Date Issued: February 27, 1998
Case No.: 98-SWD-2

In the Matter of

STEVE COPPOCK
Complainant

v.

NORTHRUP GRUMMAN COMPANY
Respondent

   This case arises under the employee protective provisions of the Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971 and Section 507(a) of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 and the applicable regulations promulgated at 29 C.F.R. Part 24. The Secretary of Labor is empowered to investigate and determine "whistleblower" complaints filed by employees who are allegedly discharged or otherwise discriminated against with regard to their terms and conditions of employment for taking any action relating to the fulfillment of safety or other requirements established by SWDA.

   On February 5, 1998, the undersigned issued an Order Denying Respondent's Motion for Summary Judgment filed on January 26, 1998 based on Complainant's denial of an opportunity to complete full discovery regarding the issues. Complainant failed to file a timely response thereto.

   On February 6, 1998, a pre-hearing telephone conference was conducted with the parties. In an effort to fulfill outstanding discovery issues, Respondent was ordered to produce a corporate representative on February 9, 1998 for deposition and to provide "all [non-confidential] documentation . . . regarding the reporting [and corporate investigation] of the July 31, 1997 spill to any governmental agency; representatives, employees, and/or agents of the Respondent; and/or any other person or entity" and "all log books, notes and other records of the July 31, 1997 spill." Respondent requested that its Motion for Summary Judgment be reconsidered after Complainant had an opportunity to complete discovery. The parties were then informed that a de novo consideration of the motion would be conducted if both parties agreed to such a request, allowing Complainant additional time to supplement his response after discovery and accepting his initial response as timely.

   On February 9, 1998, the undersigned was advised that Complainant elected not to pursue a deposition of Respondent's corporate representative and declined to agree to a de novo consideration of Respondent's Motion for Summary Judgment. Respondent re-urged its motion since the sole basis for its denial was Complainant's denial of an opportunity to complete discovery which he had thereafter declined to pursue.

   On February 2, 1998, an Order issued to Complainant to show cause why Respondent's motion for de novo consideration of its Summary Judgment Request should not be granted.

   On February 13, 1998, Complainant filed a response to the Show Cause Order in which he asserts that he chose not to depose Respondent's corporate representative because deponent did not have "personal" knowledge of the July 31, 1997 spill. Counsel for Complainant additionally sought to depose Pat Wilson, who is represented by Counsel in EPA Litigation, who advised that Mr. Wilson would invoke his Fifth Amendment right against self-incrimination. Complainant expressed a continuing desire to depose a corporate representative with "personal" knowledge of the July 31, 1997 spill. Complainant argues that based on his February 4, 1998, affidavit "there is at least a question of material fact regarding the true reason for Respondent's termination of his employment."

   Having considered the foregoing, Respondent's request for reconsideration of its Motion for Summary Judgment is hereby granted since the procedural impediment warranting denial has been removed by Complainant's election to forego discovery as ordered.

   Complainant's continued desire to engage in discovery is denied since the deadline, as extended, has been more than reasonable for completion of all pre-hearing discovery. The personal knowledge of a corporate representative regarding corporate action is irrelevant in this matter. Complainant must only establish a prima facie case that: (1) he engaged in protected activity, which is reflected in his internal and external reports; (2) Respondent had knowledge of his activity; and (3) Respondent took adverse action against him.

Bechtel Construction Company v. Secretary of Labor, 50 F.3d 926, 933 (11th Cir. 1995); Saporito v. Florida Power & Light Co., Case No. 94-ERA-35 (ARB July 19, 1996). Complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Id. Complainant's actions need only be in good faith or based on a reasonable perception. He is not required to ultimately establish that Respondent's acts of commission or omission violated any environmental statute. See Minard v. Nerco Delamar Co., Case No. 92-SWD-1, @ 8 (Secy. Jan. 25, 1995); Carson v. Tyler Pipe Co., Case No. 93-WPC-11 (Secy. Mar. 24, 1995).

A. Respondent's Motion

   Respondent argues that Complainant's employment was terminated following his second positive drug test within a two year period in accordance with the terms of a collectively bargained drug testing policy between Respondent and the United Automobile and Aerospace Workers (UAW), Local 848. Specifically, it is contended that Complainant's termination was based on the "admitted" use of marijuana in April 1997 (four months prior to any alleged protected environmental activity) and Complainant's second positive test in October, 1997.

   Respondent's motion is supported by Complainant's deposition dated January 20, 1998, Letter of Agreement 31, Substance Abuse Testing Program (Effective 1 July 1992) between Respondent and UAW Local 848, the sworn and notarized affidavits of David J. Whitney, Gayle Blair and Kevin P. McGlinchey and various correspondence and pertinent documentation related to Complainant's complaint of alleged discrimination.

