Date: February 23, 1999

Case No.: 1998-CAA-16

In the Matter of

    Walter Moore
       Complainant

    v.

    U. S. Department of Energy
       Respondent

   By Motion filed January 22, 1999, the Department of Energy (DOE) seeks a summary judgment based on the contents of the videotapes upon which Complainant bases his Clean Air Act (CAA) complaint. Earlier DOE had sought and was granted, by Order dated December 24, 1998, a dismissal of Complainant's complaint under the Surface Transportation Amendments Act (STAA) upon jurisdictional grounds; however, at that time DOE's Motion to Dismiss Complainant's complaint under the CAA was denied.

   For purposes of its latest motion, DOE maintains that based upon the undisputed facts a viewing of the videotapes upon which Complainant bases his complaint establishes that the speaker, Mr. Gordon Moe, did not issue a "gag order" and that Complainant suffered no discriminatory or adverse action under the CAA upon which a complaint could be successfully based.

   The facts which DOE urge are undisputed are as follows: (1) that Complainant is a nuclear materials courier employed by the Transportation Safeguards Division (TSD); (2) that Complainant has been on Leave Without Pay (LWOP) since April 20, 1998, receiving workers' compensation from the DOL; (3) the meeting about which the videotapes were made was held on June 9, 1998, at Kirkland Air Force Base (KAFB) in Albuquerque, New Mexico; (4) the meeting was conducted by an Agency consultant under contract, Gordon Moe; (5) Complainant was neither present, expected, nor required to be at the meeting; (6) Complainant resides in the Amarillo, TX area; and (7) on his own initiative, Complainant requested and received a copy of the videotapes and viewed the videotapes at home on July 2, 1998, approximately 23 days after the meeting was videotaped.

   Complainant responded to DOE's Motion for Summary Judgment on February 9, 1999, stating the Motion should be summarily denied because: (1) Complainant's sworn complaint and former Secretary O'Leary's deposition present disputed issues for trial; (2) summary judgments are disfavored where there are genuine issues of material facts which cannot be dealt with absent a hearing; (3) that whistleblower cases involving pretext, hostile working environment and dual motives cannot be summarily dealt with; (4) Complainant has been denied access to information by means of discovery; (5) the two videotapes in question are not accompanied by transcripts; and (6) all inferences should be made in favor of the non-moving party.

   Based upon the allegations of Complainant's complaint, the deposition of former Secretary Hazel R. O'Leary, the affidavit of Deborah Miller, the two videotapes and the legal reasons hereinafter provided, I find no genuine issues of facts which merit a trial in this matter. I grant DOE's Motion for Summary Judgment.

   While I well agree with Complainant that summary decisions are not favored and retaliatory motives must often be proven by inference through circumstantial evidence, in this instance Complainant's sworn complaint is undeniably based upon the videotapes. Therefore, the basis of the complaint is specifically defined and lends itself to a summary review.

   In his sworn complaint, Complainant states he has been a ten year employee of DOE as a special agent charged with transporting and guarding nuclear weapons and materials. During this time, Complainant alleges that he raised environmental, safety and health issues, and as a result of his and others concerns a meeting was held in Albuquerque, New Mexico, "where workers were threatened if they ever mocked or criticized or questioned their DOE managers in DOE meetings, with the statement made that this was inappropriate in a paramilitary' organization and would be halted in the future."

   Complainant acknowledges he was not present at the Albuquerque meeting because he was on leave. Rather, Complainant states that he viewed the meeting by means of videotapes on July 2, 1998, and his "free speech rights have been chilled by the statements on the videotape." In paragraph 12 of his complaint, Complainant specifically states:

The DOE gag order was recorded on a DOE videotape and amounts to an illegal gag order designed to have a chilling effect that would prohibit DOE couriers from raising concerns protected by the Clean Air Act and Surface Transportation Amendments Act (STAA).

As a result, Complainant seeks various damages and remedies under the CAA.

   In addition to his sworn complaint, Complainant offers former Secretary Hazel O'Leary's deposition taken in an unrelated matter on May 14, 1998. Ms. O'Leary testified she served as Secretary of Energy from January 22, 1993, to January 21, 1996, and that shortly after her arrival she met with groups of whistleblowers to discuss their concerns. She learned of many incidents of retaliatory actions against employees who reported alleged violations of various federal statutes. Ms. O'Leary began restructuring the department in an attempt to deal more effectively with whistleblower claims. She sought to improve the Agency's image by establishing a "zero tolerance for reprisal" policy as well as publicly accepting responsibility for the effect of various controversial agency decisions made in the past.

   She testified she was aware of an atmosphere of intolerance within the agency as a whole and during her tenure worked hard to eliminate the problem by restructuring the Department of Energy. When she departed the department in 1996, Ms. O'Leary believed there was a system in place to better deal with the valid concerns of DOE employees and to protect them from reprisal.

   The affidavit of Deborah C. Miller attached to DOE's Motion for Summary Judgment establishes the following: (1) that Ms. Miller is the Director of the Transportation Safeguards Division (TSD) of DOE and has been with the agency since 1975; (2) that a review panel consisting of private consultants, headed by Mr. Gordon Moe, was hired and commissioned to review concerns regarding TSD operations; (3) the panel consisted of no DOE or United States government employees; (4) that a presentation of the panels preliminary findings was made on June 9, 1998, in Albuquerque, New Mexico, to employees of TSD; and (5) that Complainant was not present at the meeting because he was and has been on leave without pay from DOE since April 20, 1998, receiving workers' compensation benefits.

