discriminatory the failure to grant leave and paid time in connection with this litigation. The Complaint also alleged various acts of continuing intimidation.

    On May 13, 1992, the Administrator found that MMES discriminated against Complainant by a low appraisal for the period 1990-1991.

    On September 4, 1992, Varnadore filed a third complaint alleging that posting a memorandum hostile to him discriminated against him. The Administrator found in favor of the Complainant on this issue on October 30, 1992.

    All of the Administrator's determinations were timely appealed. The trial herein was conducted in the period July 6 30, 1992 and on December 16, 1992.

    Complainant and his wife in March 1992 also filed suit against MMES, W. D. Shults and Darrell Wright in the Circuit Court of Roanoke County, Tennessee for intentionally causing him harm in the course of his employment. (EX 196). The record is silent as to the status of that proceeding.

    Two additional collateral proceedings should be noted. During the course of this litigation, Respondent was investigated concerning many of these allegations by a panel from the Department of Energy Field Office in Oak Ridge, Tennessee. Respondent's parent corporation, Martin Marietta, subsequently retained the firm Milbank, Tweed, Hadley & McCloy to also investigate Mr. Varnadore's complaint. Their reports have been received for the limited purpose of documenting proceedings which had some effect on this litigation and the individuals involved. Neither the DOE Panel Report nor the Milbank Report has been considered as substantive evidence. The trial record compiled in this proceeding is ample for that purpose.

    3. The K-25 Plant is a multipurpose site. Until 1985, it was operated as a gaseous diffusion plant to produce enriched Uranium235 from Uranium-238. The Y-12 Plant is a manufacturing and developmental engineering organization engaged primarily in programs vital to nuclear weapons manufacturing. These programs include the manufacture of "subassemblies," or components of nuclear weapons. (Stipulated).

    4. The Oak Ridge National Laboratory, is one of the world's largest and most diverse centers for basic and applied scientific research and technology development and other scientific and technical services. It has approximately 5, 000 employees. (Shults 1266). (Stipulated).

    5. The Paducah and Portsmouth Plants are operated in tandem to produce the enriched Uranium-235 that fuels many U.S. and foreign nuclear power plants and for defense efforts involving nuclear energy, i.e. , weapons and fuel for the U. S. Navy submarines and ships. (Stipulated).

    6. MMES has managed, operated and maintained the DOE facilities in 0ak Ridge, Tennessee, and Paducah, Kentucky, since April 1, 1984. Prior thereto, since the late 1940's the facilities at Oak Ridge and Paducah were managed by the Union Carbide Corporation - Nuclear Division (UCC-ND) under a cost plus a fee contract. (Stipulated).

    7. The Analytical Chemistry Division (ACD) of ORNL carries out fundamental research in analytical science, performs applied research and development in analytical technology, and provides chemical services in support of a wide variety of programs. (Stipulated). It has 202 employees. Of these, 142 are permanent. (Shults 1266-1267).

    8. ACD is currently divided into four sections, Analytical Spectroscopy, Organic Chemistry, Operations, and Inorganic and Radiochemistry. Each section is headed by a section head. Each section is further divided into groups. Each group is headed by a group leader and within the group there are task or shift leaders. (Stipulated).

    9. The Department of Energy has 600 employees in a central location at Oak Ridge to oversee the MMES contracts and there are another 30 to 50 DOE employees on each of the sites overseeing the day-to-day operations of the company. (Hopkins 3144).

equipment, checking out the equipment for operation, and making suggestions to the engineers on modifications of equipment for better operation. Mr. Varnadore was a technician at K-25 and received promotions in 1977 to Senior Laboratory Technician and in 1982 to Science Technologist (the job title was changed to Engineering Technologist in 1984). At K-25, Complainant had an exceptionally good rating. (Botts 1773). In 1985, the program for which Mr. Varnadore was working, the Experimental Gas Centrifuge Program, was being terminated. As a result, the employment of a number of people was also terminated. Mr. Varnadore was notified on August 15, 1985, that his employment would end on September 18, 1985, due to a reduction in force. (Stipulated).

