Respondents and for failure to state a claim upon which relief may be granted as to the remaining Respondent.

    Accordingly, we affirm the ALJ's dismissal recommendation.

    Freels has moved to supplement the record with the February 9, 1996 Declaration of Max Harris that was filed in a different whistleblower case. Harris' declaration concerns instructions that a DOE attorney gave to Pragmatics, Inc., a company which is not related to the Respondents in this action, concerning a search of e-mail records. Freels also seeks admission of two additional, similar declarations of Harris. The declarations allegedly relate to Freels' outstanding request for discovery of additional e-mail and related back-up computer tapes.

    In denying Freels' request for production of e-mail and related back-up tapes, the ALJ cited the extensive discovery already completed (depositions of eight Energy Systems' employees and Energy Systems' production of more than 8,000 pages of documents), the non-specificity of the e-mail requests, and the time required for searching e-mail for such a broad period of time. R. O. at 8. In her initial interrogatories/document request, Freels sought e-mail concerning the identity of employees who were aware of her assignment to sample certain hazardous wastes in 1992. See Interrogatories 12D, 16D, 17D, 18D, 19D, 20D, and 21D of Freels' First Interrogatories and Associated Request for Production of Documents, dated Apr. 23, 1994. Freels also requested all e-mail messages sent by, to, or about seven Energy Systems employees during the years 1992 to 1994. Id., Interrogatory 8B3.

    Energy Systems objected to the requests because an average of 1.24 million e-mail messages are received each month, it does not have the ability to search the e-mail system automatically for documents that pertain to a particular subject, and e-mail messages are retained or deleted at the discretion of the recipient. Resp. Answers and Objections to Freels First Interrogatories, etc.,dated June 1, 1994 at 9-11. Energy Systems explained that to comply with the request it would have to do a manual search of all 1992 e-mail messages. Id. The company did provide all previously printed e-mail messages that were responsive to the interrogatories in question. Id. at 10. Freels then sought to compel responses to her e-mail requests. Freels Second Motion for Protective Order and Motion to Compel, dated July 11, 1994.

    We agree with the ALJ's denial of the motion to compel production of e-mail. Most of the e-mail requests were designed to help determine the identity of Energy Systems employees who knew about the substances and materials Freels' was assigned to sample in 1992. There is no material issue of fact concerning the nature of Freels' work or the fact that she was exposed to chemical, radioactive, and hazardous substances. Moreover, events that occurred in 1992 are well outside the 180-day limitation period.

    For the one request that covered events within the limitation period, Freels sought e-mail by, to, or about seven employees without regard to whether the e-mail messages had anything to do with her case. We agree with the ALJ that this request was overbroad. In addition, since Freels obviously was aware of the alleged retaliatory actions and

hostility directed toward her, the discovery of e-mail and related items would, at most, produce evidence to support her allegations. Therefore, we need not grant the requested additional discovery prior to examining the sufficiency of Freels' opposition to the motions for summary judgment and judgment on the pleadings.

    The Harris affidavits, which concern the searching of e-mail records, will be placed with the record, but they were not considered for purposes of reaching this decision.

    In her motion to supplement the record, Freels also made a "suggestion of hearing on remand regarding disqualification of Donald Thress as DOE counsel." Since we dismiss DOE as a Respondent, we deny this request.

    Freels moved to strike the response of the Lockheed Martin Respondents to her motion to supplement the record, on the ground that the response was filed late. The motion is granted and the response is stricken, since the Lockheed Martin Respondents did not seek leave to file the response late.

    Freels' request for leave to file a rebuttal brief that exceeds the page limitation is granted and the rebuttal brief is accepted as filed. Freels' unopposed request that we take official notice of two items posted on the World Wide Web is also granted.

   I. Summary Decision on the First Complaint

10, citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). An opposing party "may not rest upon mere allegations or denials [in the] pleading[s], but must set forth specific facts showing that there is a genuine issue for trial" and "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-257. We will examine the evidence presented in support of and in opposition to the motion to determine if there is a genuine issue of material fact.

    Energy Systems argued in its motion that certain alleged retaliatory incidents occurred outside the limitation period, and that the alleged events that occurred within that period were not hostile toward Freels and could not constitute a violation of the employee protection provisions. The parties conducted extensive discovery, including nine depositions and two sets of interrogatories and responses, prior to the filing of the motion for summary judgment. Energy Systems relied on extensive excerpts from the depositions as well as numerous declarations to support its motion.

available, and that it was adequate. We find that there was no disputed material issue of fact and that the temporary office assignment was not discriminatory as a matter of law. See Lassin v. Michigan State Univ., Case No. 93-ERA-31, Sec. Final Dec. and Ord., June 29, 1995, slip op. at 9 (temporary assignment of employee to admittedly inadequate office space found not to be retaliatory).

