Bourland v. Burns International Security, 1998- ERA-32 (ALJ Sept. 14, 1999)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Date Issued: September 14, 1999

Case No.: 1998-ERA-32

In the Matter of

RICHARD DEAN BOURLAND,
    Complainant,

    v.

BURNS INTERNATIONAL SECURITY,
    Respondent.

APPEARANCES:

    Mark Heinen, Esquire
    65 Cadillac Square, Suite 3727
    Detroit, MI 48226
       For the Complainant

    Roger Guerin, Esquire
    55 West Monroe Street
       For the Respondent

BEFORE: DONALD W. MOSSER
    Administrative Law Judge

   This case arises under the Energy Reorganization Act [ERA], 42 U.S.C. § 5851, and the regulations at Title 29 of the Code of Federal Regulations, Part 24 (1998). The ERA grants protection to employees in the nuclear power industry from employment discrimination resulting from commencing, testifying at, or participating in proceedings or other actions to carry out the purposes of the ERA or the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011 et. seq.

   Mr. Richard Bourland filed a complaint under the ERA on April 30, 1998. After an investigation, the Occupational Safety and Health Administration determined complainant's suspension was not retaliatory for his involvement in safety/health protected activity, but was due to other factors. (ALJX 1). Mr. Bourland timely appealed this determination and requested a hearing before the Office of Administrative Law Judges. (ALJX 2). A hearing was held in Rock Island, Illinois on February 24 and 25, 1999. The parties agreed to waive the statutory time constraints and were afforded the opportunity to file post-hearing briefs. (Tr. 435-36).

   The principal question presented in this case is whether Burns Security discriminated against Richard Bourland because complainant engaged in protected activity.

   The complainant, Richard Dean Bourland, was employed by Burns International Security [Burns] as an unarmed watch-person. Burns supplies security services to Commonwealth Edison's Quad Cities Nuclear Power Station in Cordova, Illinois. Mr. Bourland began his employment with Burns in November 28, 1988, working in a position which eventually became known as Nuclear Security Officer, or NSO. He worked as part of the armed security force, patrolling ingress, access to the power station and personnel searches, until approximately 1994, when an agility test was instituted. Since 1994, complainant has worked as an unarmed watch-person, a position which was created at the time the agility test was instituted. (Tr. 16-19).

   Watch-persons and NSO's are represented by the United Plant Guard Workers of America, UPGWA. Mr. Bourland has held various offices within the local union, including president, vice-president, shift steward and shift alternate steward. Most recently, complainant held the position of shift alternate steward for the first shift, which was the night shift position he worked. (Tr. 19-20).

   Burns' employees are subject to "fitness for duty" criteria under federal law and standards prepared by Burns and Commonwealth Edison. Standards regarding access to the power plant are provided by the Nuclear Regulatory Commission, the Nuclear Management and Resources Council and Federal statutes. Commonwealth Edison controls the unescorted access of Burns personnel to the site. (CX 1-7, 51-53).

   Mr. Bourland received bi-annual written evaluations of his work performance from Burns. The most recent evaluation, dated December 1997, contains evaluations in the "satisfactory" and "commendable" categories. (CX 51).

   Burns received a complaint in December 1997 from a female NSO that Mr. Bourland was harassing her. This employee spoke with her supervisors and informed them that complainant had been bothering her for more than a year with behavior such as following her around,

being protective of her and doing small favors she did not ask him to do. Mr. Bourland also made comments to this employee which made her uncomfortable, such as saying that if she was not married, he would "try something" and that she reminded him of his deceased fiancee. The NSO stated that she felt like she was being stalked. She reported that she had reached a point where she asked complainant not to speak to her and to stay away, but that his harassing behavior continued. The employee did not want to file a formal complaint. Therefore, her supervisors documented her complaint and Kent Hungerford, the site job captain, and Kevin Lindley, operations coordinator, spoke with Mr. Bourland and informed him they had received complaints about him harassing a female security officer, and that if any of this type of behavior was occurring, it needed to stop or his job would be in jeopardy. At complainant's request, a second meeting was held regarding the complaint and Mr. Bourland asked for clarification of what type of behavior would be considered harassment. (Tr. 107-16, 262-75; RX 9-14).

