Hannum v. Detroit Edison Co., 2003-ERA-18 and 25 (ALJ Mar. 31, 2004)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

Issue Date: 31 March 2004

CONSOLIDATED CASE NO.: 2003-ERA-00018

In the Matter of

DAVID A. HANNUM,
    Complainant,

   v.

DETROIT EDISON COMPANY,
    Respondent,

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CASE NO.: 2003-ERA-00025

In the Matter of:

DAVID A. HANNUM,
    Complainant,

    v.

FLUOR HANFORD, INC. and MASTER-LEE HANFORD,
    Respondents.

   This consolidated matter arises under the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5851 et seq. ("ERA" or the "Act"), and the regulations promulgated thereunder at 29 C.F.R. Part 24. This statutory provision and implementing regulations protects employees from discrimination in retaliation for engaging in protected activities such as reporting safety violations. Complainant David A. Hannum ("Complainant") proceeds pro se and alleges that Respondents Master-Lee Hanford ("Master-Lee") and Fluor Hanford, Incorporated ("Fluor Hanford" or "Fluor") retaliated against him for voicing safety concerns relating to nuclear operator training procedures at Fluor Hanford. Both Master-Lee and Fluor Hanford have moved for summary decision, denying any retaliation against Complainant. After reviewing the parties' submitted evidence and arguments, I communicated to them in a telephone conference on March 19, 2004 my tentative decision to grant both motions effectively vacating the hearing date previously set for March 22, 2004.

Procedural History

   On June 12, 2003, Complainant filed a complaint with the Department of Labor alleging that he had been terminated and blacklisted from employment by Respondents Master-Lee and Fluor Hanford for raising nuclear safety concerns. On August 13, 2003, the Occupational Safety and Health Administration ("OSHA") issued a Notice of Determination to Complainant dismissing his complaint against Respondents on grounds of untimely filing. By Order of October 10, 2003, Complainant's claim of retaliatory termination against Master-Lee was dismissed as untimely, but Complainant's claim of retaliatory blacklisting was permitted to proceed. By Amended Complaint, Complainant alleged that Master-Lee and Fluor Hanford engaged in retaliatory blacklisting by issuing and maintaining a "stop access" order against him.

   Master-Lee filed its first summary decision motion on November 17, 2003, but by Procedural Order issued December 15, 2003, I took such motion under advisement until discovery reached completion. On March 2, 2004, Master-Lee timely filed a renewed motion for summary decision and accompanying brief, with attached exhibits A through E, consisting of selected excerpts from the Depositions of Mr. Charles MacLeod, taken February 13, 2004; Mr. Rick Largent, taken February 10, 2004; Mr. Nick Liewer, taken February 10, 2004; Complainant David Hannum, taken February 20, 2004; and Mr. John Robinson, also taken February 20, 2004. On March 2, 2004, Respondent Fluor Hanford timely filed a summary decision motion, with attached excerpted deposition transcripts of Mr. Robert Heck, Mr. Fritz Strankman, Ms. Shannon Strankman, Ms. Claudette Lang, and Ms. Jackie Slonecker, each taken February 11, 2004; Mr. David Van Leuven, Mr. Robert Day-Phalen, Mr. Charles MacLeod, and Mr. Kenneth Norris, each taken February 13, 2004; and Mr. John Robinson and Complainant.

   Complainant filed a timely response, and submitted in support of his response the following: a "position statement" letter on behalf of Fluor Hanford to the Human Rights Commission, dated April 28, 2003; a letter from Complainant to Fluor Hanford dated March 26, 2002; a facsimile dated June 12, 2002 from Fluor consisting of information related to Complainant; and selected excerpts from the depositions of Ms. Shannon Strankman, Ms. Jackie Slonecker, Mr. Rick Largent, Mr. Nick Liewer, Mr. Charles MacLeod, and finally, Mr. John Robinson. Complainant also timely filed a Pre-Hearing Statement on March 9, 2004 with attached proposed exhibits 1 through 133 (hereinafter referred to as "CX"). Having fully considered the allegations, arguments and submissions of the parties, I find and conclude that the motions for summary decision should be granted for the reasons stated below.

