DATE: October 24, 1988
CASE NO. 86-ERA-33

IN THE MATTER OF

JOHN B. SPENCER,
    COMPLAINANT,

    v.

HATFIELD ELECTRIC COMPANY,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    This proceeding arises under the employee protection provision of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1982), which prohibits an employer from discriminating against an employee because the employee has engaged in a protected activity.

    Complainant alleges that on May 16, 1986, he was terminated from his position as an inspector for Hatfield Electric Company, working on the construction of the Byron, Illinois, Nuclear Power Station, because on May 7, 1986, he had gone to the onsite representative of the Nuclear Regulatory commission to register a complaint concerning Hatfield's inspection practices. On

May 29, 1986, Complainant filed a complaint with the Wage and Hour Administrator, who, on June 24, 1986, found that Complainant was engaged in a protected activity under the Energy Reorganization Act and that discrimination as prohibited by the Act was a factor in his termination. Complainant's reinstatement with payment of retroactive pay and attorney's fees was ordered.

    Respondent, Hatfield Electric Company, appealed the Administrator's determination, and hearing was held before Administrative Law Judge (ALJ) Richard E. Huddleston on August 19, 20, and 21, 1986. Both parties were represented by counsel. The ALJ's Recommended Decision and Order (R. D. and O.) issued November 26, 1986, called for dismissing the complaint, holding that "the evidence does not establish that there is any relationship between the discharge from employment of John B. Spencer and his protected activities under the Energy Reorganization Act." R. D. and O. at 7.

    Subsequent to transmittal of this case for my review, Respondent moved to strike in its entirety the brief filed pro se by Complainant on February 4, 1987, on the basis that the brief included matters outside the record. On April 17, 1987, Respondent's motion was denied. The order stated that Complainant's brief would be considered to the extent that it addressed matters in the record. That order also provided that Respondent's reply (which was filed on May 6, 1987) would complete the briefing in this case. Notwithstanding the April 17, 1987, order, Complainant filed a further "Response to Respondent's Opposition" on August 24, 1987. Citing the April 17, 1987, order, Respondent moved to strike Complainant's August 24, 1987, submission through which Complainant sought to greatly expand the record. As provided for in the regulations applicable to this proceeding, my review of this matter shall be "based on the record and the recommended decision of the [ALJ]." 29 C.F.R. § 24.6(b)(1) (1987). Accordingly, Respondent's motion to strike Complainant's "Response to Respondent's Opposition" is granted.¹

    The complete record before the ALJ and the filings properly before me have been fully reviewed. Complainant has reiterated many arguments and contentions he proposed before the ALJ, and objects to the credibility determinations and evidentiary rulings made by the ALJ. The record evidence, however, supports the ALJ's credibility findings, and I accept the ALJ's credibility determination because, as explained in Beavers v. Secretary of Health Education and Welfare, 577 F.2d 383 (6th

¹ In any event, I have reviewed the Complainant's "Response to Respondent's Opposition." Complainant does not present clear and convincing evidence that a witness has given testimony in Blake v. Hatfield Electric Co., No. 87-ERA-4, so inconsistent with his testimony here that it raises the likelihood that prejury has been committed. Complainant has thus not established that the Administrative Law Judge's findings on the critical issues in this case are tainted by perjured testimony and that reopening of the record would be appropriate.