On November 22. 1996, the parties completed their briefing
on the respondents' motion to dismiss or, in the alternative, for summary judgment.
For the reasons set forth below, the undersigned recommends dismissal of the
complaint.
DISCUSSION
The burdens of proof in environmental whistleblower cases
are as follows. Complainants must prove, by a preponderance of the evidence, that
they were retaliated against for engaging in protected activity. Such a showing
requires proof that they engaged in protected activity; the employer knew about it;
and the employer then took discriminatory action against them, which was motivated
at least in part by the employee's protected activity. In dual motive cases, once the
complainant has proven by a preponderance of the evidence that unlawful motive
played a part in the employer's decision to take discriminatory action, the employer
then has the burden of proving that it would have taken discriminatory action for
legitimate reasons in any event. Varnadore v. Martin Marietta Energy Systems,
DOE, 95-CAA-2, 92-CAA-5, 93-CAA-1, 94-CAA-2, 94-CAA-3, 95-ERA-1 (ARB
June 14, 1996)("Varnadore 6/14/96"), slip op. at 31-32).
The standards governing motions for summary decision and
for failure to state a claim on which relief can be granted in environmental
whistleblower cases are set forth in Varnadore 6/14/96) slip op. at pp. 15-16. Such motions are governed by 29 C.F.R. §§ 18.40 and 18.41.
The standards set forth by the United States Supreme Court in the cases of
Anderson v. Liberty Lobby, 477 U.S. 242 (1986) and Celotex Corp.
v. Catrett, 477 U.S. 317 (1986) are applied to motions for summary decision.
A party opposing such a motion is not permitted to rest upon mere allegations or
denials of his pleading, but must set forth specific facts showing that there is a
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genuine issue of fact for the hearing. To defeat a properly supported motion for
summary decision, the non-moving party must present affirmative evidence. If the
non-movant fails to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party will bear the burden of
proof at trial, there is no genuine issue of material fact and the movant is entitled to
summary decision.
The standards for dismissal for failure to state a claim upon
which relief can be granted are as follows. The facts alleged in the complaint are
taken as true, and all reasonable inferences are made in favor of the non-moving
party. A dismissal is purely on the legal sufficiency of the complainant's case. Even if
the complainant proved all of its allegations, [s]he could not prevail. In other words,
even if the facts alleged are taken as true, no claim has been stated which would
entitle the complainant to relief. (Varnadore 6/14/96, slip op. at 58-59).
Applying these standards, as discussed below, I find that the
claims must be dismissed for multiple reasons, including untimeliness, improper
parties, failure to state a claim on which relief can be granted, and/or failure to raise a
genuine issue of material fact for a hearing under the cited statutes.
A. Parties
The claims against DOE under the ERA and TSCA have
already been dismissed because Congress has not waived DOE's sovereign immunity
and DOE is therefore not subject to Department of Labor jurisdiction under those
statutes. See Varnadore 6/14/96, Slip op. at 55-60;
Teles v. U.S. Department of Energy, No. 94-ERA-22 (Sec'y August 7,
1995); Stephenson v. NASA, 94-TSC-5 (Sec'y July 3, 1995).
The remaining claims must also be dismissed against Patricia
Howse-Smith and the DOE Inspector General ("IG") as individuals. An
employment relationship between the complainants and respondents is an essential
element of any claim brought under the Acts. (Varnadore 6/14/96, Slip
op. at 57-61). The Department of Labor's jurisdiction under the Acts extends only
to "employers" and "employees." In Reid v. Martin
Marietta Energy Systems, Methodist Medical Center of Oak Ridge, Tennessee,
Medical Management, et Administrative Law Judge., No. 93-CAA-4 (Sec'y
April 3, 1995), the Secretary applied the United States Supreme Court's test for an
employment relationship as articulated in Nationwide Insurance Company v.
