Before me for review is the Recommended Order - Dismissing
Complaint (R.O.) issued by Administrative Law Judge (ALJ)
Robert M. Glennon on March 12, 1986, in the above-captioned
case, which arises under the employee protection provision of
the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851
(1982).
The basis for the ALJ's recommendation was that the
complaint failed to state a cause of action insamuch as it showed
that Complainant had not engaged in a protected activity. In
reaching this conclusion, the ALJ noted that "[t]here was no
action by Complainant having a connection with any governmental
proceeding", R.O. at 4, and applied the Fifth Circuit's ruling
in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (1984), which
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held that "employee conduct which does not involve the employee's
contact or involvement with a competent organ of government is
not protected under section 5851." 749 F.2d at 1036.
Based upon careful review of the entire record in this
case, including the memoranda of law filed by the parties with
me, I do not accept the ALJ's recommendation for dismissal of
this case. Rather, I find that the complaint, which alleges
that Complainant, a Quality Assurance engineer of Respondent
has been subjected to a continuing conspiracy, harassment and
discrimination, as evidenced most recently by his being "passed
over" and "relegated to the bottom of the organization chart"
and by denial of temporary handicapped parking privileges in
retaliation for performing his assigned tasks and for indentifying
deficiencies in Respondent's quality assurance programs,
states a cause of action. Accordingly, I remand this case to
the ALJ for a hearing on the allegations of the complaint.
I decline to apply in this case the Fifth Circuit's
decision in Brown & Root. As I indicated in Richter v. Baldwin
Associates, 84-ERA-9 through 12, (March 12, 1986), slip op.
at 11-12, I adhere to my rulings in Mackowiak v. University
Nuclear Systems, Inc., 82-ERA-8 (April 29, 1983), remanded on
other grounds, 735 F.2d 1159 (9th Cir. 1984), and in Wells v.
Kansas Gas & Electric Co., 83-ERA-12 (June 14, 1984), aff'd,
Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir.
1985), cert. denied, No. 85-1403, slip op. (June 30, 1986),
to the effect that, under section 5851, prior contact with
a governmental agency is not a prerequisite to establishing
a protected activity. I specifically held in these cases
that employees performing quality assurance functions are
engaged in protected activities. That the internal reporting
of safety complaints is an activity protected under section
5851 has also been recognized by the Second Circuit, the circuit
in which this case arises. Consolidated Edison Co. v. Donovan,
673 F.2d 61 (2d Cir. 1982). The ALJ was aware of Consolidated
Edison but relied on the fact that Brown & Root distinguishes
that case on the ground that protected activity was not at
issue in the case nor discussed by the court. (R.O. at 4).
I note, however, that the Second Circuit specifically stated
that the complainant in the case "has produced a prima facie
case for improper discharge", following which statement the
Court set forth the facts in the case. Consolidated Edison,
673 F.2d at 63. Since the only activity engaged in by the
Consolidated Edison plaintiff was internal reporting, I do not
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attribute to the Second Circuit a failure to consider whether
purely internal reporting of safety complaints falls within
the ambit of section 5851.1
1 In Complainant's Request For
Reconsideration (C.R.R.) filed
with me, two other arguments against dismissal of the complaint
are made. Complainant argues that, because ALJ Robert J. Feldman
found in In the Matter of Bassett v. Niagara Mohawk Power
Corporation, 85-ERA-34 (Oct. 17, 1985), that Complainant's internal
auditing and reporting was protected conduct under section 5851,
that issue cannot be relitigated here. C.R.R. at 4-5.
Complainant also argues that the regulations implementing the ERA
permit only dismissal for cause, 29 C.F.R. 24.5(e)(4), and do
not even require an allegation of protected activity. Id. at 5.
In view of my decision that the complaint in this case states a
cause of action, I need not rule on these issues.