Parker v. Tennessee Valley Authority, 1999-ERA-13 (ALJ July 30, 1999)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

DATE ISSUED: July 30, 1999

CASE NO.: 1999-ERA-13

IN THE MATTER OF

JAMES P. PARKER
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY
    Respondent

   This proceeding arises under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. § 5851 (1988 and Supp. IV 1992) and the regulations promulgated thereunder at 29 C.F.R. Part 24 which are employee protective provisions of the ERA or of the Atomic Energy Act of 1954 as amended, 42 U.S.C. § 2011, et seq. The Secretary of labor is empowered to investigate and determine "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC") who are allegedly discharged or otherwise discriminated against with regard to their terms and conditions of employment for taking any action relating to the fulfillment of safety or other requirements established by the NRC.

   This matter is presently before the Court on Respondent's Motion for Summary Judgment with briefs filed by both parties. The regulations governing these proceedings provide, in relevant part:

   In deciding a motion for summary decision, the court must consider all the materials submitted by both parties, drawing all reasonable inferences in a matter most favorable to the

non-moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). A court shall render summary judgment when there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, which is adverse to the party against whom the motion is made. See LaPointe v. United Autoworkers Local 600, 8 F.ed 376, 378 (6th Cir. 1993); United States v. TRW, Inc. 4 F.3d 417, 423 (6th Cir. 1993), cert denied 114 S.Ct. 11370 (1994).

   To establish a prima facie case of retaliatory discharge under the whistleblower provision invoked here, a complainant must show that: (1) the complainant engaged in protected activity; (2) the employer was aware of that protected activity; and (3) the employer took some adverse action against the complainant. The complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Sartey v. Zack Co. Of Chicage, 82-ERA-2 (1983).

   To determine if there was a retaliatory discharge under the environmental whistleblower laws the seminal issue is whether or not the complainant engaged in protected activity. Only if the activity is deemed to be protected are the other elements of a prima facie case addressed.

   To establish protected activity, the employee need demonstrate only a reasonably perceived violation of the underlying statute or its regulations. Abu-Hjeli v. Potomac Power Co., 89-WPC-1 1993); see also Johnson v. Old Dominion Security, 86-CAA- 3,4,5 (1991). In Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993), the complainant's allegations were not related to nuclear or radiation safety. The judge concluded that because the Respondent was licensed by the NRC, all of its employment actions were covered by the ETA's whistleblowers provision. The Secretary rejected this interpretation, holding that complainant's safety-related activity must relate to nuclear safety to be protected under 42 U.S.C. § 5851.

   In the instant case, Complainant alleged violations of the Act resulting from his request for fire fighting equipment and a prior concern with asbestos. Complainant made no allegation related to nuclear or radiation safety. Thus, because Complainant's safety-related activity is not related to nuclear safety it is unprotected under the Act.

   In Complainant's response to this Court's Order to Show Cause Why Respondent's Motion for Summary Decision should not be granted, Complainant states "Although it is acknowledged that the references to the asbestos related incident, (and or) incidents, mentioned by the Respondent, are unprotected within the scope of the ERA, this does in no way diminish their existence." Furthermore, this Court finds that because Complainant has not engaged in protected activity under the ERA, he is unable to establish a prima facie claim under the Act. In light of Complainant's statement that the activity complained of is unprotected under the ERA and the Court's finding that Complainant is unable to establish a prima facie claim under the Act, this Court concludes that Complainant was not engaging in

protected activity within the meaning of the ERA when he expressed his concerns and, accordingly, his complaint is not within the scope of the Energy Reorganization Act.

   Thus, upon review of the pleadings, affidavits and material obtained by discovery or otherwise, or matters officially noticed this Court finds that there is no genuine issue of material fact and that Respondent is entitled to summary judgment as a matter of law.

   So ORDERED this 26th day of July, 1999, at Metairie, Louisiana.

       JAMES W. KERR
       Administrative Law Judge

JWK/ch