1993, slip op. at 20
(citing St. Mary's Honor Center, supra), the ALJ's
analysis effectively indicates a conclusion that Remusat had
failed to establish that the adverse action was taken in
retaliation for protected activity.  See R. D. and O. at
20-24.  The ALJ found the reasons presented by Bartlett, viz.,
Remusat's two violations of procedures relevant to
radiological protection and reporting requirements on two
consecutive work days, coupled with a failure to be completely
forthright in discussions with his supervisors concerning the
second of these 
[PAGE 4]
violations, to be persuasive.[2]  This conclusion is fully
supported by the record evidence and is therefore affirmed.[3]    
      As indicated supra, the ALJ had not found that
Bartlett's decision to terminate Remusat was based, even in part,
on discriminatory factors, and thus did not properly reach the 
requirement that Bartlett establish by clear and convincing
evidence that it would have terminated Remusat in the absence of
his protected activity, as is applicable to dual motive cases
under Section 211, as amended.  R. D. and O. at 19-24; see
Dysert, slip op. at 3-7; Yule, slip op. at 7-13;
cf. Zinn, slip op. at 15-17, 22-27 (holding that ALJ
properly found that, under dual motive analysis, respondent had
failed to carry "clear and convincing evidence" burden). 
As the ALJ nonetheless concluded that Remusat had failed to
establish a violation under Section 211, such error is harmless
and does not require remand.    
     Finally, I reject Remusat's argument that the ALJ
erroneously ignored evidence of retaliatory conduct by Bartlett
following Remusat's termination.  Complainant's Brief at pp. 10-
11 (unpaginated).  The evidence referred to by Remusat does not
contradict the ALJ's conclusion that Remusat did not establish
retaliatory intent in this case.  Remusat testified that Bartlett
had telephoned him on more than one occasion since his filing of
this complaint and offered him re-employment in exchange for a
written statement admitting "guilt" in this matter.  Hearing
Transcript (T.) 409-10, 422-24; see CX 7 (written
statement indicating that declarant had witnessed telephone calls
from Bartlett).  I note that evidence of offers to settle a
complaint are not admissible for the purpose of establishing
liability under 29 C.F.R. § 18.408.  See generally Nolder
v. Raymond Kaiser Engineers, Inc., Case No. 84-ERA-5, Sec.
Dec., June 28, 1985 (holding that the Rules of Practice and
Procedure for Administrative Hearings Before the Office of
Administrative Law Judges, 29 C.F.R. Part 18, are applicable to
ERA whistleblower proceedings to the extent that those rules are
not inconsistent with the rules promulgated under the ERA, found
at 29 C.F.R. Part 24); but see 29 C.F.R. §
24.5(e)(1).  
     Remusat's testimony also indicated that former co-workers
would have testified in support of his complaint but that 
"nobody is going to -- willing to come in here and stand on my
behalf because they won't have a job, most likely, next year."  
T. 242-44.[4]  Participation in the filing or adjudication 
of a complaint under the ERA is protected activity and
retaliation for such activity is a violation of the ERA.  
42 U.S.C. § 5851(a)(1)(C),(D),(E),(F).  I also note
that the blacklisting of current or former employees is
prohibited under the ERA, Garn v. Benchmark Technologies,
Case No. 88-ERA-21, Sec. Dec., Sept. 25, 1990, slip op. at
10-11, and note specifically 
[PAGE 5]
that an employer's reference to participation in protected
activity in the course of providing an employment reference
violates the ERA, Gaballa v. The Atlantic Group, Case No.
94-ERA-9, Sec. Dec., Jan. 18, 1996, slip op. at 3-4; Earwood
v. Dart Container Corp., Case No. 93-STA-0016, Sec. Dec.,
Dec. 7, 1994, slip op. at 2-6 and cases cited therein.   
     Furthermore, any interference with participation in activity
protected by Section 211 is certain to discourage the free flow
of information from employees in the nuclear industry that is a
primary goal of Section 211.  See H.R. Rep. No. 474, 102d
Cong., 2d Sess. 78-9, 119-20, reprinted in 1992 U.S. Code
Cong. & Ad. News 2296-97, 2337-38; Mackowiak, 735 F.2d at
1163; see generally Martin v. Yellow Freight System, Inc.,
743 F.Supp. 461, 467 (S.D.N.Y. 1992)(addressing purpose of
employee protection provision of the Surface Transportation
Assistance Act of 1982, codified at 49 U.S.C. §
31105, to open channels of communication between employees and
Federal officials).  As discussed by the United States Supreme
Court in National Labor Relations Board v. Robbins Tire &
Rubber Co., 437 U.S. 214 (1978), "[t]he danger of witness
intimidation is particularly acute with respect to current
employees -- whether rank and file, supervisory, or managerial --
over whom the employer, by virtue of the employment relationship,
may exercise intense leverage."  437 U.S. at 240.[5]  The
evidence in this record is inadequate, however, to establish
Remusat's allegation that the Respondent engaged in activity in
violation of the ERA in connection with witness intimidation.[6] 
     I therefore agree with the ALJ's conclusion that Bartlett's
decision to terminate Remusat was not motivated by retaliatory
intent against Remusat for his protected activity, and that
Remusat therefore failed to establish that Bartlett violated
Section 211 of the ERA.  
     Accordingly, I adopt the ALJ's recommendation that the
complaint be DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.

