On August 12, 1988, Complainant filed a complaint in the Chicago office of the Wage and Hour Division of the U.S. Department of Labor, alleging discriminatory employment practices on the part of Respondent, her employer. Her undated letter, addressed to the Area Director of the Wage and Hour Division; referred to her previous complaint in 1986 concerning a denial of promotion claimed to have been in reprisal for her having reported (in 1983) the misuse of radioactive materials by a Dr. Goewert, then in Respondent's Radiology Department. Her

showed her blood samples in a refrigerator, but they were not available for Sickle Cell study because they had not yet been held for two days. Dr. Goewert then phoned Dr. Kwaan, Complainant's immediate supervisor, and informed him of Complainant's activity.

    After her original complaint about the radioactive material had been dismissed, Complainant felt that there was a retaliatory change of attitude towards her, that it became more difficult for her to perform her duties, and that Dr. Goewert was very angry and no longer had coffee with her or even talked to her. The unavailability of the blood samples caused minimal additional work and occasional stress.

    In her 27 years of employment by Respondent, Complainant was never discharged, suspended or otherwise disciplined. In fiscal year 1985, she was given a performance evaluation and received a rating of "Outstanding". She also received evaluations for 1986 and 1987. During the calendar year 1988, she not only received a rating of "Outstanding", but was given a cash award.

    Section 23(a) of the Toxic Substances Control Act, 15 U.S.C. §2622, provides as follows:

§52622. Employee protection

(a) In general. - No employer may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) has

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter;

(2) testified or is about to testify in any such proceeding; or

(3) assisted or participated or is about

to participate in any manner in such a proceeding or in any other action to carry out the purposes of this chapter.

    Section 210(a) of the Energy Reorganization Act, 42 U.S.C. §5851 is virtually the same as the above. Procedurally both Acts are subject to the same regulation, to wit, 29 CFR Part 24. Consequently, but for the formal designation, the rights of the employee and the obligations of the Employer may be determined in identical fashion under either Act.

    Assuming, without deciding, that Complainant's report to the Hospital's Chief of Staff in 1983 constituted participation in a proceeding or was otherwise a protected activity under either Act, Complainant must show that five years later, Respondent discriminated against her in respect to her employment because of that protected activity. As I clearly indicated on the record at the conclusion of the hearing, the evidence adduced here falls far short of showing any adverse action relative to compensation, hours of work, vacations, location of workplace, position description, assigned duties, or other terms and conditions of employment.

    Moreover, even if we accept the claim that the blood sample problem resulted in a little more work and perhaps some stress for Complainant, there is no evidence from which it could be reasonably inferred that the blood samples were thrown out in 1988 because of Complainant's conduct in 1983. With regard to Dr. Goewert, if he is no longer as friendly as he used to be, that is regrettable, but neither of the relevant statutes requires the employer to guarantee optimal interpersonal relations among his employees. It is noted further that Respondent's personnel actions with regard to Complainant have been anything but adverse.

    In view of the foregoing, I am constrained to conclude that the record herein does not reflect any violation of the Employee Protection provisions of either the Toxic Substances Control Act or the Energy Reorganization Act.

    Upon the evidence presented herein, I must recommend that the complaint be dismissed.

       ROBERT J. FELDMAN
       Administrative Law Judge

Dated: JUL 06 1989
Washington, D. C.

RJF/bac

F*F*F*F*F**F*F*F*IF*nF* F*aF* F*pF*rF*iF*oF*rF* F*pF*rF*oF*cF*eF*eF*dF*iF*nF*gF* F*aF*lF*lF*eF*gF*iF*nF*gF* F*eF*aF*rF*lF*iF*eF*rF* F* adverse action in reprisal for Complainant's reporting of the same putative violation as alleged herein, the Secretary of Labor pointed out that though characterized as arising under the Toxic Substances Control Act, it seems clear that the case arises under parallel provisions of the Energy Reorganization Act, 42 U.S.C. §5851, because the reported offense related to radioactive materials. Lastre v. Veteran's Administration, 87 ERA 42 (Final Decision and Order of the Secretary, March 31, 1988).