U.S. Department of Labor
Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Room 409
Boston, Massachusetts 02109
Case No.: 86-ERA-2
In the Matter of:
Thomas G. Bassett,
Claimant
v.
Niagara Mohawk Power Company,
Employer
RECOMMENDED ORDER - DISMISSING
COMPLAINT
This is a proceeding initiated in accordance with the
terms of a special employee-protection provision of the Energy
Reorganization Act of 1974, 42 U.S.C. ¶ 5851, as implemented by
regulations issued by the Secretary of Labor, 29 C.F.R. ¶ 24
(1980).
Under consideration here are responses by Complainant and
Respondent to my Order to Show Cause, entered November 15,
1985. That order directed the parties to my concern that the
matter presented in this proceeding may not be a complaint
cognizable under the statute.
[Page 2]
As pertinent here, the statute bars certain employers from,
discriminating against any employee who has:
(1) commenced, caused to be commenced, or
is about to commence or cause to be
commenced a proceeding . . . for the
administration or enforcement of any
requirement imposed . . .
(2) testified or is about to testify in any
such proceeding, or:
(3) assisted or participated or is about to
assist or participate in any manner in such
a proceeding or in any other manner in such
a proceeding or in any other action to carry
out the purposes of this Act or the Atomic
Energy Act of 1954, as amended.
42 U.S.C. ¶ 5851(a).
It is not contested in this proceeding that Respondent here is
a covered employer.
The statute's implementing regulations provide for an
expedited administrative investigation and determination of any
employee complaint of relevant discrimination. In the event,
as here, the administrative determination is that the complaint
lacks merit, the employee may appeal and secure an
on-the-record hearing before an administrative law judge.
In this case, the employee filed a formal complaint with
the appropriate administrative office, the Wage and Hour
Division of the U.S. Department of Labor, in a letter dated
August 23, 1985. A letter to Complainant, dated October 10,
1985, from the Assistant Area Director of the Wage and Hour
Division advised him that his complaint was not substantiated.
Complainant then appealed that determination, thereby
initiating this on-the-record hearing process.
Complaint asserts two discriminatory incidents. First, he
refers to a reorganization being implemented for Respondent's
Quality Assurance Department where he has been employed. In
Claimant's view, the reorganization effectively demotes him.
Referring to the newly established organization chart for his
[Page 3]
department, Complainant states:
... Again, I and other more experienced,
better qualified personnel are relegated to
the bottoms of the charts, while many
comparatively "green" employees and
newcomers to the corporation are shown in
responsible management and supervisory
positions. (Complaint, p. 1) Complainant
avers that this is Respondent's latest act
in furtherance of a course of conduct
directed to me in retaliation for my
protected activities as a quality assurance
auditor . . . . [Affidavit, 11/22/85, p. 2]
The second act of discrimination alleged is Respondent's
denial to Complainant, on August 14, 1985, of a certain
temporary parking permit at a "close-in" parking lot.
Complainant was then temporarily handicapped and he could walk
to his workplace from his normal parking lot location only with
extreme difficulty. Complainant alleges the denial was "part
of an ongoing conspiracy or course of prohibited conduct, in
retaliation for protected activities engaged in by me as a NIMO
quality assurance auditor." [Affidavit, 11/22/85, p. 4].
While it seems probable to me that, in a proper factual
context, the two incidents complained of could very well
constitute prohibited retaliatory conduct by an employer, the
controlling issue here is whether the complaint alleges
relevant activity protected by Section 5851(a) of the statute.
on that issue in response to my show cause order, Complainant
argues as follows:
The definition of protected activity
is as broad as the definition of prohibited
conduct. Virtually every action taken by a
quality assurance auditor falls within the
protection of the ERA, including purely
internal reporting. Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d
1159, 1163 (9th Cir. 1984); Consolidated
Edison Company of New York, Inc., v.
Donovan, 67 F.2d 61 (2d Cir. 1982).
[Page 4]
In the instant complaint, Bassett
[Complainant] alleges that he engaged in
protected activity in that while
conscientiously and professionally
performing his duties he identified
management level deficiencies in NIMO's
[Respondent's] quality assurance program.
In his August 23, 1985, letter of complaint, Complainant
describes his relevant activity in the following paragraph:
I submit that the organization charts are
further evidence of a years-old ongoing
(since 1981) conspiracy. The conspiracy is
designed to punish those experienced and
qualified employees who earlier, while
conscientiously and professionally
performing their assigned tasks, identified
management-level deficiencies in the NMPC
nuclear quality assurance program,
[Complaint, p. 2]
I conclude that the complaint does not allege performance
by Complainant of activity protected by Section 5851(a).
Complainant did take action to identify deficiencies in
nuclear quality assurance programs, a program
governed by relevant federal nuclear safety regulations. But
that activity was performed entirely within the corporate
structure of the Respondent. There was no action by
Complainant having a connection with any governmental
proceeding. In a comparable factual situation, in Brown &
Root, Inc., v. Donovan, 747 F.2d 1029 (5th Cir. 1984), an
employee's filing of an intracorporate quality control report
was found to be conduct not protected under Section 5851(a).
The Court summarized its ruling as follows:
We accordingly hold that employee conduct
which does not involve the employee's
contact or involvement with a competent
organ of government is not protected under
Section 5851. We do not purport to define
what constitutes protected conduct under
Section 5851; such a determination is
unnecessary to the resolution of this
case. We do not say that an employee
[Page 5]
states a claim under Section 5851 if he
merely alleges employer discrimination on
the basis of employee contact or
involvement with a competent organ of
government; however, absent such contact
or involvement, the employee does not make
out a claim under this section. We do not
attempt to say what protected conduct
under Section 5851 is; we indicate only
what it is not. Since the filings in this
case were purely internal, we hold they
were not within the scope of Section 5851.
[Emphasis in original decision text]
The Court went on to recognize and discuss the contrary
holding of the Ninth Circuit in Mackowiak, supra, but found its
rationale unpersuasive. The Court also pointed out that the
nature of protected activity was not in issue before the Second
Circuit in Consolidated Edison, supra. The Court observed that
there:
. . . neither party challenged this
application and there is certainly no
discussion of the issue in that case. We
believe that had the matter been argued,
the outcome of that case might well have
been different.
I conclude that the holding and rationale of Brown & Root
should govern the disposition of this case.
Accordingly, upon review of the record presented in this
proceeding in light of the arguments and factual assertions
summarized above, it is ORDERED that the complaint be, and it
is hereby, DISMISSED.
ROBERT M. GLENNON
Administrative Law Judge
Dated: MAR 12 1986
Boston, Massachusetts
RMG:jtd
Notice: Pursuant to 29 C.F.R.
Para. 24.6(a) this recommended decision is
being forwarded this date, along with the
records, to the Secretary of Labor for a
final order.