DATE: September 9, 1993
CASE NO. 87-ERA-25
IN THE MATTER OF
J. MARSHALL TRIEBER,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY AND
SYSTEM ENERGY RESOURCES, INC.,
RESPONDENTS.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Administrative Law Judge's (ALJ)
[Recommended] Decision and Order Granting Motions for Summary
Judgment in this case which arises under Section 210 of the
Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.
§ 5851 (1988). The ALJ recommends that the complaint be
dismissed because there is no material issue of fact and
Respondents are entitled to judgment as a matter of law.
The parties filed briefs before me. After reviewing the
entire record, I find that I agree with the ALJ's recommendation
and, pursuant to 18 C.F.R. § 18.41(a), grant summary
judgment to Respondents.
I. Alleged Facts
Complainant Trieber was employed by Mississippi Power &
Light Company, the predecessor in interest to Respondent System
Energy Resources, Inc. ("SERI") from January 1984 until he was
discharged in January 1986. Complainant's Motion for
Reconsideration (Comp. Motion for Recons.), Ex. 16, par. 8.
Complainant filed an earlier complaint with the Department of
Labor contending that SERI violated the ERA when it dismissed him
[PAGE 2]
after he made internal safety complaints concerning the training
of operators. The earlier complaint was denied on the ground
that it was not timely filed. [1]
Trieber contends that SERI blacklisted him from subsequent
employment in the nuclear industry. In the summer of 1986, Long
Island Lighting Company (LILCO) paid his travel and expenses for
an interview for a position in the training department at its
Shoreham, New York nuclear plant. Comp. Motion for Recons., ex.
16, par. 10. When Trieber arrived for the interview, the head of
the training department did not interview him. Id.
Instead, an instructor gave Trieber only a token interview, after
which Trieber was not hired. Id.
Later that year, Stone and Webster, Inc., which worked
closely with nuclear plant operators, wrote to Trieber, stating
an interest in his qualifications and directing him to call
collect to arrange an interview. Comp. Motion for Recons., Ex.
16, par. 11. The designated person for Trieber to contact would
not accept the collect charges, however, and Trieber did not have
an interview and was not hired. Id. Trieber contends
that Stone and Webster and LILCO lost interest in hiring him
because SERI informed them that he was a troublemaker.
In early 1987, a "job shop" contractor, CDI Corporation,
forwarded Trieber's resume for consideration for a position with
Respondent Tennessee Valley Authority (TVA). TVA S.J. Motion,
Thompson aff., par. 2. Richard Thompson of TVA interviewed
Trieber by telephone and hired him to write training manuals at
TVA's Sequoyah nuclear plant. Id. According to Trieber,
Thompson said that the contract position would start as soon as
possible, was for six months' duration, and that he anticipated a
permanent opening with TVA after that time. Comp. Motion for
Recons., Ex. 16, par. 12. Trieber successfully negotiated a
higher hourly rate of pay than TVA had planned for the position.
Id. at par. 13.
Trieber reported to TVA's Knoxville headquarters for three
days of orientation, during which he learned about the TVA's
training manual format and began work on a manual. Id. at
par. 15. Upon meeting Trieber in person, Thompson formed the
opinion that Trieber was not the right person for the Sequoyah
position but nevertheless allowed Trieber to report to Sequoyah
on his fourth work day. TVA S.J. Motion, Thompson aff., par. 4.
At Sequoyah, Trieber reported to Jim Hartman, who supervised
the contract employees. Id. at par. 5. Trieber continued
to work on a preliminary draft of a training manual. Comp.
Motion for Recons., Ex. 16, par. 19. Trieber was expected to work
independently and no one from TVA reviewed Trieber's work.
Id.
According to Trieber, during the morning of his sixth day at
TVA, Hartman commented that Trieber was making great progress.
[PAGE 3]
Id. at par. 20. Thompson, who was visiting the Sequoyah
plant the same morning, allegedly told Trieber that he understood
that things were going well. Id. at par. 21. Shortly
thereafter, however, CDI telephoned Trieber to inform him that
TVA had fired him. Id. at par. 22. When Trieber asked
Thompson why he had been fired, Thompson purportedly stated only
that he had gotten "input" on Trieber. Id. at par. 24,
25. Trieber finished the rough draft of the training manual,
gave it to Hartman, and left TVA later that day. Id. at
par. 27.
Trieber noted that on the same day he was fired from TVA, a
Department of Labor employee notified SERI by telephone that
Trieber had filed the earlier ERA complaint against SERI. Comp.
Response to S.J. Motions at 27. Trieber contends that someone at
TVA must have spoken with someone at SERI, learned that Trieber
was a "whistleblower," and decided to fire him as a result.
Comp. Supp. Memo. in Opp. to S.J. Motions at 19-20.