Issues for Determination

   Whether a genuine issue of material facts exists with regard to whether Complainant has established a prima facie case that either or both Respondent Master-Lee and Respondent Fluor Hanford discriminated against him in violation of the ERA, and whether Complainant's complaint was timely filed.

Discussion

   Pursuant to 29 C.F.R. § 18.40(d), an administrative law judge may enter summary decision for either party if the pleadings, affidavits, material obtained by discovery or otherwise show that there is no genuine issue as to any material fact. In determining whether summary decision is appropriate, the administrative law judge must consider all the materials submitted by the parties in the light most favorable to the non-moving party and must draw all inferences in favor of the non-moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Han v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting Poller v. Columbia Broad. Sys.,368 U.S. 464, 473 (1962)). The moving party bears the initial burden of showing that there is no genuine issue of material fact and once discharged, the non-moving party must show by evidence beyond the pleadings themselves that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The non-moving party may not rest upon the mere allegations, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1985). If the non-moving party "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 decision. Celotex Corp., 477 U.S. at 322-23.

   To establish a prima facie case of retaliatory or discriminatory action under the ERA, a complainant must show that (1) the complainant engaged in protected activity; (2) the respondent employer was aware of complainant's engagement in protected activity; (3) the respondent employer subjected complainant to an adverse employment action with respect to his compensation, terms, conditions, or privileges of employment; (4) the respondent is within the term "employer" as defined by § 5851(a)(2) of the ERA; and (5) a nexus exists between the protected activity and the adverse employment action. Bauer v. U.S. Enrichment Corp., 2001-ERA-9 (ARB May 30, 2003); Williams v. Lockheed Martin Corp., 1998-ERA-40, 1998-ERA-42 (ARB Sept. 29, 2000).

Findings of Fact and Conclusions of Law

   Complainant began work with Respondent Master-Lee, a subcontractor to Respondent Fluor Hanford, Inc. in March of 2001. Complainant was hired to work at a Department of Energy ("DOE") clean-up site, the Spent Nuclear Fuel Project, as a Senior Task Analyst conducting operation and training classes for the employees of Respondent Fluor Hanford, Inc. Complainant has alleged that between March and April 2001, he made the following recommendations and criticisms to Fluor management: that the nuclear operator task analysis for the Fuel Retrieval System (FRS) was "severely deficient" and failed to comply with DOE regulations; that Fluor management did not follow DOE regulations and Fluor Training Procedures related to the development of operator training and related to the qualification of contract instructors; that a nuclear incident involving fissionable materials had occurred because of improper handling procedures and severely deficient nuclear operator training materials; and finally, that the removal of an armed security guard from a fissionable materials storage area was improper. Complainant's Pre-Hearing Statement at 1-8. Complainant further alleged that Fluor employees harassed him during the course of his employment.

   On July 12, 2001, Respondent Master-Lee terminated Complainant at the request of Fluor Hanford, allegedly due to Complainant's "performance deficiencies." Following his termination, Complainant submitted a letter to the Washington State Attorney General office, who suggested that Complainant contact the Human Rights Commission and Office of the Insurance Commissioner. CX 92. On July 25, 2001, Complainant contacted the DOE, Office of Special Concerns ("SCO") regarding his "retaliation for not following a direction" given by a Fluor Hanford manager. CX 93. According to the SCO Disposition Form, Complainant reported that in July 2001 he had forgotten his security badge and was "bullied" for it, in that the supervisor required him to buy donuts per some unwritten practice at Hanford; that his training class in July 2001 was wrongly perceived as "a disaster" when computer failure was to blame; and that part of Complainant's "layoff was due to Robert Day-Phalen finding out" about his purchase of a house during the later part of his employment. CX 94. Because the SCO was unable to address these issues, it referred the matter to Fluor Hanford's Employee Concerns Program ("ECP"), who investigated and concluded that "retaliation and intimidation was not substantiated." CX 94. Complainant had repeated to the ECP his allegations initially communicated to the DOE SCO, for instance, that he was "strong-armed" by the Fluor manager for forgetting his badge. Id. According to the ECP report, Complainant was informed that because Complainant felt that his firing was in retaliation for "not bringing donuts" as directed, this did not fall under the ambit of legally protected activities such as taking action to prevent harm to the environment. Id. at 7.

