U.S. Department of Labor Office of Administrative Law Judges
Heritage Plaza Bldg, 5th Floor
111 Veteran's Memorial Boulevard
Metairie, LA 70005
Case No. 97-ERA-13
Date Issued: January 23, 1998
In the Matter of:
Dr. SAMUEL A. AGBE
Complainant
v.
TEXAS SOUTHERN UNIVERSITY
Respondent
APPEARANCES:
MONA LYONS, ESQ.
For The Complainant
CHERYL N. ELLIOT, ESQ.
For The Respondent
Before: LEE J. ROMERO, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the employee protection provision of the Energy
Reorganization Act (herein the Act), 42 U.S.C. § 5851 and the pertinent regulations at 29
[Page 2]
C.F.R. Part 24. On August 13, 1996, Dr. Samuel A. Agbe (Complainant) filed an administrative
complaint against Texas Southern University (Respondent) with the Wage and Hour Division of
the United States Department of Labor (DOL). The complaint was initially filed against
Respondent pursuant to the Energy Reorganization Act, the Toxic Substance Control Act (15
U.S.C. § 2622), the Water Pollution Control Act (33 U.S.C. § 1367), the Clean Air
Act (42 U.S.C. § 7622), and the Solid Waste Disposal Act (42 U.S.C. § 6971).
(ALJX-3). An initial investigation by the DOL Wage and Hour Division found that Respondent
withdrew an employment offer to Complainant because of his protected activity. Respondent
filed a timely appeal.
This matter was referred to the Office of Administrative Law Judges for a
formal hearing. Pursuant thereto, Notice of Hearing was issued scheduling a formal hearing in
Houston, Texas, which commenced on August 18, 1997 and closed on August 19, 1997. All
parties were afforded a full opportunity to adduce testimony, offer documentary evidence and
submit post-hearing briefs. The following exhibits were received into evidence: 1
1 References to
the record are as follows: Transcript: Tr.___; Complainant's
Exhibits: CX-___; Respondent's Exhibits: RX-___; and
Administrative Law Judge Exhibits: ALJX-__.
2 Iodine-125 is
a volatile, x-ray emitting radionuclide. (Tr. 345).
3 Some time in
early July, Mr. Spivey attempted to contact Complainant on one
occasion, however, Complainant was not on campus at this time.
(Tr. 343).
4 Complainant
explained that he was concerned about using the iodine-125
because Respondent did not offer special training for the use of
this material. He further explained that when he worked at UTMB,
special training was required for the use of iodine-125, in
addition to the regular training for the use of radioactive
material. (Tr. 257). Complainant testified that he never
received the iodine-125. (Tr. 245).
5 Sometime
before Complainant was formally selected for the job position,
Complainant contacted the Texas Department of Health, Bureau of
Radiation Safety and the Occupational, Safety and Hazard
Administration to obtain instructional help concerning the use of
iodine-125. (Tr. 257-261, 290; CX-13). Complainant did not give
his name when he contacted the Texas Department of Health because
he did not want his complaint forwarded to Respondent. (Tr. 259-260).
6 Mrs. Agbe
explained that she managed their financial affairs. (Tr. 426).
7 Mrs. Agbe
testified that Complainant contributed to the Teacher's
Retirement program as a part-time employee at Brazosport College.
(Tr. 439).
8 Mrs. Agbe
explained that although she was working full-time, they did not
have medical insurance when he began working for Respondent
because she was not eligible to receive benefits for a few
months. (Tr. 433).
9 She explained
that radioactive material was not used in the lab since sometime
before December 1995. (Tr. 34, 41).
10
Complainant had worked for her for one month prior to her asking
him to apply for the position of research associate. (Tr. 167).
11 Dr. Milton
explained that the start date was changed to begin on the
following payroll period since she selected Complainant after the
original start date. Beginning on the new start date,
Complainant's position of temporary research assistant would
convert to permanent research assistant. (Tr. 71).
12 Dr. Milton
testified that Complainant chose not to attend the orientation
because he learned that the salary for the job position was lower
than the salary quoted to him by her. (Tr. 90).
13 Dr. Milton
testified that she informed Dr. Hayes on this same day about the
other concerns she had with Complainant but that they could work
through them. (Tr. 168-169).
14
Complainant testified that he wanted an office so that he would
not work forty hours in the lab where he believed unsafe
conditions existed for the use and storage of radioactive
material. (Tr. 354).
15 Dr. Milton
did not provide specific examples of instructions which
Complainant failed but eventually completed.
16 Dr. Milton
testified that once Complainant was offered the permanent job
position, he spoke with her supervisors voicing his concerns
about maintaining his current office. (Tr. 195)
17 Within the
group of nine candidates, two held doctorate degrees. (Tr. 203;
CX-8). She testified that the non-doctorate candidates did not
have a vast amount of experience. (Tr. 206).
18 The record
does not contain evidence of Dr. Hayes' educational credentials.
19 It should
be noted that the job position appointment form was signed by Dr.
Pedro Lecca and a representative of the vice- president. These
signatures are not dated. (CX-7A).
20 Dr. Hayes
testified that this document was completed for accounting
purposes to delete Complainant from an account. (Tr. 532).
Complainant testified that he believed his permanent employment
as a research associate for Dr. Milton was retroactive to July 1,
1996. (Tr. 363).
21
Complainant did not inform Dr. Hayes that he was reconsidering
whether he would accept the job position. (Tr. 465).
22 Dr. Hayes
testified that the hoods are periodically inspected to certify
that they are functional. She did not indicate when the
inspections occurred. (Tr. 547). She explained that it could be
determined by anyone using the hood whether it was functioning
properly. Lei Chen, Dr. Milton's research assistant for two
years, never complained that the fume hood in the lab was not
working properly. (Tr. 548). However, Ms. Chen's primary work
area was not in the lab where Complainant worked. (Tr. 553).
23 Contrary
to her testimony, Dr. Hayes indicated in her answer to
Complainant's interrogatories that no action was taken in
response to the safety concerns Complainant related to her. (CX-21).
24 Ms. Evans
testified that research associates are provided office space when
available. (Tr. 616).
25 Upon
articulating some legitimate, nondiscriminatory reason for the
adverse employment action or "explaining what it has
done," Respondent satisfies its burden, which is only a
burden of production, not persuasion. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253, 256-257; 101 S.Ct.
1089, 1093, 1095-1096 (1981). The respondent must clearly set
forth, through the introduction of admissible evidence, the
reasons for the adverse employment action. The explanation
provided must be legally sufficient to justify a judgment for the
defendant. Id. at 255, 1094. Respondent does not carry
the burden of persuading the court that it had convincing,
objective reasons for the adverse employment action. Id.
at 257, 1095.
26 Respondent
was issued Radioactive Material License Number L03121. (RX-I).
27 Although
Dr. Milton testified that she was pressed to fill the job
position, there is no evidence that she immediately attempted to
select an alternate candidate for the job position after she
withdrew the employment offer to Complainant in furtherance of
her work.