DATE: May 22, 1990
CASE NO. 89-ERA-18

IN THE MATTER OF

SHANNON T. DOYLE,
    COMPLAINANT,

    v.

BARTLETT NUCLEAR SERVICES,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    The Administrative Law Judge (ALJ) below issued a Recommended Decision and Order Dismissing Complaint (R.D. and O.) on March 23, 1989, in this case assertedly arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C § 5851 (1982). The case is before me for review. 29 C.F.R. § 24.6 (1989).

    This case arises from a complaint against Bartlett Nuclear Services (BNS) received by the Employment Standards Administration, Wage and Hour Division of the Department of Labor (DOL) on December 7, 1988. Although the instant complaint is against BNS, Complainant, proceeding pro se, alleges that he has been blacklisted by Alabama Power Company (APCO) because he filed complaints with the Nuclear Regulatory Commission (NRC) during his employment at APCO's J.M. Farley Nuclear Plant.¹ Complainant further asserts that he has unsuccessfully attempted to obtain employment through BNS, an employment agency which

supplies support personnel to nuclear facilities. Complainant explains that he wishes to pursue this complaint against BNS to explore whether BNS has information concerning the alleged blacklisting by APCO. Specifically, Complainant states that he wants to clarify why he has not been hired at several nuclear plants which received his resume, and why he was accepted for "back up" on two occasions but never contacted for these jobs.²

    In his response to an Order to Show Cause issued by the ALJ on February 9, 1989, Complainant argued that this case should not be dismissed, claiming that the ERA protects him as a former employee in the industry who has been blacklisted by APCO and discriminatorily denied reemployment by several employers in the industry as a result. Complainant further argued that BNS is an appropriate Respondent in this case because BNS is involved in the reemployment process as an agent of his former employer, and because, he alleges, BNS has information as to whether blacklisting has been involved.

    The sole issue considered by the ALJ was whether BNS was a proper Respondent under the Act and regulations. The ALJ held that the ERA and its implementing regulations do not speak to jurisdiction with respect to potential employers, employment agencies or applicants, but rather, prohibit discrimination only within the employer-employee relationship. On that basis, the ALJ concluded that BNS, an employment agency for nuclear plants, was an improper party to this proceeding and recommended that the complaint against BNS be dismissed. See R.D. and O. at 1-2. The ALJ's conclusion was error because the Secretary has determined, under the particular facts of several cases, that the ERA may afford protection, absent a direct employer-employee relationship. See Kamin v. Hunter Corporation, 89-ERA-11, Sec. Order to Show Cause, September 12, 1989, slip op. at 2-3 (applicants for employment); Hill v. Tennessee Valley Authority, Case No. 87-ERA-23, Sec. Decision and Order of Remand, May 24, 1989, slip op. at 2, 5 and 10 (employees of a contractor); Cowan v. Bechtel Construction, Inc., Case No. 87-ERA-29, Sec. Decision and Order, August 9, 1989, slip op. at 2-4 (former employees).

circumstances an employment agency, such as BNS, can be an appropriate Respondent under the whistleblower provision of the ERA has not been considered by the Secretary. The pertinent statutory language in Section 5851(a) states that, "[n]o employer, including a Commission licensee, an applicant for a Commission licensee, or a contractor or subcontractor of a Commission licensee or applicant . . . " may discriminate against any employee. 42 U.S.C. § 5851(a). This language indicates that if an employment agency is shown to be a contractor or sub- contractor of a former or prospective employer of Complainant, and is alleged to have engaged in prohibited discriminatory action, such an entity might, at least under some circumstances, be an appropriate Respondent under the ERA. On the current record, however, Complainant has failed to allege against BNS a prima facie case of retaliatory adverse action based on protected conduct. Accordingly, it is not necessary to decide the broader issue of whether, and under what circumstances, an employment agency may be an appropriate Respondent under the ERA whistleblower provision. Even if BNS were found to be a covered Respondent in this case, the Complainant initially must allege the requisite elements of a prima facie case in support of his or her claim.³ See Dartey v. Zack Co. of Chicago, Case No. 82- ERA-2, Sec. Order, April 25, 1983, slip op. at 7-8. In the instant case, Complainant has failed to allege the essential element of adverse action by BNS, and there is no indication otherwise in this record that BNS has discriminated against Complainant. Although Complainant alleges blacklisting and discriminatory refusal to release a reference against APCO, these allegations cannot support any claim against BNS. Additionally, Complainant's own filings indicate that BNS has solicited him as a prospective employee, submitted resumes on his behalf and even obtained potential employment for him in one instance, see Employee Personal Interview Statement of December 19, 1988, at p.3, which fell through because Complainant failed the drug test conducted by the nuclear facility/employer.

    Based on Complainant's submissions in this record, I conclude that Complainant essentially is seeking an alternative means of investigating the alleged prohibited discrimination by former and prospective employers in the nuclear industry. As Complainant has failed to specifically allege any discriminatory conduct by the named Respondent, BNS, the instant complaint must be dismissed for failure to state a claim upon which relief can be granted. See 29 C.F.R § 18.1(a); Fed.R.Civ.P.12(b)(6).

¹A separate complaint against Alabama Power Company, alleging blacklisting, has been dismissed as untimely. Doyle v. Alabama Power Co., Case No. 87-ERA-43, Sec. Final Decision and Order, September 29, 1989, appeal docketed, No. 89-7863 (11th Cir. Nov. 28, 1989). To date, Complainant has filed three complaints against three separate Respondents based on the events subsequent to his resignation from the J. M. Farley Nuclear Plant in March of 1983. This decision deals only with the complaint filed against Bartlett Nuclear Services.

²Complainant believes that he is being misled as to these "back up" positions, and further alleges that a BNS representative has informed him of prospective employers' inability to obtain a reference from APCO. Complainant's allegations are found in the complaint received by the DOL on December 7, 1988; in a handwritten "Employee Interview Statement" by Complainant dated December 19, 1988; and in the Complainant's Response to Show Cause Order, submitted on February 28, 1989.

³Although a pro se Complainant cannot be held to the same standard for pleadings as if he were represented by legal counsel, Complainant must allege a set of facts which, if proven, could support his claim of entitlement to relief.