Dobreuenaski v. Associated Universities, Inc., 96-ERA-44 (ALJ May 1, 1997)

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USDOL/OALJ Reporter
Dobreuenaski v. Associated Universities, Inc., 96-ERA-44 (ALJ May 1, 1997)

U.S. Department of Labor
Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104

DATE: May 1, 1997

CASE NO. 96-ERA-0044

KENNETH DOBREUENASKI,
Complainant,

ASSOCIATED UNIVERSITIES, INC.
Respondent.

Appearances:

Howard Leff and Robert Rosen, Esqs.
For Complainant

Richard Cys and Michael Goldman, Esqs.
For Respondent

Before: RALPH A. ROMANO
Administrative Law Judge

INTERIM
RECOMMENDED DECISION AND ORDER

On July 19, 1996 Complainant filed a complaint (ALJ 1)¹ pursuant to 42 U.S.C. 5851, as amended, alleging that Respondent violated the provisions of the Energy Reorganization Act of 1974, (hereinafter the "Act").

By letter dated September 13, 1996, the United States Department of Labor informed Complainant that its investigation of his complaint disclosed insufficient evidence to support the alleged violation (ALJ 2).

By letter dated September 17, 1996 (ALJ 3), Complainant requested a hearing pursuant to 29 C.F.R. §24.4(d)(2)(1), as amended. The matter was assigned to me on September 30, 1996.

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Hearing of this matter, originally noticed on October 1, 1996 for November 4, 1996 in West Palm Beach, Florida (ALJ 5), was held on December 18, 19, 20, 1996 and January 14, 15 and 16 in New York City, New York, upon the parties's joint motion for change of venue (ALJ 10). All decisional time constraints have been waived (ALJ 8, 9). The request of the parties to continue the scheduled hearing was denied (ALJ 12). Briefs were filed on March 24, 1997.

THE LAW

42 U.S.C. 5851(a), as amended H.R. 776 Comprehensive National Energy Policy Act, effective October 24, 1992, reads as follows:

Employee protection

(a)(1) Discrimination against employee

No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) -

(A) notified his employer of an alleged violation of this Act or the Atomic Energy Act of 1954 (42 U.S.C. 201 et seq.);

(B) refused to engage in any practice made unlawful by this Act or the Atomic Energy Act of 1954, if the employee has identified the alleged illegality to the employer;

(C) testified before Congress or at any Federal or State proceeding regarding any provision (or any proposed provision) of this Act or the Atomic Energy Act of 1954;

(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter of the Atomic Energy Act of 1954, as amended (42 U.S.C. §2011 et seq.), or a proceeding for the administration or enforcement of any requirement imposed under this chapter of the Atomic Energy Act of 1954, as amended;

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

(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter of the Atomic Energy Act of 1954, as amended.

* * * * * *

(b) Complaint, filing and notification............

(3)(C) The Secretary may determine that a violation of subsection (a) has occurred only if the complainant has demonstrated that any behavior described in subparagraphs (A) through (F) of subsection (a)(1) was a contributing factor in the unfavorable personnel action alleged in the complaint.

(D) Relief may not be ordered under paragraph (2) if the employer demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of such behavior.

Under this statute's predecessor, it has been held that it must be proven by Complainant, Texas Dept. of Community Affairs v. Burdine 450 U.S. 248 (1981): (1) that the party charged with discrimination is an employer subject to the Act; (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and (3) that the alleged discrimination arose because the employee commenced or was about to commence, testified or was about to testify, assisted, participated, or was about to assist or participate in any proceeding, or in any other action to carry out the purposes of 42 U.S.C. §5851 (Energy Reorganization Act) or 42 U.S.C. §2011 (Atomic Energy Act). See, Deford v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

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Where a complainant shows:

1. engagement in protected activity;

2. the employer's awareness of the employee's engagement in protected activity;

3. the employee's subsequent discharge; and

4. that the discharge followed the protected activity so closely in time as to justify an inference of retaliatory motive, a prima facie case of retaliatory discharge is established, Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).

