a. Background

that complainant was subjected to harassment on the job beginning on January 12, 1990, because he was listed to be a witness against respondent in a case brought by his friend Pat Cable, also an employee of the respondent, under §5851 of the ERA (also referred to during the course of this proceeding as Section 210 of the ERA). This harassment allegedly consisted of being called in for an interview with a representative from respondent's Employee Concerns Department on the morning of January 12, 1990; a one- week suspension, but with the loss of only a day's pay; revocation of complainant's security clearance (the "ACAD"); drug screening; psychological evaluation; and transfer to the day shift, where he could be more closely monitored (but without a commensurate reduction in his wages). The complainant subsequently filed an amended complaint, which was accepted over respondent's objection, which contended that his harassment by the respondent also was due to his and Cable's having met with, and turned over documents relating to safety violations to, a reporter for the Arizona Republic newspaper (see ALJX 4).

   As the complaint and amended complaint state, and as is indicated in many places in this record (see, e.g., TR IV, at 82- 83; Complainant's Brief at 22; Motion to Submit Newly Discovered Evidence at 5-6), it is complainant's contention that all of the events which transpired on January 12, 1990 -- from complainant's interview by Mike Mann, an Employment Concerns Representative for respondent, through complainant's suspension -- were part of a pattern of harassment occasioned by respondent's knowledge, obtained prior to that date, of complainant's being listed as a witness for Pat Cable and having gone with Cable to the Arizona Republic. It is not complainant's contention that respondent first became aware of these protected activities during the Mann interview on the morning of January 12, 1990. Rather, the Mann interview allegedly was set up by respondent because respondent was aware that complainant had engaged in these protected activities, and was part of respondent's unlawful retaliation against Complainant. Complainant, in addition to the day's pay he lost, is seeking to recover damages which he contends were caused by respondent's retaliation against him.

   It is respondent's position that the disciplinary measures it took against the complainant were in response to threats he made against its officers at the meeting with Mike Mann on January 12, 1990. Specifically, respondent alleges that complainant stated that he and Pat Cable had a pact to kill

respondent's corporate officers, starting with the Chairman of the Board of its parent corporation and working their way down, if either of them was killed or harmed (e.g., TR II, at 72, 137). Further, respondent contends that its employees responsible for disciplining the complainant had no knowledge that the complainant allegedly was to be a witness for Mr. Cable in a DOL §210 case, or had been in communication with a reporter for the Arizona Republic, prior to the Mann interview on January 12, 1990.

b. Complainant's Burden of Proof

   Initially, in cases brought under the Act and other similar statutes protecting whistleblowers, it is the complainant's burden to make a prima facie showing that:

1. The complainant engaged in conduct protected by the applicable statue;

2. The party charged with unlawful discrimination knew of the employee's protected activity; and

3. The adverse employment action was motivated, in whole or in part, by the employee's protected activity.

See, e.g., Dartey v. Zack Co., 82-ERA-2 (April 25, 1983); see also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). If the complainant can establish each of these elements, than the burden shifts to the employer to articulate a legitimate, non--discriminatory reason for its action. I find that the complainant has failed to meet his burden of proof.

c. Witness in Pat Cable's §210 case

had filed a §210 complaint against respondent. But despite the voluminous evidence presented regarding whether respondent's officers and employees knew of Cable's §210 case, this issue is immaterial. For there is no evidence that complainant ever was listed or otherwise specifically identified as a witness before January 12, 1990 in a §210 complaint filed by Cable.

   Respondent's Exhibit 5 is the complaint filed by Pat Cable with the Department of Labor on November 27, 1989. That complaint does not mention the complainant. Also, the record does not contain a witness list in Cable's DOL case, Docket No. 90-ERA-15, and there is no reason to believe one was filed; nor is there any other explicit statement in the record establishing that the respondent ever was informed that complainant was to be a witness on behalf of Cable in connection with Cable's §210 case. Neither the complainant nor Cable testified that, prior to January 12, 1990, they told any of respondent's officers or other employees that complainant was going to be a witness on his behalf in the DOL case.

   The only evidence that anyone was informed prior to January 12, 1990 that complainant had any connection to Cable's §210 complaint is Cable's testimony that he gave a DOL investigator "the names of Ranard Floyd, Clyde Stewart, John Keith as contacts . . .on November 21st, 1989, when I had him [the DOL investigator] file a complaint for me." (TR I, at 44-45). But the evidence does not establish that this information was provided to respondent. Moreover, even if it had been, there is no indication that respondent would have considered that some of its employees were said to be Cable's "contacts" as evidence that they were going to be witnesses on his behalf. In fact, Clyde Stewart testified as a witness for the respondent in complainant's case, and was promoted to Manager of respondent's Employee Concerns Program less than a month after respondent allegedly was discriminated against (TR II, at 194-95).

