UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Boytin v. Pennsylvania Power & Light Co., 94-ERA-32 (ALJ Feb. 23, 1996)

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Dated:  February 23, 1996


Case No. 94-ERA-32

In the Matter of

CHARLES J. BOYTIN
     Complainant

     v.

PENNSYLVANIA POWER AND LIGHT
COMPANY
     Respondent

                RECOMMENDED DECISION AND ORDER ON REMAND

     On March 14, 1995, I issued a Recommended Decision
and Order ( RD&O") recommending that this case which arises
under the Energy Reorganization Act of 1974, 42 U.S.C. 5851, be
dismissed because the complainant failed to demonstrate that
adverse action was taken against him.[1]   On October 21, 1995,
the Secretary of Labor rejected my recommended decision and, by
broadly defining the adverse action element in a retaliation
case, found that adverse action had been taken against the
complainant due to his protected activity.  See Decision and
Order of Remand of the Secretary ("D&RO"), slip op. at
6.  The case was remanded to me to determine the appropriate
damages, including back pay and benefits, and attorney's fees and
costs.[2] 
     
       Specifically, the Secretary found that complainant
received discriminatory performance appraisals because his
fractional ratings were significantly lower than those of two
other Senior Security Officers although the statements used to
describe each of their performances was virtually identical 
(id. at 9, 11).   The Secretary also found that
complainant suffered physical ailments due "to the stress of this
hostile work situation" (id. at 7) .  This finding is
based solely on claimant's testimony.  It is not supported by any
medical evidence.  In fact, claimant testified that he did not
even see a physician (TR 94).

     Since the Secretary determined that the complainant
established that an adverse action, motivated by complainant's
protected activity, was taken by respondent against him, 
[PAGE 2]
complainant is entitled to relief.  A hearing on this issue is
unnecessary at this time[3]  because relevant testimony was given
at the original hearing.  First, complainant's performance rating
shall be increased to equal the fractional rating received by the
highest rated Senior Security Officer in 1992 and 1993. 
Complainant shall also receive back pay equaling the difference
between the pay he did receive and the pay he would have received
had his fractional rating on his performance appraisal been the
same as the highest rated Senior Security Officer on his shift. 
According to Richard Stolter, manager of nuclear security at the
Susquehanna plant, complainant's lost wages assuming he was rated
higher for the years 1993 and 1994 combined, including overtime,
total $609.26 (TR 194).  Claimant has not suggested a different
amount.  Moreover, he should be afforded the opportunity to
participate in respondent's stock option and savings plan to the
extent allowed by his newly calculated salary.  Finally,
complainant must be transferred to another PP&L facility within a
30 mile radius of his home into a position with equivalent pay
and supervisory responsibilities if possible.

     Additionally, claimant's counsel filed an attorney's fee
petition requesting an attorney's fee, including costs, of
$9222.10.  Without objection, that fee is approved.

                         Recommended Order

     It is recommended that, within 30 days of the date this
order becomes final:

     1.  The respondent shall increase the complainant's
performance rating to the fractional rating received by the
highest rated Senior Security Officer on his shift in 1992 and
1993;

     2. The respondent shall pay the complainant back wages
totaling $609.26;

     3. The respondent shall allow the complainant to participate
in its stock option and savings plan;

     4. The respondent shall transfer the complainant to a PP&L
position with equivalent pay and supervisory responsibilities
located within a 30 mile radius from his home if possible; and

     5. The respondent shall pay complainant's counsel an
attorney's fee totaling $9222.10.



                                   Jeffrey Tureck
                                   Administrative Law Judge

[ENDNOTES]
              
[1] To the extent that it is not inconsistent with the
Secretary's decision, the RD&O is incorporated by reference into
this decision.

[2] This decision was not issued sooner because the parties were
attempting to resolve this matter.  Their discussions were not
fruitful.

[3] In the event respondent contends it is not possible to
transfer the complainant to a comparable position within 30 miles
of his home (see infra), it may be necessary to
reopen the record to receive evidence on this question as well as
the issue of alternative relief.