CASE NO. 90-ERA-24

In the Matter of

G. RICHARD HOWARD,
    Complainant,

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent.

   This case arises under the employee protection provisions of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. §5851 (1982).

   G. Richard Howard (Complainant) is a former managerial employee of Tennessee Valley Authority (TVA). On June 8, 1987, he was notified that his employment would be terminated, effective July 9, 1987. About a year later, Complainant filed a lawsuit against TVA and several of its employees, for alleged actions taken in retaliation against Complaint because of, among other things, his conscientious and diligent efforts to report safety and nuclear safety problems within TVA.

   On May 25, 1989, TVA's General Counsel sent a memorandum to a TVA Senior Vice President, Nuclear Power, concerning the handling of ERA complaints. Attached to the memorandum was a summary of 38 ERA administrative cases pending or resolved in 1988, as well as six non-ERA court cases in which a substantial allegation of retaliation had been raised. Complainant's court case was included in the summary. By letter dated August 24, 1989, Complainant and seven other individuals, by counsel, filed a complaint of discrimination under the ERA with the United States Department of Labor. After alleging generally a

continuous pattern and series of acts of discrimination on the part of TVA, the complaint asserted that the TVA's General Counsel's memorandum of May 25, 1989, together with the attached case summary, had been published in the local newspapers, and had been widely circulated within TVA and the nuclear utility industry. The complaints charged that "the preparation, drafting and release of these Memoranda are a clear and definitive effort by Tennessee Valley Authority to 'blacklist' certain individuals "including Complainant in this case. Complainant's claim was severed from the others by an Assistant District Director of the Wage and Hour Division, U. S. Department of Labor, who investigated the complaint. By letter dated February 9, 1990, the Assistant District Director notified Complainant's attorney (1) that the complaint concerning the termination of Mr. Howard's employment with TVA could not be investigated because it was time-barred, the termination having occurred more than 30 days prior to the filing of the complaint; and (2) that a fact-finding investigation had disclosed no evidence that Mr. Howard had suffered any adverse action as a result of his inclusion in the list of pending ERA cases prepared by TVA's Office of General Counsel. Complainant requested a hearing on his complaint. The case is before me now on TVA's Motion for Summary Judgment, filed March 30, 1990. Complainant's opposition was filed August 7, 1990. At this time Complainant is represented by a different attorney.

   TVA seeks dismissal of the complaint on several grounds. It argues that (1) the May 25, 1989 case summary is absolutely protected speech under the First Amendment to the United States Constitution, and (2) the complaint fails to state a valid claim of blacklisting. The motion for summary judgment is supported by two affidavits, made on personal knowledge, from two employees in TVA's Office of the General Counsel. The affidavit of Bonnie M. Holmes relates to the history of Complainant's case in the United States District Court for the Eastern District of Tennessee. The affidavit of Douglas R. Nichols states that Mr. Nichols is an Assistant General Counsel in TVA's Office of the General Counsel; that Mr. Nichols, along with others, had input into, and responsibility for, drafting the memorandum of May 25, 1989, and the attached status report of cases involving whistleblower complaints; that the memorandum and status report were prepared to advise the Senior Vice President of Nuclear Power about the

handling and the status of ERA cases, and to enable top nuclear power managers to be aware of these cases so as to be able to respond to inquiries from the Nuclear Regulatory Commission and others; that there had been no disclosure of the memorandum and the status report outside TVA by anyone acting with authority on TVA's behalf; and that documents obtained from NRC's Public Document Room by persons under his direction, and attached to the affidavit, indicate that it is the practice of both the Department of Labor and the Nuclear Regulatory Commission to make public the names and identities of persons initiating discrimination proceedings.

   Complainant's brief in opposition is a recital of events and conversations, together with legal contentions and factual inferences, concerning (1) the termination of his employment in June 1987; (2) the intent and effects of TVA's May 25, 1989 memorandum and the status report attached to it; and (3) the damaging impact of the memorandum and attachment of the efforts of "Complainant's firm", Configuration Management Associates, Inc. to obtain contract awards in the nuclear industry. The brief is accompanied by an affidavit of Complainant, stating that Complainant has read the brief for accuracy and affirms that the contents of the brief are factual and accurate.

   I think it necessary to determine the scope of the case before me. I would have read the letter complaint of August 24, 1989, as setting forth only a claim of blacklisting. However, for reasons not disclosed in the record, the Assistant District Director's notification of his findings and conclusions, dated February 9, 1990, to Complainant's previous attorney also addressed the timeliness of a complaint of discrimination concerning the termination of Complainant's employment with TVA. Finally, Complainant's brief in opposition to the motion for summary judgment contains allegations of financial damage to Complainant's firm, Configuration Management Associates, Inc.

