DATE: September 9, 1992
CASE NO. 86-SWD-2


IN THE MATTER OF

GUY HELMSTETTER,

          COMPLAINANT,

       v.

PACIFIC GAS & ELECTRIC CO.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER
                                     
    Before me for review is the Recommended Decision and Order on
Remand (R.D. and O.) of the Administrative Law Judge (ALJ) in this
case arising under the employee protection provision of the Solid
Waste Disposal Act, as amended (SWD), 42 U.S.C. § 6971 (a)
(1988).  A different ALJ initially heard arguments on Respondent's
motion to dismiss the complaint as untimely and recommended
dismissal.  In the June 15, 1989, Decision and Order of Remand, the
Secretary found that the complaint was time barred as to most of
the alleged acts of discrimination, and remanded for a hearing on
the merits of the charge that Respondent's motivation for issuing
a disciplinary letter was unlawful under the employee protection
provision.
     On remand, the ALJ heard evidence on the disciplinary letter
issue and found that the letter did not constitute harm to
Complainant, that Respondent had legitimate business reasons for
issuing it, and that there was no discriminatory motive for the
letter.  The ALJ recommended dismissing the complaint.
     The ALJ's findings of fact, R.D. and O. at 2-4, are supported
by substantial record evidence and I adopt them.  I will briefly
recite the relevant facts to focus the discussion.
     1.  The Facts
     Complainant held the temporary position of Regional
Environmental Supervisor with Pacific Gas & Electric Co. (PG&E), T.
221, after which he was transferred to a permanent position in the 
[PAGE 2]
Marketing Department.  T. 222.  Through PG&E's employee suggestion
program, Complainant submitted in late 1985 several suggestions
concerning environmental compliance.  T. 153.  One suggestion
advised that used dry cell storage batteries were hazardous waste
("batteries suggestion"), T. 154, and another suggestion warned
about potential liability for leakage of hazardous materials at
PG&E electrical substations.  T. 158-159; CX 6.
     In January 1986, the president of a vendor sent a letter
(vendor's letter) to PG&E Regional Manager Radford complaining
about Complainant's conduct when Complainant, acting on behalf of
PG&E, attempted to purchase some energy saving devices.  JX 1.
Radford sent a routine answer indicating that a PG&E staff member
would look into the complaint.  JX 2.  A few weeks later, on
January 24, 1986, first-level supervisor Louis Mejia and second-
level supervisor Brian Wing met with Complainant and discussed
the vendor's letter.  The supervisors afforded Complainant the
opportunity to tell his version of the incident about which the
vendor complained.  T. 62; CX 5, p. 42.  Wing told Complainant that
Radford had apologized to the vendor concerning the incident.  T.
62-63, 181, 182.  The supervisors admonished Complainant not to get
into confrontations when representing PG&E.  T. 62.  Complainant
said he would defend himself if PG&E did not.  T. 186.  At the
time, PG&E did not take further action about the vendor's letter. 
T. 68, 75-76, 224.
     During the January 24 meeting, Wing asked why Complainant sent
a certain memorandum and Complainant explained that the memorandum
concerned a recent performance rating with which Complainant
disagreed.  T. 178.  Wing stated that in the recent batteries
suggestion, Complainant had threatened Regional General Services
Manager Phil Weiss.  T. 51, 176, 178.  Wing said that Complainant's
career would languish if Complainant continued to make such
threats.  T. 175-177, 188.  The discussion became heated, T. 56-57.
     Three months after the meeting, Complainant wrote a letter to
the vendor's president (Complainant's letter) (JX 3), in which
Complainant claimed that the vendor's letter was libelous and had
damaged Complainant's career, demanded a written apology with a
copy to Regional Manager Radford, and threatened a lawsuit if the
vendor did not apologize.  Complainant had a company secretary type
the letter, copied it to Radford, and blind copied it to four other
PG&E executives.  At the direction of his superiors,
Mejia visited the vendor and succeeded in getting the president to
hand over the unopened letter from Complainant.  T. 70, 74.
     One month after retrieving Complainant's letter, PG&E placed
a disciplinary letter (JX 4) in Complainant's personnel file
indicating that Complainant's letter did not comport with a company

