discharge summary from St. Mary's Hospital states that the Complainant was "informed of the results and placed on Valium" and "the situation was explained to him he will try to stop pushing quite as greatly" (REM Tab 14). When the Complainant entered the Marines in August 1973, he made reference to the hospital visit only for a "gastrointestinal virus" (REM Tab 36).

   On May 19, 1974, while serving as an officer in the U.S. Marine Corps, Frank Smith was struck on the back of his head by an unknown assailant and was unconscious for an undetermined time. He suffered from severe headaches, was diagnosed with "post concussion syndrome," and was placed on TDRL (Temporary Duty Retirement List) in 1976, on a 40-percent disability.

   On September 12, 1974, he saw a Navy psychiatrist for treatment of depressive symptoms related to his head trauma on May 29, 1974 (Doe. Nos. AG010; BB220A). In his October 10, 1979, exam at Wright-Patterson, his last medical exam before being employed by TVA, the Complainant was diagnosed with chronic cephaglia-conversion reaction with depression, was given Elavil (an anti-depressant), and outpatient psychotherapy was suggested (Doe. Nos. AJ010; BB172, 174, 188). In an April 29, 1981, medical report, Dr. Myers diagnosed the Complainant as depressive neurosis/reactive type obsessive-compulsive and recommended anti-depressant chemotherapy (Doe. Nos. AJ010-15). In a July 7, 1981, report, Dr. Ballard diagnosed the Complainant with a major depressive disorder/obsessive-compulsive, and recommended weekly outpatient psychotherapy services (Doe. No. AJ007).

   In September 1981, the Physical Evaluation Board had a hearing reviewing the Complainant's disability claim and changing its status, awarding him 10 percent disability for postconcussion headaches, and 40 percent for depressive neurosis (REM Tab 16; Doc. No. BB000146). In an August 8, 1985, report, Dr. Silver notes the Complainant's reports of gastric pain, but states there is no physical evidence commensurate with the symptoms (Doe. No. AC019). On August 30, 1985, Dr. Silver placed the Complainant on Sinequan for suspected depression (Doe. No. AC020). On March 18, 1986, Dr. Brown, a neurologist, diagnosed headaches and aphasia and prescribed Ludomil, but referred to Dr. Miller for psychological testing after negative CAT scan and EEG (Doe. No. AF001). In a March 27, 1986, report, Dr. Miller diagnosed a depressive disorder brought on by marked stress (Doe. No. AD001). In an August 4, 1986, report, Dr. Miller diagnosed emotional difficulties (Doe. No. AD003). In August 15, 1986, and November 21, 1986, reports, Dr. Silver diagnosed emotional difficulties and prescribed Limbitrol to alleviate depression and anxiety (Doe. No. AC024).

   On September 21, 1987, the Complainant was admitted to Park West Hospital for what he indicated to the Respondent was a gastro-intestinal disorder (REM Tab 4). The Complainant did not mention that he was also there for treatment of depression by his psychiatrist Dr. Gebrow (REM Tab 31). He was diagnosed with a bipolar disorder and given Lithium to treat his manic depressive disorder (REM Tab 31). In his deposition, Dr. Gebrow also indicates that the Complainant was concerned with the stigma of being admitted to the psychiatric unit, so he was admitted to the medical service wing under the care of his gastroenterologist, Dr. Silver (REM Tab 31, pp. 17-18).

   There is additional evidence of treatment by mental health professionals for the Complainant's depression and anxiety throughout his TVA employment which ended in 1988, and beyond (Doe. Nos. AB013; AC025-31; AG001; DD005; EE007-11; GG010-22, 41; II030-32, 34, 48-68, 136-139). In a July 26, 1990, report, Dr. Wagner noted the Complainant gave a history of "moderate mood swings with more pronounced depression as far back as age 16" (Doe. No. EE011).

   This record reflects not only treatment of the Complainant by mental health professionals, but a lengthy history of such treatment dating back many years. The Complainant's responses to TVA on July 22, 1982 and December 2, 1986, simply do not reflect his extensive medical history. His response to the question asking if he had ever received outpatient treatment from a psychiatrist, psychologist, or other mental health professional was "not applicable." This response clearly implies that he had never received outpatient treatment from a psychiatrist, psychologist, or other mental health professional, and such is clearly not accurate.

   Therefore, based on the overwhelming weight of the evidence of record, I find that the Complainant did make material falsifications and omissions regarding his diagnosis and treatment for emotional and psychological problems.

Nonselection and Dismissal:

   The December 10, 1984, job description of the Complainant's position of Captain of the Public Safety Service of the Watts Bar Nuclear Facility includes the requirements of passing and completing a psychological evaluation and background investigation for suitable [unescorted] access to the nuclear plant (REM Tab 5, p. 4). The 1988 job description of the Site Security Manager position states "[p]lacement and continuation of employment in this position are subject to approval for unescorted nuclear plant access" (REM Tab 44, p. 1).

