DATE:  March 24, 1995
CASE NO: 92-ERA-6


IN THE MATTER OF

DARRYL SEAL,

          COMPLAINANT,

     v.

THE AMERICAN INSPECTION CO.,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                        AMENDED DECISION AND ORDER
     This proceeding arises under the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988).  Complainant Darryl Seal
alleges that he was unlawfully discharged by Respondent, American
Inspection Co., Inc. (AMSPEC), in retaliation for safety related
complaints made during the five months of his employment.  The
findings of fact in the Administrative Law Judge's (ALJ's)
Recommended Decision and Order (R.D. and O.), at 4-7, are
supported by ample evidence and I adopt them.  The ALJ's decision
is affirmed and the case is dismissed.
                                BACKGROUND
   Complainant Darryl Seal worked for AMSPEC as a Level
Two Radiography Technician at the Hess Oil Refinery, St. Croix,
Virgin Islands (HOVIC) from March, 1991 until he was terminated
July 26, 1991.  Complainant had previously worked for AMSPEC in
Puerto Rico without incident.  Seal filed an ERA complaint 
August 25, 1991 with the U.S. Department of Labor (DOL) against
AMSPEC alleging wrongful discharge.  The ALJ conducted a hearing
in Memphis, Tennessee on January 5, 1993.  The ALJ accepted 28
stipulations (R.D. and O. at 2-4), 32 Joint Exhibits, 6
Complainant Exhibits, 2 Respondent Exhibits, and 5 ALJ Exhibits. 

