Complainant, proceeding
pro se , submitted a brief in opposition to the ALJ's decision.
FACTS
The record establishes these facts: Complainant filed a
timely complaint against APC on September 26, 1988, alleging that
he was discriminatorily discharged in retaliation for
participating in an investigation by a subcommittee of the United
States House of Representatives of alleged TSCA violations during
Complainant's previous employment with ARCO Alaska, Inc. APC
provides temporary contract labor for oil companies, including
SAP.
Complainant was hired by APC on April 9, 1988, as a contract
operator assigned to work at the Eileen West End Project for
Standard Alaska Production Company (SAP). On August 31, 1988,
Complainant's supervisor at APC, Mike White, was informed by SAP
that one of the temporary contract positions at the Eileen West
End (EWE) Project must be eliminated, and replaced by a permanent
SAP employee.
Mr. White made the decision for APC as to which temporary
contract employee to terminate in this reduction in force,
without input from SAP. By considering the particular experience
and the job performance of each of the four contract employees at
EWE at that time, Mr. White decided that Complainant was the
weakest and chose him for discharge. Complainant's particular
experience in turbine operations was needed during the start-up
phase at EWE, but at the time of the lay-off, EWE was entering
the production phase which required more field operation
experience which Complainant conceded he lacked. Tr. at 82,
84-86, 116-120, 126-128, 142-146; C-14; C-15; C-16; C-17.
Consequently, Complainant was discharged by APC on September 1,
1988, because of the reduction in force at EWE, but remained
eligible for re-hire. Tr. at 115; C-19.
Following Complainant's discharge, SAP continued to make all
decisions as to which position each remaining individual employee
(whether contract or SAP) was assigned, without involvement by
APC. Although a temporary contract employee was rotated into
Complainant's position shortly after Complainant's discharge, no
new or additional contract employees were hired to work at the
EWE project. This rotation of the available employees at EWE was
part of the routine placement process and such transfers were
used for rotational training purposes. The reduction of
temporary contract employees at EWE, which commenced with
Complainant's discharge, continued thereafter.
DISCUSSION
Based on a review of the entire record in this case, I agree
with the ALJ's conclusion that Complainant failed to establish
retaliatory adverse action in violation of the TSCA. Generally,
in order to establish a prima facie case under the employee
protection provisions implemented by 29 C.F.R. Part 24, a
complainant must show that he engaged in protected activity of
which respondent was aware and that the respondent took some
adverse action against him. In addition, the complainant must
present evidence sufficient to at least raise an inference that
the protected activity was the likely motive for the adverse
action. See Wagoner v. Technical Products, Inc. , Case No.
87-TSC-4, Sec. Final Decision and Order, November 20, 1990, slip op.
at 5-7; Dartey v. Zack Company , Case No. 82-ERA-2, Sec. Decision,
April 25, 1983, slip op. at 7-9. If the complainant establishes
a prima facie case, the respondent has the burden of producing
evidence that the adverse action was motivated by legitimate,
nondiscriminatory reasons. See Dartey at 8. If so produced,
then Complainant, as the party bearing the ultimate burden of
persuasion of discrimination, has the opportunity to show that
the proffered reason was not the true reason, but a pretext for
retaliation. Dartey at 8-9.
The record here fully supports the ALJ's findings that APC
provided convincing evidence of legitimate, nondiscriminatory
reasons for Complainant's discharge, and that Complainant did not
prove that his discharge was in retaliation for his protected
conduct.2 Moreover, the ALJ's discussion
and reasoning on the
issue of discriminatory motive is in accordance with the prior
decisions of the Secretary. See generally, Wagoner , slip op. at
15-17; Lastre v. Veterans Administration Lakeside Hospital , Case
No. 89-TSC-1, Sec. Final Decision and Order, August 21, 1990,
slip op. at 4-5. The following discussion is added to further
clarify the ALJ's conclusion.
Complainant raises two theories of discriminatory motive in
this case: (1) that he was discriminatorily chosen from among
the APC contract employees for discharge; and (2) that the
reduction in force was a pretext for discharging Complainant,
since the permanent SAP employee who immediately took over
Complainant's vacated position was rotated out of that position
within two weeks and replaced by one of the remaining APC
employees. The record shows that neither assertion has merit.
APC has provided legitimate, nondiscriminatory reasons for
selecting to discharge Complainant in the reduction in force
called for by SAP, e.g. Complainant was evaluated as the weakest
of the temporary employees in performance and relevant
experience. Additionally, APC has established that SAP was not
involved in this decision. Subsequent to Complainant's discharge
by APC, however, the position assignments of the remaining
employees at the EWE project were made solely by SAP, and were
based on legitimate business reasons such as rotational training.
The evidence establishes that no additional temporary contractors
were retained for the EWE project subsequent to Complainant's
discharge, and that further reductions of temporary positions
followed. The evidence does not demonstrate that APC had a
discriminatory motive for the reduction in force or for choosing
Complainant as the temporary contractor to be discharged in the
reduction. Consequently, I agree with the ALJ's conclusion that
Complainant failed to demonstrate a discriminatory motive by APC.
Accordingly, the complaint is DISMISSED.
SO ORDERED.
LYNN MARTIN
Washington, D.C.
[ENDNOTES]
1 See infra pp. 3-4.
2