   Mr. Bourland filed a Security/Health Safety Concern Notice with Burns on March 17, 1998. Complainant had previously filed safety notices at other times without any type of retaliation by the company. The March 17 safety notice stated that the shotguns used by the NSO's at the Quad Cities station "which were manufactured by the Remington Company were so drastically altered by the Sage Company as to prompt Remington to recommend their destruction." Mr. Bourland recommended the shotguns be replaced by weapons which uphold the Nuclear Regulatory Commission's standards. Kent Hungerford, in his position as Security Force Manager, wrote a letter to complainant requesting more information so that he could investigate the security concern. Several letters then went back and forth between complainant and Mr. Hungerford regarding the shotgun issue. Mr. Bourland stated that his information was based on reports of a letter from the Remington Company discussed by two other employees, Dean Kling and Gene Zaehringer. Mr. Hungerford asked for more information and a copy of the letter several times. Mr. Bourland contacted the Remington Company but was advised that the manufacturer had no knowledge of such a letter. (CX 3; RX 37; Tr. 117- 22).

   On March 31, 1997, complainant wrote a letter to Mr. Hungerford regarding the placement of the personnel search officer. Mr. Bourland indicated that based on comments by Dean Kling, the present placement put the search officer in danger of having his gun snatched by a person entering the facility and that the officer was not in a position to react to someone bringing a gun into the facility. Mr. Hungerford responded that he checked with Commonwealth Edison's security consultant, who felt there was no safety threat with the current positioning of the personnel search officer. (CX 66; RX 37; Tr. 33-35).

   In early April of 1997, the female employee, who previously had complained about Mr. Bourland's behavior, indicated to one of her supervisors and Kevin Lindley that she was having problems with the complainant again. She reported the problems were continuing, making the work environment unpleasant, and suggested that complainant needed help. She was unaware that Mr. Bourland had filed safety concerns with the company. Mr. Hungerford was informed of the complaints of continuing harassment and notified Mike Embree, Burns' General Manager, of the complaints. Mr.

Embree directed Mr. Hungerford to put complainant on administrative suspension pending an investigation. Mr. Embree contacted Dianne Wood, who is the Human Resources Manager for Borg- Warner Protective Services, of which Burns International Security is a subdivision, and informed her of the situation. Mr. Bourland was contacted at home by Kent Hungerford, regarding the suspension and received a written letter regarding the harassment complaint and suspension. As part of the suspension, complainant's entry badge was placed on administrative hold and he no longer had unescorted access to the site. (RX 8, 11, 17; CX 4, 29; Tr. 36-37, 45).

   Ms. Wood conducted an investigation of the harassment complaint. Between April 10 and 16, 1998, she spoke with the supervisors and officers on the shift, including the female NSO who had lodged the complaint. Ms. Wood determined Mr. Bourland was infatuated with the female NSO and had been following her around at different times and had switched vacations and some days off to be off at the same time. She concluded there was no substantiation to a harassment charge for any item under Title 7, but she noted some repeated comments regarding Mr. Bourland's behavior caused concern. She expressed "fitness for duty" concerns, including frequently displayed anger, depression and sadness and that complainant had been seen pacing back and forth on several occasions, creating a question of stability. Ms. Wood discussed her concerns with Mr. Embree. He determined that Mr. Bourland should be referred to the company's employee assistance program before being permitted to return to work to ensure the safety and well being of everyone. Ms. Wood was unaware Mr. Bourland had filed safety complaints at the time of her investigation and has no responsibility regarding safety concerns. (CX 26, 60; RX 19, 20; Tr. 218-251, 361-63).

