DATE: August 21, 1995 CASE NO. 93-ERA-0054 IN THE MATTER OF MICHAEL L. JOPSON, COMPLAINANT, v. OMEGA NUCLEAR DIAGNOSTICS, RESPONDENT. BEFORE: THE SECRETARY OF LABOR FINAL DECISION AND ORDER This case arises under the employee protection provisions of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 as amended. On February 22, 1994, the Administrative Law Judge (ALJ) issued his Recommended Decision and Order (R. D. and O.), holding that Complainant failed to establish that he was terminated in retaliation for protected activity. After review of the entire record, including post hearing briefs submitted by the parties, I affirm the ALJ's decision, as modified below. BACKGROUND Complainant Michael Jopson (Jopson), began working at Respondent Omega Nuclear Diagnostics (Omega) on June 2, 1992, as a Certified Nuclear Medical Technologist (CNMT). Between June 2, 1992 and April 26, 1993, Jopson's overall responsibilities involved supervising the nuclear medicine department, quality control, equipment testing and preparation of patients referred by outside physicians for "studies" using nuclear medicine. R. D. and O. at 2; Transcript (T.) 23. Once prepared by Jopson, a patient was examined by a physician. Diedra O'Connell, Omega
[PAGE 2] Administrator, was Jopson's administrative supervisor. R. D. and O. at 5. Jopson's technical duties were supervised by physicians. Jopson "partially" prepared a patient for a persantine thallium study on February 9, 1993. R. D. and O. at 2; T. 23. The attending physician, Dr. Kenneth Corrin, arrived late, and directed Jopson to prepare a second patient for study. In the meantime, Dr. Corrin, aided by another medical technician, began the study on the first patient. Later, Jopson checked with Dr. Corrin when he thought it was time to inject the first patient and discovered that the thallium injection had already been administered by Dr. Corrin. Dr. Corrin was not authorized to administer radioactive materials. R. D. and O. at 2. In addition, Dr. Corrin spilled some of the thallium on the examination table. Id. Jopson reported this incident to O'Connell on February 10, the following day. T. 26 and 94. The thallium incident was discussed at a safety meeting held on February 15, 1993. At the meeting, O'Connell indicated that she would handle the required documentation of the incident. Both Jopson and O'Connell stated that O'Connell turned the matter over to Scott Surovi, an Omega consultant from NMA Medical Physics Consultation. R. D. and O. at 3; RX-7; T. 26-27, 95. The Nuclear Regulatory Commission (NRC) conducted a routine licensing inspection at Omega on March 22, 1993. Inspector, D. B. Everhart, reviewed records of the thallium incident and asked Jopson for an explanation. Jopson described the details of the thallium incident to Everhart and told him that the matter had been handled by O'Connell. R. D. and O. at 3; T. 29. O'Connell testified that she decided to replace Jopson at the "beginning of March, 1993." T. 89-90. On March 27, 1993, Omega began advertising for a CNMT position to replace Jopson through the News Journal Company, Wilmington, Delaware. RX-14. On April 21, 1993, Dr. Lee, Omega Medical Director, told Jopson that a Delaware State investigator, Mr. Tapert, informed him that a complaint had been filed against Omega's Nuclear Medicine Department. R. D. and O. at 3. Tapert subsequently visited Omega on April 21, and met with Lee, Jopson, and O'Connell. Tapert showed them a report describing the February 9 incident and naming Jopson as the "alleger." RX-l; R. D. and O. at 3; T. 30 and 98. There was some confusion over the nature of the complaint, and neither Lee nor O'Connell connected the complaint with the thallium incident. After Jopson retrieved his minutes of the February 15 safety meeting and clarified the nature of the complaint, O'Connell remembered the incident and later told Jopson he had done the right thing in relating the details of the incident to Everhart. R. D. and O. at 3; T. 31 and 99.
