Due to Turpin's continuing errors, Weaver and Barker felt that he should be reevaluated by Dr. Friedman. (TR 196) Dr. Friedman saw complainant on July 10, 2000, but he was unable to offer an explanation for his repeated errors. (RX 28, pp. 17-19) Dr. Friedman decided to refer Turpin to Dr. Leonard Handler, a psychologist in private practice, for a neuropsychological evaluation. (TR 620) After evaluating complainant, Dr. Handler diagnosed 1. Brain dysfunction, Mild, Diffuse, and 2. Personality Disorder, NOS, with Obsessive-Compulsive, Schizoid, and Dependent Traits. He recommended that Turpin be given a less complex position at Y-12 that did not involve safety issues, and that he have weekly psychotherapy to deal with his "anxiety and suspicion". (DX 28 p. 40) After receiving this report, Dr. Friedman restricted Turpin to the less highly secured east end of the Y-12 facility.

   On October 4, 2000, Dr. Friedman met with Weaver, Wical, Dr. David Wehrly, the Medical Director of Y-12, and others regarding complainant's inadequate job performance. ( See DX 21) It was determined that in light of Turpin's continuing errors, he should not be returned to his job as an RCT, and that alternative work should be found for him at Y-12. Due in part to the transition from LMES to BWXT as the Y-12 contractor, no suitable jobs were found for Turpin. (TR 210-11) A second meeting reviewing Turpin's situation was held on October 18, and it was decided to place him on Short Term Disability Leave (STDL) for six months. (TR 204, RX 22) Pursuant to STDL, an employee receives full pay for up to six months if he is unable to work due to illness or injury. (See RX 74, p. 86) On October 20, 2000, Wical and Wehrly met with complainant. (DX 26) Because of Dr. Handler's diagnosis of brain dysfunction, the option of STDL was chosen instead of termination. Wehrly recommended to Turpin that he: 1) follow up with Dr. Handler for a complete explanation of his findings; 2) arrange for the therapy recommended by Dr. Handler; 3) be reevaluated for a return to work if his therapist feels that he has made sufficient progress; and 4) be off work for the duration of his STDL. (DX 26, TR 722)

   During the period on STDL, complainant saw his personal psychiatrist once every three months but did not attend weekly psychotherapy sessions as recommended by Dr. Handler. (TR 445) On April 23, 2001, six months after he was placed on STDL, complainant returned to Y-12 and met with Dr. Russ Reynolds, who had succeeded Dr. Friedman as the staff clinical psychologist. (TR 446) Dr. Reynolds then reviewed complainant's medical records and noted that he had not received the weekly psychotherapy sessions recommended by Dr. Handler. (TR 748-49) On the same day, Dr. Reynolds wrote to complainant outlining the previously stated conditions, including weekly psychotherapy, that he must meet to be considered for a return to work. (DX 28, p. 26) He urged Turpin to begin treatment immediately. Id. After meeting with Turpin on May 4, 2001, Dr. Handler wrote to Dr. Reynolds advocating that complainant receive weekly psychotherapy but urging that he return to work during his treatment. (RX 28, p. 27) In light of Dr. Handler's recommendation, Dr. Reynolds slightly altered the conditions of complainant's return to work to allow him to begin a weekly course in psychotherapy, rather than requiring him to complete the psychotherapy before returning. (TR 755-56, RX 28, p. 30) On June 18, 2001, Dr. Reynolds faxed to complainant the names of three therapists. (TR 757, RX 28, p. 29) However, complainant has never begun a course of weekly psychotherapy. (TR 450) Since April 23, 2001, Turpin has been on Long Term Disability Leave (LTDL), under which he receives sixty percent of his regular salary. (TR 450) Dr. Dick Stallings, complainant's family physician, believes that complainant can return to work without any limitations. (CX 1A) Dr. Paine, complainant's psychiatrist, stated that complainant's psychiatric problems are in remission and that he is doing well. (CX 1B)