ISSUES

1. Whether Complainant engaged in activity protected under the Act, and whether Respondent was aware of same.

2. Whether Complainant was demoted as a result of such protected activity.

3. Whether Complainant was constructively discharged as a result of such protected activity.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. Protected Activity

I find, first, that this record contains sufficient evidence to establish that Complainant engaged in protected activity, known to Respondent, and that Complainant's demotion and alleged constructive discharge occurred in sufficiently close temporal proximity to such protected activity so as to raise the inference of retaliatory discharge. Thus, Complainant has established a prima facie case of discrimination under the Act. Couty, supra.

Early on, since his initial transfer to Respondent's medical department in 1984 (Tr. 437)² , Complainant reported to his then supervisor, Paul Edwards, safety and water radioactive contamination problems existing in and about an area called the "pit", a circular area containing pumps designed to transfer radioactive waste from one tank to another, in a building numbered 811 (Tr. 154-159). Eventually, in 1993, Respondent issued an investigative report and findings relative to conditions at Building 811 (CX 4). Later, in 1993, Complainant videotaped those conditions (CX 14). He also filed a written concern of these conditions with management (CX 5)³ , which resulted in a management investigation and corrective action recommendations (CX 13), as well as a written specification of deficiencies and

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operational changes at Building 811 (CX 6). Finally, in March, 1994, still another official management investigation and corrective action plan was issued relative to Complainant's expression of the conditions at Building 811 (CX 7). Complainant filed a complaint with the U.S. Department of Energy in October, 1995, in part reporting his health and safety concerns with Building 811 (CX 20). Management was aware of this complaint filing on December 12, 1995 (Tr. 1087). Sometime in January, 1996, the video Complainant took of Building 811 (CX 14) was given by Complainant to a television station and same, or portions thereof, was publicly aired on January 12, 1996 along with an interview of Complainant relative thereto (Tr. 881). Respondent replayed this broadcast in its employee cafeteria and provided transcripts thereof (Tr. 1201, 1202).

This record thus contains ample evidence that Complainant engaged in protected activity (via his internal, government and public expression of safety concerns at Respondent), known to Respondent, and I so find ⁴ . As several of these activities occurred soon before the alleged discriminatory employment actions (demotion - late January 1996; alleged constructive discharge - February, 1996), I find that Complainant has established a prima facie case of retaliatory employment action by Respondent under Couty, supra.

2. Demotion

Once a complainant establishes a prima facie case of discriminatory employment action, the burden shifts to the employer to articulate a legitimate non-discriminatory reason for its employment action, Zinn v. Univ. of Missouri, 93-ERA-34 (Sect'ry 1/18/96).

Respondent here urges that Complainant was demoted because he insubordinately twice refused to perform work assignments in the Building 811 "pit". On January 22, 1996, Alan MacIntyre, who supervised Group II (radioactive materials) technicians ⁵ , asked Complainant to "...turn[ing] two or three valves..." in the "pit", which would take five minutes, and Complainant refused (Tr. 330-331; RX 11). Complainant was given a "warning" about this refusal (RX 13). Two days later, on January 24, 1996, Complainant was asked by MacIntyre to "...plan for the clean-up and [participate in the] decontamination of [the pit]", and again Complainant refused (RX 14, 15, 16). On January 25, 1996, Complainant was sent "...home with pay" for this refusal (RX 17). That same day, Complainant was formally given

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notice of what Respondent considered insubordination relative to these incidents (RX 18). Thereafter, between January 29 and February 1, 1996, meetings among management, union representatives and Complainant, resulted in Complainant's reassignment to a Group III technician (RX 21-24).

I find that the circumstances surrounding Respondent's first work assignment to Complainant (on January 22, 1996) establish that Respondent's motive therefor was non-discriminatory. However, with respect to Respondent's second work assignment to Complainant (on January 24, 1996), I find that the record evidence inferentially shows that Respondent's motive therefor was discriminatory, i.e., retaliatory of Complainant's protected activity. Accordingly, I find that Respondent demoted Complainant, in part, for a legitimate reason ⁶ , and in part, for an illegitimate, retaliatory reason.⁷

