ARB CASE NO. 04-091
ALJ CASE NO. 2003-ERA-12
DATE: July 31, 2006
In the Matter of:
TERRY W. KEENER,
COMPLAINANT,
v.
DUKE ENERGY CORPORATION,
RESPONDENT.
BEFORE: THE
ADMINISTRATIVE REVIEW BOARD
Appearances:
For the
Complainant:
Terry W. Keener, pro se, Gastonia, North Carolina
For the
Respondent:
Donn C.
Meindertsma, Esq., Matthew A. Houtsma, Esq., Winston & Strawn LLP,
Washington, District of Columbia
FINAL
DECISION AND ORDER
Terry W. Keener filed
a complaint with the Department of Labor's Occupational Safety and Health
Administration (OSHA) alleging that his former employer, Duke Energy
Corporation, violated the employee protection provisions of the Energy
Reorganization Act (ERA or Act) of 1974.
In his February 25, 2003 complaint, Keener claimed that his November 30, 2002
layoff was a result of having raised security concerns with a supervisor on
September 5, 2001. OSHA denied Keener's complaint on May 12, 2003, and he
subsequently requested a hearing before the Office of Administrative Law
Judges.
On April 19, 2004, the administrative law judge (ALJ)
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issued a Recommended
Decision and Order (R. D. & O.) dismissing the complaint. Keener appealed.
We concur with the ALJ's finding that Keener failed to establish that his protected
activity was a contributory factor in his layoff. Accordingly, we affirm the
ALJ's recommended decision and
deny the complaint.
BACKGROUND
We have carefully reviewed the record and find that it
generally supports the ALJ's lengthy recitation of the facts. Therefore, we will summarize the relevant facts of the
case. Duke Energy Corporation's (DEC) business operations include three nuclear power plants in the Carolinas. The Oconee
and Catawba Nuclear Stations are located in South Carolina and the McGuire
Nuclear Station is located in North Carolina. Keener worked for DEC approximately 23 years, beginning
in December 1979 as a security officer. From 1989 to 1996, he served as security manager at
McGuire Nuclear Station. In November 1996, Keener joined DEC's Nuclear General
Office (NGO) in Charlotte, North Carolina, where he worked as a nuclear security
specialist in the Nuclear Regulatory and Industry Affairs (NRIA) branch. NRIA is located within the Nuclear Assessments and Issues
Division (NAID), which during the relevant timeframe was headed by James J. Fisicaro.
On September 5, 2001, Keener met with Fisicaro to discuss
rumors he had recently heard regarding William Evans, the then-current security
manager at McGuire Nuclear Station. Keener reported that Evans had not submitted his shoes
for x-ray
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examination when passing through the personnel access portal.
Apparently, Evans had twice set off the walk-through
metal detector, and a third electronic search with a hand-held device had detected
the presence of metal in his shoes. Richard "Gary" Reid, the security officer
conducting the search, reportedly had instructed Evans to remove his shoes and
process them through the x-ray machine. But instead of complying with Reid's instructions, Evans had
picked up various items he previously removed from his pockets and proceeded to
enter the protected area. Keener further reported that he had heard that Evans had returned
to the personnel access portal a short time later and had processed his shoes
through the x-ray machine as initially instructed.
A second, unrelated incident involved Evans reportedly being
observed sleeping at a security post. Lastly, Keener reported he had heard that the operational
instructions given by Evans were sometimes in conflict with security
requirements and that because of apparent intimidation by Evans, some personnel
were reluctant to inform him of the disparities. Keener advised Fisicaro he "had no specific
information that would indicate that the rumors were true or when they
supposedly occurred." According to Keener, Fisicaro said he would follow up on
the rumors and get back to Keener.
On September 12, 2001 - a day after the terrorist attacks
in Pennsylvania, New York City and Washington, D.C. - Keener sent Fisicaro an e-mail
entitled "Security Rumors." He wanted an update from Fisicaro about their earlier
conversation regarding the rumors of security violations at McGuire Nuclear
Station. Within the hour, Fisicaro responded by e-mail indicating he would get
back to Keener. Keener further indicated
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that a week passed before the
two next spoke about the rumors involving Evans. On or about September 19,
2001, Keener claimed to have encountered Fisicaro in the hallway and questioned
him about his follow-up of the security rumors.