[PAGE 3] On April 26, 1993, O'Connell met with Jopson and told him that she no longer needed his services. Jopson testified that when he insisted upon knowing the reason, O'Connell "said that it was due to statements made concerning recent events." R. D. and O. at 4. Jopson stated that he was told to leave the premises immediately. R. D. and O. at 4; T. 31. O'Connell denied that Jopson was terminated because of statements he made to the NRC or to the Delaware State Investigator. O'Connell testified that Jopson was terminated because of his poor attitude, abuse of overtime and complaints from referring physicians. R. D. and O. at 5; T. 74. Jopson admitted to having "a little bit of an attitude problem" regarding not being compensated for hours that he worked, and receiving "overtime wages at straight rate." T. 32. On June 13, 1993, Jopson filed a complaint with the U. S. Department of Labor (DOL) alleging that he had been improperly terminated by Omega for "whistleblowing." DISCUSSION The ALJ correctly concluded that the complaint, which was filed on June 13, 1993, forty-eight days after the alleged discriminatory discharge, was timely filed. The ALJ also accurately described the burdens of persuasion and production which apply in a retaliation case. R. D. and O. at 8. While the ALJ couched some of the discussion in terms of a prima facie case, it is evident that the ALJ evaluated the entire record in reaching the conclusion that Jopson failed to prove that Omega's reasons for discharging him were pretextual. See R. D. and O at 11.  Protected Activity The ALJ ultimately held that Jopson engaged in "a protected activity", however, the ALJ erred in his factual analysis when he stated that "it is far from clear just what that activity was." Jopson engaged in protected activity when he reported the thallium incident and unauthorized injection to O'Connell. The CNEPA specifically amended the employee protection provision of the ERA to include coverage for internal complaints. Jopson also engaged in protected activity when he later discussed the thallium incident with Everhart, the NRC inspector who conducted a routine licensing inspection at Omega on March 22, 1993. The fact that the NRC investigation was routine does not alter the protected nature of Jopson's discussion with Everhart. To the extent that the ALJ's analysis suggests that reporting safety violations in the course of one's regular duties does not constitute protected activity under the ERA, this conclusion is rejected. Passaic Valley Sewerage Commissioners v. Dept. of Labor, 992 F.2d 474, 478 (3d Cir. 1993); Carroll at 12-14. Causation
[PAGE 4] Jopson alleges that his protected activities caused Omega to discharge him. I agree with the ALJ that the evidence is convincing that Jopson's discharge by Omega was for legitimate, nondiscriminatory reasons and had nothing to do with his protected activity. (1) Feb. 10, 1993, Report. It is undisputed that when Jopson reported the thallium incident to O'Connell, on February 10, 1993, she took the report very seriously. After discussing this incident at the safety meeting, an investigation was conducted and a report was issued on February 15, 1993, stating: [T]here was one instance to which an administration of a radiopharmaceutical product was in question. Specifically, a unit dose of Thallium-201 chloride was administered by a cardiologist during a routine Thallium stress test. A portion of the radiopharmaceutical product had extravasated and subsequently contaminated the treadmill. The patient undergoing this evaluation did not receive the full dose of the Thallium-201 thus requiring a repeat study. This matter falls under the jurisdiction of the Delaware Division of the Public Health and shall be investigated by this consultant. It may be necessary to report this incident to the State identifying this incident as well as corrective action taken. RX at 3. Thereafter, on April 22, 1993, Omega management issued a letter of corrective action to Dr. Corrin for his noncompliance under Omega's license. RX-11, RX-12, and RX-17. There is no evidence that Omega management was displeased or responded in a negative manner against Jopson for reporting this incident. I conclude that the weight of the evidence does not support Jopson's allegation that his complaint to O'Connell on February 10, motivated Omega to discharge him on April 26. (2) March 22, 1993, Meeting. Jopson met with NRC Inspector Everhart during a routine licensing inspection on March 22, 1993, and the February 9 thallium incident was discussed. R. D. and O. at 3; T. 29. Jopson failed to provide any evidence establishing that Omega knew, prior to April 21, that Jopson discussed the thallium incident with Everhart during the meeting. More importantly, compelling evidence indicates that neither Jopson, O'Connell nor Lee were aware of the existence of the March 22 NRC report until the April 21 meeting with Tapert. Therefore, Omega learned of the existence of the March 22 report almost a month after it began advertising for Jopson's replacement on March 27. RX-1; R.D. and O. at 3; T. 30 and 98. I therefore find that Jopson's discussion with Everhart and
