[Note: caption was changed in Sec'y's order of Oct. 4, 1995 from Martin Marietta Energy
Systems, Inc. to Lockheed Martin Energy Systems, Inc.]
DATE: April 6, 1994
In the Matters of
CASE NO.: 94-CAA-2
C.D. VARNADORE
Complainant
v.
OAK RIDGE NATIONAL LABORATORY,
MARTIN MARIETTA CORPORATION,
and
MARTIN MARIETTA ENERGY SYSTEMS, INC.
Respondents
CASE NO.: 94-CAA-3
C.D. VARNADORE
Complainant
v.
MARTIN MARIETTA ENERGY SYSTEMS, INC.
and
MARTIN MARIETTA CORPORATION
Respondents
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
Case number 94-CAA-2 arises under the employee protection
provision of the Energy Reorganization Act of 1974, as amended,
42 U.S.C. § 5851. Case number 94-CAA-3 arises under the
Clean Air Act, 15 U.S.C. § 7622, the Toxic Substances
Control Act, 15 U.S.C. § 2622, the Safe Drinking Water Act,
42 U.S.C. § 9671, the Water Pollution Control Act, 33 U.S.C.
§ 1367, the Comprehensive Environmental Response,
Compensation and Liability Act, 24 U.S.C. § 9610, and the
Energy Reorganization Act of 1974. Both cases are governed by
the regulations promulgated under the above-referenced statutes
by the Secretary of Labor, which are found at
[PAGE 2]
29 C.F.R. Part 24.
In 94-CAA-2, C.D. Varnadore filed a complaint with the U.S.
Department of Labor (hereinafter "DOL") by letter dated June 9,
1993, alleging employment discrimination by Oak Ridge National
Laboratory, Martin Marietta Corporation, and Martin Marietta
Energy Systems, Inc. In 94-CAA-3, Mr. Varnadore filed a separate
complaint by letter dated July 29, 1993, amended August 3, 1993,
alleging retaliatory treatment by Martin Marietta Energy Systems,
Inc., and Martin Marietta Corporation.[1] After the DOL
Administrator completed the investigation of the complaints, 29
C.F.R. § 24.4, Mr. Varnadore filed a request for a hearing
on October 7, 1993, and Martin Marietta filed a request for a
hearing on October 8, 1993. § 24.4(2),(3). The cases were
consolidated for hearing because the same evidence or
substantially similar evidence would be relevant and material in
both. § 24.5(b).
Martin Marietta filed motions for summary judgment in the
above-captioned cases on February 9, 1994, asserting that there
were no genuine issues as to any material fact and that
Respondents were entitled to judgment as a matter of law. Mr.
Varnadore responded on February 25, 1994, and Martin Marietta
replied on March 9, 1994.
STATEMENT OF THE CASE
Mr. Varnadore alleged four charges of discriminatory
treatment by Martin Marietta, his employer, in 94-CAA-2. In 94-
CAA-3 he asserted a fifth charge. These charges will be
addressed seriatim, below. In its motion for summary judgment in
94-CAA-2, Martin Marietta asserted that only the first charge in
Mr. Varnadore's complaint, which concerned his performance
appraisal, could be raised in this proceeding, since Mr.
Varnadore designated only that issue in his request for hearing.
(Resp. 94-CAA-2 Br. at 5.) Martin Marietta reasoned that an
appellant who designated a specific determination in his notice
of appeal, rather than simply appealing from the entire judgment,
only raises the specified determination on appeal. (Resp. 94-
CAA-2 Br. at 5, citingWilson v. Firestone Tire &
Rubber Co., 932 F.2d 510 (6th Cir. 1991). Administrative
hearings in whistleblower cases brought under the Energy
Reorganization Act entitle a party to a hearing de novo.
Therefore, this proceeding is not an appeal, Mr. Varnadore is not
an appellant, the rule of Firestone Tire does not apply,
and all of the charges raised in Mr. Varnadore's complaint are at
issue in this action.
[PAGE 3]
Motions for summary decision in whistleblower cases are
governed by 29 C.F.R. §§ 18.40, 18.41 and under the
analogous Fed. R. Civ. P. 56(e). J. Marshall Trieber, No.