According to Keener, Fisicaro told him he had spoken with
McGuire safety assurance manager Bryan J. Dolan, who had looked into the matter
and determined it was nothing more than rumors.
In
late October 2001, Michael T. Cash became manager of NRIA. Keener reported to Cash, who in turn reported to
Fisicaro. Soon after joining the NGO staff, Cash, at Fisicaro's
urging, reviewed NRIA's overall organizational structure and conducted an
inquiry into the services provided by Keener and a colleague, William R. Cross,
also a NRIA nuclear security specialist. The process culminated in the elimination of the positions
held by Keener and Cross and the creation of a new security support position within
NRIA. This newly-created position was open to other DEC
employees. The two incumbents, Cross and Keener, were both considered for the
new position, but Cash recommended that the position be offered to Dana L.
Boies, an engineer then assigned to the Catawba Nuclear Station. Fisicaro approved Cash's recommendation, and on October
7, 2002 Cash notified Keener and Cross that they were being laid off effective
November 30, 2002.
Keener timely filed his complaint on February 25, 2003. OSHA denied the complaint and Keener requested a hearing. The hearing covered a period of four days from October
14 to 17, 2003. Keener testified, as did Cash and Fisicaro. Security
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officer Reid and his immediate supervisor,
George L. Nichols Jr., testified about the failure by Evans to submit his shoes
to x-ray examination, and Dolan testified regarding his lack of knowledge about
the incident.
Additionally, Elizabeth G. Rabon, DEC's current Director
of Human Resources, testified regarding her involvement in developing the new
security position and the interview and selection process. Also, DEC employees Terry W. King and Charles J. Thomas testified
regarding their respective roles in the selection process for the new NRIA
security position.
Reid confirmed Keener's account of Evans' failure to submit
to x-ray examination of his shoes. He also testified that Evans returned less than an hour
later to have his shoes x-rayed. Reid could not recall the date of the incident, but estimated
that it had occurred in 1999 or 2000. Nichols, Reid's supervisor, testified that when Reid
brought the matter to his attention he immediately went to Evans' office and
requested that he go back and process his shoes. Evans complied with the request and Nichols took no
further action.
Keener claims that Fisicaro told him he had spoken with McGuire
safety assurance manager Dolan regarding the rumors about Evans. In his deposition Dolan said he did not recall any
discussions with Fisicaro about Evans' alleged security breach. Keener's then counsel called Fisicaro in his case in
chief, but did not question him about the September 5, 2001 conversation or any
subsequent conversations with
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Keener about the Evans rumors.
Keener's counsel also did not question Fisicaro about individuals
he may have spoken with regarding Keener's September 5, 2001 complaint.
Fisicaro testified that he initiated the process that
ultimately led to Keener's layoff some 13 months later. Fisicaro asked Cash to "look at the whole
organization," including the services Keener and Cross provided. Fisicaro also sought input from the security assurance
managers at DEC's three nuclear power facilities. Part of his concern was that there was insufficient work
to keep both Keener and Cross busy. At Fisicaro's request, the workload issue had been the
subject of an earlier review by Thomas in 2000 and 2001. Fisicaro testified that aside from initiating the fall
2001 review process, he did not define any requirements of the security position,
but expected Cash to define the exact qualifications. Fisicaro also testified that he reviewed the skills and
list of accountabilities as well as the salary for the new position, but denied
being involved in "every step of the process" that led to the
creation of the new security position. He explained that Cash would "periodically come in
and brief" him on what he was doing, but Fisicaro "did not require [Cash]
to get [his] approval on every single piece." Although critical matters required his approval,
Fisicaro testified that he
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expected Cash to go through the process, do the
necessary reviews and then "periodically provide [him] feedback."
Cash's testimony confirmed that he spearheaded the position
review process. He characterized Fisicaro's involvement in designing the new
security support function as "minimal." While Cash had "one or two update meetings"
with Fisicaro at critical points in the process, Cash directed the day-to-day
activities that ultimately led to Cross and Keener being laid off. Cash assumed his position in NRIA in late October, but he
first spoke with Fisicaro about the position on September 10, 2001. Cash testified that he and Fisicaro had a series of
initial discussions in fall 2001 about work functions within NRIA and it was
during one of these discussions that Fisicaro asked Cash "to review the
functions being performed in the organization" and to provide any new
ideas he might have on how things might be better. With respect to the security arena, Cash testified that
Fisicaro wanted him to take a look at the level of resource commitment as well
as the products and services provided. Cash further testified that any time he came to a job he
would look broadly at what type of work was being performed and whether it made
sense to the company.