Darden, 112 S. Court. 1334 (1992) to a complainant in a whistleblower case,
[Page 13]
and found that dismissal was proper. That test requires an analysis of
-
the hiring party's right to control the manner and means by which the product is
accomplished. Among the other factors relevant to this inquiry are the skill required; the
source of the instrumentalities and tools; the location of the work; the duration of the
relationship between the parties; whether the hiring party has the right to assign
additional projects to the hired party; the extent of the hired party's discretion over when
and how long to work; the method of payment; the hired party's role in hiring and paying
assistants; whether the work is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits; and the tax treatment of
the hired party.
Complainants have failed to allege that the IG is or was their
employer. Complainants also failed to allege, until their Response to Court-Ordered
DOE Motion to Dismiss filed November 7, 1996, at 20, that Howse-Smith is or was
their employer. Although they now allege that she is an employer or employment
agency, they have failed to raise any material issues of fact for hearing that such a
relationship exists. McQuade's November 1, 1994 EEO complaint indicates that, at
most, he once had a supervisory relationship with Howse-Smith, but even this
relationship terminated in approximately 1992, after she filed a complaint of
employment discrimination against him and he was transferred away from her
supervision to the Safeguards and Security Division. It is undisputed that, like the
complainants, Howse-Smith and the IG are both also DOE employees.
Complainants argue that Howse-Smith's status is dependent
on facts to be elicited at hearing, so there is no reason to reach the issue without her
testimony at hearing. (Complainants' Response to Court-Ordered DOE Motion to
Dismiss ("C. Response") 20). This argument confuses the burdens
assumed by the parties in motions for summary decision. A party opposing such a
motion is not permitted to rest upon mere allegations or denials of his pleading, but
must set forth specific facts showing that there is a genuine issue of fact for the
hearing, including affirmative evidence. Howse-Smith is under no obligation to
prove that she is not an employer. Rather, the complainants have the burden, prior
to being permitted to proceed to a hearing, to raise a genuine issue of fact for hearing
that she is an employer, by presenting affirmative evidence. They have failed to do
so here.
B. Protected Activities
As discussed above, after the ERA and TSCA claims were
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dismissed, the complainants were given the opportunity to plead facts alleging
violations of CAA, SDWA, SDWA and/or CERCLA, the only remaining causes of
action. These facts, which complainants set forth in their First Summary of
Environmental Protected Activity, are summarized above. They indicate that some
DOE employees have had problems with seizure disorders, credit problems, alcohol
abuse, drug abuse, drug dealing, psychiatric disorders, stealing, prostitution, violent
behavior, illicit sex, and other anti-social behavior, that some of these employees have
been granted security clearances, and that some have quit, been fired, or suspended
and had their security clearances revoked while others have been retained on the job
with their security clearances intact. The protected activity alleged is that the
complainants raised concerns that the work assignments of such employees
"pose[d] dangers of environmental releases, spills, accidents and radiation
exposures ... ."
A protected activity is an essential element of the
complainants' case. An employee's asserted belief " that the environment may
be negatively impacted by the employer's conduct' " is not sufficient to
establish a protected activity under the environmental acts. Minard v. Nerco
Delamar Company, 92-SWD-1, Sec'y January 25, 1994, slip op. at 5;
Crosby v. Hughes Aircraft, 85-TSC-2, Sec'y August 17, 1993, slip op. at
13-14. An employee's complaint must be "grounded in conditions constituting
reasonably perceived violations" of the Acts. Tyndall v. United States
Environmental Protection Agency, Nos. 93-CAA-6; 95-CAA-5 (ARB June 14,
1996), slip op. at 4.
I find that the complainants' allegations, even if taken as true,
merely constitute the assertion of a belief " that the environment may be
negatively impacted by the employer's conduct' " and are thus too speculative
to state a claim of protected activities under the Acts. These allegations rest solely
on the questionable assumption that employees with bad records will cause
environmental releases, spills, accidents and radiation exposures in the future. It is
doubtful that such character evidence would even be admissible at a hearing in this
case. See 29 C.F.R. § 18.404 (character evidence not generally
admissible to prove conduct). It is, of course, equally plausible that employees with
bad records may, given a second chance, do their jobs without endangering the
environment, and that employees with good records will, despite all good will,
mistakenly engage in activities that cause environmental damage. The complainants
have failed even to allege that the employees referred to caused, or threatened to
cause, environmental releases, spills, accidents and radiation exposures in the past.