That Respondent, on January 22, 1996, legitimately assigned Complainant to work in the "pit" for a "...routine waste transfer...turning three valves...[for] five minutes..." (RX 11), is borne out by the fact that Respondent had not by then been made clearly aware that Complainant would not work in Building 811, and by MacIntyre's credible and rational explanation as to why it was necessary to issue this work assignment. Complainant testified inconsistently and not forthrightly relative to his claim that he told Leonard Emma,⁸ prior to his work return, that he would not go back to work at Building 811 (Tr. 677; 831-834; 859-862; 932, 933). While Emma confirms Complainant's April, 1995 expression of a "...desire to not work [in Building 811] again" (Tr. 1151), Emma understood that Complainant "...coming back and accepting a group-two position that he [Complainant] would have been willing to [work at Building 811]" (Tr. 1153-4; see also Tr. 574; 330; 333; 1039). There is not sufficient, convincing evidence in this record that, on January 22, 1996, Respondent was fully aware of Complainant's determination not to work at Building 811, and/or that Respondent expected Complainant to refuse such work. Moreover, MacIntyre convincingly and rationally explained why the assignment was made, i.e., the waste transfer was due or scheduled to be done for the first time since Complainant returned to work, and Complainant, a Group II technician, had historically been doing this work and had experience in that job function, that is, because Complainant was the natural and sensible choice for the task (Tr. 328-334; 398; 1027)⁹

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By January 24, 1996, however, Respondent (MacIntyre) was on clear, unequivocal notice that Complainant would not return to the "pit." Complainant had by then firmly expressed his reluctance in this regard (RX 11; RX 13). Given this awareness of Complainant's clearly stated fears for his safety in returning to the "pit", that McIntyre, just two days after the first refusal, decided to assign Complainant to clean and decontaminate the "pit", is suspicious at best, and odious, at worst. Indeed, while William Casey ¹⁰ frankly acknowledged that this clean up was necessitated because of the public pressure brought to bare upon Respondent by reason of Complainant's public expression of concern (Tr. 1009-1013), MacIntyre disingenuously indicates that the reason for the clean up assignment was: "In order to address [Complainant's] concerns regarding existing contamination in the Building 811 basement...in hopes that reduced levels of contamination would no longer inhibit [Complainant's] participation in routine activities there" (RX 15). Thus, Complainant's January 22, 1996 refusal to spend five minutes in the "pit" ironically eventuated in Respondent's January 24, 1996 insistence that Complainant spend several days there! The inference I draw, fairly in my view, from these circumstances is that Respondent was punitively demanding ¹¹ that Complainant himself clean up the mess he himself complained publicly about ¹² . To demand that Complainant expose himself to conditions he considers dangerous to his health for an extended period of time in order that the danger of such exposure be minimized to accommodate his routine job activities requiring very short periods of time, simply defies common sense ¹³ . To be remembered also is that this work assignment was made after the occurrence of adverse T.V. coverage/exposure which had engendered considerable frustration and anger on the part of co-employees and management (Tr. 212-213; 1033; 1122). This circumstance adds to the inference I draw adverse to Respondent.

Accordingly, I find that Complainant has preponderantly established that Respondent demoted him to a Group III technician for a dual or mixed motive, one legitimate and one (inferentially) not.

Where it is shown that the employer was motivated in part by an illegitimate reason in addition to a legitimate reason, the employer is no longer entitled to the presumption of good faith, that is, that in effecting the employment discipline, it acted in good faith in accord with legitimate business considerations until proven otherwise. Thus, once the employee presents a prima facie case, the burden

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is on the employer to demonstrate by clear and convincing evidence that it would have made the same decision notwithstanding its unlawful motives, see e.g. Seater v. Southern California Edison Co., ARB #96-013 (9/27/96).

Essentially, Complainant's theory of recovery consists in the proposition that Respondent set him up to be disciplined in retaliation for his "whistleblowing." That is, that Respondent created a condition, i.e., the need for his return to work in the "pit", which would eventually force him to respond in such a way as to lay the foundation for adverse employment action.

While Respondent's counsel was requested (Tr. 1435) to brief the issue whether the record evidence would support a finding that Respondent legitimately disciplined Complainant notwithstanding a finding that an illegitimate reason, in part, motivated such discipline, i.e., whether Respondent has carried its burden in a "dual motive" case to establish that it would not have disciplined Complainant but for the legitimate reason underlying the disciplinary action, the arguments advanced (Resp. Br., at 29, et seq) do not neatly fit into a classic dual motive analysis. That maintenance of employee morale justified Complainant's demotion, or that the union, and not Respondent, is responsible for the demotion (as offered in Respondent's brief in response to my request), are not arguments classically designed/tailored to address the evidentiary burden in a dual motive case ¹⁴ . Nevertheless, such arguments are addressed in the context of such analysis, seq.