   The ERA prohibits employers from discharging or otherwise discriminating against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee engaged in activity protected under the Act. 42 U.S.C. § 5851. A complainant must first make a prima facie case of retaliatory action by the respondent by establishing that he engaged in protected activity, that he was subject to adverse action, and that respondent was aware of the protected activity when it took the adverse action. In addition, a complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Zinn v. University of Missouri, 1993-ERA-34 and 36 (Sec'y Jan. 18, 1996), Carroll v. Bechtel Power Corp., 1991-ERA-46 (Sec'y February 15, 1995), affirmed sub nom Carroll v. U. S. Department of Labor, 78 F. 3d 352 (8th Cir. 1996). The respondent may rebut the prima facie case by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant bears the ultimate burden of proving by a preponderance of the evidence that the respondent's proffered reason was not the true basis but was a pretext for discrimination, and that the adverse action was in retaliation for the protected activity. Zinn supra, Carroll v. U. S Department of Labor at 356. In a recent case, the Administrative Review Board ruled that once a case has been tried on the merits, it no longer serves any analytical purpose to address and resolve the issue of whether the complainant presented a prima facie case. Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. Adornetto v Perry Nuclear Power Plant, 1997-ERA-16 (ARB Mar. 31, 1999).

   Complainant was placed on DML after using an RO2 with an expired calibration date on nine occasions in a two week period, the last occasion constituting a knowing violation. (I assume for the sake of argument that placing complainant on DML was an adverse employment action even though his pay was not reduced and he was not initially reassigned to other duties). Although complainant attempts to trivialize these errors, his use of radiological detection equipment with outdated calibration dates potentially jeopardized the public health, and LMES was justified in taking appropriate disciplinary action. See Jain v. Sacramento Municipal Utility District, 1989-ERA- 44 (Sec'y, Oct. 26, 1992). Moreover, complainant's cavalier attitude regarding his improper use of equipment further warranted his employer's response. Complainant's counsel has referred to actions of other Y-12 employees who supposedly made serious errors and were not disciplined, but there has been no substantiation of any other employee besides complainant who made the same type of errors that he made and received more lenient treatment. Olsovsky v. Shell Western E & P, Inc., 1996-CAA-1 (ARB Apr. 10, 1997). (Barnes's signing of complainant's paperwork indicating that he had improperly used equipment with expired calibration dates does not rise to the level of complainant's egregious errors. [See TR at 86]) Complainant's complaints about the instrument recall notification system were clearly designed to deflect criticism from him, and the evidence fails to prove that this activity, rather than his repeated mistakes, motivated LMES to place him on DML.

   After he returned to work following DML, complainant continued to make errors, mostly by not filling out green tags and material release forms completely. These were not isolated instances but occurred, for example, on sixty percent of the green tags he filled out. Complainant's efforts to minimize these errors are unconvincing as he had been admonished to perform his job diligently and accurately and at a fully acceptable level during his probationary period and failed to do so. LMES's decision to refer complainant to Dr. Friedman and then to Dr. Handler was an effort to discover whether there were psychological reasons for his repeated mistakes and can not be deemed retaliatory. See Miller v. Tennessee Valley Authority, 1997-ERA-2 (ARB Sept. 29, 1998) After Dr. Handler attributed complainant's repeated errors to brain dysfunction, it was decided that STDL was appropriate. This was certainly a reasonable option and a less draconian one than termination which would have been fully justified considering complainant's continuing substandard performance. There is no evidence in the record supporting complainant's position that placing him on STDL was a pretext for discrimination.

   After six months on STDL, respondent BWXT refused to allow complainant to return to work and instead placed him on LTDL due to his failure to follow Dr. Handler's recommendations that he attend weekly psychotherapy sessions. BWXT even modified its conditions for complainant's return to Y-12 by allowing him to return if he began psychotherapy rather than completed psychotherapy as it had first required. Although one may disagree with this decision, BWXT was entitled to impose reasonable conditions on complainant's return; there is no evidence that its decision was retaliatory. See Keene v. Ebasco Constructors, Inc., 1995-ERA-4 (ARB Feb. 19, 1997). It was also under no obligation to adhere to the vague assessments of complainant's family physician and psychiatrist that complainant was not disabled and could return to work, but had the option of exercising its business judgment and declining to allow complainant's return other than on its own terms. Finally, respondent LMES's quick efforts to correct the flaws pointed out by complainant in the instrument recall notification system confirms the absence of a retaliatory motive. Odom v. Anchor Lithkemko, 1996-WPC-1 (ARB Oct. 10, 1997). Rather than retaliating against complainant, respondents took steps to remedy the problems he cited.

   IT IS ORDERED THAT the complaints of Hugh K. Turpin are hereby DISMISSED.

       DANIEL L. LELAND
       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.