[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 ISSUED: Oct. 17, 1994
C.D. VARNADORE,
Complainant
v.
Case No.: 94-CAA-2
MARTIN MARIETTA ENERGY SYSTEMS, INC.,
MARTIN MARIETTA CORPORATION,
OAK RIDGE NATIONAL LABORATORY,
Respondents
Appearances:
Edward A. Slavin, Jr., Esq.
For Complainant
E.P. Rayson, Esq.
Patricia L. McNutt, Esq.
For Respondents
RECOMMENDED DECISION AND ORDER
This case arises under the employee protection provisions
of the Energy Reorganization Act of 1974, as amended, 42 U.S.C.
§5851. It is governed by the regulations promulgated by the
Secretary of Labor, which are found at 20 C.F.R. Part 24.
This case is a continuation of litigation between the parties
in 92-CAA-2, 92-CAA-5 and 93-CAA-1, currently pending before the
Secretary of Labor for final decision. Judge Von Brand decided in
those cases that Respondents had retaliated against complainant as
a result of his whistleblower activities. The parties did not
relitigate in this case the issues and evidence presented to Judge
[PAGE 2]
Von Brand, and I rely on Judge Von Brand's determinations to decide
the limited issues before me.
A hearing was held in Knoxville, Tennessee on May 17 & 18,
1994. The parties were present and represented by counsel. This
Decision and Order is based on the record and the post-hearing
briefs submitted by the parties.
Statement of the Case
Mr. C.D. Varnadore, Complainant, 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. (MMES).
Mr. Varnadore is an employee of Martin Marietta Energy
Systems, Inc. at Oak Ridge, Tennessee. MMES is a corporation that
manages three government-owned facilities at Oak Ridge under a
contract with the U.S. Department of Energy (DOE). The three
facilities are the Oak Ridge K-25 site (K-25), the Oak Ridge Y-12
plant (Y-12) and the Oak Ridge National Laboratory (ORNL). Martin
Marietta Corporation (MMC) is the parent corporation of Martin
Marietta Technologies, Inc. (MMT) which is the parent corporation
of MMES.
Mr. Varnadore's complaint contained four allegations: 1) that
his performance appraisal for fiscal year 1992 (October 1, 1991
through September 30, 1992) contains comments and/or omissions that
discriminate against him; 2) that in May 1993, the division
director of the Analytical Chemistry Division (ACD), W.D. Shults,
Ph.D., discriminated against him by commenting at a
meeting of ACD employees "that the Administrative Law Judge's
decision [in 92-CAA-2, 92-CAA-5 and 93-CAA-1] was due any day, and
that after the ALJ's decision was received, paperwork would be
completed within thirty days and everything regarding this case
would be over;" 3) that his salary is not commensurate with the
level of his job, that he had only received a 3.7% raise over the
last 5 years of his employment, that wages at MMES are now "frozen"
and that he is due "back pay" for the 5 year period; and 4) that an
MMES statement to the news media following the issuance of the
Administrative Law Judge's recommended decision and order (RD&O) in
92-CAA-2, 92-CAA-5 and 93-CAA-1 was "retaliatory and condescending"
because it characterized the award as "modest". 1/
[PAGE 3]
Respondents filed an answer to the complaint and subsequently
sought summary judgment in this and a related case, number 94-CAA3.
_______________________________
1/ Case numbers 92-CAA-2, 92-CAA-5 and 93-CAA-1
(hereinafter "Varnadore 1") were litigated before Judge Theodore P.
Von Brand, who issued a recommended decision and order on June 7,
1993.