   The TVA Safeguards Information dated August 1,

1983, states as part of a list of "Unfavorable Information Supporting Denial of Unescorted Access" both "[d]eliberate misrepresentations, falsifications, or omissions of material facts in the employment application," and "[p]hysical or mental problems which could significantly reduce a person's reliability to discharge his duties in a safe and competent manner" (REM Tab 6, p. 3). The Code of Federal Regulations also contains NRC requirements for security personnel at nuclear facilities which includes the requirement of emotional stability. 10 C.F.R. Part 73, App. A(I)(B). As part of the NRC Evaluation of Unescorted Access Authorization, the reliability and trustworthiness of an individual must be judged in part upon "willful omissions or falsifications of material information . . ." and "history of mental illness or emotional instability . . . " (REM Tab 46).

   Based on the foregoing, I find that the Respondent has affirmatively established, by clear and convincing evidence, that Complainant could not have been selected for the position of Site Security Manager and would have been dismissed from his position as Captain of Public Safety, had TVA been aware of his emotional and psychological problems and his failure to accurately disclose his lengthy medical history.

Genuine Issue of Material Fact:

   Summary judgment may be granted where it is shown that the nonmoving party cannot prove an essential element of his claim, so that there is no genuine issue of material fact to be determined at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); 29 C.F.R. § 18.41 (a); Fed. R. Civ. P. 56(c). A genuine issue of material fact is present where the record, taken as a whole, could lead a rational trier-of-fact to find for the nonmoving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 582 (1986); see also, Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986).

   The Respondent has the burden of production to prove that the Complainant cannot make a showing sufficient to establish an essential element of his case, and on which he will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23; Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476 (6th Cir. 1986). Once the Respondent has met its burden of production, the Complainant must show by evidence beyond the pleadings themselves, that there is a genuine issue of material fact. Celotex, 477 U;S. at 324; Canderm Pharmacal, Ltd v. Elder Pharmaceutical, Inc., 862 F.2d 597, 601 (6th Cir. 1988); Fed. R. Civ. P. 56(e).

   The Secretary may only find that a violation of the ERA has occurred if the Complainant demonstrates that his reports of safety violations were a contributing factor in the subsequent unfavorable personnel action. 42 U.S.C. § 5851(b)(3)(B). An "essential element" of the Complainant's ERA case would be to show that there was no legitimate reason for his nonselection and subsequent layoff. The Respondent has carried his burden of production in the Motion for Summary Judgment by showing that the Complainant would not be selected for the position because of his psychological and emotional problems, and the Complainant thus cannot make a "showing sufficient to establish the essential elements of his case." Celotex, 477 U.S. at 322-23. The burden now shifts to the Complainant to show a genuine issue of material fact exists.

   In defense of summary judgment, the Complainant offers in his brief and deposition that there is no indication of inadequate job performance while he was employed at TVA (April 1,

1993, Deposition of Frank C. Smith at p. 53). In his deposition, the Complainant states that he did not mention his problems because he felt they were physiological in nature and were not emotionally or psychologically related (April 1, 1993, Continuation of Deposition of Frank C Smith at pp. 9-10, 16-18). Although he may not have agreed with the diagnosis, the overwhelming medical evidence and the Complainant's own Deposition testimony indicate that he was aware that physicians were diagnosing him with psychological or emotional disorders and prescribing drugs to alleviate those problems (April 1, 1993, Continuation of Deposition of Frank C. Smith at pp. 6-9, 18, 31-35; April 9, 1993, Deposition of Frank C. Smith at p. 67).

   In his brief, the Complainant also offers reports of periodic psychological tests by TVA which found no conditions that could disqualify the Complainant for employment (Doe. Nos. BA000001-31). While these reports show that the TVA tests did not detect any psychological problems that would hinder the Complainant's job performance, they do not explain or excuse his omissions or falsifications. In addition, these reports do not indicate how the Complainant's falsifications and omissions affected the resulting conclusions. At least one of the reports indicates that it was based in part on the "self-reported history" of the Complainant (Doe. No. BA000001). A false history would have likely influenced the results of any tests or the conclusions of any reports relying on that history.

   The Complainant also states it was his understanding that he was only required to disclose any emotional and psychological problems that could adversely effect his job performance (April 9, 1993, Deposition of Frank C. Smith at pp. 44-45). However, the clear requirements of TVA and the NRC procedures indicate that the emotional stability of nuclear security officers must be judged by a licensed psychologist or psychiatrist and not by the employee (REM Tab 47; 10 C.F.R. Part 73, App. B.(I)(B)(2)). In addition, common sense would indicate that a person who has emotional or psychological problems would not be left with the responsibility of determining which of his problems could affect the safety and security concerns of a nuclear plant.

