This proceeding arises under Section 210 of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851
(1988). Before me for review is a Recommended Decision and Order
(R.D. and O.) issued on February 1, 1990, by Administrative Law
Judge (ALJ) Clement J. Kichuk. After conducting a seven-day
administrative hearing, the ALJ determined that Complainant had
been subjected to employment discrimination because of his
statutorily-protected activities and that any legitimate reasons
proffered by Respondent for its actions were pretextual. Upon
review of the case record in its entirety, I agree. Unless
otherwise stated, I adopt the ALJ's findings generally, and rely
specifically on those referenced below.1
Because the ALJ has
recounted and weighed the evidence thoroughly, I engage in a
summary analysis with reference to the particular findings in the
R.D. and O. on which I rely.
1Here, Complainant contends that
Respondent's motives were
wholly retaliatory, and Respondent counters that its motives were
wholly legitimate. Thus, neither party relies on a "dual motive"
theory in advancing its case. In this circumstance, use of the
"pretext" legal discrimination model appears appropriate because
it focuses on determining the employer's true motivation, rather
than weighing competing motivations. See Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981). Accordingly,
I do not employ the "dual motive" standard mentioned by the ALJ.
R.D. and O. at 51.
2These officials included Admiral
Stephen White and TVA Board
Chairman Charles "Chili" Dean. R.D. and O. at 5.
3Complainant reported to Roy
Anderson, who in turn reported to
Leonard Peterson, who reported to Hoyt Johnson, the most senior
quality assurance manager at the Watts Bar Nuclear Plant.
4The CAQR which arose out of
the September 2, 1987, inspection
was not issued until early January 1988, due to ongoing
disagreement between Complainant and his inspectors, and the
manager of the quality engineering section. R.D. and O. at 7-10.
The "untimeliness caused by the resistance of management to . . .
issuing [this] CAQR" precipitated a second CAQR. R.D. and O. at
43.
5Complainant's prima facie case
requires a showing sufficient
to support an inference of unlawful discrimination. This burden
is not onerous. Texas Dept. of Community Affairs v. Burdine, 450
U.S. at 253. Direct evidence is not required for a finding of
causation. The presence or absence of retaliatory motive is
provable by circumstantial evidence, even in the event that
witnesses testify that they did not perceive such a motive.
Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d 563,
566 (8th Cir. 1980), cert. denied, 450 U.S. 1040 (1981). Accord
Mackowiak v. University Nuclear Systems Inc., 735 F.2d 1159, 1162
(9th Cir. 1984).
6See R.D. and O. at 7.
The CAQR debate extended throughout
the month of September. on either September 24 or 29, Inspector
Willoughby presented Peterson with a CAQR that he had prepared,
Peterson refused signature, and Willoughby reported the impasse
to the ECP. Hearing Transcript (T.) 4/25/89 at 91-95.
7In rationalizing its personnel
actions, Respondent invoked
the following incidents: (1) one of Complainant's inspectors
had consulted Mr. Peterson, instead of Complainant, about a
promotion; (2) Complainant had requested excessive extensions
in completing a project; and (3) Complainant had implemented
a deficient procedure. The ALJ found essentially that
Complainant's inspector properly consulted Mr. Peterson, that
any blame associated with the project's completion clearly fell
on another supervisor, and that the procedure deficiency did not
merit discipline, even in the unlikely event that Complainant was
responsible.
8"Once having shown
discrimination continuing into the
actionable period . . . plaintiffs may also recover for portions
of illegal discrimination that antedated the limitations period."
McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C. Cir. 1982). See
Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1989).
9The court in Malhotra v.
Cotter & Co., 885 F.2d at 1310,
explained:
What justifies treating a series of separate violations
as a single continuing violation? Only that it would
have been unreasonable to require the plaintiff to sue
separately on each one. In a setting of alleged
discrimination, ordinarily this will be because the
plaintiff had no reason to believe he was a victim of
discrimination until a series of adverse actions
established a visible pattern of discriminatory
mistreatment.
10In Bruno, the court
focused on the defendant's intent "to
take any action necessary to get rid of plaintiff" in affirming
the district court's finding of a continuing violation. 829 F.2d
at 961-962.
11A compelling case might be
made for the presence of a
continuing violation, however, where a respondent engages in
a systematic practice of denying promotion opportunities and
other benefits. See Tyson v. Sun Refining & Marketing Co., 599
F. Supp. 136, 138-140 (E.D. Pa. 1984), and cases discussed
therein.
12As the result of the
embarrassment and humiliation
accompanying his demotion, DeFord developed chest pains and
tightness, difficulty in swallowing, nausea, indigestion, and
difficulty in sleeping. Stress, anxiety, and depression were
held to constitute mental conditions of which his physical
symptoms were specific evidence. The nonrenewal of Aumiller's
teaching contract caused anxiety neurosis. Symptoms included
insomnia, nightmares, fatigue, feelings of being overwhelmed,
appetite loss, and pressured speech. Aumiller experienced severe
financial difficulties, forcing him to lower his standard of
living. A clinical psychologist provided testimony documenting
his condition and establishing causation. Individuals who worked
with Aumiller testified to observing deterioration in his mental
attitude.
13On the date of his RIF,
Complainant's blood pressure
registered in the vicinity of 226/116. T. 4/24/89 at 162.
"[T]he doctor told him to go home and get out from under the
stress." R.D. and O. at 40. See Exhs. C-62, C-63 (medical
documentation of symptoms, including blood pressure, stomach
problems, anxiety).
14In Fleming v. County of
Kane, State of Ill., 898 F.2d at 561,
the court determined that an examination of "compatibility among
such awards, i.e., whether the award is out of line with awards
in similar cases," generally is in order.