Date: SEP 16 1997
Case No. 96-ERA-34

RONALD THOMPSON,
   Complainant

v.

HOUSTON LIGHT & POWER
COMPANY,
   Respondent

Case No. 96-ERA-38

RONALD THOMPSON,
    Complainant

v.

HOUSTON LIGHT & POWER
COMPANY and
HOUSTON INDUSTRIES, INC.
   Respondents

   By document filed September 15, 1997, Respondents have submitted a Final Motion for Summary Decision in an attempt to summarily dispose of the remaining issues in the above-captioned matter. To wit, Respondents argue the incontrovertible facts of this case fail to support Complainant's allegation that Respondents have breached paragraphs 5(d), 5(e), and/or (5(f)¹ of the Settlement Agreement.²

   In the first instance, Respondents essentially claim there has been no breach of paragraph 5(f) of the Settlement Agreement. In the alternative, Respondents present arguments that attempt to negate certain elements necessary to a whistleblower claim.³

   The standard applicable to a motion for summary decision has been articulated in numerous Orders issued by this Judge. The parties are simply referred to this Judge's August 19, 1997 Order Granting Respondents' Motion for Partial Summary Decision.

   This aspect of Complainant's complaint would not be appropriately decided by summary decision. It is evident from Complainant's pre-hearing report that he intends to present the testimony of and various letters to and from Dr. Edwin Carter. Dr. Carter's testimony, combined with the documentary evidence, purportedly will reveal that Dr. Carter made requests on Complainant's behalf and with Complainant's consent to obtain copies of medical records. Requests which, Complainant contends and Respondents do not deny, the Respondents denied. Furthermore, Respondents' alternative arguments, see supra n. 3, clearly raise factually based challenges to Complainant's ERA claim.

   Respondents present compelling arguments in favor of their Motion concerning paragraphs 5(d) and 5(e) of the Settlement Agreement. In support thereof, Respondents have supplied specific affidavit from Mr. Scott Monteith, employee of HL&P, attesting that neither Frank Wagar nor Joe Sheppard have received any inquiries about Complainant's employment at the South Texas Project. See Respondents' Motion, Exh. D. Mr. Monteith also attests that Respondents have expunged all negative references in Complainant's personnel file, including the two oral reminders. Id.

   Complainant's pre-hearing report, filed by facsimile transmission September 15, 1997, generally couches the substance of the proposed witnesses' testimony by summarizing the witness will testify about the obligations created by the Settlement Agreement and Respondents' failure to meet those obligations. This is not sufficient to withstand a motion for summary decision. Complainant, however, is entitled to submit a specific opposition to the Final Motion for Summary Decision and could therein articulate, in accordance with 29 C.F.R. Part 18.40(c), that evidence with which he controverts Respondents' assertions.

   Complainant is hereby ORDERED to submit his Opposition, if any, to Respondents' Final Motion for Summary Decision on or before 5:00 p.m. September 26, 1997. This Judge, having determined that this matter shall proceed to hearing on at least the allegation of violation of the ERA rooted in breach of paragraph 5(f) of the Settlement Agreement, hereby NOTIFIES the parties that the hearing of this matter will go forward on October 6, 1997. The scope of that hearing, i.e., whether or not it shall include Complainant's allegations pertaining to paragraphs 5(d) and 5(e), shall be determined as soon as Complainant submits his Opposition to the Final Motion for Summary Decision. The parties are also hereby ADVISED that this Judge has become available the week of October 13, 1997 and may continue with the hearing of this matter into that week if necessary.

      DAVID W. DI NARDI
      Administrative Law Judge

Boston, Massachusetts
DWD:jw

¹Respondents preemptively address the possibility that Complainant may raise an allegation that paragraph 3 of the Settlement Agreement was similarly breached because of statements made by Complainant's counsel during discovery. It is evident from Complainant's pre-hearing report, however, that Complainant will not be pursuing this allegation at hearing.

²This Settlement Agreement was executed by and between the parties on October 25, 1995 and is governed by the laws of Texas. The Secretary has issued a Final Order Approving the Settlement Agreement.

³For example, Respondents argue that even assuming the provision is construed to apply to the facts as alleged, the named Respondents cannot be found to have violated the Settlement Agreement based on the acts of their counsel and/or that Respondents had legitimate, nondiscriminatory reasons for questioning Complainant's right to obtain litigation expert reports.