1 References
herein are as follows: "ALJ" - Administrative Law Judge
Exhibits, "RX" - Respondent Exhibits, "Tr." -
Transcript of trial, "CX" - Claimant's Exhibits.
2 A joint
motion to continue the hearing (ALJ 7), initially set for June 4,
1996 (ALJ 5), was granted (ALJ 8). Respondent's later motion to
further continue the hearing (ALJ 14), was denied (ALJ 16). The
parties have waived all statutory time constraints relative to
decision issuance (ALJ 7).
3Priest v.
Baldwin Assocs, 84-ERA-30 (6/11/86); Willy v. Coastal
Corp., 85-CAA-1 (5/4/87), adopting the Ninth and Tenth
Circuit rational in Mackowiak v. University Nuclear Systems,
Inc., Case No. 82-ERA-8 (4/29/83), aff'd and remanded,
735 F.2d 1159 (9th Cir. 1984), and Wells v. Kansas Gas and
Electric Co., Case No. 83-ERA-12 (6/14/84), affd' sub nom
Kansas Gas & Electric v. Brock, 780 F.2d 1505 (10th Cir.
1985), cert.denied, 106 S.Ct. 3311 (1986); as against the
decision reached in Brown & Root, Inc., v. Donovan, 747
F.2d 1029 (5th Cir. 1984), absent resolution of this circuit
conflict by the U.S. Supreme Court.
4 Complainant,
while initially represented by counsel, appeared pro
se (ALJ 14 & 15).
5 Complaint was
terminated in August, 1995 see infra.
7 I find no
meaningful distinction between the expression of
"quality" and "safety" concerns vis a vis the
protected activity issue, especially where, as here, nuclear
medicine is being practiced. An "overload" or backup
of patients waiting to be tested by nuclear medicine device, for
example, obviously impacts not only upon management efficiency
concerns, but medical safety concerns as well (see Tr. 34-35; Cf.
Tr. 426; 442).
8 Which report
triggered an official State investigation of Respondent (CX 4).
9 Mr. Riley
(Tr. 451-4), Mr. Stouffer (Tr. 432-4), and Ms. Bruggink (Tr. 205;
208-9).
10 See, for
example, Ms. Henry's sympathy with Complainant's frustration and
manner of communication (Tr. 255).
11
Respondent's stipulated to Complainant's good job performance
(Tr. 224).
12 There is
ample evidence of hectic, stressful work conditions (Tr. 30-47).
Ms. Hammer's choice of (Complainant's hectic work station)
location in which to discuss Dr. Shadani's problem may indeed be
viewed as altogether inappropriate. Also well-taken, is
Complainant's utter frustration at Ms. Hammer's attempt to
silence him, in the middle of his response, after she first
engaged him in the "brainstorming" of the pending
matter. Noted also is that Ms. Hammer's sense of inpending
breach of "patient confidentiality" by Complainant
appears, more precisely, to have been a concern that the patient
being ministered to by Complainant during her visit might
overhear a discussion about a previously failed test.
13 There is
no evidence that Complainant intended to frighten/threaten, or to
physically harm, Ms. Hammer.