   Mr. Bourland was informed of the results of the investigation on April 17, 1998. He was told that he would be required to take a Minnesota Multiphasic Personality Inventory (MMPI) test and to participate in an interview with Dr. Guy Motanky, Burns' Employee Assistance Program Director, before he could return to work. Ms. Wood gave claimant the time and place of the appointments and told him he would be reimbursed for his time and travel expenses. Complainant visited his personal physician, Stephen Harrison, who administered a short oral psychological examination and wrote a short letter regarding his knowledge of complainant's mental condition. On April 20, 1998, Mr. Bourland took the MMPI-2 test in Morris, Illinois and met with Dr. Motanky in Des Plains, Illinois. Before meeting with Dr. Motanky, Mr. Bourland wrote a one-page letter for the psychologist to read to apprise the doctor of his situation. The claimant also informed Dr. Montaky of Dr. Harrison's evaluation and invited the psychologist to contact his personal physician. (Tr. 38-44, 48, 50-51, 233-35; CX 6).

   Mr. Bourland wrote a letter on April 10, 1997 to an inspector at the Nuclear Regulatory Commission regarding the shotgun safety issue and the safety issue regarding the placement of the personnel search officer. On April 17, 1998, respondent gave a copy of this letter to Burns' employee Kevin Lindley, and also wrote a letter to Commonwealth Edison discussing his safety concerns. Complainant showed a copy of the letter that he sent to Commonwealth Edison to Kent Hungerford on April 20, 1998. The NRC investigated the safety concerns and found the danger of the shotgun modifications was unsubstantiated and that although there were concerns regarding placement of the search officer, there were no requirements for the placement of the guards. (CX 5, 7, 41; RX 21; Tr. 35-38, 71-73, 122-26).

   Mr. Bourland's MMPI-2 test results were sent to Behavior Analysts and Consultants in Stuart, Florida for review. This company recommended further psychological evaluation prior to a final assessment of complainant's unescorted access authorization. Dr. Motanky wrote a letter on April 30, 1998 to Mike Embree concerning the results of his interview with Mr. Bourland. The psychologist indicated it was his impression that complainant did not pose a threat to his fellow workers and was capable of resuming his normal work activities immediately. He noted the MMPI results were within normal limits and typical of an individual with complainant's level of education. However, Dr. Motanky also noted there were a few responses which deviated from what he would expect on the overall profile and that he recommended complainant be referred for individual counseling for at least six months as a concurrent condition of his return to work. Dr. Motanky wrote a second letter to Mr. Embree concerning the specific counseling requirements he felt were appropriate for Mr. Bourland's return to work. (CX 9, 15, 19; RX 29, 31, 32).

   Dr. Gloria Mouzon was asked to assess the situation and to determine whether Mr. Bourland should have access to Commonwealth Edison's nuclear plant in accordance with Burns' and Commonwealth Edison's fitness for duty concerns. Dr. Mouzon is employed by Commonwealth Edison as a medical review officer and is responsible for reviewing all test results for fitness for duty issues and to assure trustworthiness and reliability of the employees and contractors. She was given a chronology of events and a synopsis of the issues regarding complainant's behavior, a copy of the test results and a synopsis of the interview with Dr. Motanky. She also discussed the case with Mr. Embree and Dr. Motanky. Dr. Mouzon wrote a letter to Mr. Embree outlining the conditions under which Commonwealth Edison would allow Mr. Bourland to return to work. These conditions included evaluation and recommendation by a therapist that Mr. Bourland was able to return to work and that the therapist would notify Burns if Mr. Bourland was not compliant and/or became a danger to himself or others. (CX 20; RX 34; Tr. 416-25).

   On May 26, 1998, Guy Thomas, who is Director of Labor Relations for Borg Warner and responsible for Burns' labor relations, faxed a letter to the Union's Regional Director. The letter outlined the parameters for complainant's return to work as stated by Drs. Motanky and Mouzon. Mr. Bourland has not sought counseling and has not returned to his employment with Burns. Complainant does not feel he should be subjected to mandatory counseling and that the conditions are unacceptable since there is no provision for back pay, payment for counseling, and issues regarding overtime payment. (RX 35; CX 22; Tr. 85-86).

