DATE: February 14, 1994
CASE NO. 93-ERA-19

IN THE MATTER OF

JOSEPH R. CARTER,
    COMPLAINANT,

    v.

FLUOR CONSTRUCTORS INTERNATIONAL,
INC.
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and Order (R.D. and O.) of the Administrative Law Judge (ALJ) in this case arising under the employee protection provisions of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988). The ALJ recommended dismissal of the complaint for failure to establish the requisite elements of a prima facie case of discriminatory discharge under the ERA. Both parties have filed briefs before me.

   The ALJ thoroughly reviewed the procedural history and facts in this case and I adopt his factual findings and credibility determinations as fully supported by the record. R.D. and O. at 2-13, 15-17. For the reasons discussed herein, I accept the ALJ's recommendation to dismiss the complaint because Complainant has not shown by a preponderance of the evidence that his dismissal was motivated by his engaging in protected conduct.

   As the ALJ found, Complainant failed to satisfy his of establishing a prima facie case of discriminatory discharge.

To establish a prima facie case, the complainant must show that he engaged in protected activity of which the respondent was aware and that the respondent took adverse action against him. The complainant must also present evidence sufficient to at least raise the inference that protected activity was the likely motive for the adverse action. Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Dec., April 25, 1983, slip op. at 7-9. Here, Complainant has shown only that Respondent took adverse action against him. Complainant's alleged protected activity is unclear,¹ but there is no allegation that Complainant had or expressed safety concerns during his one week of employment with Respondent either to management, or any outside agency. Further, there is no evidence that Respondent was aware of any protected activity when it made the decision to discharge Complainant. Finally, Complainant has not presented any evidence which could raise an inference that protected activity was the likely motive for his discharge.

   Moreover, even if Complainant could establish a prima facie case on this record, Respondent has demonstrated that the Complainant's discharge was based on a well documented incident of sexual harassment which violated company policy. Complainant has not shown that this legitimate reason for his discharge is unworthy of credence and has not carried his ultimate burden of showing that Respondent retaliated against him for protected activity under the ERA. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

   Accordingly, the complaint is dismissed.

   SO ORDERED.

       ROBERT B. REICH
       Secretary of Labor

Washington, D.C.

¹ The record indicates that Complainant did engage in protected activity in the past during previous employment. However, the issue of that protected activity need not be discussed further in this case in light of Complainant's failure to establish other essential elements of his prima facie case.