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With regard to Mr. Warden, DOE urges dismissal of his May 9, 1996
complaint (alleging that DOE retaliated against him by using threatening language during a
meeting), and his July 22, 1996 complaint (alleging retaliation based on statements made in a
meeting attended by Messrs. Warden and Byrum and statements made in correspondence to the
Secretary of Energy) on the ground that the complained-of actions do not rise to the level of a
tangible employment action. Id. at 17-18. As noted above, DOE also seeks dismissal on Mr.
Warden's October 1, 1996 and November 5, 1995 complaints, which raise allegations of
retaliation including a changes in job assignment because Mr. Warden raised concerns about the
attempted theft of a nuclear weapons component, on the ground that Mr. Warden's disclosures
were not protected. Id. at 18-19.
Lastly, DOE contends that the two complaints involving Mr. Byrum, May
23, 1996 (alleging retaliation by conducting an interview concerning allegations that he was
involved in conflicting outside employment) and July 22, 1996 (alleging retaliation based on
statements made in a meeting attended by Messrs. Warden and Byrum and statements made in
correspondence to former Secretary of Energy, Hazel O'Leary) also should be dismissed for
failure to allege that DOE took tangible employment actions which negatively affected his
compensation, terms, conditions or privileges of employment. Id. at 17-18.
In their response to DOE's motion for summary dismissal, the
Complainants aver that "[t]his case of post-complaint retaliation concerns a hostile
working environment" and that their complaints include allegations of the following
retaliatory acts by the Respondents:
- A. Transmission of blacklisting documents to Secretary O'Leary
aimed at the Complainants,
- B. Calling the Complainants "disgruntled employees" in
documents circulated to the highest levels of DOE and concealed from
Complainants for years,
- C. Seeking to have Mr. McQuade fired for lawfully obtaining documents
through FOIA and the Privacy Act,
- D. Firing of Mr. McQuade, his being subjected to a retaliatory PIP,
- E. Mr. McQuade's being threatened with arrest at work,
- F. Violation of Mr. McQuade's doctor-patient privacy rights by Mr. Boatner
by sending a psychiatric report to a hotel fax machine,
- G. A reprimand for filing a FOIA request raising concerns about DOE ORO
management,
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- H. Subjecting Mr. McQuade to a retaliatory psychiatric referral and personnel
security interview where protected activity was inquired into and
stigmatized,
- I. Harassment, intimidation and transfer of Mr. Warden,
- J. Harassment and intimidation of Mr. Byrum,
- K. Threats to workers intended to chill protected activity regarding granting
criminals security clearances,
- L. Refusal to assign Ms. Johnson any official travel to Oak Ridge despite the
nationwide nature of her inspection and evaluation duties,
- M. Idling of Mr. Warden with demeaning tasks and little or no work using his
intelligence and experience, and
- N. Harassment and intimidation of all of the Complainants.
Complainants' Response to Rest, Residue and Remainder of Respondents' Motion for
Summary Dismissal at 2-3. The Complainants further respond that their sworn complaints
establish that the Respondents' actions did affect their working conditions by creating a hostile
environment, and they argue that their allegations of a hostile work environment can not be fairly
considered on a "piecemeal" basis and that the overall, composite effect of the
Respondents' actions must be evaluated in determining whether the Respondents' engaged in
unlawful retaliation. Id. at 3-4.
In English v. Whitfreld, 858 F.2d 957 (1988)
(English), the Fourth Circuit held that a claim of discrimination based on
retaliatory harassment is cognizable under the whistleblower protection provisions of the Energy
Reorganization Act (ERA). The Court found the "abusive or hostile work
environment" concept of discrimination developed in Title VII cases and approved by the
Supreme Court in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986)
(Meritor) to be directly analogous to whistleblower discrimination, and it stated that
when a superior harasses an employee because of the employee's protected whistleblowing
conduct, the superior discriminates on the basis of the employee's protected activity. The Court
remanded the case, which had been dismissed by the Secretary, for further consideration, and it
directed the Secretary to be guided by Meritor in assessing whether the alleged
harassment was of such nature and degree to create an "abusive or hostile working
environment" amounting to discrimination. Id. at 963-964. The Secretary
subsequently specifically agreed with the English court and found the principles
articulated by the Supreme Court in Meritor and reaffirmed in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993) (Harris), to be equally applicable to
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environmental whistleblower discrimination cases. Varnadore v. Oak Ridge National
Laboratory, Case No. 92-CAA-2 (Sec'y January 26, 1996) (Varnadore 1) at
47-48. The Secretary also held in Varnadore I that a showing of a "tangible job
detriment" is not a prerequisite to proof of unlawful discrimination on the basis of
retaliatory harassment which creates an abusive or hostile work environment:
-
Neither the posting incident nor the Murphy incident were acts which involved
"tangible job detriment." Rather, they were acts that related to the
"environment" in which Varnadore worked. That does not mean that
these incidents are not actionable, however. If these two incidents created a hostile
work environment for Varnadore, and they occurred in retaliation for Varnadore's
protected activity, they are remediable under the hostile work environment theory
of discrimination.