   Two videotapes were taken of the June 9, 1998, meeting. I have viewed both at length. The first runs over an hour and primarily contains the remarks of Gordon Moe, the private consultant hired to head the independent study panel, followed by brief remarks from the Assistant Secretary of Defense and Director of the Albuquerque office. Both of whom concurred with Mr. Moe's remarks and suggestions. The second videotape is under an hour and is a question and answer session with audience participation ending with a few brief remarks.

   On the first tape, Gordon Moe released his findings and recommendations in the meeting attended by both management and employees. The review had been initiated because of environmental health and safety concerns as well as communication and public health concerns. In Mr. Moe's analysis, although the mission of the transportation system was determined to be functioning well, he described a fundamental lack of trust and respect between special agents and TSD management.

   Mr. Moe indicated this lack of trust was a symptom of other problems, such as too little leadership and problems in the support system, as well as litigation and adverse media attention. Mr. Moe determined that management was tilted toward self-promotion and that the clashing subcultures existing within the agency were detrimental to the department. His proposed solutions and recommendations were therefore designed to improve both the public's image of the agency as well as the internal interaction of management and employees.

   Mr. Moe indicated that in a "paramilitary" organization, such as he considered the special agent branch of the agency to be, openly ridiculing or condemning management in public or at meetings was "inappropriate." Mr. Moe understood the agents' frustration, but did not find this form of communication effective. His recommendations included an improved structure to deal with communication problems including the use of an ombudsman. Additionally, he made recommendations regarding a twenty-year retirement plan, uniforms for the special agents, physical fitness tests and improved pay structures. Mr. Moe's comment about not publicly criticizing management occurred about mid-way in his presentation, was his opinion and referenced only briefly as one of many observations he was making as a result of the independent study.

   The majority of questions raised during the question and answer session dealt with the details of the twenty year retirement plan, the possibility and type of uniforms, as well the recommendation of a possible name change. Although hostility was noted in a few of the questions posed by employees, management and the majority of employees seemed satisfied with the recommendations and willing to attempt to improve the work environment. A show of hands indicated all concerns had been mentioned, and in conclusion the employees were thanked for their bluntness and urged to be forthright.

   Mr. Moe's remarks taken in context of his overall mission and the manner in which he delivered his message presented no attempt to "gag" DOE employees or prevent them from raising safety concerns. To the contrary, the questions asked by employees in the subsequent session demonstrated quite well that there had been no chilling effect on anyone's freedom to speak.

   In order to establish a prima facie case a Complainant must show: (1) that he engaged in protected activity; (2) that the Respondent knew of the protected activity; (3) that the Respondent took adverse action against him; and (4) that the protected activity was the likely reason for the adverse action. For the reasons set forth below, I find that the Complainant has failed to establish a prima facie case that DOE took some adverse actions against him. Thus this inquiry need go no further.

   For me to find a prima facie case, there must be evidence that DOE in some way took an action that was adverse to the Complainant. While the Secretary has been broad in his definitions of the concepts of adverse action and has extended it to many things including a hostile work environment, the words of Mr. Moe, a private consultant, cannot be interpreted to be adverse to Complainant who himself was on leave and not in attendance at the talk given. In other words,

there were no remarks made, when considered in the context of the overall presentation, that a hypothetical "reasonable person" could have found to be hostile, threatening, chilling, gagging or adverse.

   Complainant had been on leave receiving workers' compensation benefits for two months prior to Mr. Moe's comments. The study had been initiated by a review panel convened as early as December, 1997. That the speech was somehow designed for Complainant cannot be inferred. In fact in his complaint, Complainant notes DOE sought return of the videotapes when they learned he had copies.

   The theme of Mr. Moe's presentation is of an organization trying to work through internal problems between management and employees, not of an employer attempting to chill employees freedom of speech. It was not a disciplinary procedure, but rather an effort to reduce conflicts between management and workers by implementing new approaches, including enhanced communication. The videotapes certainly reveal no attempt to cause any diminution in the terms and conditions of employment. To the contrary, employee benefits were recommended. Having employees listen to suggestions by an independent consultant such as was done here surely cannot be regarded as adverse action.¹

   Also, there is the matter of timeliness. Though leaving the matter open to revisit, in my December 24, 1998, order I denied DOE's Motion to Dismiss regarding timeliness under the CAA. I did so without benefit of the videotapes assuming Complainant's viewing to be the date of the violation from which the 30 day filing requirement ran. 42 U. S. C. §7622(b)(1). However, having now found the contents of the tapes not to be a "violation" of 42 U. S. C. §7622(a), I also conclude that Complainant did not file a timely complaint.

   In sum, after a viewing of the videotapes it appears that a reasonable person could not conclude that the presentation by Mr. Moe supports Complainant's complaint that he was the victim or target of adverse action. ²

¹ Complainant having failed to establish a prima facie case issues such as pretext and dual motive do not arise.

² There has been some discovery in this case, though Complainant protests adequate responses have not been provided. To date I have not been furnished DOE's responses, so I have been unable to pass upon Complainant's Motion to Compel; however, for the reasons stated in this Decision and specifically because Complainant's complaint is founded solely upon the videotapes, I find the state of the record sufficient upon which to base this decision.