    B. Assigning Freels to work Directly for Murphy

Freels also complained that her assignment in May 1993 to work directly for Murphy was part of a "hostile work environment" since he was "the very manager whose false testimony the ALJ found unbelievable due to [Freels] truthful testimony" in the Varnadore case. Comp. I at 15. Freels further complained that Murphy told her he had no long range plans for her and frustrated her efforts to transfer out of his office. Id. at 15-16.

Ms. Freels told me about a meeting in which . . . Mr. Murphy said he no longer had a job for her in the group and that she had no future in the division. Ms. Freels was crying for thirty minutes to an hour. * * * In the summer of 1993, I heard Mr. Murphy say that Mr. Freels was no longer going to be in our group.

   Parsons Dec. ¶¶15, 16, attached to Freels Response to Summary Judgment Motion.

    Murphy's statement in the summer of 1993 that Freels no longer was going to be in the group with Parsons merely reflected reality, since Freels transferred to work in a different group under Paul Baxter that summer. Even if Freels was upset by, and cried over, Murphy's statement that he had no long range plans for her, she has provided no evidence to support her belief that the statement was part of a hostile work environment. Nor did Freels produce any evidence to refute the affidavit of Murphy and the deposition testimony cited by Energy Systems in support of its nondiscriminatory reasons for assigning her to work for Murphy. Assuming the truth of Parsons' statement, as we must, we find that it does not raise a genuine issue of material fact on this issue and that Energy Systems is entitled to judgment as a matter of law.

    C. Lack of Medical Department Response to Freels'
    Work Restriction Request Concerning Hazardous Substances

    Freels did not cite any occasion on which she was exposed to hazardous substances on or after February 10, 1993, however. The sole evidence on which Freels relied in opposing summary judgment on this issue was Wayne Parsons' declaration that after sustaining a broken jaw in a 1985 traffic accident, he promptly received a medical department restriction that prohibited him from lifting heavy weights and directed him not to work outdoors for several weeks. Parsons Dec. ¶74.

    Assuming the truth of Parsons' declaration, we find that there is no genuine issue of material fact concerning the absence of a medical department-issued work restriction for Freels. That Parsons' broken jaw, and Freels' later ankle and knee surgery, led the medical department to issue work restrictions of a temporary nature does not raise a genuine issue of material fact about Freels' dissimilar request to be restricted permanently from exposure to radioactive, chemical, and hazardous substances. Freels' job at Energy Systems was, after all, to perform environmental sampling work, including sampling hazardous waste.

    Energy Systems is entitled to judgment as a matter of law on this issue because the company had acted to remove Freels from exposure to chemical, hazardous, and radioactive substances even in the absence of a restriction issued by the medical department. Freels submitted no record evidence to refute this conclusion.

    D. Energy Systems is Entitled to Judgment on
    the Continuing Violation Claim

    Freels alleged that numerous actions by Energy Systems or its managers constituted a continuing violation of the employee protection provisions. Comp. I at 3. In order for an ERA complaint to be timely filed under a continuing violation theory, the complainant must show a course of related discriminatory conduct and the charge must be filed within 180 days of the last discriminatory act. Thomas v. Arizona Public Svc. Co., Case No. 89-ERA-19, Sec. Final Dec. and Ord., Sept. 17, 1993, slip op. at 13; Garn v. Benchmark Technologies, Case No. 88-ERA-21, Sec. Remand Ord., Sept. 25, 1990, slip op. at 6; see also Varnadore v. Oak Ridge National Laboratory, Case Nos. 92-CAA-2, et al., Sec. Dec. and Ord., Jan. 16, 1996 (Varnadore I), slip op. at 61 (under environmental acts), petition for review filed, No. 96-3888 (6th Cir. Aug. 13, 1996). See also Gallagher v. Croghan Colonial Bank, 89 F.3d 175 (6th Cir. 1996) (under Age Discrimination in Employment Act). At least one of the alleged retaliatory acts within the limitation period has to be adverse to the complainant. See Moody v. Tennessee Valley Authority, Case Nos. 91-ERA-40 and 91-ERA-49, Sec. Dec. and Ord., Apr. 16, 1995, slip op. at 4-5 and case there cited. Since Energy System is entitled to judgment as a matter of law on all of the timely alleged

"retaliatory" actions, we find that it also is entitled to judgment on the continuing violation claim.