[Page 15]
Thus, these allegations do not constitute the assertion of a reasonable belief that the
employees referred to were about to commit violations of the CAA, SDWA, SWDA,
and/or CERCLA, and are not grounded in conditions constituting reasonably
perceived violations of the Acts.
Respondents concede that #4 of Mr. McQuade's examples
may involve protected activities under these Acts. During late 1994, a personnel
security analyst from Oak Ridge, who had been sent to the Portsmouth, Ohio
enrichment plant to conduct security interviews, was informed by an employee in the
plant library that plant management was joking about the intentional release of toxic
gases into the atmosphere. Respondents argue, however, that McQuade does not
allege that he was the DOE employee involved or that he took any action as a result.
McQuade counters that he should not have to answer this contention until he is
allowed further discovery. (C. Response 25). This argument again misconstrues the
nature of the parties' burdens. Discovery is unnecessary for complainants to counter
the respondents' assertion that they have failed to state a claim with respect to
protected activity because necessary facts to do so are within the complainants' own
personal knowledge. McQuade should have personal knowledge of whether he is the
DOE employee involved or whether he took any action as a result. Since he has
refused even to make an allegation to that effect, the obvious inference is that he was
not the DOE employee involved.
It thus appears that, rather than ensuring that the
complainants had personal knowledge of their protected activity under every
statutory authority invoked prior to filing their complaints with Wage-Hour, the
CAA, SDWA, SWDA, and CERCLA claims were mere afterthought. The only cases
where whistleblowing on security clearance violations has been found to be a
protected activity were brought under the ERA. Once the TSCA and ERA claims
were dismissed, complainants were given the opportunity to come forward with
specific claims of protected activities under CAA, SDWA, SWDA, and/or CERCLA,
but they have failed to do so. Since the complainants' allegations, even if taken as
true, fail to articulate a connection with a protected activity under these Acts, and
the complainants have failed to raise a material issue of fact that a protected activity
was involved in these events, the complainants cannot, as a matter of law, establish a
prima facie case of a violation of the Acts.
C. Timeliness
Mr. McQuade filed his complaint on April 3, 1995; Mr.
[Page 16]
Warden filed his complaint on April 12, 1995; and Ms. Johnson filed her complaint
on April 30, 1995. The CAA, SDWA, SWDA, and CERCLA have limitations
periods of 30 days. Accordingly, any alleged discriminatory actions or reprisals that
occurred more than thirty days before these dates are time barred. Respondents
argue that none of the complainants have made a showing that DOE took any
discriminatory action against them within the limitations period. Complainants
argue that their complaints are timely because respondents have committed
continuing violations involving a hostile working environment.
To establish a continuing violation, complainants must prove
that a series of alleged discriminatory actions are somehow connected, rather than
mere isolated decisions involving disparate facts, and that at least one of the
discriminatory actions occurred within the limitations period. It is not sufficient to
show simply that the actions complained of affected their working conditions. If no
discriminatory act occurred within the thirty day period prior to the filing of the
complaint, the complaint is time barred. Varnadore v. Oak Ridge National
Laboratory and Lockheed Martin Energy Systems, Inc., Nos. 92-CAA-2, 92-CAA-5, 93-CAA-1 (Sec'y January 26, 1996) ("Varnadore 1/26/96"), slip
op. at 73; Bonanno v. Northeast Nuclear Energy Company, 92-ERA-40,
41 (Sec'y August 25, 1993); Gillilan v. TVA, 92-ERA-46, 50 (Sec'y April
20, 1995).
(a) Johnson
Johnson alleges as a discriminatory act that, since her transfer
to the Washington Office, she has never been assigned to any audit work in Oak
Ridge Tennessee, and that, because DOE has failed to identify any particular date or
time of any specific single decision to keep her from auditing Oak Ridge, the statute
of limitations has not begun to run. (C. Response at 2).