87-ERA-25 (Sec'y Sept. 9, 1993). "Summary judgment may be
rendered only when the court finds that the papers submitted in
support of and in opposition to the motion reveal that there is
no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law." Jack H. Friedenthal,
et al., Civil Procedure § 9.3, at 439 (1985)
(citing Fed. R. Civ. P. 56(c)). An issue is material if the
facts alleged are such as to constitute a legal defense or are of
such nature as to affect the result of the action. A fact is
material and precludes grant of summary judgment if proof of that
fact would have the effect of establishing or refuting one of the
essential elements of a cause of action or defense asserted by
the parties and would necessarily affect application of
appropriate principles of law to the rights and obligations of
the parties.
On summary judgment the inferences to be drawn from the
underlying facts must be viewed in the light most favorable to
the party opposing the motion. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct.
1348, 1356, (1986). However, when the moving party has carried
its burden under Fed. R. Civ. P. 56(c), its opponent must do more
than simply show that there is some metaphysical doubt as to the
material facts. Matsushita Elec., 475 U.S. at 574, 106 S.
Ct. at 1348. Thus, under the summary judgment rule, 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." J. Marshall Trieber,
No. 87-ERA-25 (Sec'y Sept. 9, 1993),(quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986));
Matsushita Elec., 475 U.S. at 587, 106 S. Ct. at 1356.
The purpose of summary judgment is to pierce the pleadings
and assess the proof, in order to see whether there is a genuine
need for a trial. Matsushita Elec., 475 U.S. at 587, 106
S. Ct. at 1356. Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party, there is no genuine issue for trial. Id. at 587.
The record before me, which includes the pleadings, motions,
and memoranda submitted by the parties, along with accompanying
affidavits, reports, correspondence, the Recommended Decision and
Order in 92-CAA-2, 92-CAA-5, and 93-CAA-1, and Mr. Varnadore's
deposition, 29 C.F.R. § 18.40(d); Fed. R. Civ. P. 56(c),
indicates as follows: In 1974, Union Carbide Corporation hired
[PAGE 4]
Mr. Varnadore as a technician at the government-owned Oak Ridge,
Tennessee facilities. (Resp. Br. 94-CAA-3 at 5.) In April 1984,
Martin Marietta took control of the Oak Ridge facilities from
Union Carbide, and Mr. Varnadore became Martin Marietta's
employee. (See id. at 5; Blanton Affidavit.) In 1985,
Mr. Varnadore transferred to a technician's job in the Analytical
Chemistry Division at the Oak Ridge National Laboratory, and he
worked in that position until 1993. (Resp. Br. 94-CAA-3 at 5.)
On November 20, 1991, Mr. Varnadore filed a whistleblower
complaint against Martin Marietta; on February 29, 1992, a
supplemental complaint; and on September 4, 1992, a third
complaint. (RD&O at 3.) Administrative Law Judge Theodor Von
Brand heard these three complaints, 92-CAA-2, 92-CAA-5, and 93-
CAA-1, on July 6-30, 1992, and December 16, 1992. (RD&O at 3.)
On June 7, 1993, he issued a Recommended Decision and Order
finding in favor of Mr. Varnadore. (See RD&O at 76-77,
83-84.) Thus, having been previously decided, these complaints
are not at issue in this proceeding.
94-CAA-2 CHARGE ONE:
PERFORMANCE APPRAISAL
In his complaint in 94-CAA-2, Mr. Varnadore charged that in
retaliation for his previous whistleblower actions (92-CAA-2, 92-
CAA-5, and 93-CAA-1), Martin Marietta gave him a poor performance
appraisal for the fiscal year October 1, 1991, to September 30,
1992. (Cl. June 9, 1991 Letter at 2.) The evidence contained in
the record is as follows:
On January 19, 1993, while Mr. Varnadore was still working
in the Analytical Chemistry Division, Mr. S.D. Wright prepared
Mr. Varnadore's Annual Performance Review for the period of
October 1, 1991, to September 30, 1992. (Wright Affidavit at 1,
3; Shults Affidavit at 2.) Mr. Wright was the Administrative
Assistant to the Director of the Analytical Chemistry Division,
and as such was Mr. Varnadore's immediate supervisor. (Wright
Affidavit at 1.) In the section labeled Primary Performance
Factors, Mr. Wright noted that Mr. Varnadore "is below job
expectations" for seven of the eleven listed factors; "meets job
expectations" for one factor; and was in between these ratings
for one other factor. (Performance Review at 5.) For the two
remaining factors -- Environment, Safety, and Health and Ethics -
- Mr. Wright left the boxes blank, despite the printed
instructions that the factors "apply to all employees and must be
evaluated for each individual." (Id. at 5.) Mr. Wright
did not give Mr. Varnadore a rating of "consistently exceeds job
[PAGE 5]
expectations," the highest rating, for any of the eleven factors.