An Order Granting Partial Summary Judgment issued on April 6,
1994. In that Order, I determined that as to count 1, a genuine
dispute of material fact existed as to whether Complainant's fiscal
year 1992 performance appraisal was retaliatory; that as to count
2, Dr. Shults' statement was neutral, nondiscriminatory, and did
not constitute an adverse employment action, accordingly summary
judgment was granted on this count. Summary judgment was also
granted as to that portion of count 3 that was before Judge Von
Brand in Varnadore 1. Mr. Varnadore's salary increases, or
lack thereof, since October 1, 1991 remained in issue. As to count
4, it was determined that MMES's press release was not threatening,
humiliating or an offensive utterance and did not impact negatively
on Complainant's employment. Accordingly, summary judgment was
granted on count 4. 2/
_______________________________
2/ Summary judgment was also granted in case number 94-
CAA-3 as to a statement allegedly uttered by Charles Levenhagan, a
MMES labor relations specialist at the Y-12 plant. It was alleged
by Joe Mincey, a Captain in the Security Patrol Department that Mr.
Levenhagan remarked, during a training session recess, that someone
should get a gun and take Complainant out and shoot him.
Dispite the granting of summary judgment, Mr. Salvin was
permitted to present evidence on this issue at the hearing on May
17 and 18, 1994. Mr. Levenhagan denied having made the statement
and stated further that Mr. Mincey's motive for making the
allegation could have been Mr. Levenhagan's prior involvement in a
company investigation of Mr. Mincey's wife for stealing, Mrs.
Mincey was employed by MMES, and her subsequent discharge from
[PAGE 4]
employment and Mr. Mincey's job demotion. (T. 347-354)
Having observed Mr. Levenhagan and Mr. Mincey testify and
having considered their testimony, I credit Mr. Levenhagan's
testimony over that of Mr. Mincey and reaffirm the granting of
summary judgment on this issue.
Issues
The issues remaining for determination are:
1. Did Respondents give Complainant a discriminatory performance
appraisal for fiscal year 1992?
2. Did Respondents discriminate against Complainant by giving him
a 3.7% salary increase in 1993?
Findings of Fact and Conclusions of Law
Complainant was hired in 1974 by Union Carbide Corporation
as a technician at the Oak Ridge, Tennessee facilities. In April,
1984, MMES took control of the Oak Ridge facilities from Union
Carbide and Complainant became a MMES employee.
Complainant, faced with a job lay-off in 1985, sought
employment elsewhere in MMES. He was hired in the Analytical
Chemistry Division (ACD) of the Oak Ridge National Laboratory
(ORNL) by Dr. Wilbur D. Shults, the division director.
Unfortunately, due to partial blindness and a resulting lack of
depth perception, Complainant was unable to perform adequately in
the job for which he was hired. What transpired thereafter is
detailed in Judge Von Brand's Recommended Decision and Order in
Varnadore 1, and need not be repeated herein. Suffice it to
say that Judge Von Brand found that Respondents had retaliated
against Complainant for his whistleblowing activities. A vestige
of that retaliation continued into fiscal year 1992, while
Complainant was still assigned to an office containing mercury and
other chemicals.
On October 1, 1991, Complainant was working under the
[PAGE 5]
supervision of Mr. Steven D. Wright and was assigned to Room E-259,
a disposition center for mercury and a temporary collection cite
for solid and hazardous waste. He remained in this room until
early December, 1991, when he was moved to a chemical free office.
(T. 255-256)
As was customary for all employees, Mr. Wright established
work objectives for Complainant to accomplish during fiscal year
1992. These objectives were called measures of performance (MOPS)
and were formulated in consultation with Complainant.
Complainant's MOPS were as follows:
1. Become certified as Generator Certification Official.
2. Work with ACD Supervisors in order to clean out and organize
attic storage cages as well as Building 7041.
3. Continue to provide waste disposal service to ACD labs in 4500N
and 4500S by acting as liaison between personnel and HWOG.
4. Work with Jim Botts and Darrell Wright to initiate Bar coding
of chemical inventory of Bld. 2026.
