ARB CASE NO. 00-076
ALJ CASE NO. 00-CAA-9
DATE: April 23, 2003
In the Matter of:
DAVID W. PICKETT,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY, OFFICE
OF INSPECTOR GENERAL, GEORGE T. PROSSER
and DONALD K. DRUMM,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Edward A. Slavin, Jr., Esq., St. Augustine, Florida
For the Respondent: Edward S. Christenbury, Esq., Thomas F. Fine, Esq., Brent R. Marquand, Esq., Dillis D. Freeman, Jr., Esq., Tennessee Valley Authority, Knoxville, Tennessee
FINAL DECISION AND ORDER
Complainant David W. Pickett brings this complaint against his former employer the Tennessee Valley Authority (TVA), an employee of the TVA Office of Inspector General (OIG) and a TVA plant manager, under the employee protection (whistleblower) provisions of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i) (1994), Clean Air Act (CAA), 42 U.S.C. § 7622 (1994), Water Pollution Control Act or Clean Water Act (CWA), 33 U.S.C. § 1367 (1994), Toxic Substances Control Act (TSCA), 15 U.S.C. § 2622 (1994), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9610 (1994), Resource Conservation and Recovery (RCRA) or Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971 (1994) and regulations set out at 29 C.F.R. Part 24 (2002). Pickett alleges that TVA unlawfully discriminated against him because he engaged in activity protected under the Acts. In a [Recommended] Summary Decision (Dec.), an Administrative Law Judge (ALJ) determined that TVA's motion for summary decision should be granted and that the complaint should be dismissed. Pickett timely appealed to this Board. We agree with the ALJ for the reasons discussed below.
Procedural History
On July 20, 1999, Pickett filed a discrimination complaint; the Occupational Safety and Health Administration (OSHA) accordingly commenced an investigation. 29 C.F.R. § 24.4. On August 17, OSHA advised Pickett that the complaint could not be substantiated because of his failure to cooperate with investigators. On August 27, Pickett requested a hearing. The Department of Labor Office of Administrative Law Judges (OALJ) assigned the case Docket No. 1999-CAA-0025. Pickett subsequently moved to remand the case to OSHA for further investigation. Pickett also moved (i) that he simultaneously be permitted to proceed with discovery in order to prepare for hearing and (ii) that he be granted partial summary decision. The ALJ, on September 10, granted Pickett's motion to remand and denied his motions for simultaneous discovery and partial summary decision.
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After further investigation OSHA issued recommended findings (February 18, 2000) and supplemental findings (March 16, 2000), determining that Pickett's allegations could not be substantiated. On March 27, 2000, Pickett requested a hearing, additional investigation, an order lifting the stay of discovery and an order directing TVA to respond to his motion for partial summary judgment. Pickett enclosed first notices of depositions for TVA officials. OALJ assigned the case a different case number, namely Docket No. 2000-CAA-0009. On April 5, the ALJ denied the motion for further investigation, lifted the discovery stay, directed that all "discovery motions pending as of September 10, 1999, and not otherwise resolved shall be re-filed" and ordered the parties to submit a proposed discovery schedule. Pickett responded by letter dated April 12, 2000. He stated that since he had filed discovery requests rather than discovery motions, he "d[id] not believe there is any need (or requirement under either the Court's [sic] Order or [Department of Labor] rules and precedents) to refile discovery requests, unless they ha[d] been misplaced or your Honor somehow meant to embrace requests as well as Motions."
On April 18, 2000, the ALJ directed the parties to re-file all motions filed previously in Case No. 1999-CAA-0025 as "new matters" in Case No. 2000-CAA-0009. The ALJ specified that "[m]otions not filed in this matter in accordance with this order shall be deemed abandoned." Pickett responded by letter dated April 21, 2000, requesting that pursuant to the Freedom of Information Act (FOIA) copies of his motion for partial summary judgment be provided and placed in the file associated with Case No. 2000-CAA-0009. He stated: "The Motion for Partial Summary Judgment has already been served 235 days ago and is not "withdrawn." (Emphasis in original.) Pickett also stated that he objected to the procedure whereby the ALJ "delayed" setting a date for the hearing and ordering TVA to respond to the motion for partial summary judgment.
