U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-020 ALJ CASE NO. 96-ERA-16 DATE: September 23, 1997
In the Matter of:
LOUEM M. BOSCHUK,
COMPLAINANT,
v.
J & L TESTING, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
Before us for review is the Recommended Decision and Order (R. D.
and O.) issued on November 27, 1996, by the Administrative Law Judge (ALJ) in this case
arising under the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. §
5851 (1988 and Supp. IV 1992). Complainant Louem M. Boschuk (Boschuk) alleges that
Respondent J & L Testing, Inc. (J & L) violated the ERA by terminating his employment for
engaging in protected activity. The ALJ held that J & L violated the ERA and that Boschuk
is therefore entitled to reinstatement and back pay.
1 The ALJ's analysis
discusses at length Boschuk's establishment of a prima facie case. R. D. and O. at 5-7.
Since this case was fully tried on the merits, the ALJ's task was to weigh all the evidence and testimony
and decide whether the Boschuk had proven by a preponderance of the evidence that J & L intentionally
discriminated against him because of his protected activity. Once J & L presented its rebuttal, the
answer to the question whether the Boschuk had presented a prima facie case was no longer
particularly useful. James v. Ketchikan Pulp Co., Case No. 94-WPC-4, Sec. Fin. Dec. and
Ord., Mar. 15, 1996, slip op. at 3; Cook v. Kidimula International, Inc., Case No. 95-STA-44, Sec. Fin. Dec. and Ord. of Dism., Mar. 12, 1996, slip op. at 2, n.3; Creekmore v. ABB
Power Systems Energy Services, Inc., Case. No. 93-ERA-24, Dep. Sec. Dec. and Rem. Ord.,
Feb. 14, 1996, slip op. at 7-8.