Id at 47. With regard to the test for determining whether retaliatory harassment
creates an abusive or hostile work environment, the Secretary noted that the Supreme Court has
stated that such a determination can only be made by looking at all of the circumstances,
Id. at 48, quoting Harris at 22-23, and he rejected a piecemeal analysis of each
individual act of alleged harassment:
-
A play cannot be understood on the basis of some of its scenes but only on its
entire performance, and similarly, a discrimination analysis must concentrate not
on individual incidents, but on the overall scenario . . . . The factfinder in this type
of case should not necessarily examine each alleged incident in a vacuum. What
may appear to be a legitimate justification for a single incident of alleged
harassment may look pretextual when viewed in the context of several other
related incidents.
Id. at 51-52 (ellipsis provided by the Secretary), quoting Andrews v. City of
Philadelphia, 895 F 2d 1469, 1485 (3rd Cir. 1990).
From the foregoing, it is clear that the Complainants need not demonstrate
that particular incidents of alleged harassment involved any tangible employment detriment to
prove their claims of retaliatory' harassment. It is also clear that a determination of whether the
Respondents' alleged conduct rises to the level of an abusive or hostile work environment can
only be made after a full consideration of all relevant facts and assessment of the "overall,
composite effect [of the alleged harassment] on the terms, conditions, and privileges of
employment . . .." Varnadore I at 51, quoting King v. Hillen, 21 F.3d
1572, 1581 (Fed. Cir. 1994). Such a determination can not be fairly made on the basis of a
motion for summary dismissal on a bare record which provides no means of evaluating the
credibility of witnesses or meaningful insight into the relevant work environment. This matter
obviously presents genuine issues of material fact which require a full evidentiary hearing. Under
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these circumstances DOE's motion for summary dismissal for want of actionable adverse
employment action must be denied. I do, however, find that res judicata applies to Mr.
McQuade's allegation in his January 3, 1996 complaint that he was discriminatorily subjected to
a security clearance interview and psychiatric examination as this issue was previously litigated
before and adjudicated by Judge Barnett. Recommended Decision and Order at 18. Finally, I
disagree with DOE's claim that res judicata applies to the allegation in the December 16,
1996 complaint concerning the unsatisfactory performance rating given to Mr. McQuade because
review of the MSPB Administrative Judge's initial decision does not indicate that the issue
presented in this proceeding (i.e., whether the unsatisfactory rating was given to Mr.
McQuade in retaliation for protected activities under the environmental whistleblower protection
statutes) was litigated before the MSPB. Compare Billings v. Tennessee Valley
Authority, Case No. 91-ERA-12 (ARB June 26, 1996) at 8 (under the doctrine of res
judicata, a judgement on the merits bars a second suit involving the same parties and the
same cause of action).
Conclusion
The Complainants are entitled to partial summary judgement on the
following issues: (I) that sovereign immunity is not available to shield the Respondents from
liability for any conduct found unlawful based on the complaints filed in these cases; (2) that the
complaints were timely filed; and (3) that Complainants Johnson, McQuade and Warden engaged
in activity protected by the environmental whistleblower protection statutes by filing and
prosecuting their April 1995 whistleblower discrimination complaints. The Respondents are
entitled to summary dismissal of the individual respondents and the DOE IG. Accordingly,
IT IS HEREBY ORDERED that:
(1) the Complainant's motions for partial summary judgement are
granted on the following issues: (1) that sovereign immunity is not available to shield
the Respondents from liability for any conduct found unlawful based on the complaints tiled in
these cases; (2) that the complaints were timely filed; and (3) that Complainants Johnson,
McQuade and Warden engaged in activity protected by the environmental whistleblower
protection statutes by filing and prosecuting their April 1995 whistleblower discrimination
complaints;
(2) the Complainant's motion for partial summary judgement on the issue
of whether Complainant Byrum engaged in activity protected by the environmental
whistleblower protection statutes is denied;
(3) DOE's motion for summary dismissal is granted in part and
the following respondents are dismissed: Patricia Howse Smith; Rufus Smith; Dan
Wilken; Jennifer Fowler; Ivan Boatner; and the DOE Inspector General; and
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(3) DOE's motion for summary dismissal is otherwise denied.
Daniel
F. Sutton
Administrative Law Judge
Dated: APR 29 1999
Camden, New Jersey