   On October 8, 1997, Complainant was discharged pursuant to Letter of Agreement 31 for testing positive on a second drug test in a two year period. He thereafter filed a complaint with the U.S. Department of Labor (DOL) alleging violations of environmental statutes. Complainant contended that he was a protected employee having engaged in whistleblower activities against Respondent who retaliated against him therefor. On December 17, 1997, DOL dismissed Complainant's complaint concluding that Complainant was involved in an ongoing program unrelated to any safety issues raised by Complainant in his complaint; that his participation in the program was initiated in accordance with company policy before he engaged in any alleged protected activities; and that situations which developed within the program required Complainant's discharge.

B. Complainant's Response

   In response to Respondent's motion, Complainant filed a 17-page notarized affidavit with seven exhibits. He acknowledged smoking or being exposed to marijuana smoke a few days before testing positive in April, 1997. He signed a five-day suspension form which required his attendance, while suspended, in a drug treatment program. He acknowledged he failed to do so professing ignorance of the requirement. Complainant was thereafter subjected to monthly drug testing in conformity with provisions of the extant collective bargaining agreement.

   Complainant argues that Respondent's failure to terminate him for his transgression of not entering a drug treatment program substantiates his position that Respondent discharged him for his "whistleblowing" activity.

   Complainant avers that Respondent does not inform employees that false positive tests can be caused by consumption of Motrin and Ibuprofen. Complainant contends that his second positive test in October, 1997 was "the result of tampering or a false positive test because I neither smoked any marijuana nor inhaled/ingested any marijuana through secondhand smoke or eating." Complainant does not assert that he consumed Motrin or Ibuprofen. Complainant further contends that Respondent should have investigated whether his second positive test was a false positive or "sent [him] to a drug treatment program."

   Complainant asserts he engaged in protected activity by reporting the events of a spill of industrial waste which occurred on July 31, 1997, including alleged instructions received from environmental liaison Pat Wilson to falsify, by omission, an engineering log. Complainant alleged that he reported the spillage events to Respondent's "hotline" on August 1, 1997, and that thereafter Respondent breached its confidentiality assurances by releasing his name to the union and "probably other people."

   He asserts that after his name was released his co-workers "demonstrated increasing ill will toward" him. He claims he was assigned to jobs for which he was not qualified or trained, resulting in his "electrocution" on one occasion. He contends that such an assignment was discriminatory since his foreman did not file an injury report for two weeks until ordered to do so by superiors. He was restricted to only two jobs in the powerhouse, i.e., the board and the boiler, to keep him away from his duties in the IWT plant where the hazardous waste spill occurred.

   Complainant also raises incidents that have no clear nexus to Respondent, such as an attorney referral to a former U.S. Attorney in collateral EPA litigation and the observance of a suspicious individual parked and driving by his home in a red car.

   Complainant contends that Respondent "clearly intended to fire me as soon as I was identified [as the whistleblower] and the second positive drug test just gave the Respondent a convenient excuse and the ability to deny that I was terminated for reporting the July 31, 1997 spill." He claims that Respondent's retaliation against him is substantiated by a September 29, 1997, memo in which "counseling concerning employment rights" is mentioned before he allegedly tested positive on a second drug test.

C. Respondent's Reply

   Respondent filed a reply in which it is argued that Complainant's response merely raises conclusory allegations that are irrelevant, unsupported and contradictory. It is asserted that Complainant has not produced and cannot produce any evidence in support of his contention that his termination was in any way related to his report of an environmental matter or that Respondent retaliated against him therefor. Lastly, Respondent argues that Complainant's

allegations do not show the existence of a genuine issue of material fact. Moreover, Respondent asserts that Complainant admits to testing positive for marijuana use in April, 1997, and offered no explanation for his second positive test six months later.

D. Summary Decision Standard

   The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d)(1994). See, e.g., Webb v. Carolina Power & Light Co., Case No. 93-ERA-42 @ 4-6 (Sec'y July 17, 1995). This section, which is derived from Fed. R. Civ. P. 56, permits an Administrative Law Judge to recommend decision for either party where "there is no genuine issue as to any material fact and . . . a party is entitled to summary decision." 29 C.F.R. § 18.40(d). Thus, in order for Respondent's motion to be granted, there must be no disputed material facts and Respondent must be entitled to prevail as a matter of law. Gillilan v. Tennessee Valley Authority, Case Nos. 91-ERA-31, 91-ERA-34 @ 3 (Sec'y August 18, 1995).

   The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). It is enough that the evidence consists of the party's own affidavit, or sworn deposition testimony and declaration in opposition to the motion for summary judgment. Celotex Corp., 477 U.S. at 324; Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1461 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). The determination of whether a genuine issue of material fact exists must be made viewing all evidence and factual inferences in the light most favorable to Complainant. Trieber v. Tennessee Valley Authority, Case No. 87-ERA-25 (Sec'y Sept. 9, 1993).

