Before me for review is the (Recommended) Decision and Order
Granting Summary Judgment (R.D. and O.) of the Administrative Law
Judge (ALJ) in this case arising under the employee protection
provision of the Energy Reorganization Act of 1974, 42 U.S.C.
§5851 (1988) (ERA). The ALJ recommends granting summary
dismissal of the complaint, on the grounds that Complainant has
not raised any genuine issue of material fact concerning the
alleged blacklisting by the Respondent (TVA). The ALJ
specifically rejects Complainant's allegation of a per se
violation of the ERA. Both parties filed briefs before the
Secretary.
I agree with the ALJ's decision that Respondent's motion for
summary judgment should be granted and the complaint dismissed.
As the ALJ concluded, Complainant failed to establish a prima
facie case of blacklisting in retaliation for protected
1In order to establish a prima facie
case of discrimination
under the ERA, a complainant must show that he engaged in
protected activity of which the respondent was aware and that
respondent took some adverse action against him. In addition,
complainant must present evidence sufficient to at least raise an
inference that the protected activity was the likely motive for
the adverse action. See Dartey v. Zack Company of Chicago, Case
No. 82-ERA-2, Sec. Dec. and Final Order, April 25, 1983, slip op.
at 5-9. Here, it is undisputed that Complainant engaged in
protected activity of which Respondent was aware.