ML092720618
| ML092720618 | |
| Person / Time | |
|---|---|
| Site: | Byron, Braidwood  |
| Issue date: | 09/20/2009 |
| From: | Saporito T - No Known Affiliation |
| To: | NRC/SECY |
| References | |
| LTR-09-0468 | |
| Download: ML092720618 (9) | |
Text
OFFICE OF THE SECRETARY CORRESPONDENCE CONTROL TICKET Date Printed: Sep 22, 2009 07:51 PAPER NUMBER: LTR-09-0468 LOGGING DATE: 0912 112009 ACTION OFFICE:
AUTHOR: Thomas Saporito AFFILIATION: FL ADDRESSEE: NRC ExecSec
SUBJECT:
Whstleblower ERA case....
ACTION : Information DISTRIBUTION: Chrm, Comrs, EDO, OIG LETTER DATE:
ACKNOWLEDGED SPECIAL HANDLING:
NOTES:
FILE LOCATION:
DATE DUE: DATE SIGNED:
From: Thomas Saporito [saporito3@gmail.com]
Sent: Sunday, September 20,2009 9:47 AM Cc: NRCExecSec Resource; Gody, Tony; Paige, Jason; Hamman, Jeffrey; Wert, Leonard; Sykes, Marvin; Checkle, Melanie; DeMiranda, Oscar; R20RA-ElCSMailCenter Resource; Ninh, Son; Orf, Tracy; Kugler, Andrew; Starefos, Joelle; Whited, Ryan; Coffin, Stephanie
Subject:
ccc Notice of ERA Complaint Against Exelon et. al >>>
Attachments: 2009-09-20 Complainant's W histleblower Complaint.pdf Please f i n d t h e a t t a c h e d PDF document - an ERA w h i s t l e b l o w e r c o m p l a i n t f i l e d w i t h OSHA a g a i n s t E x e l o n e t . a l .
Kind regards, Thomas Saporito Post Office Box 841 3 Jupiter, Florida 33468-841 3 Voice: (561) 247-6404 Fax: (561) 952-4810 Email: Saporito3@qmail.com NOTICE: This email message and any attachments to it may contain confidential information. The information contained in this transmission is intended solely for the individual(s) or entities to which the email is addressed. If you are not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that you are prohibited from reviewing, retransmitting, converting to hard copy, copying, disseminating, or otherwise using in any manner this email or any attachments to it. If you have received this message in error, please notify the sender by replying to this message and delete it from your computer.
UNITED STATES DEPARTMENT OF LABOR BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES OSHA CASE NO. Issue Date: 20 SEP 2009 In the Matter of:
THOMAS SAPORITO, Complainant ,
EXELON CORPORATION, EXELON ENERGY, and EXELON GENERATION, Respondents.
COMPLAINANT'S WHISTLEBLOWER COMPLAINT COMES NOW, Thomas Saporito, Complainant pro se and hereby files a Whistleblower Complaint ("Complaint") under the Energy Reorganization Act of 1974 as amended 42 U.S.C.A. S5851, ("ERA")
against the Exelon Corporation, Exelon Energy, and Exelon Generation (RespondentsN) and states as follows:
BACKGROUND This case arises under the employee protection provisions of the ERA which expressly prohibits an employer, defined under the ERA, from discriminating against or otherwise taking unfavorable personnel action against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee engaged in protected whistleblower activity. On May 8, 2009, Complainant made application at Respondents for the position of Production Technician I (Job ID 6381 and for the position of Production Technician 1&2 (Job ID
6026; and on June 27, 2009, the Complainant made application at Respondents for the position of Instrument Maintenance First Line Supervisor-Exelon Braidwood Station, Braceville, IL-Chicago SWS (Job ID 7094) and Instrument and Controls Maintenance Supervisor (Job ID 7121). Despite Complainant's education, work experience, and qualifications, Respondents failed to hire the Complainant or offer Complainant employment for any of the jobs that [hle made application for at Respondents.
JURISDICTION The Occupational Safety and Health ~dministration (OSHA) is the government agency within the U.S. Department of Labor (DOL) charged with the responsibility for receiving and for investigating ERA whistleblower complaints. See, 29 C.F.R.
5129.3 and 29.4 (2000).
ELEMENTS AND BURDEN OF PROOF The complainant has the initial burden of proof in an ERA proceeding to make a prima facie case which shows that: (1) the complainant engaged in a protected activity under the ERA; (2) the complainant was subjected to adverse action; (3) the respondent was aware of complainant's protected activity when it took adverse action; (4) the evidence raises a reasonable inference that the protected activity was the likely reason for the adverse action. See, Glenn, 1988 ERA at 7. If the complainant establishes a prima facie case, then the respondent
is required to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. See, Frady v.
Tennessee Valley ~ u t h o r i t y ,92-ERA-19 (Sec'y Oct . 23, 1995) .
In the instant action, the Complainant alleges that (1)[hle engaged in protected activity at one or more companies who owned and/or operated nuclear power plants licensed by the U.S.
Nuclear Regulatory Commission ("NRC") by raising safety concerns to management at those facilities and raising the same safety concerns directly to the NRC regarding operations at those nuclear facilities; (2) that [hle was subjected to adverse action by Respondents when Respondents failed to hire Complainant for the open positions that [hle was qualified and made application; (3) that Respondents were aware of Complainant's protected activity when it took adverse actions against [hlim because Complainant's protected activity was clearly illustrated in the resume that Complainant submitted to Respondents; and (4) the evidence raises a reasonable inference that the protected activity was the likely reason for the adverse action.
To establish a prima facie case of discriminatory refusal to hire, the complainant must show: (1) that he applied and was qualified for a job for which the employer was seeking applicants; (2) that, despite his qualifications, he was rejected; and ( 3 ) that, after his rejection, the position
remained open and that the employer continued to seek applicants from persons of complainant's qualifications. See, M c D o n n e l l D o u g l a s C o r p . v. G r e e n , 411 U . S . 792, 802 (1973); Webb v.Carolina Power & Light C o . , 93-ERA-42, 12 ( ALJ July 24, 1996) (affId, ARB August 26, 1977) .
In the instant action, Complainant avers that [hle made applications for employment at Respondents for positions that
[hle was qualified to hold; and despite [hlis qualifications, Respondents rejected [hlis applications solely because of [hl is engagement in ERA protected activities for which Respondents had knowledge; and that after [hlis employment rejection by Respondents, the positions remained open; and that Respondents continued to seek applicants from persons of Complainant's qualifications.
CONCLUSION The Complainant has satisfied all of the required elements of [hlis prima facie case including the fourth element through sufficient evidence to raise a reasonable inference that [hlis protected activity was the likely reason for Respondents adverse
'action in not hiring [hlim. See, 29 C.F.R. 524.5(a)(2) and Fed.R.Civ.P 12 (b)(6).
Respectfully submitted, Thomas sapd;ito Complainant pro se Post Office Box 8413 Jupiter, Florida 33468 Phone: (561) 283-0613 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original copy of Complainant's Whistleblower Complaint was served by means indicated below on this 20th day of September, 2009 to:
Darlene Fossum Area Director U.S. Department of Labor - OSHA 8040 Peters Road, Building H-100 Ft. Lauderdale, Florida 33324
{Sent via Regular U.S. ail)
{Sent via Electronic ail)
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Date: Sun, 20 Sep 2009 09:46:40 -0400 From: Thomas Saporito <saporito3@gmail.com>
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Joelle Starefos <joelle.starefos@nrc.gov>,
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Subject:
<<< IVotice of ERA Complaint Against Exelon et. al >>>
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