II. Motions for Summary Judgment
Following his discharge from TVA, Trieber filed this
complaint alleging that SERI blacklisted him and that TVA
discharged him when it learned he had been a whistleblower at
SERI. In support of their motions for summary judgment, SERI
and TVA argued that there was no evidence demonstrating
communications between SERI and any of the organizations that
allegedly blacklisted him: TVA, Stone and Webster, and LILCO.
SERI submitted affidavits of four of the five employees Trieber
had identified as participating in blacklisting him. It also
provided the affidavit of the supervisor of the fifth employee,
who had since left SERI's employ. All of the SERI employees
stated that they had no communication or contact with anyone
at LILCO, Stone and Webster, or TVA. SERI S.J. Motion, Ex. F
through K.
In support of its motion, TVA relied upon affidavits of
Hartman, Thompson, and Thompson's supervisor, Dan DeFord. All
of the TVA employees stated that they had no knowledge about
Trieber's employment at SERI and did not have any communications
about Trieber with anyone at SERI, Stone and Webster, or LILCO.
Hartman and Thompson stated that they decided to fire Trieber
because they believed he could not perform the required work
independently and therefore was not suited to the position.
DeFord stated that he concurred in the decision to discharge
Trieber.
After receiving several extensions to permit discovery,
deposing several SERI employees, and obtaining numerous
documents, Trieber opposed the motions for summary judgment. See
R.D. and O. at 19-20. Trieber contended that the motive, intent,
and credibility of witnesses was at issue and could not be judged
[PAGE 4]
from affidavits alone. Comp. Response to S.J. Motions at 29.
Trieber argued that the fact that TVA discharged him "a very
short time after the DOL informed [SERI]" about Trieber's earlier
complaint permitted the inference that he was discharged because
TVA learned about his whistleblowing activities while employed by
SERI. Comp. Supp. Memo. at 19.
III. The ALJ's Decision
The ALJ found that Complainant's internal safety complaints
to SERI constituted protected activity under the ERA. R.D. and
O. at 17. The ALJ explained that the party opposing a summary
judgment motion must submit either direct, circumstantial, or
inferential evidence to show that a genuine issue of fact exists.
Id. Viewing the facts in the light most favorable to
Trieber, the ALJ found that "there is no evidence, as opposed to
remarkable coincidence" linking alleged blacklisting by SERI to
TVA's actions. Id. at 19. The ALJ found that TVA already
had decided to fire Trieber prior to the time SERI received the
phone call notifying it about Trieber's earlier whistleblower
complaint. Id. The ALJ reasoned that TVA's discharge
could not be connected to the Department of Labor's phone call to
SERI. Id. Finding Complainant's evidence insufficient as
a matter of law, the ALJ granted the summary judgment motions and
recommended dismissing the complaint.
IV. Preliminary Matters
Trieber, SERI, and TVA filed both initial and reply briefs
before me. On the ground that the reply briefs filed by TVA and
SERI were unauthorized, Trieber moved to strike Respondents'
"supplemental replies," or in the alternative, for leave to file
a supplemental reply. TVA contended that the reply briefs were
authorized in the Order Establishing Briefing Schedule. TVA is
correct and Trieber's motion to strike, or for leave to file a
supplemental reply, is denied. [2]
Respondents submitted various letters to the Secretary
enclosing copies of recent decisions in other cases and Trieber
responded to the submissions. In a letter dated February 12,
1992, SERI moved to strike a specific "allegation" in Trieber's
January 31, 1992, responsive submission. Neither the regulations
nor the briefing order in this case contemplated submission of
decisions or argument after the reply briefs. Nevertheless,
since all parties engaged in providing such submissions or
responses, I will accept into the record in their entirety all
of the submissions made after reply briefs were filed. SERI's
motion to strike a specific allegation in Trieber's January 31,
1992, letter is denied.
Finally, I have considered Trieber's November 1989 Motion
for Reconsideration of the ALJ's decision. In light of my
affirmance of the ALJ's decision, the motion for reconsideration
[PAGE 5]
is denied.
V. Analysis
A motion for summary judgment in an ERA case is governed by
18 C.F.R. §§ 18.40 and 18.41. See, e.g.,
Howard v. Tennessee Valley Authority, Case No. 90-ERA-24,
Final Dec. and Order of Dismissal, July 3, 1991, slip op. at 4.
A party opposing a motion for summary judgment "must set forth
specific facts showing that there is a genuine issue of fact for
the hearing." 29 C.F.R. § 18.40(c).
Under the analogous Fed. R. Civ. P. 56(e), the non-moving
party "may not rest upon mere allegations or denials of his
pleading, but must set forth specific facts showing that there is
a genuine issue for trial. . . . Instead, the [party opposing
summary judgment] must present affirmative evidence in order to
defeat a properly supported motion for summary judgment."
Anderson v. Liberty Lobby, 477 U.S. 242, 256-257 (1986).