[PAGE 2]
Upon review of the record in its entirety [1]  I agree that the
instant case should be dismissed for failure to establish a
retaliatory adverse action in violation of the ERA.  The
following discussion further clarifies the burdens of proof and
persuasion in an environmental whistleblower case under the ERA.
DISCUSSION
   First Complainant must make a prima facie
showing that protected activity motivated Respondent's decision
to take an adverse employment action against him.  Respondent may
rebut this showing by producing evidence that the adverse action
was motivated by a legitimate, nondiscriminatory reason. 
Complainant must then establish that the reason proffered by
Respondent is not the true reason.  At all times, Complainant has
the burden of establishing the real reason for the discharge was
discriminatory.  Thomas v. Arizona Public Service Co.,
Case No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip op. at 20;
St. Mary's Honor Center v. Hicks, 125 L.Ed. 2d 407, 418-
419 (1993).  
     In order to establish a prima facie case, a
Complainant must show that: (1) the Complainant engaged in
protected conduct; (2) the employer was aware of that conduct;
(3) the employer took some adverse action against him; and (4)
there is evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action.
Carroll v. Bechtel Power Corporation, Case No. 91-ERA-
0046, Sec. Dec., Feb. 14, 1995, slip op. at 9, citing Dartey
v. Zack, slip op. at 7-8; See also McCuistion v.
TVA, Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at
5-6; Mackowiak v. University Nuclear Systems, Inc., 735
F.2d 1159, 1162 (9th Cir. 1984).
     Internal complaints are a protected activity consistent with
the broad remedial purposes of the whistleblower provisions of
the ERA.  See Passaic Valley Sewerage Comm'rs v. Department of
Labor, 992 F.2d 474 (3d Cir. 1993); Couty v. Dole, 886
F.2d 147 (8th Cir. 1989); Consolidated Edison Co. of N.Y.,
Inc. v. Donovan, 673 F.2d 61 (2nd Cir. 1982); Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir.
1984); Kansas Gas and Electric Co., v. Brock, 780 F.2d
1505 (10th Cir. 1985).  Seal made internal complaints about
safety violations to his supervisors, Craig Hancock, Larry Ladner
and Steve Oliver.  Seal complained about AMSPEC's failure to
provide him with an operations manual.  (R.D. and O. at 5).  When
AMSPEC asked Seal to sign statements verifying attendance at non-
existent meetings, Seal refused.  (R.D. and O. at 5).  Seal also
objected to working with one employee, Mitchell Matrious, who
committed three known safety violations.  (R.D. and O. at 2,
Stip. 10).  Seal protested when Hancock improperly used
radioactive isotopes to x-ray a mouse.  On July 22-23, 1991 Seal
threatened to tell the NRC 
[PAGE 3]
investigators about the incidents.  Hancock told Seal "I wouldn't
do that."  T. 49.  (R.D. and O. at 5).  
     On the evening of Seal's discharge, July 26, 1991, he and
seven other employees arrived at work but could not gain access
to the work site.  (R.D. and O. at 6).  This was a fairly common
occurrence.  T. 61, 110.  (R.D. and O. at 6).  Instead of waiting
in the office as was customary, the technicians then went to the
"laydown yard" to draw up a list of grievances.  The laydown yard
was described by Seal as a break area with picnic tables, while
Oliver testified that it was an unauthorized area.  (R. D. and O.
at 6).  The technicians drew up a list of eleven grievances. 
Only the last grievance concerned safety issues.  After the eight
employees drew up their grievances, they returned to the office
and asked to speak with Oliver regarding the complaints.  
     Oliver had been concerned that the employees were away from
their job sites, away from the office and in an unauthorized area
where they could not be found for over one hour.  (R.D. and O. at
6-7).  Oliver felt the employees were insubordinate.  (R.D. and
O. at 7).  Oliver did not know that they had been drawing up a
list of grievances.  When Oliver was approached to discuss the
grievances, he glanced at the list and summarily discharged all
eight employees.  (R.D. and O. at 7).
     I find that AMSPEC knew of Seal's complaints generally, but
did not realize at the time Complainant was discharged that one
of the enumerated grievances involved safety concerns.  Oliver
admitted that he had previously discussed all of the issues on
the grievance list with the employees, including the safety
issue, but when initially presented with the grievances he only
glanced at the list.  
     The final element of a prima facie case requires
Complainant to show that the protected activity lead to his
discharge.  The proximity in time between protected activity and
the adverse employment action is sufficient to raise an inference
of causation.  Zessin v. ASAP Express, Inc., Case
No. 92-STA-33, Sec. Dec. and Ord., January 19, 1993, slip op. at
13; Bergeron v. Aulenback Transp., Inc., 91-STA-38,
Sec. Dec. and Ord., June 4, 1992, slip op. at 3.  Seal had made
safety complaints throughout the five months of his employment. 
The internal complaints together with the implied threat from
Hancock regarding the mouse incident are sufficient for Seal to
raise an inference that his protected activity lead to his
discharge.
     The burden then switches to Respondent to produce evidence
of a legitimate, non-discriminatory reason for the discharge. 
AMSPEC states that all eight men were discharged for not being at
their work station (T. 117, R.D. and O. at 7) and for
insubordination.  T.116, 117.  (R.D. and O. at 7).  I credit the
credibility assessment of the witnesses by the ALJ and agree that 

[PAGE 4]
Oliver did not realize the grievance list contained a safety
related complaint at the time Respondent was discharged.  (R.D.
and O. at 9).  Therefore, Respondent has successfully rebutted
Complainant's prima facie case by articulating legitimate,
non-discriminatory reasons for Seal's discharge.
     Seal must then prove that AMSPEC's reasons for discharging
him were pretextual.  Seal has not met this burden.  I find, in
concurrence with the ALJ, that Respondent "fired all of the
technicians for the same reason, namely, that they, in acting in
mass, were insubordinate and had left their work areas without
permission, were in an unauthorized area and could not be found
by their supervisor."  (R.D. and O. at 9).  It is inconceivable
that Respondent would fire eight employees in retaliation for
Seal's safety related complaints.  (R.D. and O. at 9).
     For the reasons stated above, I find that although Seal
established a prima facie case, ultimately he did not sustain his
burden of persuasion in establishing that he was discharged in
violation of the ERA.

CONCLUSION
     I find that AMSPEC did not violate the ERA in discharging
Seal.  I agree with the findings of the ALJ, therefore the case
is DISMISSED.
     SO ORDERED.
                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   An Order Accepting Reconstituted Record and Establishing
Briefing Schedule was issued by the Acting Director of the Office
of Administrative Appeals on June 28, 1994, pursuant to
Secretary's Order 3-90, 55 Fed. Reg. 13,250 (April 9, 1990).