On April 25, 2000, the ALJ issued a pair of orders vacating a previous postponement of the hearing and notified the parties that a hearing would convene on June 14-16, 2000. The ALJ responded in detail to matters raised in Pickett's various letters and filings and explained the necessity for refiling, namely that his case file did not contain Pickett's motion for partial summary judgment, discovery requests and discovery motions. The ALJ explained further that the rules of practice were designed to ensure a fair and orderly process for all parties, the essence of this guarantee "requir[ing] fair notice of matters in dispute not only to opposing parties but the presiding judge." Order Vacating Postponement at 2.
TVA filed a motion for summary decision on May 23, 2000 (dated May 19, 2000). On May 26, it moved for a continuance of the hearing and noticed Pickett that it would depose him. Pickett joined TVA in moving for a continuance in early June. On June 5, Pickett responded to TVA's motion for summary decision and filed a cross-motion for partial summary decision. On June 12, acting at the request of both parties, the ALJ postponed the hearing. On June 16, Pickett filed a notice of filing of discovery motion, a motion to deem requests for admissions admitted, a motion to compel videotaped depositions, a motion to compel proper answers to his first and second sets of interrogatories and first requests for production of documents. TVA responded to Pickett's cross-motion for summary decision on June 22. The ALJ granted summary decision on August 9.
Pickett timely petitioned for review of the decision by the Administrative Review Board (ARB). On review, Pickett argues that the ALJ erred by remanding for investigation while disallowing simultaneous discovery, delaying or refusing to order certain procedures, refusing to order discovery, refusing to require TVA to respond to charges of destruction and spoliation of evidence, granting summary decision without affording full and fair investigation and full discovery and not granting partial summary judgment for Pickett. In rebuttal, TVA argues that the ALJ was correct. It contends specifically that Pickett's claims are barred as untimely, that Pickett failed to raise a genuine issue of spoliation, that the decision of the Office of Workers' Compensation Programs (OWCP) concerning Pickett's benefits is not subject to review in this forum, that TVA's communications to OWCP were privileged and that Pickett could maintain no cause of action against the individual respondents. TVA also contends that it is entitled to summary judgment on the additional ground that it acted pursuant to OWCP regulations and therefore is not subject to liability.
Jurisdiction and Standard of Review
The ARB has jurisdiction to review the ALJ's recommended decision under 29 C.F.R. § 24.8. See Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).
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We review a grant of summary decision de novo, i.e., under the same standard employed by ALJs. Set forth at 29 C.F.R. § 18.40(d) and derived from Rule 56 of the Federal Rules of Civil Procedure, that standard permits an ALJ to "enter summary judgment for either party [if] there is no genuine issue as to any material fact and [the] party is entitled to summary decision." Viewing the evidence in the light most favorable to, and drawing all inferences in favor of, the non-moving party, we must determine the existence of any genuine issues of material fact. We also must determine whether the ALJ applied the relevant law correctly. Cf. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith, 475 U.S. 574 (1986); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099 (9th Cir. 2000) (summary judgment under Rule 56, Fed. R. Civ. P.).
Issues Considered
1. Does the decision of the Employee Compensation Appeals Board (ECAB) reinstating Pickett's benefits compel reversal of the ALJ's recommended decision (by virtue of the doctrine of collateral estoppel)?
2. Is it proper to rule on TVA's motion for summary decision prior to completion of discovery?
3. Is TVA entitled to summary judgment on the basis that Pickett failed to timely file his complaint?
4. Did the ALJ abuse his discretion by:
a) not allowing discovery to proceed when he remanded the case to OSHA for further investigation;
b) after OSHA made its report and the case was docketed under a new number, requiring refiling of discovery requests and motions made prior to the assignment of the new case number ; and
c) thereafter not enforcing discovery requests made by Pickett prior to the assignment of the new case number and notices of deposition filed without a proposed schedule for discovery?
5. Is TVA subject to unfavorable inferences and sanctions because it did not provide Pickett certain information in response to requests he made under FOIA or the Privacy Act?
Background
Between 1985 and 1988, Pickett worked as an Assistant Unit Operator (AUO) at TVA's Widows Creek Fossil Plant in Stevenson, Alabama. An AUO inspects and assists in the operation of plant machinery, specifically in the boiler room, turbine room, condenser room, screen and pump house and at gas turbines and appurtenant equipment. AUO activities require an employee to lift up to ten pounds and to reach or work above the shoulder.
