U.S. Department ot Labor
                    Office of Administrative Law Judges
                       Suite 901, 1001 Howard Avenue
                          New Orleans, LA  70113




In the Matter of

TIENNE ROGERS                           Case No. 85-ERA-16
          Claimant

     against

MULTI-AMP CORPORATION   
          Employer



James L. Hicks, Jr., Esq.
  1341 Mockingbird Lane
  Dallas, TX 75247
            For the Claimant

Hershell L. Barnes, Jr., Esq.
  Haynes & Boone
  3100 Interfirst Plaza
  Dallas, TX 75202-3714
            For the Employer

[PAGE 1]

Before: JAMES W. KERR, JR.
        Administrative Law Judge


                RECOMMENDED DECISION AND ORDER OF DISMISSAL

     This proceeding arises under the Energy Reorganization Act
of 1974, as amended (hereinafter referred to as the Act) 42
U.S.C. § 5851, and its implementing regulations, 29 C.F.R.
§ 24.  Claimant, Tienne Rogers, contends that she was terminated by the
Employer, Multi-Amp Corporation, in violation of the act due to
her submission of a complaint to the Nuclear Regulatory
Commission.

     A formal hearing was held in Waxahachie, Texas, January 6-7,
1986, at which all parties were afforded full opportunity to
present evidence and argument.  The record closed March 27, 1986
following the receipt of briefs from Claimant and Employer.
     The findings and conclusions which follow are based upon the
appearance and demeanor of the witnesses who testified at the
hearing, analysis of the entire record, argument of the parties,
applicable regulations, statutes and case law precedent.
[l]

              Findings of Fact and Conclusions of Law

     Claimant filed a charge with the U.S. Department of Labor
April 26, 1985 alleging discriminatory termination as a result of
a March 7, 1985 report to the Nuclear Regulatory Commission.  She
has also filed a complaint with the Equal Employment Opportunity
Commission contending that she was terminated as a result of sex
discrimination and in retaliation for a prior complaint against
Employer. (DX-9A).  The Employer claims that Claimant was
terminated for inadequate job performance and not due to either
the complaint filed with the Nuclear Regulatory Commission or the
complaint filed with the Equal Opportunity Employment Commission.

     Employer is in the business of providing services, equipment
and personnel to nuclear and fossil power plants in the United
States.  The services include mechanical, electrical and control
support as well as training in metrology services to assist in
plant start-ups, testing and routine maintenance.   (TR p. 277).
In accordance with NRC regulations, all personnel and equipment
supplied by Employer must be certified.  The certification
process is the responsibility of Employer's Quality Assurance
Manager who works under the direction of the Vice-President and

[PAGE 2]
General Manager.  (TR p. 274).

     The Quality Assurance Manager is responsible for developing
and maintaining Employer's Quality Assurance Program.   It is a
responsibility of that office to insure that personnel are
certified according to the applicable federal regulations,
contractual requirements and Employer's internal standards.  The
Quality Assurance Manager also monitors the certification of the
measuring equipment utilized or provided by Employer.  (TR pp.
27-28).  The Quality Assurance Manager reports directly to
Employer's vice-president who has the responsibility of
evaluating the job performance of the Quality Assurance Manager.


     Claimant was hired by Employer February 15, 1982.  In
October 1983 Claimant assumed the duties of Quality Assurance
Manager in addition to maintaining some responsibility for
training. (TR pp. 23-24; CX-58).  Mr. R. D. Allen was Claimant's
supervisor until April 1984 at which time Mr. John Lapicola
became Vice-President and General Manager. (TR p. 29).  It
appears that serious disagreements concerning management
decisions began to develop shortly after Mr. Lapicola assumed his
supervisory responsibilities over Claimant.  For example,
Claimant complained about being excluded from staff meetings.
Mr. Lapicola testified that staff meetings should be attended by
managers who had sales or costs responsibilities and that it was
unnecessary for the Quality Assurance Manager to attend.
Claimant disagreed with this decision and attempted to continue
to attend the weekly meetings.  (TR pp. 33, 259-261).

     Claimant also objected to Mr. Lapicola's decision to assign
other tasks in addition to her duties as Quality Assurance
Manager.  According to the record, Claimant only worked
exclusively as Quality Assurance Manager during the period March
1984 until July 1984.  Even though Claimant admitted that the
quality assurance work was "not extremely time consuming," she
disagreed with Lapicola's management decision concerning
priorities and assignments.   (TR p. 26, TR p. 48; CX-58, 61, 62
and 63).

     Approximately eight months prior to terminating Claimant,

[PAGE 3]
Mr. Lapicola began documenting incidents which he considered
to reflect unsatisfactory job performance.  On September 28,
1984, Mr. Lapicola prepared a memorandum concerning Claimant's
unexcused and excessive absence from work.  (EX-l).  On October
25,  1984, Mr. Lapicola directed a memorandum to Claimant
concerning her continued unacceptable job performance and
unexcused absences.   Claimant was informed again by memorandum
November  5,  1984 that her job performance continued to be
unsatisfactory.  Mr. Lapicola advised Claimant that she would be
placed on probation and subject to regular counseling sessions.
Claimant testified that she recognized that Mr. Lapicola was
building a case for terminating her.  (CX-68, TR p. 303 and TR
p. 17).

