U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C. 20001-8002
DATE: March 3, 1998
CASE No.: 95-CAA-19
In the Matter of
BRENDA W. SHELTON,
Complainant,
v.
OAK RIDGE NATIONAL LABORATORY; LOCKHEED MARTIN
ENERGY SYSTEMS, INC.; MARTIN MARIETTA CORPORATION;
MARTIN MARIETTA TECHNOLOGIES, INC.; LOCKHEED MARTIN
CORPORATION; UNITED STATES DEPARTMENT OF ENERGY; 1 Respondents.
1 Dr. Wilbur D. Shults was
originally a party but was dismissed by Stipulation executed by counsel for the Complainant and
counsel for Dr. Shults, pursuant to Rule 41(a)(1)(ii) of the Federal Rules of Civil Procedure on
August 30, 1995. This matter is discussed further infra.
2"Corporate
Respondents" refers to the Respondents except for the Department of Energy.
"MMES" and "Energy Systems" refer to what is now Lockheed Martin
Energy Systems. "Lockheed Martin" and "Martin Marietta" refer to Energy
Systems or its parent companies.
3 Complaint ¶ 15.
Collectively these statutes except for the Energy Reorganization Act ("ERA") will be
referenced as "the environmental statutes." While the original complaint also
asserted a cause of action based upon whistleblower protection provisions of the
"Resource Recovery and Control Act (RCRA)" (sic) [apparently a
reference to the Resource Conservation and Recovery Act, which is another name for the Solid
Waste Disposal Act, see 42 U.S.C. § 6901] and the Toxic Substances
Control Act (TSCA), 15 U.S.C. § 2622 [Complaint ¶ 15] and also referenced the Safe
Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i) [by initials in the caption, without further
discussion], the Wage and Hour Division ("Wage and Hour") did not find
discrimination under those statutes. Wage and Hour's findings with respect to the applicability of
these statutes were not appealed by the Corporate Respondents. As the Complainant appealed
the dismissal of DOE and Dr. Shults, I find that the TSCA also applies with respect to claims
against them but that any SDWA claim has been abandoned.
4 Although the Complaint is
dated March 5, 1994, that date is apparently a typographical error.
5 The Corporate
Respondents were originally listed as Oak Ridge National Laboratory, Martin Marietta Energy
Systems, Inc., Martin Marietta Corporation, Martin Marietta Technologies, Inc., Lockheed
Corporation, and Dr. Wilbur Dotrey Shults. According to the Corporate Respondents' Hearing
Request, Martin Marietta Corporation and Lockheed Corporation entered into a merger,
following which various subsidiaries changed their names.
6 A review of the transcript
reveals that it is replete with transcription errors. Although Complainant had requested leave to
propose corrections in her counsel's letter of November 1, 1995, I will instead only address
errors to the extent relevant to the discussion herein. References to the transcript will be to
"Tr." followed by the page number; where pertinent, the name of the witness will be
listed parenthetically. Administrative Law Judge Exhibits will be identified as "ALJ";
Department of Energy Exhibits as "DOE"; Complainant's Exhibits as
"CX"; and Corporate Respondents' Exhibits as "RX", respectively,
followed by the exhibit number. Multiple references will only appear when deemed to be useful.
In many instances, the same event or matter was reported by several witnesses and addressed
by several exhibits.
7 ALJ 1 and 2 (for
identification) are the same as RX 10 and RX 2. (Tr. 41, 159).
8 No copies of Complainant's
Exhibits 2 and 3 were submitted to avoid duplication as these exhibits are the same as
Respondent's Exhibits 13 and 31, respectively. Although Complainant's Exhibit 8, Judge Von
Brand's recommended decision in Varnadore, was admitted into evidence, it
was not admitted for the truth of the matters stated therein. Complainant's Exhibits 36 and 37
were excluded at trial, although CX 36 is among the exhibits bound by the court reporter. CX
37, identified as a tape of Joe La Grone's voice mail, is not present. (Tr. 304-09, 949-50). CX
67, a continuation of Mr. Sowder's file and notes appearing at CX 11, was provisionally admitted,
subject to the parties agreeing upon its contents, and later a copy was submitted; it is not bound
with the other exhibits. (Tr. 1946).