Respondent's argument that it and Complainant's union officials rationally concluded that to permit Complainant to be paid at a Group II pay rate but excused from routine Group II work in the "pit", would undermine the morale of other Group II technicians (that is, give unfair "special" treatment to Complainant) (see e.g. Tr. 590), would justify the demotion based only upon Complainant's refusal to perform the first work assignment on January 22, 1996. It does not, however, justify the demotion based upon Complainant's refusal to perform the second work assignment on January 24, 1996, as I have found inferentially that the second assignment was illegitimately inspired. Since Respondent based the demotion on both refusals, this argument thus falls short of establishing that Respondent would have demoted Complainant notwithstanding Complainant's refusal to perform the second assignment. Moreover, Respondent

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cannot convincingly/logically urge that it would not have demoted Complainant but for his first refusal since Respondent did not, in fact, demote Complainant upon such first refusal (see ftn.9,supra). Respondent's position that the union, and not itself, demoted Complainant ¹⁵ , is also without merit in putting form over substance. While such demotion may well have been appropriate under union rules (RX 1), Respondent was the employer and principal actor in the employment demotion action. Bob D'Angio, to whom Respondent's labor relations manager reports (Tr. 1209, 1210)¹⁶ , attended the meeting on February 1, 1996 where the decision to demote was made (RX 23). There, D'Angio admitted that Respondent had "...to deal with [Complainant's] refusal to do the work." And, despite D'Angio's statement that he merely "...accepts the Union's proposal [that Complainant be demoted]", he acknowledged that "...the reason this [demotion] decision was reached was because [Complainant] refused to do work that [Respondent] believes is safe." In my view, no amount of disclaimers by Respondent on the face of this memorandum memorializing this meeting, transfers responsibility for the demotion from the employer to the union. Employers demote - not unions.

I find, therefore, that Respondent has failed to establish, by clear and convincing evidence, that it would have demoted Complainant notwithstanding Complainant's refusal to perform the work assignment of January 24, 1996, and damages therefore will be awarded.

3. Damages/Demotion

Complainant acknowledges that the difference between the rate of pay of a Group II and a Group III technician is $56.00 per week (Compl't Br. at 50, 51; see al so Tr. 794). Complainant was demoted on February 1, 1996 and left Respondent on February 26, 1996 (Compl't Br. at 23). Accordingly, three (3) weeks differential, or $168.00 lost pay will be awarded.

Complainant's counsel was specifically asked to brief the issue of the evaluation of loss of seniority ¹⁷ between February 1, 1996 and February 26, 1996 (Tr. 1436-7). Counsel's elaboration (Compl't Br. 50-52) projects monetary losses through Complainant's reaching age 65. As I hereinafter find that Complainant voluntarily left Respondent's employ on February 26, 1996, I find that it is not appropriate to include in an assessment of damages against Respondent relative to its

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retaliatory demotion any monetary value to Complainant's pension or lay-off priority rights.¹⁸ Moreover, for such reason, as well as the absence of any evidence that Complainant was refused medical and dental benefit coverage during this period of time, I find that no damages have been sustained by Complainant in this regard.

Complainant's claim for compensatory damages suffered as a result of mental/ emotional distress (Br. at 48-49), cannot be awarded. While Complainant and his wife testified relative to Complainant's depression, worry, loss of sleep, alcohol problems, irritability, and marital friction (Tr. 753; 954-958), Mrs. Dobreuenaski admitted that marital problems as well as Complainant's depression, taking of medication and seeing a psychiatrist existed since 1994, well before the subject employment action (Tr. 960-963). Also, Sue Foster ¹⁹ , testified about her knowledge of Complainant's alcohol and marital problems in 1994 (Tr. 1083). Accordingly, I find that any such emotional/mental distress pre-dated the subject retaliatory demotion, and, as such, not compensable herein.

4. Constructive discharge

Complainant argues that after his demotion, Respondent created such working conditions as were intolerable, and he was, in effect, forced to resign (take a voluntary layoff) as a result thereof. I do not find such a conclusion supported in this record.

