Office of Administrative Law Judges 2 Executive Campus, Suite 450 2370 Route 70 West Cherry Hill, NJ 08002
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Issue date: 28Mar2002
CASE NO: 2001-ERA-00044
In the Matter of
JOHN S. RIZZO
Complainant
v.
PENNSYLVANIA POWER & LIGHT SUSQUEHANNA
Respondent
Appearances:
John S. Rizzo, pro se For Complainant
Thomas A. Schmutz, Esq.
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceeding under the employee protection provisions of the Energy Reorganization Act, 42 U.S. C. 5851 (hereinafter "the Act").
The matter was tried in Philadelphia, Pennsylvania on January 17-18, 2002, and briefs filed by the parties by February 6, 2002.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PRIMA FACIE CASE
In order to establish his prima facie case, Complainant must establish that: (1) he engaged in protected activity; (2) Respondent had knowledge of this activity; (3) Respondent took some adverse employment action against him; and, (4) sufficient evidence exists that at least raises an inference that the protected activity was the likely reason for such adverse action. Harrison v.Stone & Webster Engineering Group, 93 ERA 44(11/8/94), and citations therein.
[Page 2]
I am compelled to find that Complainant has failed to establish, as to the first of his alleged protected activities (3/20/87 letter to congressman), knowledge of such activity on the part of the individual at Respondent who terminated his employment, and, as to the second of his alleged protected activities (5/11/99 draft condition report), has failed to establish that such was a protected activity.
2Complainant notes that he was demoted "immediately" after this letter was written for a five year period (Compl't 1/11/02 pre-hearing statement @2; Compl't Br. @2). No relief in the instant proceeding is recognized as being sought as a result of this demotion, as none is expressly sought, and by reason of obvious statute of limitations considerations. 42 U.S.C. 5851 (b) (1).
3 The final condition report (RX 2), issued in August, 1999, appears to track, in all material respects, the draft report (RX 1) except for the "USE-AS-IS" disposition added at page 1, and the noted deletion of "ACTIONS TO CORRECT CONDITION" at page 6. This deletion was found necessary by Pagodin because the suggested "action" in the draft suggested no action at all to correct the crack condition, but merely left same in place until the next scheduled/available inspection (Tr. 140; 448; 453). Complainant's inclusion of this section in his draft was thus considered duplicative and unnecessary (Tr. 443-5).
4Complainant insists that the deleted portion of his draft recommended an "augmented" inspection of the crack (Tr.140). But, since the "DUE DATE[S]" for the recommended inspections appearing on the deleted page of the draft correspond with the regularly scheduled ongoing, routine inspections (Tr.139-40;447;453), it is doubtful that his draft recommendations added anything to the otherwise expected inspections of the condition.
5Complainant never expressed his disagreement to delete to Pagodin or any other manager (Tr.141-2;150;449-50). In fact, Pagodin had every reason to believe that Complainant had no problem with the deletion, as Complainant expressed no objection thereto (Tr.448-50).
6Respondent claims to have terminated Complainant due to his misuse of its computer facilities (see EX. B folder, annexed to Respondent's motion for summary judgment).
7The overall integrity and balance of Respondent's investigation of computer abuse and ultimate personnel sanctions (RX 14,15 et.al.), is not altogether beyond attack.