10 Although at the time of
the hearing Ms. Shelton was uncertain as to what year she changed jobs, other documents
reveal that she began her employment as a health physics technician in 1991, as she was on
the janitorial staff in February 1990. (E.g., CX 91; RX 37, 38). She testified at
her April 6, 1992 deposition in the Varnadore case (when her recollection was
fresher) that she was accepted into the training program in September 1990 and graduated in
February 1991, when she became a health physics technician. (RX 31 at p. 5).
11 As noted above, Mr.
Spence did not testify, but his notes (RX 27) and his statement (CX 16) are in evidence.
12 In quoting obscenities
in this decision, I have quoted the exact language appearing in documents. When a term
appears to be redacted, that is the way it appeared in the original.
13 At trial, Complainant's
counsel went to great lengths to establish insensitivity to racial issues on the part of Dr.
Mlekodaj, who appears to be Caucasian and who identifies his ethnic background as half Polish
and half "a mixture of a lot of things." For example, counsel asked Dr. Mlekodaj
whether he had ever used the word "nigger" at work in the past ten years, to which
the witness replied that he was sure he had used it in a joking or "kidding around"
mode, but not in "any kind of serious talk." (Tr. 135 [Mlekodaj]). However, to the
extent that these remarks may be deemed to show any kind of racial animosity, they do nothing
to strengthen Complainant's case, as they would merely show an alternate basis for disparate
treatment not actionable in this forum. The same thing is true with respect to similar allegations
against Mr. Sowder.
14For some reason, the
deposition includes different exhibits from those listed, and those listed were apparently not
annexed. (RX 31). However, the two documents that are attached to the deposition transcript
are otherwise in evidence. (RX 37, 38).
15 Although Dr. Swanks
referred to Building 3550, the reference appears to be in error. (Tr. 1857 [Swanks]).
16 Mr. Powers advised
Wage and Hour that during the four to six weeks she was in his group, Ms. Shelton
"seemed to be a willing worker and get along with everyone. I do not recall any
problems." (CX 21 [Powers Statement]).
17 "PPR"
refers to "Performance Planning and Review [mistranscribed by court reporter as
"Performing"]. (Tr. 204 [Hunt]; RX 1, 2, 3, 4).
18 Mr. Ohnesorge was
Mr. Sowder's supervisor from 1991 to December 1994. (Tr. 510-16 [Sowder]).
19 Mr. Ohnesorge's
statement (CX 69), taken by the DOL investigator over the telephone, is hearsay if it does not
qualify as an admission. See 29 C.F.R. §§ 18.801-06. Here, the
statement is being offered by the Complainant, due to its inclusion of derogatory comments and
reference to a case Ms. Shelton brought against the school system, to show "defamation
and animus." See Ms. Shelton's Further Revised Exhibit List (November 1,
1995.) The rules of evidence are more relaxed in this type of proceeding than in Federal district
court (see 29 C.F.R. § 24.5(e); §§ 18.402, ) and I have
indicated that I would give Wage and Hour statements full evidentiary value, although the parties
would be able to take the testimony of the witnesses by deposition [mistranscribed by court
reporter as "depiction"] (Tr. 1383, 1948). However, given the fact that this statement
was taken over the telephone and was not signed, there is a possibility of transcription errors
and the statement has less probative value.
21 Building 4500 South
was the building where Mr. Varnadore worked when he was discovered by Ms. Shelton. (RX 31
[Shelton deposition] at 7.)
22 Dr. Levey did not
mention these comments in his May 12, 1995 statement to the Wage and Hour investigator and
indicated that he had advised Mr. Watson that there were no special circumstances concerning
her emotional state that management should be aware of. (CX 13). I find the contemporaneous
file memorandum (CX 12) and Dr. Levey's testimony at the hearing to be more probative. In any
event, Mr. Hunt testified Ms. Shelton's management never learned what Dr. Levey had said. (Tr.
252 [Hunt]; CX 13 [Hunt statement]).
23 It is unclear what exact
words Mr. Payne used. Although Mr. Boren's testimony (Tr. 1276-77) and statement (CX 24 at
5) indicated that Mr. Payne had stated that this type of incident occurred "about once a
month" with Ms. Shelton, at the hearing Mr. Payne denied having made that statement; he
agreed there were outbursts "from time to time, possibly as often as once a month,"
but not "somebody getting cussed out." (Tr. 1363-65 [Payne]). I find Mr. Spence's
written account of the meeting that it was "perhaps a monthly occurrence" (RX 27)
and Mr. Sowder's notes to the effect that "this was a monthly incident" (CX 67) to be
more probative than Mr. Payne's recollection after the fact of what he actually said.