   In sum, there is absolutely no evidence in this record to support a finding that complainant was listed as a witness in Pat Cable's §210 case prior to January 12, 1990. Assuming arguendo that complainant had been listed as a witness for Cable, there is no evidence that the respondent was aware of this fact. That Cable and complainant were friends and confidants does not establish that complainant was to be a witness on Cable's behalf; moreover, the complaint does not allege discrimination on the

basis of his friendship with Cable.

d. Arizona Republic

   Sometime around October 20, 1989, complainant and Pat Cable met with a reporter for the Arizona Republic newspaper to discuss their concerns about safety at Palo Verde (TR I, at 102-04, 113- 14, 201). They turned over two bags of documents allegedly related to these safety concerns to the reporter. However, nothing ever came from this meeting, and no articles regarding complainant's and Cable's concerns were published by the newspaper (id. at 78).

   Although the complainant may have engaged in protected activity by raising safety concerns with a reporter, the record fails to establish that the respondent was aware of it prior to complainant's meeting with Mann. The only evidence complainant points to for the purpose of establishing that the respondent had knowledge of his meeting with the newspaper reporter is Clyde Stewart's memorandum setting out the substance of a November 4, 1989 telephone conversation between himself and Pat Cable (CX 9). However, as reported in that memorandum, Cable did not indicate that anyone accompanied him when he met with the reporter (see id. at 8-9); and Stewart testified that prior to January 12th, he was unaware that the Complainant had gone to see the reporter with Cable (TR II, at 217-18). Further, when Cable was asked if he mentioned that complainant accompanied him, his testimony was vague (TR I, at 62). He added that he "generally tried to be careful not to identify him [complainant] so he wasn't retaliated against." (Id.). In any event, based on Cable's demeanor during his testimony, I find that he was not a credible witness, and his testimony is not reliable. Finally, there is nothing in Mike Mann's narration of the January 12th meeting which indicates he had any previous knowledge of complainant's participation in the Arizona Republic meeting (see RX 4, at 9).

   Accordingly, complainant has not met his prima facie burden in regard to the elements which form the basis of his complaint. The theory of complainant's case is that respondent was aware of the alleged protected activities prior to January 12, 1990, and that all of the activities on January 12, 1990 were acts of discrimination. Since the respondent was unaware that claimant had engaged in protected activity prior to that date, the complaint must be dismissed.

e. Addendum

officers and employees are so diabolical that they would have concocted a false story regarding statements made by complainant at his interview with Mann and reacted accordingly, all within a few hours. Further, if retaliation was respondent's motive, why did respondent not fire the complainant? It cannot be argued that it would have been inappropriate to fire an employee who has threated to kill the company's top management. Instead, respondent took only those steps necessary to determine whether complainant posed a real threat to its security; and, when convinced that he was not a threat (see, e.g., RX 6-7; TR II, at 11), he was reinstated with the loss of only day's pay (although he had been suspended for an entire week). These are not the actions of a company intent on retaliation for whistleblowing.

   Further, having observed the demeanor of the many witnesses who testified at the hearing, I find that respondent's officers and employees -- from Mann through James Levine, respondent's vice-president who was in charge of the Palo Verde plant -- acted in good faith in the belief that the complainant had a pact with Pat Cable to kill respondent's top management (e.g., TR II, at 7). Although complainant has denied making such a statement, his testimony regarding what he claims to have said does not ring true. Further, even accepting his testimony about the statements he made to Mann, at the least those statements could have been construed as physicial threats to respondent's management. For example, complainant says he told Mann that:

Pat has an insurance policy. That is, in my words, that if anything happened to he or I, . . . evidence would come out that would reconfigure the heads of APS [Arizona Public Service].

(TR I, at 118. See also RX 3, at 813; TR I, at 85-86, 189). He also admitted stating to APS's security employees that "no one threatens me" (TR IV, at 77), which is similar to what Mann indicated complainant had said to him (see RX 4, at 9). In addition, complainant told APS's security that he had a gun in his car (TR IV, at 78); Mann stated that complainant said he "would take his pistol and put a lot of holes in [anyone bothering him]." (RX 4, at 9).

   I find that respondent's decision to take disciplinary action against the complainant was based on the belief that

complainant had physically threatened its corporate officials, and posed a real danger to the company and its employees. Regardless of whether respondent was correct in this belief, it is clear that the ERA and the other whistleblower statutes only protect an employee from retaliation against protected activity, i.e., actions "motivated by unlawful animus." Turner v. Texas Instruments, 555 F.2d 1251, 1257 (5th Cir. 1977); see also Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1036 (5th Cir. 198U); Seraiva v. Bechtel Power Corp. 84-ERA-24 (1984), aff'd, 1985, by Secretary of Labor. Since the complainant was disciplined in response to respondent's good- faith belief that he had physically threatened its management, not for engaging in protected activity, respondent has not violated the Act.

   Accordingly, I find that respondent did not discriminate against the complainant due to his engaging in activity protected by the ERA, and the case is dismissed.

   The discrimination case of Ranard Floyd against Arizona Public Service Co./Arizona Nuclear Power Project under the Energy Reorganization Act is dismissed.

       JEFFREY TURECK
       Administrative Law Judge