After Complainant's demotion to Group III technician, he was given training appropriate to such category of technician at Respondent (RX 29; 39; Tr. 1286-1303). The office space to which he was assigned, I find to be appropriate and not designed to harass (Tr. 1159; 1329; RX 47; 48). Upon Complainant's (public) complaint relative to accessibility to bathroom facilities, he was accommodated and re-assigned to another office (RX 49; Tr. 1160-1162). The record evidence does not support Complainant's proposition that Respondent's behavior relative to the above was designed/intended to harass him or render his job circumstances intolerable.²⁰ That Complainant was excluded from "plan-of-the-day" morning meetings is adequately explained (Tr. 358; 401; 1187-1190; 1333-4). He was required to sign-in and out and give notice of absences from work, as any other employee was, not for the purpose of making his work life miserable (Tr. 1220-1221; 1330-1333; 907-908; RX 31, 32).

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Complainant's argument that Respondent's showing in the employee cafeteria of the T.V. coverage relative to the conditions at Building 811 (and providing transcripts thereof), suggests its motive to ignite the situation and alienate his co-employees from him, does not, of itself, prove anything.²¹ Presumably, that coverage was available for any and all co-employees to view on T.V. (and/or to be informed about) prior to such showing. Furthermore, the claimed animosity he experienced from co-employees cannot otherwise be placed upon Respondent's shoulders. Respondent cannot fairly be held responsible for any isolation, ostracism, or scorn to which Complainant was subjected by his co-employees. Many of these co-employees viewed the T.V. coverage as unfair, and threatening of their jobs (Tr. 212-3), without, and independent from, any encouragement from Respondent's management. This record fails to establish that Respondent independently or otherwise orchestrated and/or originated, any such adverse peer response.

On February 26, 1996 Complainant informed Mr. Hunter and Respondent's management that he had decided to accept a voluntary layoff (RX 34; RX 35; Tr. 594-5; 663).²² His request was granted and he received some $14,000 severance pay (Tr. 1096-97; RX 36). There is insufficient evidence in this record to establish that this acceptance of layoff was triggered by anything other than Complainant's voluntary, willing, and apparently examined desire to "...just get [himself] out of [Respondent]. [Having] had enough. This is BS, I'm out of here" (Tr. 750). This translates, as I view it on this record, into Complainant's unwillingness to live with the continuing adverse co-employee treatment, responsibility for which may not be placed with Respondent vis a vis behavior constituting constructive discharge.

Indicative of the reasonableness of the conclusion that Complainant's acceptance of the voluntary layoff did not directly or proximately result from, the demotion, is the fact that even absent the demotion ²³ , the employment situation here would have been just as volatile. Management would still have been left with its morale problems attendant to Complainant's refusal to do Group II work in the "pit", and Complainant still a victim of his co-employees' disfavor ²⁴ . Accordingly, the demotion is not shown to have been pivotal in Complainant's decision to leave Respondent's employ. Thus, for this reason also, I am unable to conclude that the (retaliatory) demotion rendered, constructively, Complainant's acceptance of voluntary

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layoff the true reason underlying his termination of his employment with Respondent. I find the evidence insufficient to establish that Respondent created such working conditions as would render it intolerable for Complainant to continue working as a Group III technician after the demotion, and, accordingly, constructive discharge has not been established, Lopez v. S.B. Thomas, Inc. 831 F.2d 1184 (C.A. 2, 1987); Johnson v. Old Dominion Security, 86-CAA-3 (Sec'y 5/29/91); Clark v. Marsh, 665 F.2d 1168 (D.C. Cir., 1981).²⁵

ORDER

On the basis of the foregoing,

1. Respondent is ORDERED to pay Complainant the sum of $168.00 for wages he lost as a result of its retaliatory demotion,

2. Complainant's counsel is directed to submit, on or before twenty (20) days hereof, its petition for fees and costs, and Respondent may respond to same within twenty (20) days after such submission,

3. Whereafter, a final recommended decision and order, incorporating the within findings, shall be entered herein.

RALPH A. ROMANO
Administrative Law Judge

Camden, New Jersey

[ENDNOTES]

¹ References herein are as follows: "ALJ" - Administrative Law Judge Exhibits, "RX" - Respondent Exhibits, "Tr." - Transcript of trial, "CX" - Complainant's Exhibits.