In the section labeled Significant Accomplishments, Mr.
Wright reported Mr. Varnadore's progress on his Measures of
Performance ("MOPS"), as follows: Mr. Varnadore failed TRU Waste
Generator Training, failed Satellite Accumulation Area Training,
and had not completed the 90 Day Accumulation Area Training.
(Annual Performance Review at 4.) Mr. Wright further noted that
Mr. Varnadore did not clean out storage areas and did not aid
personnel with waste disposal. (Id. at 4.) Nevertheless,
he reported that Mr. Varnadore had completed inventory of 2C-
Series locks, had completed facilitation of tool stores
inventory, and had been delayed in other tasks due to factors
that apparently were not within his control. (See id. at
4.)
In the section labeled performance summary, Mr. Wright
concluded that Mr. Varnadore
[s]till needs to improve attitude toward his employment
and support company goals and values by setting
positive examples through his work habits and
initiative. He has shown little interest in or
commitment to his job this year. He has accomplished
two simple tasks. He has not progressed satisfactorily
on assigned MOPS.
(Id. at 7.)
Mr. Wright recommended that Mr. Varnadore receive a "Needs
Improvement" Overall Performance Rating. (Wright Affidavit at
3.) Dr. W.D. Shults, the Director of the Analytical Chemistry
Division, concurred with the recommendation. (Shults Affidavit
at 1-2.) However, Martin Marietta's higher echelon, including
the Deputy Laboratory Director, the Director of Human Resources,
and Martin Marietta Counsel, overrode the recommendation and gave
Mr. Varnadore an "Extended Absence" rating.[2] (Wright
Affidavit at 3; Shults Affidavit at 3.) This entitled Mr.
Varnadore to the same salary increase that an employee would
receive if given a "Consistently Meets" rating. (Wright
Affidavit at 3; Shults Affidavit at 3.) Consequently, Martin
Marietta increased Mr. Varnadore's salary by 3.7%, which became
effective on March 1, 1993. (Shults Affidavit at 3.)
In its brief, Martin Marietta asserted that the performance
evaluation did not constitute an adverse employment action, and
in the alternative that it was not discriminatory or in
retaliation for Mr. Varnadore's prior acts of protected activity.
[PAGE 6]
(Resp. 94-CAA-2 Br. at 5.) An adverse employment action is an
act by an employer that negatively impacts upon an employee's
compensation, terms, conditions, or privileges of employment.
See 29 C.F.R. § 24.2(a). A reasonable trier of fact
may infer from the record that a personnel record stating that
the employee's performance is below job expectations in Job
Knowledge, Initiative, Performance Improvement, Interpersonal
Skills, Attitude, Attendance, and Energy Systems Values, (Annual
Performance Appraisal at 5), may stigmatize or impede that
employee's career growth within the organization. (See
e.g. Blanton 2nd Affidavit at 2.) Therefore, a reasonable
trier of fact may find that the performance appraisal was an
adverse employment action.
Furthermore, in 92-CAA-2, 92-CAA-5, and 93-CAA-1, Judge Von
Brand found that the 1991 and 1992 performance appraisals of Mr.
Varnadore, also recommended by Mr. Wright and approved by Dr.
Shults, were influenced by illegal animus and hostility and in
retaliation for Mr. Varnadore's whistleblower complaints. (RD&O
at 67, n. 40.) The fact that Mr. Varnadore is being rated by the
same two supervisors who were found to have previously
discriminated against him, coupled with their choice not to rate
Mr. Varnadore for Environment, Safety, and Health, or for Ethics,
factors that may encompass Mr. Varnadore's whistleblower
complaints and could have weighed favorably for him, as well a
notation by Mr. Wright that Mr. Varnadore had a "Negative
attitude," (Annual Performance Appraisal at 5), could lead a
reasonable trier of fact to conclude that Martin Marietta
managers have again used a performance appraisal to retaliate
against Mr. Varnadore. Therefore, in view of the evidence before
me on this issue, I find there is a genuine dispute of material
fact as to whether the performance appraisal was retaliatory.