   Following Complainant's termination from Master-Lee, Complainant "conducted my own investigation" of the reason for his termination, consisting of "calling up people and asking them if they knew why my [Complainant's] work ended." A few days following Complainant's termination, Complainant allegedly visited Fluor's corporate offices unannounced in order to contact a Fluor corporate officer. On July 20, 2001, Complainant met with Mr. Nick Liewer, Personnel Manager at Master-Lee Hanford, who inquired of Complainant as to whether he had attempted to contact a Fluor officer. Apparently, Mr. Liewer had learned of the event from Mr. Rick Largent, Operations Manager at Master-Lee, who in turn had learned of it through Mr. John Robinson of Fluor Hanford. As part of his investigation, in September 2001, Complainant also contacted Ms. Claudette Lang, the secretary to Mr. Robert Day-Phalen, Fluor's acting Training Manager. Apparently there is a dispute as to what occurred during the telephone conversation between Ms. Lang and Complainant; Ms. Lang testified in deposition that Complainant had asked for Mr. Day-Phalen's home address, that during the conversation she had become "scared" and following its termination had called the Day-Phalen residence, to ensure or at least warn of their physical safety. Mr. Day-Phalen in his deposition testimony stated that, while at a bowling alley, he had received a phone call from Ms. Lang and as a result he immediately went home. Mr. Day-Phalen further testified that in October 2001, a representative from the Benton County Sheriff's Department met with training department employees for awareness training regarding concerns about Complainant.

   In October or November 2001, Complainant continued his erratic behavior of showing up unannounced to continue his personal investigation. He spoke with Mr. Bob Heck, Fluor's Vice President/Project Director of the Spent Fuel Project. Mr. Heck testified via deposition that Complainant had called him late at night to discuss his termination from Master-Lee. In November 2001, Complainant visited the residence of Mr. Fritz Strankman, and spoke with a woman there, apparently the wife of Mr. Strankman. Mrs. Strankman in her deposition testimony recalled a conversation between herself and Complainant; Complainant, however, apparently doubted that the woman, Mrs. Stankman, whom he had asked to be deposed was the woman he had spoken to in November.

   On December 3, 2001, Respondent Fluor Hanford, through their in-house counsel, Mr. Charles MacLeod, placed a "Stop Access" or "Denial of Site Access" on Complainant, effectively denying Complainant access to Fluor Hanford sites and making him ineligible for hire there. Complainant was unaware of this status until being informed of it by Mr. MacLeod on February 14, 2002. Complainant filed a second concern with the DOE SCO requesting to know why his site access had been denied and iterated his initial statements made in 2001 to the SCO. The concern, being "an employee employer issue," was referred to Fluor Hanford's ECP on February 22, 2002, which was in turn referred to Fluor Hanford's legal department. CX 98. On March 26, 2002, Complainant submitted a four-page, single-spaced letter to Mr. Van Leuven of Fluor Hanford, iterating the events surrounding his termination and requesting information regarding his "stop access" status. CX 99. Mr. Van Leuven referred the letter to Fluor's legal department.

