Bauer v. United States Enrichment Corp., 2001-ERA-9 (ALJ Apr. 23, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue date: 23Apr2001
Case No: 2001-ERA-0009

In the Matter of

NITA BAUER
    Complainant

    v.

UNITED STATES ENRICHMENT CORPORATION
    Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   This proceeding arises under the Energy Reorganization Act of 1974 ("ERA"), 42 U.S.C. §§ 5801-5891 and the regulations promulgated thereunder at 29 C.F.R. Part 24 which are employee protective provisions of the ERA or of the Atomic Energy Act of 1954 as amended, 42 U.S.C. § 2011, et seq. The Secretary of labor is empowered to investigate and determine "whistleblower" complaints filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC") who are allegedly discharged or otherwise discriminated against with regard to their terms and conditions of employment for taking any action relating to the fulfillment of safety or other requirements established by the NRC. This matter is presently before me on Respondent's Motion for Summary Decision with briefs filed by both parties.

   The regulations governing these proceedings provide that in deciding a motion for summary decision, I must consider all the materials submitted by both parties, drawing all reasonable inferences in a matter most favorable to the non-moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). I shall render summary decision when there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but one conclusion, which is adverse to the party against whom the motion is made. See, LaPointe v. United Autoworkers Local 600, 8 F.ed 376, 378 (6th Cir. 1993); United States v. TRW, Inc., 4 F.3d 417, 423 (6th Cir. 1993), cert denied 114 S.Ct. 11370 (1994). Jurisdiction under the ERA may be established by some nexus between the activity for which protection is claimed and a goal, objective or purpose of the Atomic Energy Act or the chapter of which Section 5851 is a part. See Van Beck v. Daniel Constr. Co., 86-ERA-26 (August 3, 1993).

   In her complaint, Ms. Bauer alleges violations of Section 211 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C.A. § 5851. To establish a prima facie case of retaliatory discharge under the whistleblower provision of §211, a complainant must show that: (1) the complainant engaged in protected activity; (2) the complainant must have suffered some form of involuntary adverse employment action; (3) the employer must have known that complainant engaged in protected activity before the adverse employment action was taken; and (4) the employer must have taken the adverse employment action because of the complainant's protected activity. Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159 (9th Cir. 1984). The complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Id.; Sartey v. Zack Co. Of Chicage, 82-ERA-2 (1983). A complainant under the ERA must prove that retaliatory action was taken against her because she engaged in conduct listed in 42 U.S.C. §§5851(a)(1), (2) or (3), which the Secretary has interpreted broadly to mean any action or activity related to nuclear safety. McNeal v. The Foley Co., 98 ERA 5 (July 7, 1998).

   In this case, Complainant alleges in her complaint that she was selected for an involuntary reduction in force due to her sex, her complaints of harassment, and her age. (Complaint at ¶¶ 4, 5, 6). Section 211 defines a protected activity to include notifying the employer of alleged violations of Chapter 73 or the Atomic Energy Act of 1954. 42 U.S.C.A. §5851(a)(1)(A). The Secretary has interpreted this provision to mean any activity related to nuclear safety. Ms. Bauer contends that "since she complained of a hostile and abusive working environment in that department, her complaints certainly affected nuclear safety and security within the plant." To constitute a protected safety report, the employee's acts must implicate safety definitively and specifically. American Nuclear Resources v. U.S. Dept. of Labor, 134 F.3d 1292 (6th Cir. 1998). The effect of Ms. Bauer's complaints regarding a hostile work Document: Bauer Nita D&O.wpd Created by: RJANSEN on 4/23/01 2:41:13 PMenvironment and its implication of plant safety are speculative at best, and certainly insufficient for a reasonable mind to conclude that safety was implicated "definitively and specifically." Id.

   The ERA is a statute of circumscribed jurisdiction. Jurisdiction under the ERA may be established by some nexus between the activity for which protection is claimed and a goal, objective or purpose of the Atomic Energy Act or the chapter of which Section 5851 is a part. The Secretary has determined that the goals, objectives, and purposes of this statute relate to nuclear safety, therefore, there is no jurisdiction under this Act for sexual harassment, sex discrimination, or age discrimination.

   Based upon the foregoing discussion, I recommend that this case be DISMISSED.

       Rudolf L. Jansen
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, N.W., Washington D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).