    On March 6, 1985 Mr. Lapicola met with Claimant to discuss
her annual performance review.  The performance appraisal placed
Claimant in the category of needing improvement which meant that
she did not receive an annual pay increase. (TR pp. 304-305,
EX-8).  After receiving the unsatisfactory performance appraisal
and the resulting loss of an increase in salary, Claimant filed a
sex discrimination charge against Employer with EEOC.   (TR p.
187,  EX-9A).   On March 7, 1985 Claimant contacted the NRC by
telephone, alleging that deficiencies existed in the Employer's
Quality Assurance Program.  (TR p. l91).  The NRC telephonically
contacted Employer concerning the allegation which resulted in a
meeting March 8, 1985 between Claimant, Mr. Lapicola and Mr.
Rubin Esquivel to discuss the reported deficiencies.  (TR p.
201).  In a memorandum dated March 8, 1985, Claimant identified
four deficiencies in the Quality Assurance Program. (CX-71).

     Mr. Lapicola testified that he wished to terminate the
Claimant during the fall of 1984.  In April 1985 he again
concluded that Claimant should be terminated, however, Mr. Butch
Ackman, Human Resource Manager, recommended that Claimant should
be given another chance.  (TR p. 309).  Mr. Lapicola then sent a
memorandum to Claimant dated April 5, 1985, listing four areas
requiring an improved job performance.  Later that month,
Claimant advised Mr. Lapicola that she needed to travel to Kansas
City to attend a supervisors meeting.  When Mr. Lapicola
requested more information, Claimant submitted a memorandum dated
April 17, 1985 indicating that a certification problem at the
Shearon-Harris project needed to be resolved at that time.
(CX-78).  A review of the record reflects that Claimant had
failed to respond to requests for quality assurance
certifications for several employees.   (CX-83A, Cx-83B).  Mr.
Lapicola testified that he then terminated Claimant due to the

[PAGE 4]
Shearon-Harris certification delinquencies and the prior warnings
concerning her unsatisfactory job performance.  (TR  pp.
315-316).

     The ultimate issue in this case is whether Employer
discriminated or retaliated against Claimant due to her reporting
alleged deficiencies to the NRC.  The burden of persuading the
Court that Employer intentionally retaliated due to the
protective activity remains at all times with Claimant.  However,
if Claimant establishes a prima facie case, the
burden shifts to Employer to rebut the presumption by producing
evidence that the termination was based on a legitimate,
non-discriminatory reason.  The burden then returns to Claimant
to convince by preponderance of the evidence that the legitimate
reasons offered by the Employer are only a pre-text.  Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).

     A review of the record in this case reflects that Claimant's
position with Employer became precarious shortly after Mr.
Lapicola became her supervisor.  The evidence indicates, and
Claimant admitted during her testimony and in her post-hearing
brief filed March 27, 1986, that Mr. Lapicola considered
terminating her in November 1984, several months before the
telephonic complaint to the NRC.  Mr. Lapicola testified at
length during the hearing.  While he may be a difficult,
demanding and possibly unreasonable supervisor, there is nothing
to contradict his testimony that he wished to terminate Claimant
several months prior to the complaint to the NRC.  The problem
with the delinquent certifications at the Shearon-Harris project
and the amply documented displeasure with Claimant's job
performance constitute a valid non-retalitory basis for the
termination.

     It is not the prerogative of this Court to superimpose its
business judgment on Employer or to determine the wisdom of Mr.
Lapicola's decisions.  It is the right of the Employer to select
an executive, such as Mr. Lapicola, and for that incumbent to
impose his judgment over the business decisions of a subordinate,
such as Claimant.  While the Employer may not violate the act,
Claimant is not immunized from legitimate business decisions,
including termination, merely because she has engaged in
protected activity.  On the basis of all of the evidence, the
Court concludes that Employer exercised a legitimate business
decision to terminate Claimant which is not attributable to her
protected activity of complaining to the NRC.  In fact, it


[PAGE 5]
appears that Claimant contacted the NRC after she realized that
her position with Employer had become hopeless.

     Even though the evidence causes the conclusion that
Claimant's termination was not violative of the Act, the Court
concludes that the facts do not warrant assessing costs and legal
fees against her.  During her testimony Claimant appeared candid
and sincere.  Claimant genuinely believes that she has been
improperly treated by Employer, specifically, Mr. Lapicola, and
that she has a legitimate grievance.  The decision in this case
has been based exclusively on the narrow issue as to whether
Claimant was terminated for complaining to the NRC.  It has not
addressed and does not comment on whether Claimant was
unfairly or was the subject of other discrimination.  An
assessment of costs against Claimant would have a chilling effect
in cases, such as the one sub judice, in which a
claimant has a legitimate right to request an impartial judge or
jury to review the direct and circumstantial evidence and to
render a judgment concerning the motivational factors.

     It is, therefore, ORDERED, ADJUDGED AND DECREED that the
complaint of Claimant, Tienne Rogers, is hereby DISMISSED.

     It is further ORDERED that Employer's motion for assessment
of costs is hereby DENIED.

     Entered this 4th day of April, 1986, at New Orleans,
Louisiana.




                                JAMES W. KERR, JR.
                                Administrative Law Judge

[ENDNOTES]

[1] The following abbreviations will be used throughout
this decision:  Claimant's Exhibit - CX, Defendant's Exhibit - DX and
transcript - TR.