Solnicka v. Washington Public Power Supply System, 1999-ERA-19 (ALJ Oct. 21, 1999)

U.S. Department of Labor

Office of Administrative Law Judges 603 Pilot House Drive, Suite 603 Newport News, Virginia 23606-1904 (757) 873-3099 (757) 873-3634 (FAX)

DATE: October 21, 1999

CASE NO.: 1999-ERA-0019

IN THE MATTER OF

STEVEN J. SOLNICKA,
    Complainant

    v.

WASHINGTON PUBLIC POWER SUPPLY
SYSTEM (ENERGY NORTHWEST),
    Respondent.

   This proceeding arises under the Energy Reorganization Act of 1974 as amended, 42 United States Code section 5851. The Act prohibits a Nuclear Regulatory Commission licensee from discharging or otherwise discriminating against an employee who was engaged in activity protected by the provisions under the Act.

   On March 25, 1999, Mr. Solnicka filed a complaint with the Occupational Safety and Health Administration, U. S. Department of Labor.

   On May 11, 1999, the Complainant was informed by the Regional Administrator that

Pursuant to 29 CFR Part 24, Procedures for Handling Discrimination Complaints Under Federal Employee Protection Statutes, the complaint in the above- referenced matter has been dismissed by this office. These procedures require that OSHA not investigate complaints if the complainant fails to meet a prima facie showing that protected activity was a contributing factor in the adverse treatment per Section 211 of the Energy Reorganization Act, as amended.

Your letter of complaint, received at this office on March 25, 1999, failed to contain sufficient allegations to form a prima facie complaint. A review of the complaint and the supporting documentation did not indicate that you were subjected to adverse treatment. Providing information about adverse treatment is required to form a prima facie complaint. You alleged that the adverse treatment existed in the form of a negative performance evaluation. Information you submitted indicated that the evaluation was revised after you complained to your employer and before you filed this complaint. Further, you no longer report to the same management who you alleged discriminated against you, and this change in management was also done prior to your OSHA complaint. There was no indication that you suffered any loss of pay or other employment benefit due to your safety concern. Because the complaint did not include sufficient information that you were adversely treated, it is dismissed.

   Several days later the Complainant filed an appeal with the Chief Administrative Law Judge, U. S. Department of Labor. The case was subsequently assigned to the undersigned Administrative Law Judge.

   The undersigned held a conference call with the parties and a hearing was scheduled for August 17, 1999 in Richland, Washington.

   At the hearing, the parties submitted three joint exhibits¹ :

JX1 joint motion for dismissal which had been signed by the parties

JX2 an order of dismissal to be signed by the Administrative Law Judge

JX3 a settlement agreement signed by the parties.

¹ The following abbreviations will be used as citations to the record:

JX - Joint exhibits and

TR - Transcript.