5. Inventory ACD 2C-Series locks at all ACD facilities.
(Respondent's Exhibit 1A, page 3.) Mr. Varnadore's MOPS were
amended by Mr. Wright's memorandum, dated May 14, 1992, which
became a part of his performance appraisal. (See
Respondents' Exhibit 1A.) In addition, Mr. Wright made it clear to
complainant that he should seek out other jobs to do within his
work area; that the MOPS were only a guide. (T. 213-214)
In order to complete the MOPS, Complainant had to exhibit a
degree of initiative and interact with other employees and
supervisors. Complainant, however, was nervous around some of the
other employees as a result of the Varnadore 1 litigation.
(T. 300) He tended to stay in his office as much as possible, to
keep down what he perceived as ill-will toward him by other
employees. (T. 321) He did not volunteer for jobs. (T. 320) He
was under treatment by a doctor and a psychiatrist and had major
sleep
[PAGE 6]
disorders. While he had experienced problems in his personal life,
he was depressed and angry at the way he had been treated at MMES
for the last eight to nine years. (T. 259)
It was obvious from Complainant's testimony and that of other
witnesses that he was angry, depressed and trying to maintain a low
profile at work by staying in his office as much as possible and
avoiding contact with other employees. Complainant's job
dissatisfaction came to the surface when he took business papers to
Ms. MacDougall, an employee in Analytical Services in ACD. She
described the occurrence as an encounter during which Complainant
made derogatory remarks about ACD and Mr. Wright; which she
immediately reported to Mr. Wright. (T. 361-363)
In the fall of 1992, Mr. Wright met with Complainant to
discuss preparation of Complainant's annual performance
appraisal. (T. 208) He provided Complainant with a form on
which Complainant could list his accomplishments and activities
during the preceding year and offer his input into the appraisal
process. Complainant returned this form in blank to Mr. Wright
because he believed that employee imput had little influence in the
appraisal process. (T. 209) It seems that Complainant was right
because Mr. Wright testified that employee input is rarely
considered in the appraisal process. (T. 223)
In the appraisal, Mr. Wright wrote, regarding the MOPS, that
Complainant had failed to become certified as a generator official;
failed transuranic waste generator training; failed satellite
accumulation area training 3/; failed to clear-out and
organize attic storage cages; did not complete 90 day accumulation
area training; and failed to take any action to help division
personnel with waste disposal. (T. 210-212)
Mr. Wright credited Complainant with completing low level
generator training, inventorying 2C series locks at all ACD
facilities, and facilitating a tool storage inventory. (T 210-212)
Mr. Wright did not rate Complainant in the categories of ethics
4/ or environment, safety and health. 5/ He rated
Complainant's work quality as average, job knowledge as below
average, initiative as below average, performance improvement as
below average, interpersonal skills as below average, productivity
as average to below average, attitude as below average, attendance
as below average, and energy systems values as below average.
(Res. Exh. 1-A) Mr. Wright recommended that Complainant receive a
needs
[PAGE 7]
improvement rating (NI) and no salary increase.
_______________________________
3/ Complainant retook and passed satellite accumulation
area training after September 30, 1992 and was credited with
passage by Mr. Wright.
4/ Complies with Martin Marietta's code of ethics and
standards of conduct.
5/ Actively practices and promotes safe work practices
in support of company ES&H policies. Mr. Wright testified that he
didn't think he had a basis to rate complainant in these two areas.
(T. 197) Assistant ORNL director B. R. Appleton didn't think it
was unusual to not rate an employee on all areas specified on the
appraisal form. (T. 428-429) That view was shared by Murray W.
Rosenthal, a former Deputy Director at ORNL. (T. 408) I accept
their testimony and find that it was not unusual to omit ratings in
appraisal categories and that the omissions complained of in this
case were not discriminatory.
The appraisal and Mr. Wright's recommendations were forwarded
to Dr. Schults, who concurred. The appraisal was then forwarded to
senior management where it was decided that Mr. Varnadore should be
given an extended absence (EA) rating, due to the 33 days that he
was absent from work during the rating period. (T. 153) Mr.
Varnadore received a 3.7 percent raise as a result of the EA
rating.