Consequently, the answer to this question and the credibility of
the witnesses involved will have to be established at an
evidentiary hearing. Accordingly, Martin Marietta's request for
summary decision on the first charge in 94-CAA-2 is DENIED.
94-CAA-2 CHARGE TWO:
DR. SHULTS' STATEMENT
In his complaint Mr. Varnadore charged that Dr. Shults
commented in a meeting that the Administrative Law Judge would be
issuing a decision in the earlier whistleblower actions (92-CAA-
2, 92-CAA-5, and 93-CAA-1) and that shortly thereafter everything
would be over. (Cl. June 19, 1993 Letter at 4.) Mr. Varnadore
contends that the import of this statement was to blacklist or
[PAGE 7]
isolate him. (Id. at 4.) The evidence contained in the
record is as follows:
On April 28, 1993, Dr. Shults held a quarterly meeting of
employees in the Analytical Chemistry Division. (Shults
Affidavit at 3.) After announcing several topics of general
interest to the employees present, Dr. Shults opened the floor to
questions, as was his custom. (Id. at 4. See
Shults Notes.) When an employee asked about the status of the
Varnadore case, Dr. Shults stated that briefs had been submitted
and that a decision was expected in approximately a month.
(Shults Affidavit at 4.) Mr. Varnadore did not attend the
meeting and did not personally hear Dr. Shults' remarks, since
the meeting was held after he transferred from the Analytical
Chemistry Division. (Varnadore Depo. at 36-38.) However, Perry
Gouge relayed the remarks to Mr. Varnadore. (Varnadore Depo. at
36-37.) Dr. Shults denies having made the comments in a mocking
or condescending tone. (Shults Deposition at 4.)
In order to have an actionable claim under the employee
protection provisions, a complainant must show that the employer
discharged or otherwise discriminated against the employee with
respect to compensation, terms, conditions, or privileges of
employment. 29 C.F.R. §24.2(a). In its brief, Martin
Marietta asserted that Dr. Shults' statement was neutral and non-
discriminatory and did not constitute an adverse employment
action. (Resp. 94-CAA-2 Br. at 5.) The undisputed facts support
Martin Marietta's assertion. Mr. Varnadore was not working in
Dr. Shults' division and did not attend the meeting. Further,
nothing in the statement suggests that the remarks impacted upon
or in any matter affected Mr. Varnadore's employment status or
work environment. Therefore, I find that the record taken as a
whole could not lead a rational trier of fact to find for Mr.
Varnadore on this issue. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356
(1986). Accordingly, with respect to the second charge in 94-
CAA-2, Martin Marietta's motion for summary judgment is GRANTED.
94-CAA-2 CHARGE THREE:
3.7% SALARY INCREASE OVER FIVE YEARS
In his complaint Mr. Varnadore charged that in the past five
years he has received only one salary increase, of 3.7%, as a
result of discrimination; that he is currently in a level 9 job
position being compensated at a low level 8 rate of pay; and that
he is receiving considerably less pay than he would but for the
[PAGE 8]
discrimination. (Cl. June 19, 1993 Letter at 4.) He asks for
full back-pay for the five years. (Id. at 4.) The
evidence contained in the record is as follows:
In August 1992, while the cases before Judge Von Brand were
pending, Martin Marietta began searching for a different work
assignment for Mr. Varnadore. (Stiegler Affidavit at 1; Shults
Affidavit at 1-2; Shults Memo.) On January 26, 1993, Martin
Marietta offered Mr. Varnadore a position in the Engineering
Technology Division coordinating shop fabrication, which he
accepted. (Stiegler Affidavit at 1.) At the time of his
transfer, Dr. J.O. Stiegler, an Associate Director, told Mr.
Varnadore that the new position provided opportunity for
promotion and growth from level 60 to level 61. (Varnadore
Deposition at 49-50; Stiegler Affidavit at 2.) Mr. Varnadore
transferred into the Engineering Technology Division on February
3, 1993. (Stiegler Affidavit at 2.)