As the respondents point out, it is undisputed that, according
to her September 10, 1995 declaration, Ms. Johnson is satisfied with her current
work at DOE and her current supervisors, has consistently received outstanding
performance appraisals since June 22, 1991, and has received a special cash award for
her efforts in support of the DOE Secretary's human experimentation task force.
Thus, there is no triable issue of fact that complainant has been subjected to any acts
constituting a hostile work environment within the thirty-day limitations period.
Assuming that a DOE management decision not to send Ms.
Johnson to Oak Ridge to make audits is even a discriminatory act, complainant must
[Page 17]
raise a material issue of fact that such a decision was in fact made, i.e. a
discriminatory act was committed, within the thirty-day limitations period. A
management decision not to send Ms. Johnson to Oak Ridge to make audits, if taken
outside the limitations period, is not sufficient to render the claim timely even if Ms.
Johnson continues to suffer the effects of such a decision. Varnadore,
1/26/96, slip op. at 76; United Airlines v. Evans, 431 U.S. 553 (1977).
Despite the opportunity to conduct discovery on the timeliness issue, however,
complainant has failed to come forward with any affirmative evidence by affidavit or
otherwise that such a management decision was made during the limitations period
or at any other time. Ms. Johnson's own declaration states only that "[i]t is
completely inconceivable that this failure to send me to Oak Ridge is either a
coincidence or a random event" since her supervisors have consistently praised
her, rated her outstanding, etc. This language indicates that complaint has never
even inquired of her supervisors as to whether they made a decision not to send her
to Oak Ridge and/or why she has not been sent to Oak Ridge. This lack of inquiry
suggests that she herself did not view her lack of assignments at Oak Ridge as an
adverse act.
Even if Johnson could prove that the failure to assign her to
an audit at Oak Ridge within thirty days was a protected act, however, she has failed
to raise a triable issue of fact that such failure was motivated by a protected activity,
as discussed above.
(b) Warden
Warden alleges that he has suffered continuing retaliation in
the workplace as a result of protected activities including a hostile environment, in
that respondent Howse-Smith and Branch Chief Nettie Hudson have shown hostility
to him in every encounter, including within the thirty day prior prior to the filing of
his complaint. Even if Warden could prove that such hostility did occur within the
thirty days, however, he has failed to raise a triable issue of fact that such hostility
was motivated by a protected activity, as discussed above.
(c) McQuade
McQuade alleges that his complaint is timely because he did
not learn that he had a cause of action until the week before he filed his April 3,
1995 complaint. He complains that, at that time, he discovered the Howse-Smith
settlement agreement. As DOE points out, however, he actually learned of the
[Page 18]
contents of the settlement agreement on June 23, 1994, almost a year before filing
the complaint. His EEO complaint also refers to an August 1, 1994 meeting at which
the settlement agreement was discussed. McQuade asserts that the "wrong
forum" doctrine should toll the statute of limitations because he filed an EEO
complaint. This doctrine only applies if the filing in the "wrong forum"
is timely, which is not the case here. Even if McQuade could prove entitlement to a
waiver of the statute of limitations, however, he has failed to raise a triable issue of
fact that any adverse actions against him were motivated by a protected activity, as
discussed above.
DOE argues that the July 17, 1996 amendment to the
complaint regarding the security clearance interview and psychiatric evaluation of
McQuade should be dismissed under the "law of the case," because
"violations of DOE's security clearance regulations, which are located at 10
CFR 710, are exclusively within DOE's purview." This is a misstatement of my
previous holding, which discussed protected activities, not adverse actions. A
security clearance interview and psychiatric evaluation may well be adverse actions
prohibited by the whistleblower statutes. See Young v. Philadelphia
Electric Co., 87-ERA-11 (Sec'y Dec. 18, 1992). The amendment must be
dismissed, however, because, as discussed above, McQuade has failed to raise a
triable issue of fact that any adverse actions against him were motivated by a
protected activity under the remaining statutes.
RECOMMENDED ORDER
1. Patricia Howse-Smith and the DOE Inspector General are
hereby DISMISSED as parties.
2. The claims of Virginia Johnson, Kenneth Warden and
Dennis McQuade are hereby DISMISSED.
EDITH BARNETT
Administrative Law Judge
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