[PAGE 3]
written standard practice directing employees not to conduct
themselves in a manner that would reflect discredit on PG&E. 
Complainant felt ill, was hospitalized, and took time off to
recuperate after learning of the disciplinary letter.  T. 189. 
When Complainant returned to work, PG&E arranged for him to consult
a psychiatrist and the company psychologist.  T. 189-190.  Pursuant
to the psychologist's suggestion, Regional Manager Radford met with
Complainant to give him the chance to tell his side of the vendor
incident.  T. 190-191.
     Under company policy, disciplinary letters are removed from
employee personnel files one year after issuance if no further
related incidents occur.  T. 259.  Pursuant to a stipulation at the
hearing on the motion to dismiss in this case, see Dec. 10,
1985, R.D. and O. at slip op. 3, 4, the disciplinary letter was
removed from Complainant's file.  T. 95, 259-260.  The company did
not take any other action concerning Complainant's letter. T. 77.
    2. Analysis
    To make a prima facie case, the complainant in a
whistleblower case must show that he engaged in protected activity,
that he was subjected to adverse action, and that
respondent was aware of the protected activity when it took the
adverse action.  Complainant also must raise the inference that the
protected activity was the likely reason for the adverse action. 
Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec. Ord.,
Apr. 25, 1983, slip op. at 8.
     Respondent does not contest that it is an employer covered by
the SWD, and stipulated that Complainant engaged in protected
activities under the act. 1/  T. 16.  The ALJ's finding that
the disciplinary letter did not constitute harm, R.D. and O. at 4,
indicates that the ALJ found that Complainant did not establish
adverse action, the third element of a prima facie case.
     I disagree that the disciplinary letter was not adverse.
Complainant contends, inter alia, that he was not
promoted because of engaging in protected activities.  R.D. and O.
at 4. Anyone considering Complainant for a different position
within PG&E during the time the letter was in Complainant's file
would have been able to see it, according to PG&E's Division Human
Resources Manager.  T. 259.  Since the letter potentially
diminished Complainant's chances for advancement, it was adverse. 
See McCuistion v. Tennessee Valley Authority, Case
No. 89-ERA-6, Dec. and Order, Nov. 13, 1991, slip op. at 8
(disciplinary letter not retained in personnel file, which formed
a basis for an unfavorable performance rating, was adverse action). 
Although,



[PAGE 4]
as the ALJ noted, Complainant was not fired or demoted as a result
of the disciplinary letter, such drastic action is not required to
render a disciplinary letter adverse.  For example, in Self v.
Carolina Freight Carriers Corp., Case No. 89-STA-9, Final Dec.
and Order, Jan. 12, 1990, slip op. at 14, warning letters that
"served to progress [the c]omplainant toward suspension and
discharge" adversely affected him even though the letters did not
result in suspension or discharge.
     I find that Complainant established that issuing the
disciplinary letter constituted adverse action.  Further, Respondent
knew of the protected activities at the time it issued the
disciplinary letter in 1986, since Complainant's protected
activities occurred in late 1985.
     In making a prima facie case, temporal proximity between the
protected activities and the adverse action may be sufficient to
establish the inference that the protected activity was the
motivation for the adverse action.  About six months elapsed between
the time Complainant submitted the batteries and substations
suggestions in November and December 1985, T. 159, and the issuance
of the disciplinary letter in May 1986.  Such temporal proximity is
enough to raise an inference of discrimination and to establish a
prima facie case.  See Goldstein v. Ebasco
Constructors, Inc., Case No. 86-ERA-36, Final Dec. and Ord.,
Apr. 7, 1992, slip op. at 11-12, appeal docketed, No. 92-4576
(5th Cir. June 1, 1992) (causation established where seven or eight
months elapsed between protected activity and adverse action).
     Moreover, at the meeting called to discuss the vendor incident,
Wing also told Complainant that making more suggestions such as the
"threatening" batteries one likely would not further his career. 
The linkage of the two issues at the meeting further supports the
finding that Complainant raised the inference of discrimination.  I
therefore find that Complainant made a prima facie case that
Respondent violated the SWD when it issued the disciplinary letter.
     Once Complainant established a prima facie case, the burden
shifted to Respondent to articulate legitimate, nondiscriminatory
reasons for the adverse action, Dartey, slip op. at 8, and
PG&E did so.  I agree with the ALJ, R.D. and O. at 5, that
Complainant gave his letter threatening a libel action against the
vendor's president some "official trappings" that implied PG&E was
involved.  Having a company secretary type the letter and indicating
a copy to the 
[PAGE 5]
Division Manager made the letter more than a personal matter between
Complainant and the vendor's president.  Therefore, PG&E had a valid
business reason to issue a disciplinary letter to the employee.
     Complainant had the ultimate burden of persuading that the
legitimate reasons articulated by PG&E were pretextual, either by
showing that the unlawful reason more likely motivated PG&E or by
showing that the proffered explanation is unworthy of credence.
Dartey, slip op. at 8.  I agree with the ALJ that
Complainant's arguments concerning pretext are unconvincing. 
Contrary to Complainant's view that the January 24 meeting
constituted harassment, Mejia testified that the purpose of the meeting
was to discuss "the types of things that we [supervisors] did not expect to
have done."  T. 62.  When a vendor/customer complains about an
employee's deportment when representing the company, an employer
clearly has reason to discuss conduct with the employee.  Nor do I
find any harassment in the fact that although Wing told Complainant
the meeting was about the vendor incident, Wing also brought up two
other topics concerning Complainant.
     Similarly, I am not convinced that an alleged "failure to
investigate" the factual basis for the vendor's complaint
establishes a pretext for discrimination.  Complainant introduced
evidence showing that Regional Manager Radford, to whom the vendor's
letter was addressed, did not "put much credence" in the vendor's
complaint because he believed that the same vendor had complained
similarly about other employees.  CX 5, p. 40-42. Radford's
responsive letter to the vendor simply acknowledged receiving the
complaint and promised to look into it, a "common business
practice."  CX 5, p. 41.  It was logical not to investigate an
allegation of rudeness when PG&E managers did not believe the
accuser.  Even if Radford's letter to the vendor constituted an
apology, as the disciplinary letter indicated, it is not
unreasonable to apologize promptly to an offended vendor who
perceived that an employee was rude. 2/

