Administrative Fleview Board 200Constitution Avenue, N.W. Washington, D.C.

20210

In the Nlatterofi MARK J. KELLY, COMPLAINANT, v. LAMBDA RESEARCH, IIIC., RESPONDENT; BEFORE: ARB CASENO. 02.075 ALJ CASENO. 2OOO-ERA.35

DATE:

MAR 3I 2oo.4

THE ADMII{ISTRATTVE REVIEW BOARD

Appearances:
For the Conqlainant: Mark J. Kelly,pro se, Dillsboro,Incliana For the Respgndent: Robert A. Dimling, Esq., MekeshaH. Montgomery, Esq. Frost Brown To;dd,LLC, Cincinnati, Ohio

FINAL DECISIONAND ORDER Mark J. Keliy filed a complaint against Lambda Research, Inc. (Lambda), under the_employee protection provisions of the EnergyReorganization Act (ERA or Act), 42 aileging, interalii. thatLambda constructively terminated !.S C e $ 5851(West1995)r his employment in retaliation for his havingraisedsafetyconcerns. A Department of LaborAdministrative Law Judge (ALJ) issuida Recommended Decision andOrder(R. D thatKelly hadfailed to establish thatLambda retaliated against him, .q9 ) concluding andKellyappealed.
Th. statuteprovides,in pertinentpart, that "[n]o employermay discharge any employee or otherwise discriminateagainst any employee wrth r.rpl.t to his compeniation, terms,conditions, or privileges of employment because the employee . . . [notifiesa covered employer aboutan alleged violationof theERA or the AtomicF.nergy actlane; (42 U.S.C. refuses $ 29]l et seq.(2000).;, to engage in apracticemadeunlawlulby theERA orAEA, testifies regarding provisions or proposed p.ouisions of the ERA or AEA. or commences. causes to be commenced or testifies, assists or participates in a proceeding undertheERA or AEA]." t

2 FACTS
Lambdaemployed Mark Kelly as a lab technician beginningin June 199gand as a'labsupervisor beginning in December 1998. At all relevanl timei, Lambda, a research laboratory specializing in x-ray diffracrion, provided materials testing services to governmentai and industrialclients. Paul PreveyfoundedLambda in i99-7and was its president, Directorof Research, andchairmanofthe Board. Whenever a problemoccured with the testing of a client'smaterials, Lambdalab employees prepared a Quality Assurance Report(QAR), alsoreferred to as a eA incident report' The QAR was an internaldocumentkept permanently in Lambda'sfiles, and while it was not presented to clients,outsidepart'ies could review it during any audit of the company's facilities. The QAR identifiedihe natureand cause of the testinsnroblem and contained a recommended soiution. On July 16, 1999, Keliy prepared a QAR addressing a problem with the resting of zirconium tubes for T-ambda'sclient, GE Nuclear. GE Nuciear had already been informed.ofthe testingproblemand had beensatisfied with Lambda'sretestingofthe materials. In the QAR, however,Kelly had recommended that GE Nuclear be further notifiedthat pastresults from Lambda'stestsmay havebeendistorted, andthat Lambda's procedures for handlingthesetypesof samples be modified. Kelly submitted the QAR to PaulPreveyfor approval and signature. Preveyieturnedthis QAR to Kelly in August i999. Preveyinstructed Kelly to omit the notedrecommendations because he did not r,vant the procedures changed or the client further notified. Preveypointedout to Kelly that the recommendation to change the procedurewas not necessary because the testing error had occurred,not from an incorrect. procedure, but because the procedurein the manual had not been followed. Preveyalsotold Kelly that the client needed'no further noticeregarding pasttest results because, had therebeensampleproblemsin the past,they would havebeenraisedwith the client at the time they happened. Thus, Prevey ttta fetty to revisethe eAR accordingto these instruitioni. But'Kelly returnedthe draft QAR to prevey in September 1999without makingthe changes that Preveyhad requested, that is, without removingthe recommendations that Preveyhad wantedomitted. After Kelly refusedto make the changes to the QAR, Preveyreprimanded him, instructed him to stop wasting his time on the QAR, and told him not to speakto other lab personnel concerning it. Preveyalso told Kelly that, if eitherof his instructions were ignored,he would be fired. Kelly resigned on February25,2000, later allegingthat, beiauseof this incidentand otheractsof discrimination, he had beenconstructivJydischarged. JURISDICTION AND STANDAR.D OF REVIEW The AdministrativeReview Board (ARB) has authority to review an ALJ's recommended decision in cases arisingunderthe ERA, See29 C.F.n. S 24.g (2000) See a/so Secretary's orderNo. 1-2002,67Fed.Reg.64,272(oct. lT,zooz) (deiegating the ARB authorityto review cases arisingunderthe environmental whistleblower statutes).

$ ,j'rft) i*.ri;ilj:t rhe ARB engages in de novoreviewof theALJ's recommende"d decision . see Kester tt. Carorina Pot'ver andLightco., ARB No. 02-007, ALJNo.00-ERA-3i, srip (ARB sept. 3 0 ,2 0 0 3 ). ";.;;
DISCUSSION

under the Administrative procedure Act, the ARB, as the designee' of the secretary' actswith a1ithe powers the secretary ;fi possess in renderin,q a decision under the"whistieblower

stitutes.sr_: s u.s c.A.

To succeed in an ERA case, the complainant mustproveby a preponderance of evidence thathe engaged in protected activity, thatthe.mpioyr knewuuouthis activity andtook adverse action.against him, andtCt ni, prot..t.a activitywas a contributing factorin the.adverse actionthe empioyer took. ffihe ,rilhi;;;r""...a, in making thisshowing, theemployer *uy uuoid iluultityuv a.".""rtratingby clearandconvincing evidence thatit wouldhavetaten the same unruuoruut. f.rsonnelactionin the absence r of theprotected activity, See Kester, siipop.at g TheArJ fou,{ thatKeily engaged-in protected activity, knownto l.ambda, when he submitted the QAR in-Jutyissll ir. o & o. ut L9-21. Furrhermore, he foundthat Prevey'sthreatto fire Kelry was an adverse action. Itt. at 30. Even so, the ALJ determined that Keliy did not demonstrate by a preponderance of evidence that submitting the QAR contributed to histermination oi.lipioyrent from Lambda. R. D, & O .a ' t3 1 . we havecarefully reviewed the record andtheR. D. & o. TheALJ's recitation of the factsis accurate, ihorough, and fair, and the ;;J supporrs his findingsof fact. Furthernrore, the au. p1 appliedappropriate law to thesefrndings. Accordingry, rve adopt andappend theALJ'si..o**.nded decision andDrsMras fi;.ur*--" SO ORDERED.

OLlfirf,R M. TRANSUE
AdministrativeAppealsJudge

WAYNEI. BEYER
AdministrativeAppealsJudge