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DATE ISSUED: July 30, 1999
CASE NO.: 1999-ERA-13
IN THE MATTER OF
JAMES P. PARKER
Complainant
v.
TENNESSEE VALLEY AUTHORITY
Respondent
ORDER GRANTING RESPONDENT'S MOTION FOR SUMMARY
JUDGMENT
This proceeding arises under the Energy Reorganization Act of 1974
("ERA"), 42 U.S.C. § 5851 (1988 and Supp. IV 1992) and the regulations
promulgated thereunder at 29 C.F.R. Part 24 which are employee protective provisions of the ERA or
of the Atomic Energy Act of 1954 as amended, 42 U.S.C. § 2011, et seq. The
Secretary of labor is empowered to investigate and determine "whistleblower" complaints
filed by employees at facilities licensed by the Nuclear Regulatory Commission ("NRC")
who are allegedly discharged or otherwise discriminated against with regard to their terms and
conditions of employment for taking any action relating to the fulfillment of safety or other requirements
established by the NRC.
This matter is presently before the Court on Respondent's Motion for Summary
Judgment with briefs filed by both parties. The regulations governing these proceedings provide, in
relevant part:
In deciding a motion for summary decision, the court must consider all the
materials submitted by both parties, drawing all reasonable inferences in a matter most favorable to the
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non-moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970). A court shall render summary judgment when there is no genuine issue as to any material fact,
the moving party is entitled to judgment as a matter of law, and reasonable minds could come to but
one conclusion, which is adverse to the party against whom the motion is made. SeeLaPointe v. United Autoworkers Local 600, 8 F.ed 376, 378 (6th Cir. 1993); United
States v. TRW, Inc. 4 F.3d 417, 423 (6th Cir. 1993), cert denied 114 S.Ct. 11370 (1994).
To establish a primafacie case of retaliatory discharge
under the whistleblower provision invoked here, a complainant must show that: (1) the complainant
engaged in protected activity; (2) the employer was aware of that protected activity; and (3) the
employer took some adverse action against the complainant. The complainant must present evidence
sufficient to raise the inference that the protected activity was the likely reason for the adverse action.
Sartey v. Zack Co. Of Chicage, 82-ERA-2 (1983).
To determine if there was a retaliatory discharge under the environmental
whistleblower laws the seminal issue is whether or not the complainant engaged in protected activity.
Only if the activity is deemed to be protected are the other elements of a primafacie case addressed.
To establish protected activity, the employee need demonstrate only a
reasonably perceived violation of the underlying statute or its regulations. Abu-Hjeli v. Potomac
Power Co., 89-WPC-1 1993); see also Johnson v. Old Dominion Security, 86-CAA-
3,4,5 (1991). In Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993), the
complainant's allegations were not related to nuclear or radiation safety. The judge concluded that
because the Respondent was licensed by the NRC, all of its employment actions were covered by the
ETA's whistleblowers provision. The Secretary rejected this interpretation, holding that complainant's
safety-related activity must relate to nuclear safety to be protected under 42 U.S.C. § 5851.
In the instant case, Complainant alleged violations of the Act resulting from his
request for fire fighting equipment and a prior concern with asbestos. Complainant made no allegation
related to nuclear or radiation safety. Thus, because Complainant's safety-related activity is not related
to nuclear safety it is unprotected under the Act.
In Complainant's response to this Court's Order to Show Cause Why
Respondent's Motion for Summary Decision should not be granted, Complainant states
"Although it is acknowledged that the references to the asbestos related incident, (and or)
incidents, mentioned by the Respondent, are unprotected within the scope of the ERA, this does in no
way diminish their existence." Furthermore, this Court finds that because Complainant has not
engaged in protected activity under the ERA, he is unable to establish a primafacie
claim under the Act. In light of Complainant's statement that the activity complained of is unprotected
under the ERA and the Court's finding that Complainant is unable to establish a primafacie claim under the Act, this Court concludes that Complainant was not engaging in
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protected activity within the meaning of the ERA when he expressed his concerns and, accordingly,
his complaint is not within the scope of the Energy Reorganization Act.
Thus, upon review of the pleadings, affidavits and material obtained by discovery
or otherwise, or matters officially noticed this Court finds that there is no genuine issue of material fact
and that Respondent is entitled to summary judgment as a matter of law.
So ORDERED this 26th day of July, 1999, at Metairie, Louisiana.