   Because the Department of Labor has already considered the issues of timeliness and blacklisting, and because TVA is on notice as to both issues, I will deem both issues to be part of this case. The allegations concerning the damage to the firm, however, is new matter, not included in the complaint of the Department of Labor investigation. Indeed, the brief states that

those allegations were extracted from another complaint filed with the Department of Labor on January 26, 1990. See Brief in Support of Complainant's Reply in Opposition to Respondent's Motion for Summary Judgment, at 14. Accordingly, this new matter is extraneous to the case before me, and will not be considered in ruling on TVA's motion for summary judgment.

   I agree with the Assistant District Director that the complaint of August 24, 1989, was time-barred insofar as it charged that the termination of Complainant's employment in June, 1987 was discriminatory. The ERA allows 30 days to file a complaint, while the complaint was filed more than two years after the termination of employment. Also, the doctrine of equitable tolling is of no help to Complainant. See School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981). Complainant argues that TVA actively misled him concerning his cause of action under the ERA, in that at the time of the termination of his employment employees of TVA failed or refused to advise him concerning his right to file a complaint under the act. Assuming all this to be true and to establish a case of active misleading, Complainant was certainly advised of his remedies under the ERA by March 22, 1989, when the Memorandum Opinion of the District Court dismissing his lawsuit was filed. See Collective exhibit 2 attached to the Holmes Affidavit. Moreover, on July 5, 1989, Complainant filed in the district court an affidavit stating that he had been advised by his counsel of his ERA remedies and applicable time limitations. See Exhibit 6 to Holmes affidavit. The complaint letter dated August 24, 1989 was untimely even if it be assumed that the statutory 30-day period started running on the date of Complainant's affidavit.

   In sum, there is no genuine issue as to any fact material to the timeliness of the complaint insofar as it attempts to set forth a claim of discriminatory discharge. When all reasonable inferences have been drawn in favor of Complainant, TVA is entitled as a matter of law to have that part of the complaint dismissed.

   The ERA forbids a covered employer to "discharge any

employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee "helped to carry out the purposes of the act. 42 U.S.C. §5851 (a).

By its terms, section 5851 (a) prohibits certain employers from discriminating in practically any job-related fashion against an employee because the employee participated in NRC investigatory or enforcement proceedings. The particular elements of a valid discrimination claim would appear most obviously to include proof: (1) that the party charged with discrimination is a employer subject to the Act; (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions, or privileges of employment; and (3) that the alleged discrimination arose because the employee participated in an NRC proceeding under either the Energy Reorganization Act of 1974 or the Atomic Energy Act of 1954.

Deford v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983)

   TVA's motion for summary judgment attacks the legal sufficiency of the complaint filed on August 24, 1989. The theory of the complaint is that the preparation and release of the May 25, 1989 memorandum and the attached status report, standing alone, constituted prohibited conduct (blacklisting). In fact, it seems to me that Complainant's claim must stand or fall on this theory, since there is no allegation of any employment-related act taken by TVA, or anyone else, on the basis of those documents to Complainant's prejudice.

   In his brief in opposition to the motion for summary judgment Complainant does not allege any particular effect on the

terms or conditions of any employment. He simply asserts that the damaging financial effect to him is undeniable because the status report became in essence a flag waiving nuclear industry blacklist. Apparently, the argument is that the report, characterized as a blacklist, is per se an act of discrimination actionable under the ERA, and employment-related injury is presumed because it is foreseeable.

   For the purpose of testing the sufficiency of the complaint, it is assumed that the status report was drafted with the intent to injure Complainant with respect to his employment opportunities. Thus, the question becomes whether the inclusion of Complainant's name in the status report, motivated by such a malicious intent, is sufficient to set out a prima facie case under the ERA.

   Such a document would appear at first sight to be a blacklist, that is, a "list of persons marked out for special avoidance, antagonism, or enmity on the part of those who prepare the list or those among whom it is intended to circulate. . ." Egenrieder v. Metropolitan Edison Company/G.P.U., 85-ERA-23, Sec. Order of Remand, April 20, 1987, slip op. at 6 n.6. The implementing regulation, at 29 CFR 24.2(b), specifically states that any person is deemed to have violated the ERA if such person blacklists a protected employee. Yet, it seems to me that the ERA proscribes conduct which has an adverse impact on terms, conditions, or privileges of employment. In the absence of an allegation that Complainant was employed by, or sought employment with, anyone at any time after May 2 , 1989, it is difficult to see what employment-related injury TVA's status report has caused to Complainant.