   On March 28, 2002, Complainant filed a charge of discrimination against Master-Lee Hanford with the EEOC and Washington State Human Rights Commission. CX 123. Complainant alleged that during his employment he was "the target of unwanted sexual attention"; and that he was subjected to a hostile work environment because he "failed to follow a manager's demand that I buy donuts." He further alleged that he had been discharged because of his religion, age, the potential high costs of health care associated with his daughter, and finally, because of his "complaints about decreased security measures and about poor management procedural practices." Id. Complainant's charge was later dismissed, and the EEOC issued him a Right To Sue letter. Complainant's Deposition at 59-60. Complainant did not subsequently sue because "there were other circumstances that came into play" and "it just never did happen." Id. at 60.

   Complainant filed a Freedom of Information Act ("FOIA") request to the DOE on February 20, 2002, requesting his security files and personal files that contained "any derogatory information." Due to the operation of a contract between Fluor Hanford and the DOE, the information Complainant sought was not considered a government record and therefore could not be supplied. On April 2, 2002, Complainant wrote a letter to the Director of the DOE, asking for the Director's support in resolving the matter of Fluor Hanford's "burying" of information. CX 102. On April 4, 2002, the DOE, Office of Hearings and Appeals, interpreted Complainant's letter as a FOIA appeal and assigned it a case number, which was ultimately denied on May 2, 2002. CX 104.

   On April 11, 2002, Complainant visited the corporate offices of Fluor Federal Services and Respondent Fluor alleges that due to his behavior, Complainant had to be escorted by security off the premises. A Patrol Log described the event as, "Hannum wanted to talk to VanLueven about possibly getting his job back. The Richland unit arrived and then left without incident, because Hannum had not committed a crime." CX 112.

   On April 22, 2002, Complainant submitted another letter to the DOE, repeating his objective of gaining access to the "derogatory information that has been used against me in my pursuit to gain employment," and stating, on the basis of representation from Mr. Norris in a telephone conversation the same day, that "the DOE has this information and is not revealing it me." CX 103. Complainant later submitted a letter dated May 29, 2002, to Congressman Doc Hastings, asking for his assistance in resolving his "ongoing problem." CX 105.

    On June 14, 2002, the DOE Manager responded to Complainant's April 22, 2002 letter and interpreted it as a "concern" regarding Complainant's access status, which was then investigated by the DOE/SCO. The DOE/SCO concluded that Complainant was "terminated for legitimate business reasons" and as a result of "post termination activities and behaviors exhibited with FHI representatives, on December 3, 2001, FHI [Fluor Hanford] initiated the process for a ‘Denial of Site Access.'" CX 106.

   Complainant submitted a letter to Mr. Norris in October 2002, which was referred to Mr. MacLeod who, on November 4, 2002, denied Complainant's allegations that Fluor Hanford had "misled" the DOE and United States Congress. CX 99.

   On May 1, 2002, Complainant appeared at a job fair held at a local college. Respondent Fluor alleges that Complainant "bothered" representatives of a subcontractor of Fluor to the point that police assistance was requested. Complainant denies any such conduct, but admits to being present at the job fair.

   On June 18, 2002, Complainant and Mr. MacLeod saw each other at a convenience store. Complainant inquired as to his lack of security status, and Mr. MacLeod responded that because of his behavior Complainant would continue to be on the stop access list.

   On June 26, 2002, Complainant visited the FFS offices. Complainant submitted a letter to Mr. Liewer on June 25, 2002, requesting information regarding the "accusation" about having "attempted to force my way past the Fluor secretary in an attempt to enter the office of the President." CX 115. On June 27 and June 29, 2002, Complainant wrote a letter to Mr. Largent and Mr. Charveneua of Fluor Federal Services requesting information about the same accusation. CX 116.

   Complainant filed a duplicative complaint with the Washington State Human Rights Commission and the EEOC on March 14, 2003, against Fluor Hanford. CX 122. Complainant alleged that the stop access maintained by Fluor Hanford adversely affected his ability to obtain employment, and that Fluor initiated the stop access in retaliation for complaining about discrimination. Id. On April 28, 2003, Fluor Hanford, through Mr. MacLeod, responded to the EEOC investigation with a position statement asserting that the stop access was placed on Complainant due directly to "numerous instances involving Mr. Hannum in which employees of FH and its subcontractors felt threatened by Mr. Hannum's actions." CX 129. Apparently the Washington state commission issued a "no cause" determination to Complainant's March 2003 complaint. Id.