² Complainant began his employment with Respondent in 1981 (Tr. 436).

³ In 1995, two more of these written concerns were submitted (RX 6, 7).

⁴ And Respondent, for all intents and purposes, concedes this (Resp. Br. at 1, 3, 24, 25, 28, 32, 40).

⁵ Including Complainant who was re-instated to employment at Respondent on December 6, 1995 in this category (Tr. 1087; 695-697) after a disability leave of absence from his job from May, 1994 (Tr. 668, 669). Notwithstanding, Complainant was assigned to do Group III (hazardous waste) technician work upon his return to Respondent, because "...nothing was really going on [at Bldg. 811]", but he kept his Group II pay and seniority (Tr. 695, 696).

⁶ Complainant's insubordinate refusal to perform the January 22, 1996 work assignment.

⁷ Complainant's refusal to perform the January 24, 1996, illegitimately inspired (see infra), work assignment.

⁸ Respondent's section head for hazardous waste management.

⁹ Had Respondent demoted Complainant at this point in time, for this refusal, I would not find, as I do, infra, that the demotion was retaliatory.

¹⁰ Respondent's Division Manager for Safety and Environmental Protection (Tr. 978).

¹¹ In effect "You complain, now you clean."

Had Complainant left his employment after this second demand that he work in the "pit", this fact might have been argued to support the proposition that Complainant left his employment as a result of (work demand) action by Respondent. See "Constructive discharge", infra.

¹² By no means does Respondent admit that the "pit" was hazardous to health, but instead insists that the clean-up was merely "cosmetic", and designed only to alleviate the public pressure, Resp. Br., at 33; see also ftn. 25, infra..

¹³ I do not speculate as to what the appropriate management decision might have been in order to avoid this unmistakable and dramatic appearance of retaliation from which this adverse inference is drawn. Suffice to say that there must have been a better way for management to accomplish the clean up task. As I see it, despite Respondent's assertion of its heightened "sensitivity" in dealing with Complainant (Tr. 1125; 1160), the timing and circumstances surrounding Complainant's assignment to the clean up task displays nothing less than recklessness in its ultimate effect.

¹⁴ This may be so due to counsel's frank disagreement that this case presents a dual motive situation in the first place (Resp. Br., at 29).

¹⁵ On the theory that Hunter, the union representative, chose the option of demotion on Complainant's behalf (Resp. Br., at 26-27).

¹⁶ As well as Messrs. Casey, Emma, Hemfling, Petschaner and Ms. Foster, all Respondent officials.

¹⁷ Which I understand to include pension and lay-off priority rights.

¹⁸ Also, for what its worth, there is no evidence that Complainant was eligible for and denied, during this period of time, any retirement pension benefits, or that any lay-off rights accrued during this period.

¹⁹ Respondent's employee relations administrator.

²⁰ Indeed, Complainant himself demanded the training (RX 9), and requested a different office nearer to the restroom (Tr. 1160-1161). A strong argument could be made that it was impossible to please Complainant.

²¹ As a matter of fact, not contradicted in this record is Mr. Emma's insistence that the T.V. piece was shown to employees

to control unfounded rumors about Respondent's laboratory operations (Tr. 1201-4).

²² Had Complainant remained in his demoted position as Group III technician, due to the retaliatory demotion, I would have been compelled to restore him to a Group II technician and award him the salary differential appropriate thereto.

²³ Which, it may be argued, actually accommodated Complainant's desire to avoid what he perceived to be harmful exposure in the "pit".

²⁴ Which disfavor was pre-existent to the demotion.

²⁵ There is no doubt, on this record, that Respondent overwhelmingly proved that the level of radioactivity in the "pit" and exposure thereto was not harmful (Tr. 1380-1396; RX 20). While in no way controlling of the ultimate decision reach here, this fact provides some evidence for both negating the occurrence of retaliatory employment action by Respondent (as Complainant's fears would only otherwise be worrisome to Respondent in reality) but, conversely, also provides some evidence of a level of frustration harbored by Respondent (given the contrary public perception of danger generated by Complainant's protected activity) sufficient to take retaliatory action.