On March 1, 1993, Mr. Varnadore received a 3.7% merit
increase. He had not received any salary increases in the forty-
eight months prior to that time. (Notice of Change in Status.)
On August 20, 1993, approximately one half year after
transferring into the Engineering Technology Division, Mr.
Varnadore wrote a memorandum to Mr. Stiegler. (Varnadore Memo.)
He wrote, "since transferring to ETD [Engineering Technology
Division] I have been very fortunate to have had the help and
support of everyone I have come in contact with," and he listed
six Martin Marietta employees, one of whom was his immediate
supervisor, who he described as having been extremely
knowledgeable and supportive. (Id.)
Mr. Varnadore's charge encompasses two time periods:
occurrences that were at issue in cases 92-CAA-2, 92-CAA-5, and
93-CAA-1, and issues concerning occurrences thereafter.
Jurisdiction in this case can only be for those occurrences that
were outside of the purview of the earlier cases. In 92-CAA-2,
92-CAA-5, and 93-CAA-1, Judge Von Brand considered Mr.
Varnadore's prior performance appraisals, (RD&O at 22-27, 60 n.
40), and found that he had "lost neither salary nor benefits as a
result of Respondent's illegal activities." (RD&O at 79.)
Therefore, the issue of whether Martin Marietta discriminated
against Mr. Varnadore through salary increases, or lack thereof,
is res judicata for the time periods encompassed in Judge Von
Brand's decision. Consequently, I will not re-decide that issue,
and Martin Marietta is entitled to judgment as a matter of law.
Accordingly, Martin Marietta's request for summary judgment is
GRANTED for that portion of Mr. Varnadore's complaint that
[PAGE 9]
addresses his compensation or the absence of raises before
October 1, 1991.
Concerning the performance appraisal resulting in Mr.
Varnadore's 3.7% salary increase, the record reflects that Mr.
Wright did not show the Annual Performance Review to Mr.
Varnadore until January 19, 1993, (Wright Affidavit at 1, 3),
which was after the hearing before Judge Von Brand. Therefore,
Mr. Varnadore did not have the opportunity to be heard on whether
Martin Marietta retaliated vis-a-vis his merit increase for
that year. Accordingly, the portion of the complaint dealing
with Mr. Varnadore's salary increase for the period from October
1, 1991, to September 30, 1992, remains in issue.
As discussed earlier, a reasonable trier of fact may find
that Mr. Wright and Dr. Shults retaliated against Mr. Varnadore
in their appraisal of him. Further, since Martin Marietta based
the 3.7% salary increase on the performance appraisal rating of
"Extended Absence," (Shull Affidavit at 2), it is also reasonable
to infer that a more favorable performance appraisal would have
resulted in a better rating, which in turn may have provided Mr.
Varnadore a higher salary increase. Accordingly, Martin Marietta
is not entitled to judgment on this issue as a matter of law, and
its request for summary decision of this portion of the third
charge in 94-CAA-2 is DENIED.
94-CAA-2 CHARGE FOUR:
MARTIN MARIETTA'S PRESS STATEMENT
In his complaint, Mr. Varnadore charged that Martin Marietta
continued in a pattern of retaliation by releasing a callous and
remorseless statement to the news media calling the award from
the earlier whistleblower actions (92-CAA-2, 92-CAA-5, and 93-
CAA-1) "modest." (Cl. June 19, 1993 Letter at 5.) The evidence
contained in the record is as follows:
Immediately after Judge Von Brand issued his Recommended
Decision and Order in the 92-CAA-1, 92-CAA-5, and 93-CAA-1 cases,
Martin Marietta released a statement to the press, which the
Knoxville News-Sentinel quoted on page one, as follows:
While the recommended award is modest, we disagree with
any conclusion that Martin Marietta Energy Systems
retaliated against Mr. Varnadore. It is our intent to
address this issue with the Secretary of Labor, who has
the responsibility for issuing a final order that can
accept, reject or modify the recommendation by the
[PAGE 10]
Administrative Law Judge.
(Complaint June 9, 1993 at 5, n. 3; Martin Marietta August 10,
1993 Letter at 7.)
In its brief, Martin Marietta asserted that its
characterization of the $30,000 award as being "modest" was
neither discriminatory nor an adverse employment action,
especially in light of the fact that Mr. Varnadore sought over
eleven million dollars in damages. (Resp. 94-CAA-2 Br. at 6,
23.) The undisputed facts support Martin Marietta's assertion.