[PAGE 5] the subsequent March 22 report did not motivate Omega to retaliate by discharging him. Further, as discussed below, I find that there is ample evidence to support Omega's stated reasons for discharging Jopson. Omega's Reasons for Terminating Jopson O'Connell denied that Jopson's discharge was based upon his protected activity. T. 91. O'Connell terminated Jopson because of his poor attitude, abuse of overtime and complaints from referring physicians. R. D. and O. at 5; T. 74. Jopson admitted to having "a little bit of an attitude problem" regarding his compensation. T. 32. It was undisputed that O'Connell received a number of complaints from different sources, including referring physicians, regarding Jopson's behavior and performance. R. D. and O. at 5 and 6. It was also undisputed that O'Connell warned Jopson about his use of overtime hours on more than one occasion. RX 2, 3; T. 87-89. In August 1992, O'Connell counselled Jopson about "numerous complaints from the front desk" based upon the difficulty of putting through calls for scheduling appointments due to his use of the phone for personal reasons. RX-4, T. 78. O'Connell also cautioned Jopson on October 21, 1992, regarding the signing out of nuclear records. RX-5, T. 79-80. Dr. Tze, general partner of Omega Nuclear Diagnostic, received a letter dated March 3, 1993 from a referring physician, Dr. David Sowa, regarding "problems that they had been having in scheduling bone scans." RX-13; T. 83-84. Dr. Lee testified that he received a complaint regarding Jopson's rudeness, that he found Jopson introverted and defensive, and that Jopson tried to cover his mistakes. T. 60. Theresa Parker, medical transcriptionist and receptionist, testified that Drs. Jaffe and Ettinger, among others, complained that Jopson was rude when they attempted to schedule appointments. T. 68-69. The ALJ credited the testimony of "all the witnesses in this case," noting that "there are no serious conflicts in the evidence." R. D. and O. at 11. However, he found Jopson's testimony "evasive" and suggested a "lack of candor." Id. In contrast, he stated that O'Connell impressed him as "an intelligent and forthright person." Id. O'Connell's testimony was consistent with the evidence as a whole, and inherently probable. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951); cf. Pogue v. United States Department of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991) (ALJ's credibility determinations entitled to weight because he sees the witnesses and hears them testify). I agree with the ALJ that Omega was not influenced or motivated by Jopson's reporting the misuse of nuclear medicine.
[PAGE 6] R. D. and O. at 11. I find that Respondent articulated legitimate, non-discriminatory reasons for discharging Jopson. Based upon the evidence as a whole, Jopson failed to prove that his protected activity either led to his discharge, or "played a role" in Respondent's decision. Passaic Valley., Id. In the absence of such proof, Jopson's complaint must be dismissed. Accordingly, I accept the ALJ's findings and conclusions as modified in this decision, and it is hereby ORDERED that the complaint be DISMISSED. SO ORDERED. ROBERT B. REICH Secretary of Labor Washington, D. C. [ENDNOTES]  Dr. Kenneth Corrin was not authorized to administer or handle any radioactive materials because he was not listed on Omega's Nuclear Diagnostic's Radioactive Material license. RX-12.  Dr. Lee is also Omega's radiation safety officer, and one of its owners. T. 42 and 58. He is an independent contractor with Omega Imaging Center, and his role is "mainly the interpretation of most of the tests" conducted by Jopson.  Section 2902(b) of the Comprehensive National Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (CNEPA), amended the time period for filing a complaint to 180 days for claims filed on or after the date of its enactment, October 24, 1992. See Section 1902(i) of Pub. L. 102-486.  The ALJ concluded that "Jopson must produce enough evidence to raise the inference that his protected activity was the likely reason for his termination by Omega." R. D. and O. at 9. The ALJ went on to find that Jopson did not raise such an inference largely based upon Omega's evidence. Id. As I have noted in several decisions (See, e.g. Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Dec. and Ord., Feb. 15, 1995, slip op. at 8-12, pet. for review docketed, No. 95- 1729 (8th Cir. Mar. 27, 1995), once a case has been fully tried on the merits, the answer to the question whether the complainant presented a prima facie case is no longer particularly useful. Moreover, the question of whether a complainant has met the burden of establishing a prima facie case cannot be answered based upon evidence presented by the respondent. I conclude that Jopson did raise an inference of causation because of the temporal proximity between Omega's becoming aware of his protected activity, April 21, 1993, and his discharge on April 26, 1993.  In a memorandum dated November 16, 1992, O'Connell warned Jopson about unnecessary work hours and instructed Jopson to obtain prior approval for overtime. RX-3. In a memorandum dated January 26, 1993, O'Connell referenced her earlier warning regarding overtime hours and informed Jopson that he violated her previous instructions by continuing to work unauthorized overtime. RX-2.