Respondent Master-Lee's Motion for Summary Decision

   Respondent Master-Lee argues it is entitled to summary decision because Complainant will be unable to meet his burden to establish a prima facie case. Specifically, Respondent Master-Lee asserts that it neither issued nor maintained the stop access order, the basis of the alleged blacklisting claim, nor did it provide Fluor with any information that led to the issuance of such order. As such, Master-Lee argues, summary decision is proper because Complainant has failed to establish a genuine issue of material fact with regard to whether Master-Lee subjected Complainant to an adverse employment action.

   Complainant alleges, inter alia, that Master-Lee retaliated against him by "conspiring" with Fluor Hanford in order to assist Fluor Hanford to place a stop access on him, and also by "cooperating with Fluor Hanford in communicating false accusations to conceal the true facts related to the placement of a Stop Access." Complainant's Response at 3; Complainant's Pre-Hearing Statement at 8-9. A party opposing a summary judgment motion must produce "specific facts showing there remains a genuine factual issue for trial and evidence significantly probative as to any [material] fact claimed to be disputed." Collings v. Longview Fibre Co., 63 F.3d 828, 834 (9th Cir. 1995) (quoting Stenkl v. Motorola, Inc., 703 F.2d 393, 393 (9th Cir. 1983)). Purely conclusory allegations with no concrete, relevant particulars will not bar summary judgment. Forsberg v. Pacific Northwest Bell Tel. Co. 840 F.2d 1409, 1419 (9th Cir. 1988). When a non-moving response "consists of nothing more than mere conclusory allegations then the court must enter judgment in the moving party's favor." Peppers v. Coats, 887 F.2d 1493, 1498 (11th Cir. 1989).

   The undisputed facts demonstrate that Respondent was responsible solely for Complainant's termination, and not for the issuance and maintenance of the stop access order. The stop access order, forming the basis of Complainant's blacklisting claim, was issued and maintained by Fluor Hanford, a fact testified to by Mr. Charles MacLeod, counsel for Fluor, corroborated by Mr. Rick Largent and Nick Liewer, employees of Master-Lee, and admitted by Complainant himself.

   Furthermore, there is no factual evidence indicating that Master-Lee ever communicated information to Fluor relating to Complainant's termination that would serve as a basis for the issuance of a stop access order. The only facts in this regard concern a telephone conversation in July 2001 whereas Fluor employee John Robinson called Rick Largent at Master-Lee to advise Mr. Largent that Fluor was sending a letter to Master-Lee regarding Complainant. Mr. Largent then called Mr. Liewer of Master-Lee and informed him that he had received a phone call from Mr. Robinson of Fluor, who had raised concern over an apparent incident involving Fluor Vice President Mr.Van Leuven.

   Of the 22 allegations related to retaliation by Master-Lee, over 8 concern this apparent incident involving the Complainant's alleged behavior towards Mr. Van Leuven in July 2001.¹ Complainant vehemently denies that any such event occurred and asserts that this "false allegation" was used to place the stop access on Complainant. Even assuming without deciding the veracity of this allegation, I note that Fluor via Mr. Robinson first contacted Master-Lee via Mr. Largent regarding the incident, and not vice-versa. There is no indication or supporting evidence that Master-Lee "fabricated" the "false allegation" and communicated it to Fluor, who alone bears the authority of issuing stop access orders. Further, there are no other allegations that would serve to tie Master-Lee to the claim of alleged blacklisting on the part of Fluor Hanford.

   Viewed in the light most favorable to Complainant, the submissions of the parties lack any evidence, much less a cognizable dispute, concerning whether Fluor Hanford significantly relied on any representation or information--- false or not---offered by Master-Lee in issuing the stop access order. The Complainant fails to establish an adverse action, much less an employment action, on the part of Master-Lee as related to his blacklisting claim.