Mr. Varnadore's whistleblowing and the resulting litigation in
Varnadore 1 and the investigations and studies of ACD that
followed were described as devastating to the division. Mr. Wright
recognized that Varnadore 1 litigation had had a devastating
effect on ACD, but testified that he had rated Complainant on the
basis of performance alone; that he tried to be objective. (T.
202-204) Dr. Shults supported Mr. Wright in this regard,
testifying that his goal is to assure fairness in employee
performance appraisals across the division; that he tried to
oversee a fair appraisal of Complainant, based on Complainant's
objective activities. (T. 135-139)
Complainant, on the other hand, testified that the appaisal
was derogatory and inaccurate and that he had performed his job
duties. (T. 237-238, 320) As to why he failed training courses,
he stated that a majority of the students in the training classes
were already in those jobs (7.241); that he did not have a chemical
[PAGE 8]
background and was unfamiliar with many of the terms and chemicals
identified on the exams (T. 242); that some of the students opened
their books during the exams (T. 242); that on one exam he thought
he had used an incorrect answer sheet; that he felt it was unfair
to expect him to train for waste generation certification when he
had no background in chemistry. (T. 250)
He further testified that he did not clean waste storage areas
in ACD because he "was not contacted by any of the people to ask
for any assistance in it." (T. 245) He stated that he did not
take action to help ACD personnel with waste disposal because he
"was rather cautious to approach most ACD personnel." (T. 245) He
stated that he waited for them to come to him; that he did not
volunteer for jobs. (T. 246; 320) He further stated that he had
not cleaned the storage areas because no one had marked the items
to be removed. (T. 246-247) He further testified that he was
hampered in completing assignments by Mr. Wright's failure to send
memos to supervisors requesting their cooperation; and that he did
demonstrate job initiative by trying to get waste generator
certification. (T. 325-329) He also testified that he did not
have much contact with Mr. Wright during the appraisal period. Mr.
Wright testified to limited contact with complainant, but explained
that greater contact was not necessary for completion of
assignments. (T. 329, 206)
I do not accept Complainant's reasons for failing the
training exams. His contention that he used the wrong answer sheet
was contradicted by Mr. D. Allen White, who is responsible for the
administrating of training programs and examinations, and by the
exams themselves. (T. 446; Resp. Exh. 8) Mr. Allen testified that
there were no separate answer sheets; that the answers were written
on the exams. Also, the fact that other students were already
working in the jobs for which certification was sought or that some
students used open books during the exams have not been shown to
have had an adverse impact on Complainant, who simply did not
correctly answer a sufficient number of questions to pass the
exams.
Based on the testimony of witness and the record before me, I
believe that Complainant's performance appraisal for fiscal year
1992 was a reasonable, although not entirely accurate
representation of his job performance. However, whatever one
thinks of the appraisal, the circumstances that existed in the ACD
between Mr. Varnadore and other ACD personnel, and in particular
[PAGE 9]
Mr. Wright and Dr. Shults, make the validity of the appraisal
suspect and the continuation of it in complainant's personnel file
unfair and prejudicial.
A significant factor in determining the fairness of the
appraisal is consideration of the circumstances in which it was
prepared. The appraisal followed a lengthy period of litigation
between Complainant and respondents in what is now called
Varnadore 1. Mr. Wright stated that he spent fifty percent
of his work day on Varnadore 1 matters and that the
litigation had a strong and devastating effect on ACD. (T. 202,
195)
Dr. Shults testified that he spent fifty to eighty percent of
his work day on Varnadore 1 matters; that DOE's reaction to
Complainant's allegations during Varnadore 1 had a
devastating effect on the productivity, pride and moral in ACD;
that the division was hassled by DOE's actions in response to Mr.
Varnadore's complaints; that the entire incident had been damaging
to his career; that he knew of no other event in his career that
had had such a negative impact. (T. 100-110, 169) This view was
shared by other members of MMES. (T. 406, 422) Yet, both Mr.
