DATE: January 13, 1993
CASE NO. 91-ERA-42

IN THE MATTER OF

JAMES E. HOUSE,
   COMPLAINANT,

   v.

TENNESSEE VALLEY AUTHORITY (TVA),
   RESPONDENT,

   and

TENNESSEE VALLEY AUTHORITY,
   COMPLAINANT,

    v.

JAMES E. HOUSE,
   RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Before me for review is the Recommended Decision and Order (R.D. and O.) of the Administrative Law Judge (ALJ) in this case arising under the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1988). The ALJ recommended dismissal of the complaint finding that Complainant failed to establish his allegations of retaliation for protected activity in violation of the ERA.

    Based on my review of the record, I accept the ALJ's factual findings, credibility determinations and legal conclusions as fully supported by the record evidence and in accordance with the case law and prior decisions of the Secretary. The following discussion is added to clarify the ALJ's analysis on the merits of each allegation made by Complainant.

    The pertinent facts are as follows. Complainant was employed as a mechanical maintenance steamfitter at the Watts Bar Nuclear Plant. On October 5, 1990, Complainant was trapped for approximately six and one-half hours in the Post Accident Sampling Room due to a faulty locking mechanism on the door. The October 5 incident was investigated and reported to the Nuclear Regulatory Commission. On October 22, Complainant went to TVA's Employee Concern Program and reported his concern about the defective door mechanism to Roy Hatton. RX-3, ALJ-12. After investigation of the concern, two TVA employees were disciplined for contributing to the situation, physical repairs were made in the PSAR, and a memorandum notified all employees of the incident and reiterated the precautions for avoiding future incidents. RX-2, RX-4, ALJ-12.

    Complainant attempted to return to work on October 10, but complained to TVA Medical Services of being very nervous, short of breath and feeling closed in. His personal psychiatrist, Dr. Peterson, informed TVA Medical Services that he was treating Complainant for anxiety and panic attacks as a result of the October 5 incident. On October 11, Complainant notified Medical Services that his psychiatrist advised him to stay off work a few days. On October 15, Medical Services received a letter from Dr. Peterson indicating that Complainant was totally disabled from work due to severe claustrophobia and panic disorder, and could not return until at least November 12, 1990. Based on this letter and Complainant's self reporting of problems, TVA Medical Services' Dr. Zachary, initiated procedures to withdraw Complainant's S-1 medical approval which is required for Complainant to obtain unescorted access to TVA's nuclear plant protected areas (NPA) and to work. On October 22, Dr. Sajwaj, a psychologist with TVA's psychological services, was notified by Dr. Zachary of Medical Services of Complainant's mental difficulties arising out of the October 5 incident. As a result, Dr. Sajwaj recommended withdrawal of Complainant's S-1 clearance and advised that he be withheld from duty out of concern for his ability to work safely.

    TVA Personnel was then notified of the S-1 clearance withdrawal and revoked Complainant's security clearance for unescorted nuclear plant access (NPA), because S-1 clearance is a prerequisite to NPA under TVA's physical security plan. By letter dated October 26, 1990, personnel notified Complainant of NPA withdrawal. On November 4, Dr. Peterson indicated continued therapy and estimated return to work on January 9, 1991.

    Complainant filed a claim under the Federal Employees' Compensation Act (FECA) on October 15 due to problems caused by the Oct. 5 incident, and TVA objected to the claim on the grounds that Complainant's condition was preexisting rather than a traumatic injury. The instant complaint was filed with the U.S. Department of Labor on November 21, alleging retaliation by TVA. ALJ-10.

    In order to establish a prima facie case of discrimination under the ERA, a complainant must show that he engaged in protected activity of which respondent was

aware and that respondent took some adverse action against him. Moreover, complainant must produce sufficient evidence to at least raise an inference that the protected activity was the likely motive for the adverse action. See Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-9. if complainant establishes a prima facie case, then respondent has the burden of producing evidence that the adverse action was motivated by legitimate, nondiscriminatory reasons. Dartey at 8-9. If so produced, complainant, as the party bearing the ultimate burden of persuasion of discrimination, has the opportunity to show that the proffered reason was not the true reason, but a pretext for retaliation. Dartey at 8-9.

    Here, Complainant alleged that TVA's withdrawal of S-1 medical clearance, psychological clearance and his NPA, as well as TVA's objection to his FECA claim, were in retaliation for his protected activity of reporting the faulty locking mechanism. Complainant further alleged that he was subjected to "intense intimidation and harassment by TVA management personnel" by the manner in which they have contacted him while on medical leave at home. ALJ-10, ALJ-12.

    Complainant has established protected activity in that it is undisputed that he raised safety concerns about the faulty door mechanism to ECP on October 22, and informed NRC about the October 5 incident on October 6. The adverse actions of withdrawal of S-1 and NPA, and controversion of the FECA claim are undisputed.¹ Complainant also presented sufficient evidence to raise an inference that the protected activity was the likely motivation for the adverse action, in that temporal proximity is legally sufficient to establish the "causation" element. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). Nevertheless, Complainant has presented no evidence that any employee of Respondent involved in the decisions to withdraw S-1 and NPA clearances or to controvert the FECA claim, were aware of his October 6 complaint to the NRC. Complainant acknowledges that the complaint was made by telephone from his home and that he did not apprise any TVA personnel about the phone call. All of Respondent's witnesses testified that they were unaware of Complainant's safety complaint to the NRC or the ECP at the time of their involvement in making the challenged decisions.

    For the reasons discussed above, I agree with the ALJ's conclusion that Complainant failed to establish a prima facie case of retaliation with respect to the allegations of withdrawing clearances and controverting his FECA claim, in that he did not produce any evidence to show that Respondent was aware of his protected activity. In the alternative, I further conclude that even if Complainant had established a prima facie case of retaliation, Respondent has proffered legitimate, nondiscriminatory reasons for each of the challenged actions, and Complainant has failed to establish pretext. The ALJ properly credited Respondent's testimony and evidence establishing the rules and policy reasons for withdrawing Complainant's S-1 and NPA clearances, as well as the undisputed evidence of the communications and correspondence leading up to these decisions. Moreover, Respondent has offered legitimate, nondiscriminatory grounds for controverting Complainant's FECA claim, which are corroborated by the evidence of record, including Complainant's own testimony.

¹Respondent disputes the allegations of harassment and intimidation.