   Accordingly, as to his blacklisting claim, Complainant has failed to raise a genuine issue of material fact as to whether Respondent Master-Lee subjected Complainant to an adverse employment action. The undisputed facts indicate that Master-Lee was not responsible, explicitly or implicitly, for the issuance and maintenance of the stop access order. As a result, because there are no genuine issues of material fact, Complainant has failed to set forth a claim upon which relief may be granted, and therefore summary decision in favor of Respondent Master-Lee is proper.

Respondent Fluor-Hanford's Motion for Summary Decision

   Respondent Fluor-Hanford argues that summary decision should be granted in its favor on several bases. Fluor first argues that Complainant's blacklisting claim should be dismissed because it fails to meet the specificity requirements of 29 C.F.R. § 24.3(c), that the alleged blacklisting should be considered a "discrete act," and as such avoid the procedural protection of the continuing violations doctrine, and further argues that Complainant has failed to cite a specific instance of blacklisting during the limitations period. Fluor also argues that Complainant has failed to establish any element of his prima facie case, and as there are no genuine issues of material fact, summary decision in its favor is proper.

   Timeliness of Complainant's Complaint

   Any complaint under the ERA shall be filed within 180 days after the occurrence of the alleged violation. 42 U.S.C. § 5851(b)(1); 29 C.F.R. § 24.3(b)(2). The time limit is in the nature of a statute of limitations and is not jurisdictional. See Sch. Dist. of City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981). Statutes of limitation run from the date an employee receives final, definitive, and unequivocal notice of an adverse employment decision. English v. Whitfield, 858 F.2d 957, 961-62 (4th Cir. 1988). Stated differently, statutes of limitation in environmental whistleblower cases begin to run on the date when facts which would support a discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his rights. Ross v. Florida Power & Light Co., 96-ERA-36, slip op. at 4 (ARB Mar. 31, 1999); McGough v. U.S. Navy, Nos. 86-ERA-18/19/20, slip op. at 9-10 (Sec'y June 30, 1988).

   The Court determined that the continuing violations doctrine could not apply to include discrete or retaliatory acts of discrimination that occurred outside the Title VII statutory limitations period.² Morgan, 122 S.Ct. at 2077. In contrast, the Court concluded that a hostile work environment claim would not be time barred "so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period." Id. The Sixth Circuit recently addressed Morgan in Sharpe v. Cureton, 319 F.3d 259 (6th Cir. 2003). Sharpe involved an employment discrimination claim brought under 42 U.S.C. § 1983, the Civil Rights Act of 1871. Id. at 260. The court found that the holding in Morgan should not be restricted only to Title VII claims and applied the holding to the § 1983 claim. Id. at 267.

   Morgan has been applied in other cases. In Ford v. Northwest Airlines, Inc., 2002-AIR-21 (ALJ Oct. 18, 2002), the Morgan rationale was applied to bar alleged discriminatory acts falling outside the limitations period, and there the complainant had not presented evidence of a hostile work environment; therefore, the continuing violations doctrine did not apply. Id. at 7. In Trechak v. Amer. Airlines, Inc., 2003-AIR-5 at 7 (ALJ Aug. 8, 2003), I likewise applied the holding in Morgan to find the complainant's action to be time-barred.

   Here, although Complainant's allegations in his Response and Pre-Hearing Statement lack specificity as to whom criticisms of handling procedures were made and when, the allegations are sufficiently specific regarding the nature of his protected activity and the relationship between this activity and the purpose of the pertinent environmental statute and implementing regulations.³ Although I note the allegations of various complaints to Fluor management are not entirely explicit, they are specific enough to move from the realm of "vague allegations of wrongdoing regarding broad imprecise matter" to establish at least a prima facie allegation of a protected activity and therefore subject matter jurisdiction over his claim. Id.; see Santamaria v. Envtl. Protection Agency, 2004-ERA-6 (ALJ Feb. 24, 2004) (finding that complainant failed to establish necessary subject matter jurisdiction due to lack of specificity). Accordingly, Complainant has established through his imperfect but adequate allegations that he engaged in a protected whistleblower activity.

