Administrative Law Judge (ALJ) James W. Kerr submitted a Recommend
Decision and Order (R.D. and O.) to me on November 16, 1987, in this
case arising under the employee protection provisions of the Energy
Reorganization Act of 1974, as amended (the Act), 42 U.S.C. § 5851 (1982).
1 Although finding that Complainant
had failed to make a prima facie case
on the retaliatory discharge issue, the ALJ also discussed whether the
evidence would have the same result (dismissal) if a prima facie
case had been established. R.D. and O. at 11-13. While I agree that the
record fully supports the ALJ's factual analysis here, his legal analysis of
the shifts in burden of proof is not entirely consistent with the decision
in Dartey v. Zack, 82-ERA-2, Secretary's decision issued April 25, 1983,
slip op. at 6-9. This discussion, by the ALJ, however, is dicta and is not
necessary to the decision in this case.