   Several decisions of the Secretary of Labor in cases arising under ERA and related statutes support the proposition that an allegation of specific acts having adverse impact on present or future employment is an essential element of a cause of action based on blacklisting. See Doyle v. Alabama Power Co., 87-ERA-43, Sec. Final Decision and Order, September 29, 1989 (dismissing a claim of blacklisting for failure to allege an act of discrimination within 30 days prior to the filing of complaint); Doyle v. Bartlett Nuclear Services, 89-ERA-18, Sec. Decision and Order of Dismissal, May 22, 1990 (dismissing complaint of blacklisting for failure to allege any discriminatory conduct by named Respondent). Also, other cases

of blacklisting decided by the Secretary arose out of actual and separate refusals to hire. See Egenrieder v. Metropolitan Edison Company/G.P.U., 85-ERA-23, Sec. Order of Remand, April 20, 1987; Faulkner v. Olin Corp., 83-SWD-3, recommended dec. at 23-25, August 16, 1985, aff'd by the Secretary, November 18, 1985. Although none of these cases is exactly on point, they are nonetheless significant in that the analysis focuses on actual, specific employment-related incidents, and does not suggest that a discriminatory intent is actionable per se, even if no adverse employment-related consequences result. In fact, blacklisting may be an inference from, as an explanation of, a failure to find employment over a period of time, despite diligent efforts and proper qualifications. See Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711 (D.C. Cir. 1978); Robins v. Schonfeld, 326 F.Supp. 525 (S.D. N.Y. 1971).

   Accordingly, I conclude that in order to set forth a valid claim of blacklisting, it is necessary to allege, among other elements, an actual employment injury. Because the Complainant in this case makes no such allegations, there is no genuine issue of a material fact, see McDaniel v. Mead Corp., 622 F.Supp. 351, 361 (D.C. VA. 1985), and TVA is entitled to a decision dismissing the complaint.

   I add that this conclusion is particularly appropriate on the facts of this case, in order to avoid a serious constitutional issue. The status report in question is a report of public judicial proceedings, whose accuracy is not questioned. In Craig v. Harney, 331 U.S. 367, 374 (1947) the Supreme Court held that a trial is a public event, what transpires in the court room is public property, and that those who see and hear what transpired can report it with impunity. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029 (1975), the Supreme Court held that a State may not, consistently with the First and Fourteenth Amendments, impose sanctions on the accurate publication of a rape victim's name obtained from judicial records that are open to public inspection. To construe the ERA as imposing liability on the basis of a report of judicial proceedings alone, mere expression, would present a serious constitutional issue, which may be avoided without injury to the policy underlying the ERA. The policy of the ERA is to protect the employment relation and opportunities of a covered individual from reprisals, not to punish an employer merely for a wrongful state of mind.

   Finally, even if a blacklist is actionable per se, though no employment action be taken on the basis of it, I am of the opinion that summary judgment must be granted because there is no genuine issue that the status report is other than what it appears to be. The report is an objective, concise statement of the inception and current status of several cases. The part of the report which concerns Complainant's earlier litigation is fairly representative.¹ The report does not threaten or counsel any action. In sum, it appears to be a status report drafted for informational purposes. The affidavit of Assistant General Counsel Nichols, filed in support of the summary judgment motion, confirms this impression.

   Complainant's response to the motion for summary judgment offers no direct evidence that the reason articulated by TVA are pretextual. Complainant argues that the report is a retaliatory blacklist, on the grounds that the report violates his right of privacy and a doctrine of equality. The argument from privacy is that there was no necessity to disclose the names of complainants, and that the same information could have been conveyed at a top level meeting or by substituting fictitious names. The flaw in this argument is that it starts from an erroneous premise. The information about Complainant's lawsuit is a matter of public record, which is available for public inspection. Moreover, since at the time of the report Complainant's case against TVA was still pending, TVA's General Counsel had the privilege, if not the duty, to keep his client in writing.

   The argument from equality is based on the fact that the case citation reveals Complainant's name but does not reveal the names of TVA's employees whose actions caused Complainant to file the suit. Premising that a corporation, being an artificial and intangible being, can only act through natural beings, Complainant argues as follows:

The fact that TVA purposely omitted, hid, or failed to list the names of TVA employees who allegedly committed the wrongful acts from this summary list clearly

¹Richard Howard v. Tennessee Valley Authority, Civil Action No. 3-88-441. Mr. Howard, whose TVA Employment as the Program Manager in the Configuration Management Branch was terminated in July 1987, filed this action against TVA and a number of TVA managers in June 1988, alleging that he had been discriminated against for raising nuclear safety-related concerns. On March 22, 1989, the court granted our motion and dismissed the case. The plaintiff has moved to reconsider. (August 24, 1989 Complaint Exh. A, attachment at 6).