Wright and Dr. Shults testified that Complainant's performance was
fairly appraised on the basis of objective criteria. (T. 138, 151,
204)
I believe that Mr. Wright and Dr. Shults are honorable men,
who tried to prepare an objective appraisal of Complainant's
performance for fiscal year 1992. I believe that Dr. Shults is a
caring supervisor who is concerned about the employees under his
supervision. His concern for employees was demonstrated by his
willingness to hire Complainant in 1985, when complainant was about
to loss his job with another division due to a lay-off, knowing
that complainant lacked a chemistry background; by his agreement to
the EA performance rating that complainant ultimately received and
by his cooperation and efforts to relocate complainant to another
job in another division in 1993.
However, the atmosphere that existed in ACD and the attitudes
of the Complainant, Mr. Wright, Dr. Shults, and others in the
company were such during fiscal year 1992 that the validity of the
resulting appraisal and the motives of Dr. Shults and Mr. Wright in
recommending a needs improvement rating are subject to question.
As a result of Varnadore 1, there was an emotionally
charged
[PAGE 10]
atmosphere in ACD during fiscal year 1992; and those primarily
effected were Complainant, Mr. Wright and Dr. Shults. Complainant
remained under the supervision of these two men who had been his
adveraries in Varnadore 1; men he had testified against in
the hearing. He was depressed, angry, withdrawn and tried to stay
in his office, away from other employees. His attitude and
feelings of repression were not conducive to performing his job
duties in a professional and appropriate manner in ACD.
Dr. Shults, on the other hand, had just experienced the worst
event of his career as a result of Complainant's complaint in
Varnadore 1. He had spent more than fifty percent of his
time on Varnadore 1 and the division had suffered a loss of
moral and productivity which very much concerned him. Varnadore
1 had had a devastating effect on ACD and a perceived negative
impact on Dr. Shults' career. Dispite his testimony, I do not
believe that Dr. Shults had neutral feelings toward complainant and
depite his best efforts, could impartially participate in and
review Complainant's performance appraisal. Moreover, I infer from
Dr. Shults' testimony that he discussed the possibility of a poor
appraisal of Complainant's job performance with his superior, Dr.
Appleton, before the appraisal was prepared, to mean that he and
Mr. Wright discussed preparation of the appraisal before it was
written and that Dr. Shults had had greater involvement in the
appraisal then would normally be expected of a reviewing manager.
Mr. Wright, who is closely aligned with Dr. Shults, recognized
the devastating effects of Varnadore 1 and worked
significant amounts of time preparing the Respondent's defense to
Complainant's allegations. I do not believe under the
circumstances, that Mr. Wright's attitude toward Complainant was
one of impartiality or that he could be totally impartial in
supervising and rating Complainant's job performance.
It appears that the spectre of unfairness that hung over the
appraisal was recognized by senior management. Its members met and
decided to give an EA rating and a pay raise to complainant despite
Mr. Wright's and Dr. Shults' recommendation of an NI
rating and no pay raise. Senior management made further efforts
to alleviate the situation by relocating Complainant to another job
in another division; which was accomplished on February 3, 1993.
(T. 275)
Mr. Varnadore is now working in the Engineering Technology
Division in a job more closely aligned with his background and
[PAGE 11]
skills. He did not suffer a loss of pay and is in position to
receive a grade promotion upon qualification. (T 430-436, 463)
Mr. Varnadore is pleased with his new job and is doing well. (T.
436, Resp. Exh. 15) In fact, he recently received a satisfactory
performance appraisal rating on the basis of his job performance
during the last fiscal year. (T. 277; Resp. Exh. 1)
3.7 Percent Raise
Mr. Varnadore was not displeased with the 3.7 percent
raise he received with the EA rating. However, he wants raises for
the preceeding years with ACD during which he did not receive
salary increases. (T 324) The record reflects that only three
other employees went for a longer period of time than Complainant
without a pay raise. (T. 471) The 3.7 percent raise was
established through the testimony of Fred Shull, Manager of
Compensation, to be the norm for raises granted to employees in
complainant's position during fiscal year 1992. (T. 466-468; Resp.