According to Cash, Keener and Cross performed what appeared
to be very similar job functions and they had essentially taken the workload
and split it between themselves. Cash testified that Fisicaro did not direct him to reduce
the number of available positions and did not instruct him to remove Keener
from any security responsibilities. Cash explained that he developed the new security
position as the result of a confluence of outside events and input from
security personnel at DEC's nuclear facilities. He also testified about the significant impact that the
events of
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September 11, 2001 had on security issues and particularly on questions
of structural integrity regarding nuclear power facilities.
Because of these factors, Cash felt the need to meld both
security and engineering skills into the NRIA security support position.
With respect to the candidate review process, Cash
testified that he conducted an independent assessment of the candidates that
did not include Fisicaro's participation. Cash, with two other DEC employees, conducted panel
interviews and unanimously agreed that Boies was the best candidate to fill the
new position. In Cash's opinion, Keener did "poorly" in
comparison to the candidate selected for the position. Fisicaro approved the selection of Boies based on Cash's
recommendation. On October 7, 2002, Cash notified both Cross and Keener
that Boies had been selected for the new position and they were being laid off
effective November 30, 2002.
Cash testified that throughout the position review and
candidate selection process he was unaware that Keener had spoken with Fisicaro
in September 2001 about rumors concerning McGuire security. Rabon, King and Thomas, who were involved at various
stages in the 13-month-long process, also testified that they were unaware of
Keener's September 5, 2001 conversation with Fisicaro.
On April 19,
2004, the ALJ issued a Recommended Decision and Order dismissing the complaint
because Keener failed to establish that protected activity was a contributory
factor in his layoff. Keener filed a timely appeal with the Administrative
Review Board (ARB or Board) on April 28, 2004. The issue to be resolved is
whether protected activity was a contributing factor in DEC's October 7, 2002
decision to lay off Keener.
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JURISDICTION AND STANDARD OF REVIEW
The Secretary of
Labor has delegated her authority to decide this matter to the Board.
As the Secretary's designee, the Board acts with all the powers the Secretary
would possess in rendering a decision under the ERA's whistleblower protection
provision.
Because of the advisory nature of the ALJ's recommended decision, the Board is
not bound by the ALJ's findings of fact and conclusions of law. Therefore, the
Board exercises de novo review with respect to the instant appeal.
In performing its review, the Board generally defers to the ALJ's determinations
with respect to the credibility of witnesses when such determinations rest explicitly
on the evaluation of the demeanor of the witness.
DISCUSSION
Under the ERA's employee protection provision, it is unlawful for an
employer to "discharge . . . or otherwise discriminate against any
employee with respect to his compensation, terms, conditions, or privileges of
employment because the employee" notified his employer of an alleged
violation of the ERA, refused to engage in any practice unlawful under the ERA,
or otherwise participated in a proceeding or any other action to carry out the
purposes of the ERA.
To prevail under § 5851, an employee must establish by a preponderance of
the evidence that: (1) he engaged in protected activity; (2) his employer
subjected him to an unfavorable personnel action; (3) the employer was aware of
the protected activity; and (4) the protected activity was a contributing
factor in the employer's decision to take adverse action.
However, relief may not be granted under the Act if the employer
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demonstrates "by clear and convincing
evidence that it would have taken the same unfavorable personnel action in the
absence" of the protected activity.
I.
Keener's Alleged Protected Activity
The ALJ found that only one of the three issues Keener raised with
Fisicaro on September 5, 2001 constituted protected activity. According to the
ALJ, Keener's report of Evans' rumored failure to submit his shoes to x-ray
examination was protected under the Act.
The ALJ concluded that other incidents involving Evans' alleged sleeping on the
job, his occasional issuance of faulty operational instructions and intimidation
of subordinates were "too general" to warrant protected status.
On appeal, the parties continue to disagree whether Keener's September 5, 2001
conversation constituted protected activity.