Seealso, Celotex Corp. v. Catrett, 477 U.S.
317 (1986), and Carteret Sav. Bank, P.A. v. Compton, Luther &
Sons, Inc., 899 F.2d 340, 344 (4th Cir. 1990). The non-
moving party's evidence, if accepted as true, must support a
rational inference that the substantive evidentiary burden of
proof could be met. Bryant v. Ebasco Services, Inc., Case
No. 88-ERA-31, Dec. and Order of Rem., July 9, 1990, slip op. at
4., citing Liberty Lobby, 477 U.S. at 247-252. If
the non-movant "fails to make a showing sufficient to establish
the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial,"
there is no genuine issue of material fact and the movant is
entitled to summary judgment. Celotex, 477 U.S. at 322-
323.
SERI properly supported its motion with affidavits which
showed that the relevant SERI personnel had no communication with
either TVA, Stone and Webster, or LILCO personnel, and
consequently that SERI could not have blacklisted Trieber from
employment with those companies. Similarly, the affidavits of
the TVA personnel showed that none of them had any knowledge of
Trieber's activities while employed by SERI, and did not
discharge him because of any such activities.
The ALJ was exemplary in providing sufficient time and
opportunity for Trieber to engage in discovery of evidence with
which to oppose the summary judgment motions. The key issues are
whether there is any evidence that SERI communicated with either
TVA, Stone and Webster, or LILCO concerning Trieber's
whistleblower activities while employed by SERI, and whether TVA
had any knowledge of those activities when it discharged Trieber.
Concerning TVA, Trieber introduced inferential evidence that
TVA had learned of Trieber's whistleblower activities at SERI
because TVA fired him the same day that the Department of Labor
[PAGE 6]
informed SERI of Trieber's earlier ERA complaint. However,
Trieber obtained through discovery and submitted a telecopy of a
message which establishes that Thompson had already notified the
contract specialist who administered the job shop contract with
CDI that TVA was discharging Trieber prior to the time that the
Department of Labor telephoned SERI. Comp. Br. Ex. 24 at 2-3.
Therefore, it was not possible that the Department's notice to
SERI prompted some communication between SERI and TVA that
ultimately led to TVA discharging Trieber.
Trieber argues that Thompson's only explanation for the
firing was that Thompson had received "input" about him. Trieber
provides several allegedly "probable" meanings for the term
"input": that TVA had heard about Dr. Trieber's complaint to the
DOL against [SERI]," that "TVA was contacted by personnel from
SERI/MP&L about Dr. Trieber and his alleged 'troublemaking'," and
that "one of the high level personnel that was exchanged told TVA
of the 'Trouble Maker'." Comp. Reply Brief at 6-7. I find these
inferences from Thompson's purported use of the word "input" to
be pure conjecture, since there is no record evidence indicating
that anyone at SERI had any communication with anyone at TVA
concerning Trieber.
Thompson stated in his affidavit that he told Trieber "it
was not just [Thompson's] decision" to fire Trieber. TVA S.J.
Motion, Thompson aff. par. 8. TVA submitted affidavits
indicating that two other managers were involved in the discharge
decision. Prior to the firing, Thompson obtained Hartman's
opinion that Trieber was not suited for the job, TVA S.J. Motion,
Hartman aff., par. 5 and Thompson aff., par. 6, and before the
discharge, DeFord indicated his concurrence in the decision. TVA
S.J. Motion, Thompson aff., par. 7 and DeFord aff., par. 5. The
opinions of Hartman and DeFord are equally probable meanings for
the term "input," assuming that Thompson used it.
Concerning SERI's alleged blacklisting of Trieber with Stone
and Webster and LILCO, the only "evidence" on which Trieber
relies is his conjecture that some communication with SERI must
have caused the two organizations' disinterest after they
initially expressed interest in his qualifications. Despite
extensive opportunity for discovery, Trieber provided no
affidavits or other evidence indicating communication between
SERI and either Stone and Webster or LILCO, however.
I agree with the ALJ that Trieber submitted neither direct,
circumstantial, nor inferential evidence of blacklisting by SERI
or unlawful discharge by TVA. R.D. and O. at 17-19. Under the
standards governing summary judgment, Liberty Lobby, 477
U.S. at 256-257, Trieber has not met his burden of presenting
affirmative evidence to defeat the properly supported motions for
summary
[PAGE 7]
judgment. I find that there is no genuine issue of material fact
and that Respondents are entitled to judgment as a matter of law.
Accordingly, I concur in the ALJ's grant of summary judgment in
favor of Respondents and the complaint is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Trieber acknowledges that his earlier complaint concerning
discharge from SERI was not timely filed. February 11, 1987
Complaint at 1; Ex. A. to SERI Motion for Summary Judgment (SERI
S.J. Motion).
[2] I have considered the substantive arguments Trieber made in
his motion to strike.