     Nor did PG&E deny Complainant the opportunity to defend
himself, as Complainant contends.  Radford described the January 24,
meeting as a "fact finding meeting to hear [Complainant's] side of
it.  11 CX 5, p. 42.  Complainant took issue with his supervisors 
[PAGE 6]
and said he did not do anything wrong in his dealings with the
vendor.  T. 62.
     Further, the ALJ correctly found, R.D. and O. at 6, that PG&E
did not inform Complainant in an accusatory manner that it was
placing the disciplinary letter in his file.  Indeed, PG&E
supervisors afforded Complainant the opportunity to read the letter,
and when he refused to accept it, a supervisor read it to him.  T.
189.  On learning of Complainant's subjective response to the
disciplinary letter, which caused him to feel ill, PG&E arranged for
him to consult professionals.  At the suggestion of the company
psychologist, Regional Manager Radford met with Complainant at
length on two occasions to allow Complainant to air his side of the
story and his concerns.  T. 190-191.  Thus, PG&E gave Complainant
the chance to tell his story both before and after it issued the
disciplinary letter, which remained in the personnel file less than
one year.
     On the basis of a thorough review of the entire record, I find
that Complainant did not persuade that the reasons PG&E proffered
for placing the disciplinary letter in Complainant's personnel file
were pretextual or that the disciplinary letter resulted from a
discriminatory motive in violation of the SWD.  Accordingly,
 the complaint is DISMISSED.
      SO ORDERED.


                                   LYNNE MARTIN
                                   Secretary of Labor

Washington, D.C.

[ENDNOTES]

[1]  The stipulated activities, internal complaints to management in the form of employee
suggestions, are protected under the SWD. See Mackowiak v. University
Nuclear Systems, Inc., 775 F.2d 1159, 1163 (9th Cir. 1984).  This case arises
within the Ninth Circuit, whose decisions are controlling.

[2] Complainant contends that PG&E engaged in deceptive
business practices by telling Complainant that the Radford letter
was an apology since Radford said it was not (Complainant's Appeal
Brief at 10-11).  While I agree with the ALJ that the Radford letter
was not an apology, I do not find any deception on this issue. Since
the Radford letter refers to the vendor's "unfortunate experience
with our employee, Mr. Helmstetter,"  JX 2, a reasonable person
could call it an apology.