We need not determine whether, or how much of, that conversation was protected
activity because we deny Keener's complaint on other grounds.
II.
Adverse Action & DEC's Knowledge
Neither party contests the ALJ's findings that DEC's October 7, 2002
notice to Keener of his forthcoming layoff was an adverse action, and that DEC,
through Fisicaro, had knowledge of Keener's protected activity.
We therefore proceed to discuss whether Keener's protected activity contributed
to his layoff.
III.
Did Keener's Protected Activity Contribute to His Layoff?
Keener bears the burden of establishing by a preponderance of the
evidence that protected activity was a contributing factor in DEC's decision to
take adverse action.
A complainant may satisfy his burden of proof by demonstrating the employer's motivation
through circumstantial evidence of discriminatory intent.
In his submissions to the Board, Keener focused on Fisicaro's actions, and in
some instances his failure to act, as
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circumstantial evidence that the November
2002 layoff was retaliatory.
Keener first argues that the timing of Fisicaro's request to review the NRIA
security position and Fisicaro's questionable explanation for initiating the
review are indicative of retaliatory intent. Keener also points to Fisicaro's delayed
response and the limited feedback he provided regarding the investigation of Evans'
rumored security lapses. Additionally, Keener argues that the lack of any
investigation and Fisicaro's false statement that he had followed up on Keener's
concerns is further evidence of retaliatory intent. Lastly, Keener argues that
Fisicaro's retaliatory intent is evident by the decision to withhold approval
of Keener's annual performance appraisal until after another individual was
identified for the new security position.
A. Temporal Proximity
Retaliatory motive "may be inferred when an adverse action closely
follows protected activity."
Thus, the Board considers the proximity of the adverse action to the time the
employer learned of the protected activity.
But when the protected activity and the adverse action are separated by an intervening
event that independently could have caused the adverse action, the inference of
causation becomes less likely because the intervening event also could have
caused the adverse action.
Keener notes that Fisicaro initiated the NRIA security support position
review within six weeks after he reported the rumors about Evans.
Because there was a high degree of temporal proximity between the initiation of
the
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position review and his report to Fisicaro, Keener appears to argue that he
established retaliatory intent.
The ALJ addressed this argument and surmised that an inference of causation
could be raised based on the close proximity between Keener's complaint and
Fisicaro's initiation of the position review that ultimately led to Keener's layoff.
The ALJ found, however, that there were two intervening events that severed the
causal connection between the protected activity and the November 30, 2002
layoff.
The ALJ identified the terrorist acts of September 11, 2001 and Cash's October
2001 appointment as head of NRIA as intervening events that severed any causal
connection between Keener's protected activity and his termination.
Keener disagrees with the ALJ's finding that these particular intervening
events impacted DEC's decision to terminate his employment.
While we agree that the circumstances do not warrant a finding of causal
relationship based on temporal proximity, we disagree with the ALJ's analysis.
Fisicaro's fall 2001 initiation of the position review process was not an adverse
action because it was not "materially adverse" to Keener's terms and
conditions of employment.
The NRIA security position review was innocuous in and of itself. Regardless
of Fisicaro's motives for initiating the position review, there is no reasonable
basis in the record upon which to conclude that this initial step would inevitably
have resulted in the creation of a new security position, the elimination of
Keener's and Cross' positions, and Keener's non-selection for the new position.
Because Fisicaro's initiation of the position review was not an adverse
action, we need not consider whether the reasons Fisicaro offered for the
position review were a pretext for discrimination. Therefore, Keener's
argument that Fisicaro's reasons were such a pretext is inapposite. In any case, the position review occurred more than
180 days prior to Keener's complaint, and is therefore time-barred. (Keener does not allege, nor does the record
demonstrate that there was a hostile work environment.)
The October 7, 2002 notification of Keener's non-selection, and
consequent layoff, is the only adverse action on which we can focus. As noted,
temporal proximity focuses on the gap between the date of the protected
activity and the date of the adverse action. Here there is a 13-month lapse
between the two relevant dates, which in the circumstances of this case does
not by itself warrant a finding of causal relationship. In addition to the two
intervening events found by the ALJ, there were at least three other
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significant intervening events - Cash's decision to alter the number of positions in NRIA
and the nature of the NRIA function, Cash's subsequent decision to make the
single position a new position (and thus open to all employees), and the panel's
unanimous selection of Boies as the recommended candidate for the new NRIA
position. Thus, because of the lapse of time and a number of independent
intervening events, Keener has not established causal relationship based on
temporal proximity.
