DATE:  July 21, 1994
CASE NO. 90-ERA-31


IN THE MATTER OF

JOSEPH W. DILLARD,

          COMPLAINANT,

     v.

TENNESSEE VALLEY AUTHORITY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Joseph Dillard, an electrician formerly employed by
Respondent Tennessee Valley Authority (TVA), filed a complaint
alleging that because he made safety complaints, TVA placed a
code in his personnel records that prevented his reemployment. 
In a Recommended Decision and Order (R.D. and O.), an
Administrative Law Judge (ALJ) found that Dillard did not
establish a prima facie case of a violation of the employee
protection provision of the Energy Reorganization Act of 1974
(ERA), 42 U.S.C. § 5851 (1988), and recommended dismissal.  
     TVA filed a brief before me.  In reaching this decision, I
have considered the entire record before the ALJ, including the
parties' post-hearing briefs.
     The ALJ's findings of fact, R.D. and O. at 2-9, and
credibility assessments are supported by substantial evidence 
in the record and I adopt them.  I agree with the ALJ's
recommendation of dismissal, as I explain below.
     To make a prima facie case, the complainant in a
whistleblower case must show that he engaged in protected
activity, that he was subjected to adverse action, and that 
[PAGE 2]
respondent was aware of the protected activity when it took the
adverse action.  Complainant must also raise the inference that
the protected activity was the likely reason for the adverse
action.  Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2,
Sec. Ord., Apr. 25, 1983, slip op. at 8.
     I agree with the ALJ that Dillard engaged in protected
activities when he complained to managers and to the Nuclear
Regulatory Commission's resident inspector about defective
procedures and substandard materials and work at the Sequoyah
nuclear plant. [1]   R.D. and O. at 11; see Jones
v. Tennessee Valley Authority, 948 F.2d 258, 264 (6th
Cir. 1991) (internal complaints to managers protected under ERA). 
Likewise, it is clear that TVA managers were aware of Dillard's
protected activities at the time the restrictive code was placed
in his record.  R.D. and O. at 11.
     Proximity in time between the complainant's protected
activities and the respondent's adverse actions may be sufficient
to raise the inference of causation.  Couty v. Dole, 886
F.2d 147, 148 (8th Cir. 1989); Goldstein v. Ebasco
Constructors, Inc., Case No. 86-ERA-37, Sec. Dec., Apr. 7,
1992, slip op. at 11-12 (causation established where seven or
eight months elapsed between protected activity and adverse
action), rev'd on other grounds sub nom., Ebasco
Constructors v. Martin, (4th Cir. Feb. 19, 1993).
     Dillard made safety complaints in 1987 and early 1988, R.D.
and O. at 2, and in August 1989, TVA placed in Dillard's
personnel record a restrictive code that could prevent his
reemployment.  RX 10.  I find that the passage of a year and a
half between the last protected activities and the adverse action
mitigates against a finding that temporal proximity alone raised
the inference of causation in this case.  See
Basset v. Niagara Mohawk Power Co., Case No. 86-
ERA-2, Fin. Dec. and Ord., Sept. 28, 1993, slip op. at 9 (where
significant period of time elapses between respondent's awareness of
protected activities and the adverse action, absence of causal connection
may be established); Shusterman v. Ebasco Services, Inc., Case
No. 87-ERA-27, Sec. Fin. Dec. and Ord., Jan. 6, 1992, slip op. at
8-9, aff'd mem., Shusterman v. Secretary of Labor,
No. 92-4029 (2d Cir. Sept. 24, 1992).
     A complainant also may establish causation by showing direct
or circumstantial evidence of anti-whistleblower animus on the
part of the respondent and its managers.  See Bartlik
v. Tennessee Valley Authority, Case No. 88-ERA-15, Fin. Dec.
and Ord., Apr. 7, 1993, slip op. at 3 (complainant may carry
burden of proof on any element of discrimination claim by direct
or circumstantial evidence), appeal docketed, Bartlik
v. United States Dep't of Labor, No. 93-3616 (6th Cir. June
4, 1993).

[PAGE 3]
     Dillard argued that TVA's failure to give him a written
notice of a 1988 directed transfer to a different power plant
shows animus against him because of his safety complaints.  I
agree with and adopt the ALJ's analysis that TVA made diligent
efforts to notify Dillard and that it was Dillard's behavior that
prevented him from receiving the written notice.  R.D. and O. at
11-12.  Further, the record convinces me that TVA gave Dillard
verbal notice of the transfer.  T. 210, 192-193.  Accordingly, I
affirm the ALJ's finding that there was not sufficient evidence
to support an inference of anti-whistleblower animus concerning
the notice of transfer.  R.D. and O. at 12.
     Likewise, Dillard did not demonstrate any animus in the
placement of a restrictive code in his personnel file in 1989,
about a year after he stopped working for TVA.  I adopt the ALJ's 
discussion and findings that TVA placed the code because Dillard
engaged in travel voucher fraud and that the person who placed
the code was unaware of Dillard's protected activities.  R.D. and
O. at 12-14.  Thus, there was no basis in the record to infer
that Dillard's protected activities caused TVA to take adverse
action against him.  I, therefore find that Dillard did not raise
the inference of causation in this case.
     Accordingly, I agree with the ALJ that Dillard did not
establish a prima facie case of a violation of the ERA, and
DISMISS the complaint.
     SO ORDERED.

                              ROBERT B. REICH     
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1] 
  The spelling of the Sequoyah plant was not correct in the ALJ's
decision.