   "Summary judgment may be rendered only when the court finds that the papers submitted in support of and in opposition to the motion reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "material" if the facts alleged constitute a legal defense or are of such a nature as to affect the result of the action. A fact is material and precludes the grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties and would necessarily affect application of appropriate principles of law to the rights and obligations of the parties.

   On summary judgment, the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The purpose of summary judgment is to pierce the pleadings and assess the proof, in order to see whether there is a genuine need for a trial. Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Id. at 587.

   In considering the appropriateness of a motion for summary decision under

the employee protection provisions of the Energy Reorganization Act, provisions which are analogous to those applicable to this matter, the Secretary has noted that where there is no protected activity nor any discrimination as a result of protected activity, there is no cause of action. Richter v. Baldwin Associates, Case No. 84-ERA-9 to 12, slip op. at 3 (Sec'y March 12, 1986). Under Richter, "any facts which are probative of whether a complainant engaged in protected activity or whether adverse action taken against a complainant was in retaliation for a protected activity are material facts. A dispute as to such probative facts demands the denial of a motion for summary decision and required that a hearing to be held to resolve the disputed facts." Id. In Richter, the Secretary further noted that the Supreme Court has cautioned that "summary procedures should be used sparingly . . . where motive and intent play lead roles. . . " Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962). The Secretary amplified this standard in Bassett v. Niagara Mohawk Power Co., Case No. 86-ERA-2 (Sec'y July 9, 1986), wherein she stated that "it is not required that every element of a legal cause of action be set forth in an employee's . . . complaint." Id.

   Accordingly, in order to withstand Respondent's Motion, it is not necessary for Complainant to prove his allegations. Instead, he must only allege the material elements of his prima facie case. Bassett, Id. at 4. Whether the alleged acts actually occurred or whether they were motivated by the requisite animus are matters which cannot be resolved conclusively until after the parties have presented their evidence at hearing.

E. Discussion

   Respondent concedes that Complainant engaged in conduct which is protected under the environmental act at issue of which Respondent denies any discrimination against Complainant, and asserts that Complainant's termination was mandated by the collectively bargained drug testing program. In reply, Respondent does not specifically address the instances of the alleged continuing pattern of retaliation advanced by Complainant. Complainant's allegations, if proven, would be suggestive that Respondent retaliated against him for his protected activity. The substance of these allegations goes directly to the subject matter regulated by the protective provisions of the instant environmental

acts. While the evidence may ultimately fail to sustain Complainant's contentions that he engaged in protected activity which prompted Respondent to retaliate by job assignments, work isolation and termination, they are not unduly speculative nor subjective.

   Respondent's challenges to Complainant's allegations are fact-specific. That is, they are based on interpretations and characterizations of events that both parties agree actually occurred. The inferences that Complainant urges should be drawn from these events are obviously quite different from that Respondent urges. In the final analysis, it is impossible to conclude that the disputes over the various instances of alleged adverse action through a "continuing pattern of retaliation" are anything other than factual in nature and therefore constitute a singularly inappropriate basis for summary decision.

   Although Respondent asserts all matters other than the second positive drug test are irrelevant, Complainant contends that the Respondent's pattern of conduct is violative and taints the validity of the second positive test which may have been "tampered with" or "false." However, Complainant's independent negative test on October 9, 1997, six days after his second positive test, does not clearly resolve Complainant's positive test since a passage of time occurred before testing and a different threshold standard (100 ng/ml) was used. All of the foregoing is fact-specific.

   As the applicable precedent establishes, Complainant need not prove his case at this point in these proceedings. He has alleged that he was subjected to various instances of adverse action as a result of reporting the July 31, 1997 event and Respondent's compliance with regulatory safety and maintenance standards, and that is enough.

F. Conclusion

   In view of the events Complainant describes in his complaint and in his response to this motion, in the light most favorable to his position, I conclude that he has "set forth specific facts showing that there [are] . . . genuine issue[s] for trial." Treiber, Supra, @ 5. Although Respondent has provided affidavits and argument which contradict Complainant's version of events, he has addressed this evidence and argument in a sufficient manner to convince me that there is a legitimate dispute of the factual circumstances such that summary disposition of this matter is inappropriate. Regardless of whether Complainant can prove his case at hearing, he has done enough to entitle him to the opportunity to be heard. Accordingly,

   IT IS HEREBY ORDERED that Respondent's Motion for Summary Judgment is DENIED.

   ORDERED this 27th day of February, 1998, at Metairie, Louisiana.

       LEE J. ROMERO, JR.
       Administrative Law Judge