B. Fisicaro's Involvement
[Keener does not dispute] that DEC terminated Keener and Cook's employment
because Fisicaro approved the selection of Boies for the new security position.
Keener argued below that he should have been selected instead of Boies.
However, the three-member panel that interviewed both Keener and Boies
unanimously agreed that Boies was better suited for the new security position.
As noted previously, Keener's arguments on appeal focus primarily on Fisicaro's
motivation for initiating the NRIA security position review, which ultimately
led to Keener's layoff. According to Keener, absent Fisicaro's initiation of
the position review, he would not have been terminated. He also argues that
every action taken by Cash was a direct result of Fisicaro's directions to
review the NRIA security support function.
Even if Fisicaro had retaliatory animus in initiating the security
support function review – a question we need not decide – Keener does not argue,
nor does the record support, that Fisicaro at all influenced the decision to
restructure NRIA. Cash testified that Fisicaro's role was "minimal."
And as Keener appears to concede, there is no evidence that protected activity
contributed to Cash's decision to restructure NRIA. The record also does not support
a finding that Fisicaro was either responsible for or otherwise influenced the
designation of the one remaining NRIA security position as a new position, thus
opening the job to all interested DEC applicants.
Also significant is the absence of evidence indicating that Fisicaro influenced
the panel's decision to recommend Boies for the new NRIA security support
position.
Although Fisicaro was aware of Keener's protected activity, there is no
indication from the record that he shared this information, and particularly
Keener's identity as the
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source of the rumors about Evans, with anyone,
including those who selected Boies. The ALJ found that Cash, King, Thomas and
Rabon, who were variously involved in the process of creating the new position
and selecting Boies, "credibly testified" they were unaware of the
alleged safety violations Keener reported to Fisicaro.
Keener has not presented any probative evidence that contradicts or otherwise
calls into question the reliability of the testimony provided by Cash, King,
Thomas and Rabon concerning their respective knowledge of any protected
activity. Cash, King and Thomas, who ranked Boies as the best candidate for
the new position, also testified they were not influenced by Fisicaro or anybody
in the selection process and Keener adduced no evidence to the contrary.
Therefore, we leave the administrative law judge's credibility findings
undisturbed and conclude that Cash, King, Thomas and Rabon were unaware of
Keener's protected activity; there is no basis upon which to conclude that any
of their actions were improperly motivated by protected activity. Moreover, while
Fisicaro initiated the NRIA security support function review, Keener presents
no evidence to make us doubt the administrative law judge's finding that there
was no evidence that Fisicaro influenced the subsequent decision-making process
that ultimately resulted in Boies, selection and the displacement of Keener and
Cross. Fisicaro's mere approval of the panel's selection, without more, does
not constitute sufficient influence to prove retaliatory animus under these
circumstances.
CONCLUSION
Keener has not
established that protected activity was a contributing factor in DEC's decision
to lay him off. Accordingly, we affirm the
April 19, 2004 Recommended Decision and Order and DENY Keener's complaint.
SO ORDERED.
M. CYNTHIA
DOUGLASS
Chief
Administrative Appeals Judge
A. LOUISE OLIVER
Administrative Appeals Judge
42 U.S.C.A. § 5851 (West 2003).
29 C.F.R. § 24.4(d)(2), (d)(3) (2005).
Because Keener is a pro se appellant,
we construe his petition and briefs liberally. But we are also mindful of our
duty to remain impartial, and thus, we must refrain from becoming an advocate
for the pro se litigant. See Cummings v. USA Truck, Inc., ARB No. 04-043, ALJ No. 2003-STA-47,
slip op. at 2 (ARB Apr. 26, 2005); Young
v. Schlumberger Oil Field Servs., ARB No. 00-075, ALJ No. 2000-STA-28, slip op. at 9-10 (ARB Feb.
28, 2003).
Hearing Transcript (TR) at 28, 50-51.
Complainant's Exhibit (CX)-1, at 1.
JS-8; TR at 304, 307, 311, 424-425.