    12. The duties performed by Mr. Varnadore from 1974 to 1985 at K-25 varied, and included, but were not limited to, the following: Basic work in centrifuge program, including work with mass spectrometer; mechanical assembly of, preparation for testing and testing of developmental gas centrifuges; personnel training, acting foreman; assist research and development engineers in all phases of development; assembly of, testing and quality control of equipment, maintenance and repair of advanced gas centrifuge equipment; equipment testing, adjustment and calibration; and other related job activities. Since September 1985, at ORNL, Mr. Varnadore has been a Senior Laboratory Technician and his duties have, at various times, included providing support for the TRU tank farm work; deer hunt program; smoke program; expediting materials handling and shipping problems; assisting in reorganizing laboratories; processing samples; ordering supplies; inventory work; completing waste disposal forms and related activities. (Stipulated).

    13. MMES assisted employees including Mr. Varnadore, who received termination notices (from K-25) in an effort to find other positions in the company. Mr. Varnadore was offered opportunities to interview at Y-12 and ORNL. Complainant interviewed with the ORNL Fusion Energy Division, but was not offered a position because of funding considerations. He also interviewed with the ORNL Analytical Chemistry Division (ACD). (Stipulated).

    14. When Varnadore was interviewed, ACD had limited opportunities for a technician with a mechanical background. He described these interviews as being cordial. Complainant had the impression that people were trying to help him. other than his resume that described his mechanical background, Varnadore did not supply the interviewers with any other written information. (Stipulated).

    15. Complainant was offered employment as a Senior Laboratory Technician in ACD with no change in pay. The offer was conveyed to Varnadore by the K-25 Human Resources Division. He accepted the offer. When Varnadore reported to work in the Division on September 23, 1985, he was assigned to work in James Botts' group in the TRU facility. The work in the TRU facility involves, among other things, preparing and analyzing samples of transuranic materials. The work is performed using glove boxes, chemical hoods, and "hot cells" that are designed to protect the worker from exposure to radioactive or toxic materials. (Stipulated).

TRU facility under Mr. Botts, performing various tasks while other employees were being trained. In approximately June 1986, he was transferred to work in the Radiochemistry and Activation Analysis Group under Juel Emery and James Eldridge. In approximately February 1987, he was transferred to work in the Special Projects group under Dr. Roger Jenkins. In approximately June 1987, he was transferred to work in the Organic Analysis group. He first worked under Group Leader Dr. John Caton and later, beginning in June 1989, under Group Leader Dr. Michael Maskarinec. In 1990, while assigned to the Organic Analysis group, he was assigned to perform some tasks for the Special Projects group under Dr. Jenkins. In November 1990, he was assigned administrative duties in ACD by Darrell Wright and was transferred to division overhead. He was officially placed under the supervision of Darrell Wright in March 1991. (Stipulated).

    17. Complainant has had more than the normal number of transfers within ACD. (Stokely 1895). In fact, Michael Maskarinec, a group leader, cannot recall anyone who has been moved around as much as Varnadore. (Maskarinec 2189; See also Mayton 510).

(Stipulated).

    23. Radiation Protection, also called Health Physics (HP) is the department at ORNL that concerns itself with radiation protection and control. (Stipulated).

    24. Industrial Hygiene (IH) is the department at ORNL that concerns itself with exposure to chemicals and other industrial hazards. (Stipulated).

    25. OSHA is the Occupational Safety and Health Administration. OSHA sets Permissible Exposure Limits (PELs) for, among other things, mercury and asbestos. PELs are limits developed by OSHA to indicate the maximum airborne concentration of a contaminant to which an employee may be exposed over the duration specified by the type of PEL assigned to that contaminant. (Stipulated).

    26. ACGIH is the American Conference of Governmental Industrial Hygienists. ACGIH annually issues guidelines and recommendations in the form of Threshold Limit Values (TLVs) for, among other things, mercury. (Stipulated).