       Awareness of Protected Activity

   Assuming without deciding that the stop access order constitutes an adverse action, Complainant has failed to offer any evidence indicating Fluor Hanford had knowledge of any protected activity at the time of the order's issuance. The ARB has held that although knowledge of protected activity can be shown by circumstantial evidence, that evidence must show that an employee of the respondent with authority to take the complained of action, or an employee with substantial input in that decision, had knowledge. Mosley v. Carolina Power & Light Co., 94-ERA-23 (ARB Aug. 23, 1996); Frady v. Tennessee Valley Auth., 92-ERA-19 and 34 (Sec'y Oct. 23, 1995). Here, the undisputed facts indicate that Mr. MacLeod of Fluor Hanford was responsible for the decision to issue the stop access order in December 2001. Mr. Strankman, then serving as Fluor's Manager of Support Services, agreed with Mr. MacLeod's decision. Mr. MacLeod in his deposition stated that he had no knowledge of any complaints Complainant might have made; Mr. Strankman indicated in his deposition that the only information regarding Complainant he had derived from Mr. Phalen, consisting simply of the fact that Complainant was terminated for performance deficiencies.

   Moreover, Complainant's charges to both the DOE SCO and Fluor ECP⁴ in July-August 2001 fail to state or even raise any issue of a protected activity; rather, Complainant himself had to be informed by the Fluor Hanford coordinator assigned to Complainant's case that "retaliation is an action that has the effect or perceived effect of punishing a person for engaging in legally protected activities-and that a legally protected activity is any action taken by an employee to prevent harm to the environment. This is normally through a safety, health, or environmental issue." CX 94. Complainant was also informed that his issue did not fall under any of these categories. Id. From July-August 2001, Complainant never once, in either the SCO or ECP documents, indicated that he was being "retaliated" against because he raised safety concerns.

   In addition and perhaps more importantly, the submissions of the parties do not permit any inference that Complainant's alleged protected activities had any bearing on Mr. MacLeod's decision to place Complainant on the stop access list. Rather, Complainant's post-termination conduct---including his investigation into his termination from Master-Lee---precipitated the decision to deny Complainant access to the Fluor Hanford site. Complainant himself, in various letters and in his deposition, stated that he was placed on the list because of his investigation. Complainant stated that after his termination on July 12, 2001, "I conducted my own investigation. Fluor Hanford retaliated against me by placing a stop access on me on December 3, 2001," and in his deposition, Complainant iterated this conclusion, stating that he "tried to ask questions and as a result of asking questions, I ended up getting a stop access on me. I tried to get to the root of what was going on." Complainant's Deposition at 38-40.

   Complainant makes no attempt to provide any factual evidence that Mr. MacLeod or Mr. Strankman knew, at the time the stop access order issued, of Complainant's alleged internal complaints to Fluor management. Further, Complainant's initial DOE SCO and Fluor ECP concerns fail to make any reference to a protected activity, and Complainant's EEOC complaints against Fluor Hanford---assuming any claim of whistleblowing activity could be inferred from them---were filed in 2002, well after the stop access order issued in December 2001.

   Based on the foregoing and examining the record in the light most favorable to Complainant and drawing all inferences in his favor, I find that Complainant has failed to establish that a genuine issue of material fact exists with regard to whether Respondent Fluor was aware of Complainant's alleged whistleblowing activities at the time the stop access issued. There is no evidence, either direct or circumstantial, that Fluor was aware of his protected activity while at the Fluor Hanford site. See Samodurov v. Niagra Mohawk Power Co., 89-ERA-20, at 9-10 (Sec'y Nov. 16, 1993). Because no genuine issue of material fact has been established, and Complainant has failed to establish a necessary prong of his prima facie case, Respondent Fluor Hanford is entitled to judgment as a matter of law.