   II. Dismissal of the Second Complaint

    A. Dismissal of DOE and Certain Other Entities

    On the ground that it is not Freels' employer, DOE moved to be dismissed as a Respondent in the second complaint. DOE supported its motion with the affidavit of Patricia Howse-Smith, the Director of the Personnel Division of DOE's Oak Ridge operations, who stated that DOE does not supervise, manage, evaluate, or control the manner or means by which Freels performs her work. Howse-Smith also stated that Lockheed Martin pays Freels, provides her employee benefits, and withholds payments for her taxes.

    Since DOE relied upon Howse-Smith's affidavit in its motion, it will be treated as requesting summary decision pursuant to 29 C.F.R. § 18.40, 18.41 (1995). See Flor, slip op. at 9 (motion to dismiss supported by affidavit treated as motion for summary decision).

    Freels did not introduce affidavits or other evidence to counter DOE's affidavit. Instead, citing Flor, Freels argues that summary decision is not permitted when the opposing party has not had full opportunity for discovery. Freels still seeks answers to certain discovery requests, including production of back-up computer tapes of e-mail.

    In Flor, the Secretary found that summary decision was not appropriate because the respondent had not answered certain interrogatories and document requests that could possibly establish essential elements of the complainant's case. Slip op. at 12. In this case, however, Freels would have personal knowledge of evidence concerning the identity of her employer and could have provided it in a sworn affidavit. Freels has not argued that the outstanding discovery requests would produce any evidence that DOE is her employer. Therefore, we do not find Flor controlling.

    We acknowledge that in Hill and Ottney v. Tennessee Valley Authority, Case Nos. 87-ERA-23 and 87-ERA-24, Sec. Dec. and Remand Ord., May 24, 1989, slip op. at 2-4, the Secretary held that the ERA prohibits employers from discriminating against any employee, not only their own employees. In that case, the complainants alleged that because of their disclosure of safety problems, the TVA restricted the scope of its contract with the complainants' employer, thereby causing the termination of the complainants' employment. We do not find Hill and Ottney applicable here because Freels did not allege that DOE interfered in Energy Systems' contract or that DOE caused Energy Systems to take any adverse action against her.

    We find that no genuine issue of material fact has been presented and that DOE is entitled to judgment as a matter of law since it is not Freels' employer and Freels did not allege that DOE interfered in her employment at Energy Systems. See Varnadore v. Oak Ridge National Laboratory, et al. (Varnadore II), Case Nos. 92-CAA-2, et al., Final Consolidated dec. and Ord., June 14, 1996, slip op. at 59 and cases there cited, petition for review filed, No. 96-3888 (6th Cir., Aug. 13, 1996).

    Martin Marietta Corporation (now Lockheed Martin Corporation) and Martin Marietta Technologies, Inc. (now Lockheed Martin Technologies) properly were dismissed as Respondents since Freels did not allege that these corporations employed her and they are merely parent companies of Energy Systems. Varnadore II, slip op. at 62.

    Energy Systems sought dismissal of ORNL because it is an unincorporated division of Energy Systems and is not a legal entity subject to this action. For the same reason, it sought dismissal of various named departments operated by Energy Systems for DOE at Oak Ridge. The following entities are dismissed as Respondents because they are not legal entities subject to this action: ORNL; ORNL and Energy Systems Medical, Health, Health Physics, Occurrence Reporting, and Environmental Monitoring and Industrial Hygiene Departments. See Varnadore II, slip op. at 61. Consequently, the only remaining Respondent is Energy Systems.

    B. Dismissal of Allegations Against Energy Systems For
    Failure to State A Claim Upon Which Relief May Be Granted

    Freels alleged in the second complaint that Energy Systems acted pursuant to retaliatory animus when it: hired the former Director of the Office of Administrative Appeals of the Department of Labor, M. Elizabeth Culbreth, as a legal consultant in whistleblower cases; violated Freels' right to confidentiality of her medical records; failed to post adequate notices of employee rights concerning protected activities; and failed to respond to her work restriction request.

CAA-5, Dec. and Rem. Ord., June 14, 1996, slip op. at 3; 18 C.F.R. § 18.1(a) (1995). In considering dismissal for failure to state claim, "all reasonable inferences are made in favor of the non-moving party." Estelle v. Gamble, 429 U.S. 97 (1976); Tyndall, slip op. at 3; Studer v. Flowers Baking Co. of Tennessee, Inc., Case No. 93-CAA-00011, Dec. and Remand Ord., June 19, 1995, slip op. at 2. Dismissal should be denied "unless it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim[s] which would entitle [them] to relief." Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980); accord, Helmstetter v. Pacific Gas & Elec. Co., Case No. 91-TSC-1, Dec. and Rem. Ord., Jan. 13, 1993, slip op. at 4.

