Statement of the Case
On August 12, 1988, Complainant filed a complaint in the
Chicago office of the Wage and Hour Division of the U.S.
Department of Labor, alleging discriminatory employment practices
on the part of Respondent, her employer. Her undated letter,
addressed to the Area Director of the Wage and Hour Division;
referred to her previous complaint in 1986 concerning a denial of
promotion claimed to have been in reprisal for her having
reported (in 1983) the misuse of radioactive materials by a
Dr. Goewert, then in Respondent's Radiology Department. Her
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showed her blood samples in a refrigerator, but they were not
available for Sickle Cell study because they had not yet been
held for two days. Dr. Goewert then phoned Dr. Kwaan,
Complainant's immediate supervisor, and informed him of
Complainant's activity.
After her original complaint about the radioactive material
had been dismissed, Complainant felt that there was a retaliatory
change of attitude towards her, that it became more difficult for
her to perform her duties, and that Dr. Goewert was very angry
and no longer had coffee with her or even talked to her. The
unavailability of the blood samples caused minimal additional
work and occasional stress.
In her 27 years of employment by Respondent, Complainant
was never discharged, suspended or otherwise disciplined. In
fiscal year 1985, she was given a performance evaluation and
received a rating of "Outstanding". She also received
evaluations for 1986 and 1987. During the calendar year 1988,
she not only received a rating of "Outstanding", but was given a
cash award.
Conclusions of Law
Section 23(a) of the Toxic Substances Control Act, 15
U.S.C. §2622, provides as follows:
§52622. Employee protection
(a) In general. - No employer may discharge
any employee or otherwise discriminate against any
employee with respect to the employee's
compensation, terms, conditions, or privileges of
employment because the employee (or any person
acting pursuant to a request of the employee) has
(1) commenced, caused to be commenced, or
is about to commence or cause to be
commenced a proceeding under this chapter;
(2) testified or is about to testify in
any such proceeding; or
(3) assisted or participated or is about
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to participate in any manner in such a
proceeding or in any other action to carry
out the purposes of this chapter.
Section 210(a) of the Energy Reorganization Act, 42 U.S.C.
§5851 is virtually the same as the above. Procedurally both Acts
are subject to the same regulation, to wit, 29 CFR Part 24.
Consequently, but for the formal designation, the rights of the
employee and the obligations of the Employer may be determined in
identical fashion under either Act.
Assuming, without deciding, that Complainant's report to
the Hospital's Chief of Staff in 1983 constituted participation
in a proceeding or was otherwise a protected activity under
either Act, Complainant must show that five years later,
Respondent discriminated against her in respect to her employment
because of that protected activity. As I clearly indicated on
the record at the conclusion of the hearing, the evidence adduced
here falls far short of showing any adverse action relative to
compensation, hours of work, vacations, location of workplace,
position description, assigned duties, or other terms and
conditions of employment.
Moreover, even if we accept the claim that the blood sample
problem resulted in a little more work and perhaps some stress
for Complainant, there is no evidence from which it could be
reasonably inferred that the blood samples were thrown out in
1988 because of Complainant's conduct in 1983. With regard to
Dr. Goewert, if he is no longer as friendly as he used to be,
that is regrettable, but neither of the relevant statutes
requires the employer to guarantee optimal interpersonal
relations among his employees. It is noted further that
Respondent's personnel actions with regard to Complainant have
been anything but adverse.
In view of the foregoing, I am constrained to conclude that
the record herein does not reflect any violation of the Employee
Protection provisions of either the Toxic Substances Control Act
or the Energy Reorganization Act.
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Recommended Order
Upon the evidence presented herein, I must recommend that
the complaint be dismissed.
ROBERT J. FELDMAN
Administrative Law Judge
Dated: JUL 06 1989
Washington, D. C.
RJF/bac
[ENDNOTES]
F*F*F*F*F**F*F*F*IF*nF* F*aF* F*pF*rF*iF*oF*rF* F*pF*rF*oF*cF*eF*eF*dF*iF*nF*gF* F*aF*lF*lF*eF*gF*iF*nF*gF* F*eF*aF*rF*lF*iF*eF*rF*
F*
adverse action in
reprisal for Complainant's reporting of the same putative
violation as alleged herein, the Secretary of Labor pointed out
that though characterized as arising under the Toxic Substances
Control Act, it seems clear that the case arises under parallel
provisions of the Energy Reorganization Act, 42 U.S.C. §5851,
because the reported offense related to radioactive materials.
Lastre v. Veteran's Administration , 87 ERA 42 (Final Decision and
Order of the Secretary, March 31, 1988).