       Nexus

   Even assuming arguendo that Complainant had established that Fluor was aware of his protected activities, Complainant must also raise the inference that the protected activity caused the adverse action.⁵ See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981) (Title XI II case); Cohen v. Fred Mayer, Inc., 686 F.2d 793 (9th Cir. 1982) (Title VII case); Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991). To establish a prima facie case, a complainant need produce only enough evidence to raise the inference that the motivation for the adverse action was his protected activity; not to establish motivation. Pillow v. Bechtel Constr., Inc., 87-ERA-35 (Sec'y July 19, 1993). In making a prima facie case, temporal proximity between the protected activities and the adverse action may be sufficient to establish the inference that the protected activity was the likely motivation for the adverse action. Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991); Conaway v. Valvoline Instant Oil Change, Inc., 91- SWD-4 (Sec'y Jan. 5, 1993); Abu-Hjeli v. Potomac Elect. Power Co., 89-WPC-1 (Sec'y Sept. 24, 1993). Complainant alleged that he made complaints in March-April 2001, but because his allegations are not specific enough, I cannot make a determination as to temporal proximity.

¹ Complainant has raised this issue repeatedly since at least April 2002 in prior filings with the DOE and in numerous letters to Fluor-Hanford executives and to his Congressman. See Findings of Fact and Conclusions of Law, infra.

² The earlier cases cited by Complainant of Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990) and Egenreider v. Metro Edison Co, 85-ERA-23 (Sec'y Apr. 20, 1987). are distinguishable and no help to Complainant here. In Garn, the ARB found that complainant's discovery on February 18, 1988 that he had been placed on a no access list allowed his February 22, 1988 complaint filing to be timely despite the fact that the actual placement of complainant's name on the no access list occurred outside of the applicable statute of limitations. Here, Complainant discovered his placement on Fluor's no access list no later than April 2002 when he referenced so in a letter to the DOE. The 180 days began to run on April 22, 2002 when Complainant discovered the effect of his name being on Fluor's no access list. Similarly, Egenreider is also distinguishable because in that case the ARB remanded to allow a full evidentiary hearing on the employer's actions taken against the complainant within the applicable statute of limitations. Here, there are no such actions alleged against Fluor after December 12, 2002 as, by then, Fluor had already placed Complainant's name on the no access list for his post-termination erratic behavior.

³ I note that this is the first forum in which Complainant has alleged with any sort of specificity or priority that he made complaints to Fluor management regarding safety procedures. Complainant's July 2001 filing with the DOE SCO consisted of the charge that Complainant had been retaliated against for not buying donuts in contravention of a manager's direction, and possibly for buying a house and the expensive health needs of his daughter. These same charges were repeated at the Fluor Hanford ECP level. It was not until a March 28, 2002 filing with the EEOC against Master-Lee that Complainant mentioned complaints about poor management procedural practices.

Complainant charged Fluor with discrimination based on the same reasons following the placement of the stop access and incorporated by reference his previous EEOC filing against Master Lee. This is relevant only to the inquiry as to Complainant's first two elements of the prima facie case---protected activity and respondent's knowledge of such---not to whether Complainant established the fourth element, inference of a causal relationship. See Paynes v. Gulf State Utilities Co., 1993-ERA-47, at 6-7 (ARB Aug. 31, 1999).

⁴ For reference, Complainant's July 2001 filing with the DOE SCO consisted of the charge that Complainant had been retaliated against for not buying donuts in contravention of a manager's direction, and possibly for buying a house and the expensive health needs of his daughter. These same charges were repeated at the Fluor Hanford ECP level.

⁵ I acknowledge that improper motivation must be present to constitute "adverse action," see Garn v. Toledo Edison Co., 88-ERA-21 (Sec'y May 18, 1995), but for purposes of analysis I will assume without deciding that the action of placing Complainant on the denial of site access list was adverse to Complainant.