As discussed earlier, to have an actionable claim under the
employee protection provisions, a complainant must show that the
employer discharged or otherwise discriminated against the
employee with respect to compensation, terms, conditions, or
privileges of employment. 29 C.F.R. §24.2(a). Nothing in
the record suggests that Martin Marietta's press release impacted
in any matter upon Mr. Varnadore's employment. Further, I can
find no precedent to support the contention that "callous and
remorseless" language, (Cl. June 9, 1993 Letter at 5), amounts to
an adverse employment action. Martin Marietta's press release
was not physically threatening, humiliating, or even an offensive
utterance. Further, it did not interfere with Mr. Varnadore's
work performance. Therefore, the statement did not create a
hostile or abusive work environment. Harris v. Forklift Sys.,
Inc., ___ U.S. ___, 114 S. Ct. 367, 371 (1993). Moreover,
there is no evidence that the statement reflects a pattern of
improper actions.
Mr. Varnadore has stated that he personally has spoken to
the media numerous times and has been quoted in "several hundred
articles." (Varnadore Depo. 30-32.) I find that the record
taken as a whole could not lead a rational trier of fact to find
for Mr. Varnadore on this charge. Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.
Ct. 1348, 1356 (1986). Therefore, with respect to the fourth
charge in 94-CAA-2, Martin Marietta is entitled to judgment as a
matter of law, and its request for summary judgment is GRANTED.
94-CAA-3
STATEMENTS OF LABOR RELATIONS SPECIALIST
AT MANAGEMENT TRAINING CLASS
In his complaint in 94-CAA-3, Mr. Varnadore charged that he
was subjected to a hostile work environment when a Martin
Marietta labor representative told an employee in a class on
[PAGE 11]
basic supervision that "someone should get a gun" and "take (Mr.
Varnadore) out and shoot him" and that Mr. Varnadore is not now,
never has been, and never will be "worth a damn." (Cl. July 29,
1993 Letter at 1-2.) The evidence contained in the record is as
follows:
In February and March, 1993, Martin Marietta held a two-week
training class. (Mincey Affidavit at 1; Levenhagen Affidavit at
1.) Approximately ten to fifteen people attended, and each held
the position of Captain or above in the company's security force.
(Levenhagen Affidavit at 1.) Charles Levenhagen, a Martin
Marietta Labor Relations Specialist at the Y-12 Plant since 1986,
was a guest speaker at the class. (Levenhagen Affidavit at 1;
McClure DOL Statement at 1-2.) Mr. Varnadore did not attend the
class, and had had no personal contact with Mr. Levenhagen.
(See Varnadore Depo. at 8; Levenhagen Affidavit at 1.)
However, Mr. Levenhagen had heard of Mr. Varnadore's
whistleblower case through the press and on television.
(Levenhagen Affidavit at 1.)
Joe Mincey, a Captain in the Security Patrol Department,
attended the class. (Mincey Affidavit at 1.) He stated that on
March 4, 1993, during a break, he had a conversation with Mr.
Levenhagen, wherein Mr. Levenhagen said that Mr. Varnadore "isn't
worth a damn, never has been, never will be, and they ought to
take a gun and shoot him."[3] (Mincey Affidavit at 1.) Capt.
Mincey did not report the remark to Martin Marietta management,
but on July 12, 1993, he relayed the conversation to one of Mr.
Varnadore's attorneys, who in turn reported the incident to the
media. (Varnadore Depo. at 8-9, 12-13; Mincey Affidavit at 1;
Cl. Aug. 3, 1993 Letter at 1.) Mr. Varnadore had not heard this
remark prior to that time and had no knowledge of others who may
have heard it from sources other than the publicity given this
case in the press. (See Varnadore Deposition at 8, 17-
20.)
Donald Blanton is the Director of Human Resources at the Y-
12 Plant, and his duties include supervision of the Y-12 Labor
Relations Department, where Mr. Levenhagen works. (Blanton 1st
Affidavit.) Mr. Blanton did not become aware of the remark
attributed to Mr. Levenhagen until the press publicized Mr.
