U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-182 ALJ CASE NO. 94-ERA-41 DATE: September 11, 1997
In the Matter of:
SAYED MANSOUR,
COMPLAINANT,
v.
ONCOLOGY SERVICES CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the
Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §5851 (1994).
Before the Board for review is the Recommended Decision and Order (R. D. and O.) of the
Administrative Law Judge (ALJ) issued on August 26, 1996. The ALJ concluded that
Complainant, Sayed Mansour (Mansour), had failed to establish that Respondent, Oncology
Services Corporation (OSC), had violated the ERA by taking adverse action against Mansour
in retaliation for engaging in activity protected under the ERA. Specifically, the ALJ
concluded that Mansour failed to establish that the protected activity he had engaged in prior
to the time at which OSC decided to terminate him played a role in that decision. R. D. and
O. at 9-14. The ALJ further found that, following the elimination of Mansour's position in
the course of a company reorganization, OSC decided to terminate Mansour, rather than find
a different position for him within that company, based on OSC's dissatisfaction with
Mansour's job performance. R. D. and O. at 12. The ALJ found that OSC was particularly
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dissatisfied with the procurement procedures utilized by Mansour and with the inappropriate
comments that Mansour had made to, and about, a Nuclear Regulatory Commission (NRC)
inspector.1
1 The ALJ's finding that Mansour
suggested to OSC Counsel Marcy Colkitt that OSC should proffer a bribe to Dr. Shanbaky is supported
by Colkitt's testimony and by the evidence of Colkitt's subsequent issuance of a memorandum to
Mansour and other key OSC personnel regarding the "strict ethical guidelines" applicable
to interaction with NRC representatives. Hearing Transcript at 382-89, 394-95; Resp. Exh. 20;
see also Hearing Transcript at 186-87 (Mansour, testifying that Shanbaky had
not requested a bribe and that Mansour had not told Colkitt that Shanbaky had done so) .
2 The rumors involved two
allegations regarding the OSC physics director. First, it was alleged that he was romantically involved
with a state or federal nuclear inspector, who allegedly provided improper assistance to him in
regulatory matters. Resp. Exhs. 4, 5. The second allegation was that the same OSC manager staged
an equipment failure at an OSC radiation treatment site, in order to exaggerate the role of a previous
equipment malfunction in the loss of a radiation source while it was being used for patient treatment.
Id. The ALJ's factual finding that Mansour was "merely gossiping, off the
record" is well-supported by Mansour's testimony. Hearing Transcript at 56-59, 157-61, 163-64,
172-76, 253. In addition, Mansour's testimony, as well as other evidence of record, indicates that
Mansour knew that the statements regarding OSC staff that he related to Dr. Shanbaky were
unsubstantiated speculation and that Mansour did not personally believe them to be true. Hearing
Transcript at 52-60, 157-76; Resp. Exhs. 4, 5. Mansour also testified that he
did not expect Dr. Shanbaky to record Mansour's remarks concerning the rumors and did not expect
any action to be taken on them. Hearing Transcript at 56-60, 159-60, 164, 166, 172-73, 175, 176;
see Resp. Exh. 5.
3 The record contains no suggestion
that Mansour had access to the OSC office in May of 1994 when the complaint letter was prepared.