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Shirani v. Comed/Exelon Corp., 2002-ERA-28 (ALJ Dec. 4, 2002)
U.S. Department of Labor | Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 | ![]() |
Issue Date: 04 December 2002
CASE NO.: 2002-ERA-28
In the Matter of:
OSCAR B. SHIRANI,
Complainant
v.
COMED/EXELON CORPORATION,
Respondent
A hearing was scheduled in the above-captioned matter for November 13 and 14, 2002, in Chicago, Illinois. On October 7, 2002, the Complainant, and attorneys for both parties submitted an Agreed Protective Order for consideration by the undersigned. On October 8, 2002, I issued a Protective Order, incorporating the parties' previously agreed-to submission.
On October 24, 2002, the Respondent's attorneys filed a Motion for Summary Decision. Additionally, on October 28, 2002, counsel for the Respondent filed an Emergency Motion for a Protective Order Prohibiting the Deposition of Oliver Kingsley and a request for continuance to allow further briefing. Subsequently, I held a conference call with the parties' counsel.
Accordingly, on November 7, 2002, I issued an Order Rescheduling Hearing and Setting Briefing Schedule. Pursuant to that order, the hearing in November was cancelled, and rescheduled to commence at 9:00 A.M. on December 17, 2002, in Chicago, Illinois. The parties were also ordered to submit briefs on the Respondent's two motions.
Motion for Protective Order
Counsel for the Complainant filed a response to the Respondent's Motion for a Protective Order on November 12, 2002. In that response, the Complainant identifies specific topic areas he would explore with Mr. Kingsley. Moreover, counsel offers to hold the deposition at Mr. Kingsley's office and on a date convenient for him. In its Reply Brief, filed November 18, 2002, the Respondent argues that Mr. Kingsley should not be deposed because the Complainant proposed to ask about five matters that could form the basis of a claim.
I find the Complainant's arguments that Mr. Kingsley could offer relevant and material information more convincing. The Complainant is also willing to minimize the impact of this proceeding on Mr. Kingsley's schedule. Therefore, the Respondent's Motion for an Emergency Protective Order is denied and the deposition should proceed with maximum convenience for Mr. Kingsley.
Motion for Summary Judgement
On November 19, 2002, the Complainant filed a Response to Motion for Summary Decision. In that response, the Complainant alleges that there is a dispute of the material facts and that there is evidence, some discovered and some yet to be discovered, which establishes the Complainant's termination was in retaliation for his protected activity. On November 22, 2002, the Respondent filed its Reply Brief. In its brief, the Respondent argues that the Complainant cannot establish a causal connection between his alleged protected acts and the adverse action. The Respondent also asserts that there were legitimate reasons for the adverse action.
Under the applicable law, any employer who "intimidates, threatens, restrains, coerces, blacklists, discharges, or in any manner discriminates against any employee because the employee has: (1) Commenced or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under one of the Federal statutes listed in § 24.1(a)..." is deemed to have violated federal law and the regulations.1
In a case involving an environmental whistleblower, the complainant has the burden of proof to make a prima facie showing that: (1) the complainant engaged in a protected activity; (2) the complainant was subjected to adverse action; (3) the respondent was aware of the protected activity when it took the adverse action; and (4) the evidence is sufficient to raise a reasonable inference that the protected activity was the likely reason for the adverse action.2
If a complainant successfully establishes a prima facie case, the respondent must produce evidence of a legitimate, nondiscriminatory reason for the adverse action, in order to rebut the complainant's showing.3 The respondent bears only the burden of production of rebuttal evidence.4 The complainant may then counter the respondent's evidence by proving by a preponderance of the evidence, that the respondent's reasons are not the true reasons for the adverse action, but rather, a pretext for discrimination.5 Likewise, at all times, the complainant bears the burden of demonstrating, by a preponderance of the evidence, that the adverse action was in retaliation for the protected activity, in violation of the law.6
To decide on the Respondent's Motion for Summary Decision, I must determine if the Complainant has met the four elements for a prima facie showing. In their respective briefs, neither the Complainant nor the Respondent devotes much attention to the first three elements of a prima facie case. For example, the Respondent immediately argues that there was no causal nexus between the adverse action and the alleged protected activity. Likewise, the Complainant briefly states that "Shirani was professionally engaged in protected activity for more than six years and that Shirani was subsequently terminated by the Respondents. (Citation omitted). The unusual issue in this case is the fourth element...namely, that a nexus exists between the protected activity and his termination." (Complainant's Response to Motion for Summary Decision, at 5).
Based on the evidence, I find that the Complainant has alleged: 1) that he was engaged in protected activity; 2) that he was subjected to adverse action; and 3) that the Respondent was aware of his protected activity when it took the adverse action. Regarding the fourth element, the Respondent argues that there is no evidence connecting the termination decision to any protected activity. The Complainant, however, asserts that the evidence will demonstrate a causal connection between the protected activity and the adverse action; in fact, the Complainant suggests that the retaliation in this case was part of a well-executed plan that took time to fully develop.
After reviewing the parties' arguments, I find that the Complainant has established the four elements of a prima facie case. Moreover, there is a dispute over the material facts at issue. Therefore, the Respondent's Motion for Summary Decision is denied.
Accordingly, the Respondent's Motion for a Protective Order Prohibiting the Deposition of Oliver Kingsley is hereby DENIED. Likewise, the Respondent's Motion for Summary Decision is hereby DENIED.
ROBERT J. LESNICK
Administrative Law Judge
129 C.F.R. § 24.2(b).
2 Glenn v. Lockheed, 1998-ERA-35 &50 (ALJ July 15, 1999).
3 Carroll v. Bechtel Power Corp., 1991-ERA-46 (Sec'y Feb. 15, 1995).
4 Shusterman v. Ebasco Servs., Inc., 1987-ERA-27 (Sec'y Jan. 6, 1992).
5 Id.
6 Id.