   On June 6, 1998, Burns was notified of an incident concerning Dean Kling, the security officer mentioned in Mr. Bourland's safety notices. David Kallenbach, who at the time was the acting lead operational health physics supervisor for Commonwealth Edison, received a complaint from a technician who stated he heard two security guards using inappropriate language at the gatehouse. Mr. Kallenbach called Burns' shift supervisors and told them of the event, which he stated was not acceptable behavior, and assumed Burns would handle the complaint appropriately. One of the guards at the gatehouse was questioned about the incident and indicated she did not remember anything

particular happening and that nothing objectionable was said and that she and the other officer were discussing the civil treatment class they had attended. She was not asked to falsify a report or make up anything regarding Mr. Kling. The other employee at the gatehouse, Dean Kling, was also questioned about the incident and was asked to write a report. Although he was questioned by supervisors, no disciplinary action was taken against the security guard regarding the complaint. After this incident, Burns sent a memorandum regarding professional conduct to all Burns' employees. The letter stated that Burns' employees should be professional at all times and that their conversations could be overheard. (Tr. 179-85, 203-10, 302-08; RX 54, 56, 57).

   Prior to Mr. Bourland's suspension, another Burns' employee was required to take an MMPI exam when concerns regarding his fitness for duty surfaced. Supervisors had noted concerns over the employee's growing anger. He took the exam at the plant and was later interviewed by Dr. Motanky by telephone. (CX 24; Tr. 188-89; CX 75). The employee subsequently was required by Commonwealth Edison to undergo additional tests and counseling. He did so in Chicago and returned to work after one counseling session. (Tr. 193-197).

   Mr. Bourland filed a complaint with the National Labor Relations Board alleging his suspension was retaliation for union steward activities, including investigation of a grievance involving racial discrimination. He also filed charges with the Equal Employment Opportunity Commission in Chicago alleging he was suspended because of age discrimination, a perceived disability under the Americans with Disabilities Act and retaliation for helping a black employee. Mr. Bourland believes his suspension was due to the fault of Guy Thomas, with whom complainant has had a hostile relationship since 1985. (Tr. 88-91, 93-96).

   After his suspension, complainant sought a second opinion from psychologist W. David McEchron. Mr. Bourland first met with Dr. McEchron on August 21, 1998. Mr. Bourland also brought in the results of the MMPI-2 test to the psychologist to interpret and the psychologist found the test was properly administered. Dr. McEchron stated that he saw nothing in the results that would show Mr. Bourland to be at all emotionally unstable or not able to perform his duties safely and competently as a watch-person at a nuclear power plant. The psychologist saw nothing which caused him to question complainant's reliability or stability of his behavior in the workplace, although he noted the results suggested Mr. Bourland is a rather emotional person and rather introverted, which may cause some uncomfortableness and be misread by others. Dr. McEchron indicated he disagreed with six months counseling as a condition of complainant's return to work. He did agree with the recommendation of Behavioral Consultants that a clinical interview be conducted after the test was administered and he stated that he would not be surprised by a recommendation that complainant be referred to at least one counseling session and would probably personally recommend this condition as well. He stated he would probably recommend more counseling if problems surfaced in the first counseling session. (CX 35; Tr. 149-173).

   Generally, to prevail on a claim under the ERA, the complainant must establish a prima facie case of discrimination by evidence that he was engaged in activity protected by the ERA and that adverse action was taken against him because of his protected activity. Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 277-79 (7th Cir. 1995). Once complainant meets his initial burden, the employer has the opportunity to rebut this finding by establishing the adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant then has the opportunity to prove that the employer's reasons for the adverse action were actually a pretext for retaliation. However, in cases where the employer asserts a non-discriminatory reason for discharge, the prima facie step can be bypassed, and I can proceed directly to an inquiry into whether the employer's reason is pretextual. Carroll v. Bechtel Power Corp., 91-ERA-46 (Sec'y Feb. 15, 1995), aff'd sub nom, Carroll v. U.S. Dept. of Labor, 78 F.3d 352, 356 (8th Cir. 1996); Adjiri v. Emory University, 97-ERA-36 (ARB July 14, 1998).