During his tenure at the Widows Creek plant Pickett allegedly raised concerns about unsafe working conditions including nonworking pollution equipment resulting in excessive fly ash pollution, fireworks set off in the control room, caustic burns caused by an unlabeled sink full of improperly stored and unlabeled caustic chemicals, and uncleaned traveling screen coverage resulting in water pollution.1
2 In 1999, Dr. Lynch found that Pickett "continu[ed] to have problems with his left shoulder," that he could not bring [Pickett's] elbow past 90 degrees" and that Pickett tended to dislocate anteriorly on dorsal percussion of the shoulder mass." In contrast, in 1998, Dr. Lester F. Littell, III, an orthopedic surgeon and OWCP referral physician, "found nothing physically wrong with [Pickett's] right shoulder."
3 Some courts have adopted a slightly different formulation. The Tenth Circuit, for example, has adopted the following requirements: 1) the issue previously decided is identical with the one presented in the action in question, 2) the prior action has been finally adjudicated on the merits, 3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and 4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683, 687 (10th Cir. 1992). Those requirements also would not have been met in the instant case.
4 Pickett requested that TVA notify him of a starting date for employment in March 1999 shortly after OWCP stated its intention to terminate his benefits. Although TVA drafted a response to Pickett (Complainant's Exhibit (CX 9A)) referring him to TVA's Employee Service Center, TVA apparently never sent a final draft resulting in the absence of a response. The record does not show that Pickett took any action to follow up on his request given TVA's failure to respond. As the ALJ noted, Pickett's request did not identify any particular job, and Pickett was then a former employee whose employment had ended more than five years earlier. Dec. at 15. Even assuming that TVA's failure to respond to his March 9, 1999 letter constituted a form of adverse action, Pickett should have filed a discrimination complaint about it within 30 days of a reasonable period for response (30-60 days). Instead, Pickett waited until July 20, 1999, to complain. We find this delay excessive.
5 Hostile work environment claims differ from specific claims in that the former require proof of "severe or pervasive conduct." The requirements of a hostile work environment claim are that: 1) the complainant engaged in protected activity; 2) he suffered intentional harassment related to that activity; 3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment; and 4) the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant. Williams v. Mason & Hanger Corp., ARB No. 98-030, ALJ Nos. 97-ERA-14 et al., slip op. at 13 (ARB Nov. 13, 2002); Berkman v. U.S. CoastGuard Acad., ARB No. 98-056, ALJ Nos. 97-CAA-2/9, slip op. at 16-17, 21-22 (ARB Feb. 29, 2000). It is unlikely that Pickett substantiated the existence of the elements necessary for a hostile work environment claim. The particular activities specified occurred long after Pickett had been in the employment situation, and were infrequent. Moreover, it is dubious that the facts Pickett set forth evidence the alteration of conditions of employment, creation of abusive working environment, and detrimental effect requirements specified above for a hostile work environment.
6 TVA's Workers' Compensation and Rehabilitation Department supervisor Debra Youngblood described the 1993 TVA OIG Report findings similarly in her June 1, 1993, letter to OWCP; however she enclosed the OIG report, presumably mitigating the effect of any incomplete representation.
7 The record does not evidence that Pickett's communications with Sasser related to violations of the environmental laws; however, like the ALJ, we will assume for these purposes that the communications with Sasser constituted protected activity.
8 The correspondence with Pickett's physician and the physician's response does not show service on Pickett. Service is required under 20 C.F.R. § 10.506.
9 We note that none of the disclosures evidence blacklisting.
10 The ALJ notes that he issued his April 5, 2000 Order postponing the expedited hearing schedule specifically to afford Pickett time to conduct discovery. By letter dated April 21, 2000, Pickett objected, arguing that postponement was unfair and insisting on a trial date. Dec. at 16. The ALJ's April 25, 2000 Order stated: "Since Complainant's counsel objects to the finding that his efforts to conduct discovery constituted a compelling reason to postpone the scheduling of the hearing, I yield to his assessment." Neither party filed a proposed discovery schedule as required by the ALJ's April 5, 2000 Order.
11 We also note that the ALJ found, and we agree, that Pickett failed to produce any link between his alleged protected activity and the adverse actions. TVA did not, however, move for summary judgment on the basis of inability to establish an essential element of proof.