Exh. 10) As such, it appears reasonable.
Pay raises during prior years were not at issue in this
proceeding following the grant of partial Summary Judgment on April
6, 1994. No evidence of prior appraisals was introduced at the
hearing. Such matters were raised by the parties and considered by
Judge Von Brand in Varnadore 1. (Varnadore 1, pp. 22-27,
60N. 40, 79) As such, they were resjudicata.
Other Matters
In his post-trial reply brief, complainant, by counsel,
moved to strike a portion of Mr. Rosenthal's testimony regarding an
in-house survey of workers' opinions. (Complainant's Reply
Brief, pp. 11-12); T. 386-393) Respondents objected in a response
filed September 1, 1994. 6/ Complainant filed a reply on
September 19, 1994.
Upon consideration of the record and the arguments of counsel,
it is ORDERED that Complainant's motion is DENIED. The survey was
[PAGE 12]
not received in evidence and Mr. Rosenthal's testimony regarding
the survey was given no weight in my deliberations.
DAMAGES
Complainant requested awards of exemplary and compensatory
damages. Based upon the record, I find that awards of damages are
not warranted. It was not established that Complainant suffered a
monetary loss during fiscal year 1992 as a result of the
performance appraisal and Respondent's conduct has not been such
that exemplary damages are warranted. In fact, since the issuance
of Judge Von Brand's RD&O, Respondents have taken affirmative steps
to rectify the situation by giving Complainant a salary increase
for fiscal year 1992 and a new job in another division of the
company.
RECOMMENDED ORDER
Martin Marietta Energy Systems, Inc., its successors and
assigns, shall expunge from complainant's records the written
appraisal of his performance for fiscal year 1992; and not take any
adverse actions against Mr. Varnadore without good cause shown.
____________________________________
DAVID A. CLARKE, JR.
Administrative Law Judge
DAC:koj
_______________________________
6/ The other contentions addressed by Respondents were
not the subject of motions and need not be discussed further.
[PAGE 13]
SERVICE SHEET
CASE NAME: MARTIN MARIETTA CORP. and CASE NO.: 94-
CAA-2
MARTIN MARIETTA ENERGY SYS. and
OAK RIDGE NATIONAL LABORATORY
DATE:
TITLE OF DOCUMENT: RECOMMENDED DECISION AND ORDER
A copy of this document was mailed to the following parties:
Administrator
Employment Standards Administration
Wage and Hour Division
U.S. Department of Labor
Room S-3502
200 Constitution Avenue, NW
Washington, D.C. 20210
Area Director
Employment Standards Administration
Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, D.C. 20210
Professor Robert C. Banks, Jr.
5666 Rich Road
Memphis, Tennessee 38111
Edward A. Slavin, Jr., Esq.
2829 Timmons Lane #128
Houston, TX 77027
District Director
Wage and Hour Division
U.S. Department of Labor
Suite - 511
1321 Murfreesboro Road
Airport Executive Plaza
Nashville, TN 37211
[PAGE 14]
Deputy Associate Solicitor
Division of Fair Labor
Standards
Office of the Solicitor
U.S. Department of Labor
Room N-2716
200 Constitution Ave., NW
Washington, D.C. 20210
Jacqueline O. Kittrell, Esq.
General Counsel
American Environmental Health
Studies Project
6328 Strawberry Plains Pike
Knoxville, TN 37914
G. Wilson Horde, Esq.,
General Counsel
Patricia L. McNutt, Esq.,
Assistant General Counsel
Martin Marietta Energy Systems, Inc.
P.O. Box 2009
Oak Ridge, TN 37831-8014
E.P. Rayson, Esq.
John B. Rayson, Esq.
John C. Burgin, Jr., Esq.
Kramer, Rayson, Leake,
Rodgers and Morgan
P.O. Box 629
Knoxville, TN 37901-0629
____________________________
KAREN O. JOHNSON
Legal Technician