   Initially, I note that my jurisdiction is limited by law in this case to deciding whether Mr. Bourland was discriminated against because of protected activity under the ERA. I cannot decide whether the employer improperly suspended complainant for reasons unrelated to protected activity under the ERA. I simply do not have the authority to determine whether the employer made the correct decision when it suspended Mr. Bourland for complaints of harassment, or any other related issues. My inquiry must focus solely on whether Mr. Bourland's protected activity was the reason for the adverse action taken against him.

   The evidence establishes Mr. Bourland engaged in protected activity and respondent does not dispute this issue. (ALJX 2, Tr. 203-04). The filing of internal complaints about safety issues and letters to the NRC discussing these issues both qualify as protected activities. Mackowiak v. University Nuclear Systems Inc., 735 F.2d 1159 (9th Cir. 1984); Kansas Gas and Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied 478 U.S. 1011 (1986). The employer also does not dispute that Mr. Bourland's suspension was an adverse employment action. Instead, the employer maintains it had a legitimate and non-discriminatory reason for suspending Mr. Bourland after it received complaints of harassment, and that the suspension continued when fitness for duty concerns arose in the investigation.

   The evidence establishes a female NSO complained about Mr. Bourland's behavior in December 1997. She indicated that the behavior had been going on for over a year and the behavior continued even when she asked complainant to leave her alone. In April 1998, the employer suspended Mr. Bourland while investigating the second complaint of harassment and continued the suspension when questions were raised regarding complainant's fitness for duty. The record supports the employer's position that the reason for Mr. Bourland's suspension was to allow an investigation of a harassment complaint. The record also supports the employer's position that the suspension continued until complainant could be "cleared for duty" after fitness for duty issues arose during the investigation.

   As the employer has established a legitimate reason for the suspension, I must now determine whether the employer's stated reason was a pretext for discrimination. Complainant alleges that inadequate response to the shotgun safety issue by Mr. Embree supports an inference of retaliation. Mr. Embree received information regarding two misfiring incidents and forwarded the information to Mr. Thomas, instead of forwarding them to Mr. Hungerford, who had responsibility for responding to complainant's safety complaint about the shotguns. Counsel for complainant alleges this "nonfeasance" suggests a "cover-up" response to the shotgun safety concerns and an inference that Mr. Embree was irritated and/or frightened by Mr. Bourland's safety complaints.

   I find the cover-up argument is too tenuous to support an inference of retaliation for several reasons. The exchange of information about the misfiring of shotguns took place after complainant was suspended. Additionally, the correspondence between Mr. Embree and Mr. Thomas indicates the shotgun complaint was not substantiated, even by the misfiring incidents, which were attributed to other factors. (CX 75). The correspondence between Mr. Hungerford and complainant suggests that the employer was interested in actively investigating the complaint, but was hampered by the unavailability and lack of information regarding the letter supposedly written by the Remington Company. (CX 66; RX 37). Thus, I find the evidence does not support complainant's assertion of a coverup and does not support an inference of retaliation.

   Complainant advances several other arguments he contends establish the employer's stated reason for the suspension is a pretext for retaliation. First, he argues that the April 8 suspension was unwarranted. He reasons that since the complaining female NSO did not file a formal charge and there were no reports of physical contact, threats or improper sexual references, a suspension without pay pending an investigation was unwarranted. However, the employee had complained twice about Mr. Bourland's behavior which had been continuing for a long period of time. The company had a duty to investigate the complaint. As mentioned previously, by law I can only decide whether adverse actions were taken against Mr. Bourland for his participation in protected activity. Thus, I cannot decide whether the employer made the correct decision to suspend complainant during an investigation. I can only determine whether the suspension was due to protected activity. As such, I find suspending complainant pending an investigation is not an unreasonable enough response to the situation to suggest that the real motivation was retaliation for protected activity.