    1. Hiring Culbreth as Legal Consultant

    Freels complains that Energy Systems violated the whistleblower protection provisions when it hired Ms. Culbreth, within one year of her leaving the position of Director of the Office of Administrative Appeals, to act as a legal consultant on this and other cases. Aug. 3, 1994 Complaint (Comp. II) at 3 ¶11. Freels seeks an order that Energy Systems have "Ms. Culbreth do no further work on Ms. Freels' case or on any other case involving clients who had cases pending before DOL (including its Office of Administrative Law Judges and the Wage-Hour Division) on January 20, 1993." Comp. II at 4 ¶14.

    The gist of Freels' claim is that Culbreth allegedly acted in an unethical manner by advising Energy Systems on whistleblower cases that were pending in the Department of Labor at the time she was Director of the Office of Administrative Appeals. Even assuming that hiring Culbreth as an adviser to Energy Systems (as opposed to hiring her to appear as an attorney before the Department in a case which had been pending during her employment) was an ethical violation, see 29 C.F.R. § 2.2 (1995), such a claim would not be actionable under the whistleblower provisions. Varnadore II at 61. Moreover, Freels' complaints, which were filed in August 1993 and August 1994, were not pending before the Department while Culbreth was the Director. This claim is completely frivolous. Accordingly, we find that Freels could prove no set of facts that would entitle her to relief, and the allegation concerning Culbreth is dismissed for failure to state a claim upon which relief may be granted.

    2. Use of Freels' Medical Records

    Freels alleges a violation of the employee protection provisions when Energy Systems' medical department doctors, acting without a court order, "freely dispensed" information contained in her medical files to Energy Systems managers and

the company's attorneys. Comp. II at 6 ¶26-27. Energy Systems contends that this allegation is both frivolous and time barred. Resp. Br. at 25.

    Based upon this record, we do not agree that the allegation is time barred because Freels alleged that she learned about the misuse of medical information when she took the depositions of medical department physicians concerning her first complaint. Comp. II at 6 ¶26, 27. Since the depositions were taken in mid to late July 1994, see Resp. App. 304 (Dr. Avera), 321 (Dr. Garrett) and 323 (Dr. Sisk), the complaint filed on August 3, 1994 is timely as to this allegation even under the 30-day limitation of the environmental acts.

    Turning to the substance of this allegation, we note that in Tennessee, where Freels worked, patients do not have a privilege that communications with their physicians not be disclosed to third persons. Quarles v. Sutherland, 215 Tenn. 651, 389 S.W.2d 249 (1965); accord, State v. Fears, 659 S.W.2d 370, 376 (Tenn. Crim. App. 1983). There is a Tennessee statute, however, that entitles an employer to obtain the medical records of a workers' compensation claimant. See Tenn. Code Ann. Sec. 50-6-2049(a)(1) (1996), providing that upon the employer's or the employer's insurer's request, a physician shall furnish "a complete medical report. . . as to the claimed injury, its effect upon the employee, the medical treatment prescribed, an estimate of the duration of required hospitalization, if any, and an itemized statement of charges for medical services to date." We find, to the extent that a physician/patient privilege exists in this case, that a worker restriction request based on an employee's health is analogous to a workers' compensation claim and that the employer, through appropriate personnel, is entitled to examine the requesting employee's medical records. Freels alleged only that Energy Systems dispensed her medical information to company managers and attorneys, i.e., those who needed to review the medical information in order to respond appropriately to Freels' work restriction request. We therefore find that she has not stated a claim upon which relief may be granted and this allegation is dismissed.

    3. Postings Required by the Environmental Acts

    Freels admits that there are postings at Energy Systems' Oak Ridge operations advising employees about their rights under the employee protection provisions of the environmental acts. Comp. II at 9. She contends that the postings are inadequate because they (1) contain only the text of the statutory provisions and not explanatory material, (2) are behind glass, and (3) often are covered by other materials. Id. at ¶41-43. Freels complains that the inadequate postings are adverse to her because they might chill other employees from giving truthful testimony in Freels' case. Id. at 9 ¶44.

    Posting the text of the employee protection provisions fully comported with Energy Systems' obligations under the environmental acts. Accordingly, we find that Freels has not stated a claim upon which relief may be granted and this allegation is dismissed.

    4. Non-Response to Work Restriction Request

West v. Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1995), cited in Varnadore I, slip op. at 79-80. In the absence of alleging any valid claim of intentional discriminatory acts, Freels has failed to allege that the discrimination was pervasive and regular. Therefore the hostile work environment claim is dismissed.

    Respondents are entitled to summary judgment on the first complaint. Freels has not stated a claim upon which relief may be granted in the second complaint. Accordingly, both complaints are dismissed in their entirety.

    SO ORDERED.

       DAVID A. O'BRIEN
       Chair

       KARL J. SANDSTROM
       Member

       JOYCE D. MILLER
       Alternate Member