24 In her statement to
Wage and Hour, Ms. Shelton indicates the meeting date was February 16, 1995. (RX 45). I find
the typed meeting accounts to have more probative value as to the date.
25 According to the
booklet appearing as CX 79, "Positive Discipline" is a registered trademark of
Performance Systems Corporation.
26 An earlier (11/20/92)
edition of the Procedure (including the appendices) appears as CX 66.
27 Such an agreement is
not specifically required by the written procedures relating to oral reminders. See
Martin Marietta Systems Inc. Procedure Number ESP-LR-151 (11/15/94) (RX 13).
However, Martin Marietta Energy Systems, Inc. Policy ES-LR-400 (revised 1/23/95) requires
disciplinary action to be taken against any individual who retaliates against an employee for
making a report relating to company operations or prompting others to do so. (RX 14).
28 This name was
mistranscribed by the court reporter as "Bogner."
29Trimmer
was only decided under the ERA, as the actions under the environmental statutes were
time barred.
30 Cases decided before
the 1992 amendments became effective held that the complainant's burden to establish pretext
may be met, directly, if the complainant has shown that the unlawful reason more likely motived
the employer or, indirectly, if he has shown that the employer's proffered explanation is not
credible. See Shusterman v. Ebasco Services, Inc., 87-ERA-27, slip op. at 4
(Sec'y, Jan. 6, 1992), aff'd 978 F.2d 707 (2d Cir. 1992); Dartey v. Zack
Co., 82-ERA-2, slip op. at 5-6 (Sec'y, Apr. 25, 1983).
31 In the context of
discrimination cases, "direct evidence" (as opposed to circumstantial evidence) has
been defined by the Sixth Circuit as evidence which, if believed, requires the conclusion that
unlawful discrimination was at least a motivating factor. See Bartlik v. U.S. Department
of Labor, 73 F.3d 100, n. 5 (6th Cir. 1996).
32 At first blush, the
Secretary's decision in Remusat and the Administrative Review Board's
decision in Talbert appear to be somewhat inconsistent. Talbert
implies that the pretext analysis is inapplicable in a dual or mixed motives case,
whereas Remusat suggests that the facts be analyzed first under a pretext
analysis, and then, if the complainant has established an illegal motive, the dual or mixed
motives analysis should be applied. These cases may perhaps be reconciled because a
complainant may establish a prima facie case indirectly (through the use of
inferences) or rebut a proffered pretext indirectly (through an attack on credibility), whereas
illegal motivation must be established directly in order to give rise to a mixed motives
case. See generally Talbert, supra. See footnote 30, supra.
33 Subsection (ii) of Rule
41(a)(1) is applicable rather than subsection (i) because Dr. Shults filed a dispositive motion.
Subsection (i) is only applicable where the adverse party has not yet filed an answer or a motion
for summary judgment (or their functional equivalent).
34 For example, any
claims based upon alleged race discrimination are not actionable under the ERA or the
environmental statutes. See, e.g., DeCresci v. Lukens Steel Co.,
87-ERA-13 (Sec'y, Dec. 16, 1993). Any claim based upon Ms. Shelton's alleged ostracism
in the workplace is speculative and lacks evidentiary support, apart from the testimony of a
single instrument technician who apparently is now uncomfortable around her as a result of the
instant suit. See Ms. Shelton's Proposed Findings of Fact and Conclusions of Law at p. 136.
Finally, any claim based upon Ms. Shelton's PPR in 1992 and her transfer is time barred.
See Varnadore v. Oak Ridge National Laboratory (Varnadore I, II, and III),
92-CAA-2 to 95-ERA-1 (Administrative Review Board, June 14, 1996) petition
for review filed, No. 96-3888 (6th Cir. Aug. 13, 1996). As shown
above, Dr. Swanks exhibited the wisdom of Solomon in his handling of this situation and he may
have averted an earlier law suit.
35 I do not find Ms.
Shelton's complaints concerning how she was treated during the period from the cussing
incident until after the issuance of the Oral Reminder (such as her complaints concerning the
meetings held) to constitute a separate cause of action, as these activities are interrelated.
However, only the Oral Reminder would qualify as an adverse action.
36Pogue,
Talbert, and Remusat, are discussed above.
37 An additional case
involved a visitor at the facility who was warned that if the situation happened again his visitor
status would be terminated. Counting that case and Ms. Shelton's, there were 22 cases at Oak
Ridge from 1977 until the trial date.