Varnadore's July 29, 1993 complaint. (Blanton 1st Affidavit.)
Thereafter, Mr. Blanton reviewed the matter, and on August 19,
1993, he counseled Mr. Levenhagen, informing him that such a
remark would be inappropriate and an indication of poor judgment.
(Blanton 2nd Affidavit at 1.) Mr. Levenhagen's personnel records
reflect no prior disciplinary actions taken against him by Martin
Marietta or Union Carbide. (Id. at 2.)
[PAGE 12]
In the area of civil rights employment discrimination law,
which the Secretary of Labor has found to be analogous to federal
whistleblower retaliation actions, Dean Dartey, No. 82-
ERA-21, at 6-9 (Sec'y Apr. 25, 1983), the United States Supreme
Court has held that "[c]onduct that is not severe or pervasive
enough to create an objectively hostile or abusive work
environment--an environment that a reasonable person would find
hostile or abusive--is beyond Title VII's purview." Harris v.
Forklift Sys., Inc., ___ U.S. ___, 114 S. Ct. 367, 370
(1993). An objectively hostile or abusive work environment
occurs when the workplace is permeated with discriminatory
intimidation, ridicule, and insult and is sufficiently severe or
pervasive so as to alter the conditions of the victim's
employment. Harris v. Forklift Sys., Inc., 114 S. Ct. at
370. Such conduct by other employees, if propagated, sanctioned
or condoned by management, would evidence an adverse employment
action, because it would show that the employer discriminated
against the employee with respect to conditions or privileges of
employment. See 29 C.F.R. § 24.2(a). The Supreme
Court has found that the mere utterance of an epithet that
engenders offensive feelings in an employee does not of itself
sufficiently affect the conditions of employment. Harris v.
Forklift Sys., Inc., 114 S. Ct. at 370.
Capt. Mincey states that the comment was made to him during
a class break and not to the class as a whole. (Mincey Affidavit
at 1.) The only person close enough to overhear the remark, Ray
McClure, a Fire and Guard Captain, states that he saw Mr.
Levenhagen and Capt. Mincey have a conversation but that he does
"not recall anything being said in reference to Bud Varnadore."
(McClure DOL Statement at 2.) Mr. Varnadore has not met Capt.
Mincey, Capt. McClure, or Mr. Levenhagen, (Varnadore Depo. at 8,
11, 14), and does not come in contact with them in his work.
Assuming for purposes of summary judgment that Mr. Levenhagen
made the remark, I find no evidence that the remark would have
impacted upon Mr. Varnadore's work environment or affected the
terms and conditions of his employment, especially in light of
the geographical separation between Mr. Varnadore and Mr.
Levenhagen. Further, the comment was not of the severity
required to create an objectively hostile or abusive work
environment. Consequently, I find that the comment, even if
made, did not create or evidence a hostile work environment.
Therefore, on this issue I GRANT Martin Marietta's motion for
summary judgment.
IT IS SO ORDERED.
____________________________
DAVID A. CLARKE, JR.
Administrative Law Judge
Washington, D.C.
DAC/cal
[ENDNOTES]
[1] Martin Marietta Energy Systems, Inc., contracts with the
United States Department of Energy to operate three government-
owned facilities in Oak Ridge, Tennessee. The facilities consist
of the Oak Ridge National Laboratory, the Y-12 Plant, and the K-
25 Site. Martin Marietta Corporation is its parent company. For
convenience, these entities are hereinafter referred to,
individually or jointly as "Martin Marietta."
[2] Under Attendance, Mr. Wright noted that Mr. Varnadore had
been absent thirty-three days during the year, excluding absences
related to his earlier whistleblower litigation. (Annual
Performance Review at 5.) The report notes that the average
employee absence was seven days. (Id. at 5.)
[3] Mr. Levenhagen states he did not know Capt. Mincey and did
not recall speaking to Capt. Mincey. (Levenhagen Affidavit at 1-
2.) He acknowledges that it is possible he may have had a
conversation with Capt. Mincey during a break; he categorically
denies making the statement attributed to him; and he asserts
"[a]nything I might have said about Mr. Varnadore, even of a
derogatory nature, would have been said in a clearly facetious,
joking way." (Id. at 1-2.) For purposes of the summary
judgment motion, I need not made a credibility determination on
this issue.