   The next argument complainant raises to establish the harassment complaints were a pretext is that the employer deviated from the applicable NRC and Burns' standards and procedures. Complainant alleges that the pertinent federal regulations, 10 C.F.R. Part 26, require "behavioral observations" and the reports of his behavior were not on the required forms and there were no reports of specific incidents. He indicates the only evidence of his behavior was a note in Ms. Wood's report that he was often "agitated, withdrawn, angry, depressed and was seen pacing" and there were no specific reports that he was unable to perform his duties or that he was a safety threat to himself or others. Mr. Bourland also argues he was not notified of the required procedure in connection with the denial of unescorted access. While the employer may not have followed the stated procedures precisely, there is sufficient, documented evidence that Mr. Bourland's behavior raised concerns as to his fitness for duty. While not on the forms noted by complainant, the employer twice documented the NSO's complaints and the specific types of behavior

she felt was harassment. Ms. Wood documented general comments regarding specific actions she felt together raised some questions regarding complainant's stability. I find there is insufficient deviation from the standards mentioned to support the argument that the employer's stated reason for the suspension was pretextual.

   Complainant next alleges that his performance evaluations do not support the purported observations relied on by the employer in ordering the fitness for duty evaluation. While there is a sharp contrast between the performance evaluations and the comments made to Ms. Woods during the investigation, I find no evidence that the referral to Dr. Motanky or the requirement of taking the MMPI-2 was a pretext for discrimination. Emotional behavior is not evaluated on the performance evaluation forms and there were sufficient reports of Mr. Bourland's behavior to cause concern, notwithstanding his evaluation forms. Ms. Woods stated that she spoke with all the supervisors and officers on Mr. Bourland's shift, which is a larger group of people than those involved in evaluating performance. Additionally, the latest performance evaluation is dated December 1997, which is the time of the female employee's first complaint, and Mr. Bourland's behavior was investigated after the date of the evaluation. (CX 51). The NSO indicated that complainant expressed anger, depression, sadness and was seen pacing. Mr. Bourland admitted that he displayed some of these behaviors. (Tr. 102-04). The employee also expressed the desire that "Richard would get the help he needed," indicating she felt there was some concern regarding his mental health. Her supervisor also reported to Ms. Wood that she observed the behavior described by the complaining employee. (Tr. 291-94). Thus, in spite of Mr. Bourland's performance evaluations, there was sufficient evidence of unusual behavior to cause concern.

    The next argument advanced by complainant to establish the employer's action was pretextual is that dissimilar treatment was given to a similarly situated employee. That employee, who was not engaged in protected activity, also underwent a fitness for duty evaluation. Complainant argues that he was treated differently since the employer obtained written, first-hand reports by persons who observed the behavior at issue. However, the behavior giving rise to the fitness for duty concerns was increasing anger and the documentation is not very dissimilar to Mr. Bourland's case. The reports involving the other employee indicate he was observed to have increasing anger over a three week period which led to an angry outburst. Although not on the same form, these reports are similar to the documentation by Burns of the female NSO's complaints about Mr. Bourland and Ms. Wood's investigation report. (CX 24; Tr. 379).

   Complainant also alleges dissimilar treatment since the other employee who took the MMPI, was not required to travel to Chicago and was able to confer with Dr. Motanky by telephone. Ms. Wood and Mr. Embree testified that Dr. Motanky determines where the MMPI tests are given and where he will conduct interviews, and no one at Burns has control over where testing takes place. (Tr. 235-36, 363-65). Mr. Thomas also indicated that Dr. Motanky determines the place of testing and that it is very unusual for a telephone interview to be conducted. Information was provided indicating several employees from other locations were also required to travel for testing and

interviews. (CX 75). Neither Ms. Wood nor Dr. Motanky was aware that Mr. Bourland had filed safety complaints at the time his test and interview were scheduled. Complainant has also attributed the dissimilar treatment as evidence of discrimination. While I agree the treatment of these two employees was somewhat dissimilar, there is no evidence that the different treatment was intentional, much less motivated by retaliation for the filing of safety notices.