   Even though there is no evidence of unsatisfactory job performance, the Employer's clearly outlined policies indicate that the Complainant's misrepresentations, falsifications, or omissions of material facts, if known to the Employer, would have been grounds for termination and would have disqualified him from the Site Security Manager's position. Additionally, the Complainant's emotional and psychological problems, if known to the Respondent, would have prevented his selection as Site Security Manager, and would have been grounds for his

termination as Captain of Public Safety.

   I find that based on the overwhelming evidence of record, no reasonable trier-of-fact could find that the Complainant met the requirements of the Site Security Manager position because of his emotional and psychological problems, and thus, no genuine issue of material fact exists regarding any discrimination in his nonselection for that position.

Motion for Summary Judgment:

   The Respondent has moved for summary judgment on the grounds that even if the Complainant has established discrimination under the ERA, he is not entitled to any legal damages because he made material omissions and falsifications prior to his nonselection for the Site Security Manager position at Watts Bar Nuclear Plant. The Respondent additionally contends that these omissions and falsifications, if known, would have resulted in the termination of the Complainant's employment, regardless of his nonselection.

   The law in the Sixth Circuit where this case arises supports the Respondent's position that summary judgment should be granted. In Dotson v. United States Postal Service, 977 F.2d 976 (6th Cir. 1992), the defendant was a former employee who won a handicap discrimination claim against the plaintiff After his discharge, it was determined that the employee lied on his application about being fired from his two previous positions, having back problems, and using drugs. Id. at 978. The Court held that the fraud was relevant to the claim of handicap discrimination because without the fraud, the defendant would not have been offered employment. Id. Even though the employee had won his discrimination claim, his fraud precluded an award of relief, and the Court granted the employer's motion for summary judgment. Id.

   In Milligan-Jensen v. Michigan Technological University, 975 F.2d 302 (6th Cir. 1992), cert. granted, 113 S.Ct. 2991, cert. dismissed, 114 S.Ct. 22 (1993), a former public safety officer filed a Title VII action based on charges of sex discrimination and retaliation for filing an EEOC complaint. The defendant university was found liable on both counts, but the plaintiff was not entitled to damages because she omitted a prior DUI conviction from her employment application. Id. at 303. The Court determined that if the falsification had been discovered during her employment, the plaintiff would have

been terminated, and thus, she suffered no legal damages by being fired. Id. at 304-05.

   In Johnson v. Honeywell Info. Sys., Inc., 955 F.2d 409, 414-15 (6th Cir. 1992), the plaintiff made misrepresentations regarding her educational and employment history on her employment application and resume. After she was terminated for poor job performance, she brought a wrongful discharge claim under Michigan's Elliott-Larsen Civil Rights Act alleging she had been terminated because of her views regarding affirmative action. Id. at 409- 10. The Court held that in cases where resume fraud is discovered after discharge, "summary judgment will be appropriate where the misrepresentation or omission was material, directly related to measuring a candidate for employment, and was relied upon by the employer in making hiring decisions." Id. at 415. The Court determined that those misrepresentations barred Johnson's recovery under Michigan's Elliott-Larsen Civil Rights Act, because Honeywell established that it would not have hired her, and it would have fired her if it had become aware of the fraud during her employment. Id; see McKennon v. Nashville Banner Publishing Co., 9 F.3d 539, 541 (6th Cir. 1993).

   In the instant case, the Complainant's falsifications and omissions were material because they were directly related to the requirements for his employment in the position of Captain of Public Safety, and his potential selection as Site Security Manager. If the Respondent had known of the falsifications and omissions, the Complainant could have never been selected for the Site Security Manager position, and would have been terminated. Additionally, those falsifications and omissions were relied on by the Respondent to continue to employ the Complainant, and provide him with authorization for unescorted access to the nuclear plant.

   Based on the foregoing, I find that the Respondent's Motion for Summary Judgment must be granted.

Damages:

   Because I have found that the Motion for Summary Judgment should be granted and the complaint under the ERA should be dismissed, Frank C. Smith is not entitled to damages of backpay with interest, compensatory damages - including medical costs from loss of insurance coverage and medical costs from stress as a result of loss of employment, attorney's fees, or costs incurred in bringing this complaint. Additionally, the Complainant is not entitled to reinstatement as Site Security Manager at the Watts Bar Nuclear Plant.

   It is hereby recommended to the Secretary of Labor that the Motion for Summary Judgment be granted in favor of the Respondent, Tennessee Valley Authority, and that the complaint of Frank C. Smith for relief under the ERA should be dismissed.

   Issued this the 26th day of April, 1994, at Cincinnati, Ohio.

       Richard E. Huddleston
       Administrative Law Judge