Complainant alleged Employer violated the Act when it 1) wrote a letter to Choice Point advising that Complainant had engaged in protected activity and 2) wrote a "neutral" reference letter, which he alleges is not neutral. Complainant also alleged Employer violated the Act when its attorney, Comisky, and her employer, Pepper Hamilton, sent a cover letter with copies of both the letter to Choice Point and the reference letter to Complainant's attorney. On March 1, 2001, the Occupational Safety and Health Administration dismissed the complaint against Employer finding that (1) the letter to Choice Point was provided in accordance with a May 18, 2000 final decision of the Administrative Review Board (ARB); (2) there was no evidence of retaliatory animus; and (3) there was no evidence that Complainant has or will suffer any adverse action as a result of the information Employer indicated would be provided to inquires from potential employers. Complainant appeals that decision.

   The uncontested facts are:

1. In 1988, Complainant applied to work with Employer. As a condition of employment, Complainant was required to sign an Authorization and Release form. The form included the following paragraph:

"Further, I hereby release and discharge Hydro Nuclear Services, their representatives, and their clients for whom the investigation is being performed and any organization listed above furnishing or reviewing any information pertaining to me from any and all liability of claim as results of furnishing or receiving any such information pursuant to this authorization."

    Complainant refused to sign the form and he lost his position with Employer.

5. The employment reference letter Employer wrote provided:

"Shannon Doyle was in training to work as a Decontamination Technician for Hydro Nuclear Services from November 4, 1988 to November 22, 1988. His rate of pay was $6.50 per hour. Although Mr. Doyle did not work as a Decontamination Technician, his performance in the training was satisfactory."

6. Employer's attorney, Comisky, sent courtesy copies of the court ordered documents to Complainant's attorney along with a cover letter that provided in pertinent part:

"As you know, the Administrative Review Board issued its Final Decision and Order on Damages on May 17, 2000. Hydro Nuclear Services has now complied with the portions of that Order directing it to take certain actions. Enclosed you will find:

    1. a copy of the letter sent to Choice Point (formerly Equifax) stating that Mr. Doyle's disqualification was improper; and

    2. a letter of reference for Mr. Doyle.

There is no derogatory or negative information in Mr. Doyle's personnel records related to the failure to hire him, except for the report to Equifax which has now been "corrected", as required by the May 17, 2000 Order. ....."

7. Hope Comisky is an attorney with the firm Pepper Hamilton LLP and represented Employer in its previous litigation with Complainant.

   The standard for granting summary decision is set forth at 29 C.F.R. § 18.40 (d) (1994). This section, which is derived from Rule 56 of the Federal Rules of Civil Procedure, permits an administrative law judge to recommend summary decision for either party where "there is no genuine issue as to any material fact and that a party is entitled to summary decision." 29 C.F.R. § 18.40 (d). Thus, in order for a motion for summary decision to be granted, there must be no disputed material facts and the moving party must be entitled to prevail as a matter of law.

   The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). It is enough that the evidence consists of the party's own affidavit, or sworn deposition testimony and declaration in opposition to the motion for summary judgment. Celotex Corp., 477 U.S. at 324; Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1461 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). The determination of whether a genuine issue of material fact exists must be made viewing all evidence and factual inferences in the light most favorable to the non-moving party.

   In order to prevail pursuant to the Act, Complainant must show that 1) Westinghouse Electric Co. was his employer; and 2) subjected him to adverse action with respect to his compensation, terms, conditions, or privileges of employment; and 3) that the alleged discrimination arose because he engaged in protected activity as defined by the Act. See generally Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). See also 42 U.S.C. § 5851 (a) (1). See also Saporito v. Florida Power & Light and Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A., 94-ERA-35, (ARB, 7/19/96) (dismissing ERA complaint against an employer's law firm).

   Complainant must allege and prove that Employer subjected him to adverse action with respect to his compensation, terms, conditions, or privileges of employment. Complainant alleges that in its letter to Choice Point, Employer improperly referred to his previous engagement in protected activity. Considering the passage of twelve years and the changing of corporate entities on both the sending and receiving ends of the letter, a reference to the prior disqualification is unavoidable if Employer is to comply with the ARB's order that it "send a notice to Equifax Corporation correcting Respondent's earlier notice that it had denied Complainant unescorted access . . ." Complainant has not demonstrated that Employer used or intended the letter for any purpose other than to comply with the ARB's order. The letter is neutral, nondiscriminatory and complies with the ARB's order. Without further indications of specific adverse action, the existence of this letter, which contains no language or instructions detrimental to Complainant, is not sufficient to establish the requisite elements of a prima facie case. See Smith v. Tennessee Valley Authority, 90-ERA-12 (Sec'y Apr. 30, 1992).

   The same analysis applies to the reference letter and the matters forwarded to Complainant's attorney. Employer was ordered by the ARB to provide neutral employment references. Contrary to Complainant's assertion, there is nothing threatening, humiliating or offensive in these documents. I find that the reference letter was proper and was in compliance with the ARB's order. I find the letter sent to Complainant's attorney was sent as a courtesy and did not adversely affect any aspect of Complainant's employment or prospective employment.

   The undisputed facts show (1) Employer was complying with the ARB Order and there is no evidence that Employer acted with any retaliatory motive; (2) that Complainant has not suffered any denial of employment or any other adverse action as a result of the letter to Complainant's counsel; and (3) the letter to Complainant's counsel did not violate any provision of the Act and was sent merely as a courtesy to Complainant and Complainant's counsel.

Document: 2001ERA00013westinghousesj.wpd Created by: LPRICE on 6/27/01 2:38:51 PM   After reading the ARB's decision, the letter to Choice Point, the neutral reference letter, and Comisky's letter to Complainant's attorney, it is clear that Employer has not violated the Act. Complainant has failed to provide any evidence or show that he will present any evidence that Employer has discriminated against him by improperly divulging his protected activity to prospective employers. The undisputed evidence shows Employer's actions were in accordance with the ARB's order and did not arise because Complainant had engaged in protected activity as defined by the Act.

   Accordingly, I find that the complaint does not present a prima facie case for adjudication under the Act. I find the complaint is deficient as a matter of law and recommend that it be dismissed. In view of this finding, the hearing scheduled for July 16, 2001 in Dothan, Alabama is CANCELED.

   It is the recommendation of the Court to the Secretary of Labor:

   1. That the Motion by Westinghouse Electric Co. for Summary Decision be GRANTED.

   2. That the complaint against Westinghouse Electric Co. be DISMISSED.

    So ORDERED.

       LARRY W. PRICE
       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 by the Administrative Review Board 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. § 24.7(d) and 24.8.