   Another instance complainant alleges is evidence of pretext is attempted harassment of Dean Kling. Mr. Kling was mentioned in the safety notices and spoke to a NRC representative regarding shotgun safety. Complainant argues an "inappropriately overboard investigation" of Mr. Kling was launched after the gatehouse incident since all the supervisors were required to write reports and the parties were questioned about what happened. He alleges the employer used this as an opportunity to do a dragnet investigation in retaliation for the safety concern regarding the shotguns. However, this allegation is unsupported by the evidence. There is nothing to suggest the investigation of the complaint made to Mr. Kallenbach was performed by Burns in retaliation for protected activity. While all the supervisors and the parties were questioned, no disciplinary action was taken, and as a result of the investigation, Burns posted notices regarding professionalism in conversations between the officers.

   Next, Mr. Bourland argues that the refusal of the employer to reinstate him after testing is further evidence of a pretextual motive. He argues the testing showed he met the NRC reliability standards and that the employer was holding him to the more stringent standard required of armed security guards. There is no evidence suggesting this is the case. The counseling recommendation was not made by Burns, but by Dr. Motanky, who is an independent contractor to Burns and Dr. Mouzon, who is Commonwealth Edison's medical review officer. Dr. Motanky indicated the referral to counseling was based on a few deviations on the MMPI and his clinical impressions and personal difficulties presented in the interview. Dr. Mouzon concurred in this recommendation. (CX 43). In fact, complainant's own psychologist testified that he was not surprised by the recommendation of at least one counseling session and that he probably would have recommended the same thing. (Tr. 172-73).

   The evidence also demonstrates this policy is not unusual since the employee that Mr. Bourland argued was treated dissimilarly was subsequently was required by Commonwealth Edison to attend counseling in Chicago, and after attending one session was able to return to work. There does not appear to be a specific policy which requires unarmed personnel to be evaluated by a psychologist when fitness for duty concerns arise. However, Burns' fitness for duty program includes a policy of ensuring all employees do not have any type of mental condition which could adversely affect their ability to safely and competently perform their assigned duties. This policy applies to all Burns' personnel who require unescorted access to protected areas of Commonwealth Edison's nuclear generating stations. Requiring testing and counseling is a reasonable way of achieving this policy. It in no way suggests a retaliatory motivation. (RX 7; Tr. 376).

   Finally, complainant notes some items which call into question Dr. Motanky's independence or methodology. The first item complainant notes is the sequencing of the MMPI and his visit with Dr. Motanky on the same day, instead of waiting for the results of the test before seeing the psychologist. Next, Mr. Bourland notes that although he invited the psychologist to talk to his personal

physician, Dr. Motanky did not do so. Complainant also indicates that Dr. Motanky destroyed his interview notes, contrary to law and gave his "known antagonist," Guy Thomas, a copy of the MMPI results. I again note that my jurisdiction in this claim is limited solely to deciding whether Mr. Bourland's suspension was the result of retaliation for protected activity. Thus, even if the allegations regarding Dr. Motanky's independence and methodology are taken as true, there is no evidence the psychologist was in any way motivated by retaliation for Mr. Bourland's protected activities at the time of these actions or in his assessment of complainant's fitness for duty. Nor is there any evidence suggesting Burns was directing Dr. Motanky's actions and evaluation of complainant.

   In conclusion, I find the record is devoid of any evidence to suggest the adverse action taken against Mr. Bourland was in any way related to the protected activity. Complainant has raised several arguments regarding the circumstances surrounding his suspension, various practices of the company, his relationship with Burns' management and other various issues. However, my jurisdiction in this case is limited to the very narrow question of whether protected activity played a role in Mr. Bourland's suspension. Since complainant has not proven his protected activities played any type of role in his suspension, his complaint must be dismissed.

   For the above-stated reasons, IT IS HEREBY RECOMMENDED to the Secretary of Labor that the complaint of Richard Dean Bourland be dismissed.

       DONALD W. MOSSER
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).