    27. Transuranic elements are elements with atomic numbers greater than that of uranium. They follow uranium in the periodic table of the elements. (Stipulated)

    28. Reagent grade chemicals are chemicals of ultra high purity. (Wright 2963).

    29. Hot cells are enclosures designed to contain materials with high levels of radioactivity. The enclosures are made of high density concrete, four feet thick, with shielding windows in the front containing a zinc bromide solution. Mechanical hands penetrate the cells and are manipulated from outside the cells to perform chemical work in the cells. Samples are placed in and brought out of the cells using shielded carriers and a remote transfer mechanism. (Stipulated).

    30. Glove boxes are enclosures in which samples containing high levels of alpha activity are handled. The hot cell is designed to protect the operator from high levels of beta gamma radiation as well as alpha. The glove box operation is designed to protect the operator from high levels of alpha activity. (Botts 1748).

    31. As Low As Reasonably Achievable (ALARA) is an approach to radiation protection designed to keep individual and collective exposures as low as social, technical, economic, practical, and public policy considerations permit. ALARA is not a dose limit but a process with the objective of keeping dose levels as far below specified limits as reasonably achievable. In recent years, ORNL and MMES have begun applying the ALARA philosophy to other types of exposures such as chemical exposures and physical stresses. ALARA is defined in Energy Systems Standards-ESS-RP-102, ALARA for Radiation Protection Programs (11/1/91) ; DOE exposure standards for radiation are found in DOE Order 5480.11, Radiation Protection for Occupational Workers (12/21/88) and establish an annual maximum exposure of 5,000 millirem. A REM is a measure of exposure to radiation. One REM equals one thousand (1000) millirem. (Stipulated).

    32. CLP or Contract Laboratory Procedures is a set of rules and regulations that EPA requires be adhered to in environmental site survey work. (Laing 1829; See also Caton 646).

    40. On December 13, 1985, Dr. Shults wrote in pertinent part as follows to Barbara Ashdown of the ORNL staffing organization seeking assistance in finding Complainant a position in another division:

hunt project is to check deer killed on the Oak Ridge reservation for radioactivity. (Shults 1305-1306). Mr. Varnadore's role was the following:

Well, that project is a lot more complicated than it sounds. There's a considerable amount of preparation that has to be done. A mobile laboratory has to be set up and calibrated so that it can be taken out to the field where the hunters can bring the deer. Then during the hunting season that laboratory has to be manned. Then after the hunts are all over there is a certain amount of data preparation and report preparation. So he was involved in most of that in one way or another.

Approximately 3 percent of the deer checked were confiscated based on liver and bone scans. (Stokely 1946).

    47. Complainant felt he did well on this job. (Varnadore 9697, 310, 312, 421). Jim Eldridge before his death had told Perry Gouge that Complainant was doing a good job for him. (Gouge 576). Dr. Shults, on the other hand, recalls Eldridge telling him that:

. . . Mr. Varnadore would never be able to be a good radiochemical technician because he didn't have the background to learn what needed to be learned. He also said he didn't have the interest in trying to learn what needed to be learned.

    48. In the opinion of Dr. Stokely, had Eldridge's criticism been of any seriousness, one would expect to find records documenting such criticism. Dr. Stokely did not find such records. (Stokely 1935-1936).

    52. Roger Jenkins was involved in Complainant's performance appraisal for October 1988 to October 1987. (R. Jenkins 2461). He added the comment "Gets along with many people, sometimes too well." (R. Jenkins 2461-2462). He had also written "Needs improvement: Easily distracted from tasks at hand by large number of personal contacts. Continue to improve working knowledge of chemistry." This review was completed when Varnadore was working for John Caton. (R. Jenkins 2462-2464). He felt Varnadore was spending too much time in telephone conversations and personal contacts which could have been more productively spent. (R. Jenkins 2462). Caton and Rogers Jenkins discussed the appraisal after the transfer to the Organic Analysis Group. Caton felt Complainant was doing reasonably well in his group and a CM was recommended. (R. Jenkins 2464).