[ENDNOTES]

[1]
  Section 211 of the ERA was formerly designated Section 210, but
was redesignated pursuant to Section 2902(b) of the Comprehensive
National Energy Policy Act of 1992 (CNEPA), Pub. L. No. 102-486, 
[PAGE 6]
106 Stat. 2776, which amended the ERA effective October 24, 1992. 

[2]
  In view of the disposition of this case, it is unnecessary to
reach the issue of evidence proffered by Bartlett under the
after-acquired evidence doctrine.  The ALJ properly noted,
however, that, pursuant to the holding of the United States
Supreme Court in McKennon v. Nashville Banner Publishing Co.,
115 S.Ct. 879 (1995), such after-acquired evidence cannot
defeat a discrimination complaint.  R. D. and O. at 19-
20.

[3]
  Remusat challenges the ALJ's crediting of Bartlett's
justification for its termination of Remusat, because that
explanation relies on factors beyond that indicated on the
termination report form completed by Stephen G. Lancaster at the
time that he terminated Remusat, Complainant's Exhibit
(CX) 6.  Complainant's Brief at pp. 7-9 (unpaginated).  This case
is clearly distinguishable from a case in which the respondent
has attempted to rely on shifting explanations that are
inconsistent.  In the instant case, the additional reasons
provided by Bartlett are not inconsistent with the procedural
violation noted on the termination report form.  Cf. Hoffman
v. W. Max Bossert, Case No. 94-CAA-0004, Sec. Dec., Sept. 19,
1995, slip op. at 9-10, and cases cited therein.  Furthermore,
the record in this case provided ample evidence of all three
legitimate factors relied on by Bartlett at hearing and credited
by the ALJ.  See R. D. and O. at 2-13.

[4]
  In objecting to the admissibility of the written statement
marked as Complainant's Exhibit 7, Bartlett's counsel asserted
that events occurring after Remusat's termination would be
"totally irrelevant to this proceeding." T. 450.  In reply, the
ALJ correctly indicated, T. 451-52, that events occurring
subsequent to a complainant's termination may be pertinent to the
complainant's case.  Subsequent events could provide support for
a finding that retaliatory animus contributed to the decision to
take the adverse action, see, e.g., Williams v. TIW
Fabrication & Machining, Inc., Case No. 88-SWD-3, Sec. Dec.,
June 24, 1992, slip op. at 6 (remarks made by supervisor
following a complainant's termination that were indicative of
retaliatory animus), and misconduct in connection with the
presentation of a respondent's case could, in addition to
constituting a possible violation of 18 U.S.C. § 1505,
see n.5, infra, give rise to the discrediting of
testimony or documentary evidence presented on behalf of the
respondent, see generally Bowers v. U.S. Postal Service, 4
M.S.P.B. 80, 3 M.S.P.R. 562, 1980 MSPB LEXIS 162 
[PAGE 7]
(1980)(Merit Systems Protection Board remanding case for
presiding official to address employee's argument that evidence
of witness intimidation by agency representative reflected
adversely on credibility of all agency witnesses).  See also
29 C.F.R. §§ 18.36 (Standards of conduct), 18.37
(Hearing room conduct), 18.38 (Ex parte communications).

[5]
  I also note that interference with witnesses testifying before
a Federal agency is a very serious matter.  See, e.g., United
States v. Lewis, 657 F.2d 44 (4th Cir. 1981)(applying
criminal provision at 18 U.S.C. § 1505 to defendant
who attempted to persuade another individual to falsify records
pertinent to collection of delinquent taxes by the Internal
Revenue Service); United States v. Abrams, 427 F.2d 86 (2d
Cir. 1970)(applying 18 U.S.C. § 1505 to defendant who
attempted to influence a witness in a proceeding before the
Immigration and Naturalization Service); United States v.
Fruchtman, 421 F.2d 1019 (6th Cir. 1970)(applying 18 U.S.C.
§ 1505 to defendant charged with obstruction of justice in
Federal Trade Commission investigation); Rice v. United
States, 356 F.2d 709 (8th Cir. 1966)(applying 18 U.S.C.
§ 1505 to defendants charged with
intimidating witnesses in National Labor Relations Board
proceedings).

[6]
  The pertinent evidence consists of the general statements
presented in the course of Remusat's testimony, i.e., that
one co-worker was contacted by the Respondent and dissuaded from
assisting in the presentation of Remusat's complaint, and in the
written and witnessed, but unsworn, statement of a declarant,
stating that he was present when telephone calls from Bartlett
were received by both the Complainant and the co-worker.  T. 409-
10, 422-24; CX 7; see T. 449-54 (discussion of ALJ and
counsel regarding Bartlett's objections to the admission of CX
7).