JS-9. The process occurred over a period of
months and included input and guidance from DEC's human resources department
and other security-related personnel from each of the three nuclear stations.
Respondent's Exhibit (RX)-24; JS-9; TR at
534.
TR at 27-270, 295-322, 408-672, 783-842.
TR at 366-396. Dolan did not testify at the
ALJ's hearing, but was deposed by Keener's counsel on August 27, 2003. CX-57.
TR AT 673-747. From January 2000 to April
2001, Thomas was the manager in charge of NRIA and he directly supervised both
Keener and Cross. TR at 675-676.
Id. at 311. According to Fisicaro,
there were three or four particular areas where the organization needed to do a
better job and as a new manager it would be part of Cash's duties to figure out
how to resolve the issues or fix the items. Id. Although
Fisicaro did not provide the exact date when he first discussed with Cash the
need to reevaluate, among other things, the security function in NRIA, Fisicaro
testified that the discussion occurred prior to Cash's transfer to NRIA in
October 2001. Id.
Id. at 312-314; CX-48. Based on his
review, Thomas believed there could be a "lessening of the security
support function in NRIA." TR at 678. Indeed, his report sated that "the
current level of security support should be 0.86 FTE." CX-48 at 2.
However, Thomas' recommendations were not implemented prior to his departure
from NRIA in April 2001. Id. at 683.
Id. at 697, 725, 737, 761.
29 C.F.R. § 24.8; see Secretary's
Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).
Hibler, slip op. at 18-19 at n. 149; Shirani
v. ComEd/Exelon Corp., ARB 03-100, ALJ 2002-ERA-28, slip op. at 2 (ARB Sept.
30, 2005).
Stauffer v. Wal-Mart Stores, Inc.,
ARB No. 00-062, ALJ No. 1999-STA-21, slip op. at 9 (ARB July 31, 2001); Henrich
v. Ecolab, Inc., ARB No. 05-030, ALJ No. 2004-SOX-51, slip op. at 12; n. 14
(ARB June 29, 2006).
Hibler, slip op. at 19; Hasan v.
Sargent & Lundy, ARB No. 03-030, ALJ No. 2000-ERA-7, slip op. at 3 (ARB
July 30, 2004).
Complainant's Rebuttal Brief at 3; Respondent's
Brief at 28, n.16.
29 C.F.R. 24.7(b). Hibler, slip op.
at 19; Hasan, slip op. at 3.
Desert Palace v. Costa, 539 U.s. 90, 99-100(2003). Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159, 1162 (9th Cir. 1984).
Complainant's Brief at 26; Complainant's
Rebuttal Brief at 8.
Kester v. Carolina Power & Light Co.,
ARB No. 02-007, ALJ No. 2000-ERA-31, slip op. at 10 (ARB Sep. 30, 2003).
Tracanna v. Arctic Slope Inspection
Service, ARB No. 98-168, ALJ No. 1997-WPC-1, slip op. at 8 (ARB July 31,
2001). An inference of causation becomes less likely as the elapsed time becomes
longer. See Evans v. Washington Public Power Supply Sys., ARB No.
96-065, ALJ No. 1995-ERA-52, slip op. at 2 (ARB July 30, 1996) (the Board held
that a lapse of approximately one year was too much to justify an inference of
causal relationship between the protected activity and the adverse action).
Barber v. Planet Airways, Inc., ARB
No. 04-056, ALJ No. 2002-AIR-19, slip op. at 6-7 (ARB Apr. 28, 2006); Tracanna,
slip op. at 8.
Complainant's Brief at 21.
Complainant's Brief at 28-29; Complainant's
Rebuttal Brief at 8-9.
See Burlington N. & S. F. R. Co. v. White,
548 U.S. ___ , slip op. at 13 (2006), 126 S.Ct. 2405, 2415..
See National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115-118 (2004).
Tracanna, slip op. at 8; Evans,
slip op. at 2.
Complainant's Brief at 26-28; Complainant's
Rebuttal Brief at 9 nn. 15-16.
Thus, Keener's argument that he was more
qualified than Cross is unavailing. Keener appears to concede that he was not
more qualified than Boies.
According to Keener, Fisicaro told him that
when he spoke with McGuire safety assurance
manager Dolan about the rumors he did not
mention Keener's name. CX-2.
Id. at 532, 694, 734, 736.