In his deposition, Abbasi clearly states what concerned him:
Q: Was your concern about the instruction or was your concern about the accuracy of the document going to the NRC?
A: My concern was about the inadequate guidance in the instruction.
Q: So, you had a concern about the ambiguity in an instruction, is that it?
A: I had a concern about there being unclear direction in the instruction.[50 ]
Therefore, summary decision is appropriate here because Abbasi's own testimony indicates that he was not concerned with nuclear safety when he quarreled with Leonard and wrote the deviation event report about the instruction.
CONCLUSION
To avoid summary decision on the issue of protected activity, an essential element of his case, Abbasi must present some facts that his alleged protected acts implicated nuclear safety. Abbasi did not present sufficient evidence to create a genuine issue that his claimed protected activities implicated nuclear safety. Therefore, like the ALJ, we GRANT Constellation's motion for summary decision and DENY Abbasi's complaints.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 42 U.S.C.A. § 5851 (West 2007).
2 Constellation Motion for Summary Decision (Motion), Tab 13.
3 The ALJ granted summary decision on the issue of protected activity. He also concluded that Constellation was entitled to summary decision because Abbasi did not sufficiently demonstrate that his protected activity contributed to his firing.
4 See 29 C.F.R. § 24.8 (2006); Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the Board the Secretary's authority to review cases under the statutes listed in 29 C.F.R. § 24.1(a)).
5 Seetharaman v. Gen. Elec. Co., ARB No. 03-029, ALJ No. 2002-CAA-021, slip op. at 4 (ARB May 28, 2004); Demski v. Ind. Mich. Power Co., ARB No. 02-084, ALJ No. 2001-ERA-036, slip op. at 4 (ARB Apr. 9, 2004).
6 Seetharaman, slip op. at 4, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
7 Seetharaman, slip op. at 4.
8 Id., citing Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e).
9 Seetharaman, slip op. at 4, quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
10 Seetharaman, slip op. at 4; Demski, slip op. at 4.
11 42 U.S.C.A. § 2011 et seq. (West 2007).
12 42 U.S.C.A. § 5851 (a)(1) (West 2003).
13 See, e.g., Bechtel Constr., Inc. v. Sec'y of Labor, 50 F.3d 926, 931-933 (11th Cir. 1995).
14 American Nuclear Res., Inc. v. U.S. Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998)
15 Id.
16 Id. citing Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1574 (11th Cir. 1997).
17 Melendez v. Exxon Chems. Ams., ARB No. 96-051, ALJ No. 1993-ERA-006, slip op. at 27-28 (ARB July 14, 2000).
18 42 U.S.C.A. § 5851(b)(3)(C). See Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 2000-ERA-031, slip op. at 7-8 (ARB Sept. 30, 2003).
19 Motion at 19; Abbasi's April 29, 2004 Complaint to U.S. Department of Labor; Abbasi Deposition (Deposition) at 109-115.
20 Deposition at 163-164, 151-152.
21 Id. at 155, 162; R. D. & O. at 9, para. 35.
22 Initial Brief at 6-7; Response to Motion for Summary Decision (Response) at 5; Deposition at 92-94, 131, 142.
23 Motion at 29-31.
24 R. D. & O. at 14, citing Deposition at 165 and Motion, Exhibit 25.
25 R. D. & O. at 13-14. The ALJ did not address whether Abbasi's recommendation that Constellation consult with the NRC about Niagara Mohawk's use of informal communication in 1998 and the NRC's failure to docket calculations constituted protected activity.
26 Deposition at 164-165.
27 Id. at 151-152.
28 Id. at 131, 144.
29 See 10 C.F.R. § 50.4 (b)(1), the NRC regulation that Abbasi cites in his Initial Brief at 6.
30 See 10 C.F.R. § 50.4 (c) which requires only that "paper copies submitted to meet the requirements set forth in paragraph (b) of this section must be typewritten, printed or otherwise reproduced in permanent form on unglazed paper," and "[e]xceptions to these requirements imposed on paper submissions may be granted for the submission of micrographic, photographic, or similar forms."
31 Abbasi had only seen "stacks of the calculations." He did not examine them. Deposition at 143. Abbasi also testified that he "didn't know what exactly they [the undocketed communications] were." Id. at 132.
32 Initial Brief at 6-7, citing 10 C.F.R. § 50.9.
33 Abbasi informs us that the NRC violated 10 C.F.R. § 50.4 when it did not docket the calculations. Initial Brief at 7. But this regulation governs the requirements for written communications to the NRC, not NRC docketing procedures or regulations.
34 Response at 3.
35 Response, Exhibit D.
36 Id; Deposition at 61-66, 258-269.
37 Response, Exhibit E, para. 3.
38 Initial Brief at 8.
39 Motion at 31-32.
40 R. D. & O. at 14-15.
41 Deposition at 66-68.
42 American Nuclear Res., Inc., 134 F.3d at 1295 ("The ERA does not protect every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern.")
43 Deposition at 264-265.
44 Abbasi changed the phrase "probability of an accident" to "probability or consequences of an accident." The sentence thus read, "The analyses do not change the method of operating the plant and have no effect on the probability or consequences of an accident initiating event or transient." Initial Brief, Exhibit I.
45 The portion of the administrative instruction to which Abbasi refers reads: "Licensing submittals or correspondence that receive substantial technical and/or editorial comments after management review or SORC, and which require material revision, are to be reprocessed." Initial Brief, Exhibit H.
46 Deposition at 68-75.
47 Initial Brief at 9-10.
48 Motion at 32.
49 R. D. & O. at 15-16.
50 Deposition at 87-88.