    53. The Division Director decided to transfer Complainant from the Jenkins group because funding was tight for the group and because of his feeling that Complainant was not carrying his

weight. At the same time John Caton's organic Analysis Group was heavily overloaded with work and needed people. Dr. Caton was willing to take Complainant and train him for sample preparation work. The decision to transfer Complainant was based on a combination of these factors. (Shults 1315-1317; R. Jenkins 24582459).

    58. According to Dr. Caton, Varnadore did what he was asked to do, as did the whole group which worked very hard. (Caton 587). Complainant had excellent manual dexterity but not a lot of chemistry background which had to be learned as he went along. (Caton 587). Dr. Caton had no serious complaints about Varnadore's work and gave him CMs on the two performance evaluations he was involved in. (Caton 587-588). Caton felt Varnadore was making

significant progress in his group. (R. Jenkins 2478) . No member of the group complained to Caton about Varnadore when Caton was group leader of Organic Analysis. (Caton 633). Dr. Caton put a note on Varnadore's appraisal "Employee is presently making an excellent contribution to Organic Analysis effort. J.E.C. 2-29-88". (Caton 595; EX 18G).

According to Dr. Shults,

Doctor Caton was, . . pleased to have Mr. Varnadore there in a sample preparation group because Mr. Varnadore was willing to come in early or sometimes on the weekends to get projects started. It was a help to him to have somebody that was willing to do that.

(Shults 1322)

It is Dr. Shults' recollection that Complainant "did [an] acceptable job while he was with Caton doing sample preparation." (Shults 1322).

    59. According to Dr. Caton the sample overload in the Site Survey was impossible. There was no way people could have finished there. (Caton 599). OAG became swamped with work.

    60. The preparation of samples is crucial because even if you have the best analysts, if the sample is not prepared right the results will be invalid. (Caton 647, Wachter 716).

    61. In June of 1989 Michael Maskarinec replaced John Caton as group leader. (Varnadore 140; Shults 1328). This was Dr. Guerin's decision. He considered Caton to be a superb scientist as well as a good teacher and good at bringing people along . Guerin also felt, however, that meeting deadlines and communicating were not Dr. Caton's strength. (Guerin 2257-2259).

    62. Complainant who was then working on sample preparation was diagnosed with colon cancer shortly thereafter. He was operated on July 8, 1989 and returned to work November 1989 on an as able basis. (Varnadore 151-152). He was at that time affected by the side effects of his chemotherapy. (Varnadore 152-154).

    63. On his return to work on approximately November 1, 1989, Complainant went back to the laboratory that he had been in prior to his surgery. (Varnadore 153; Maskarinec 2076). David Jenkins, a new employee, had been assigned to the same laboratory after his illness. (Varnadore 153). Varnadore on his return to work occupied the same soil laboratory as Jenkins. (D. Jenkins 2509, 2511). According to Maskarinec, Complainant on his return was still pretty sick and also felt that "his emotional state might not have been all that good either." (Maskarinec 2076).

    64. Complainant worked part time in the period January-June 1990. (Varnadore

158). Because of a broken ankle he did not work at all in the period June-October 1990. (Varnadore 158).

    5. Varnadore noted that David Jenkins was not following the proper sampling procedures. (Varnadore 163). According to Varnadore, he discussed this with two co-workers, Messrs. Henderson and Pair. He also discussed it with Lise Wachter. (Varnadore 163, 170).

    70. In the opinion of Ms. Wachter, David Jenkins was not getting done what he should during regular hours. In fact she felt Jenkins was not getting as much done as other members of the group including Varnadore. (Wachter 702-703).

    71. She was convinced that deficiencies in Jenkins' sample preparation procedures were not corrected because of the closeness between Maskarinec and Jenkins. (Wachter 707-708). Ms. Wachter perceived that there was a favoritism problem in the way that Maskarinec was managing the unit. (Wachter 708). Ms. Wachter herself raised concerns about David Jenkins' sampling procedures with Michael Maskarinec. (Wachter 698-699, 706).

    72. Ms. Wachter has heard Maskarinec use the term "troublemaker" more than once with respect to Varnadore. Her recollection is that she heard Maskarinec use the term after Complainant had been moved into Room 163 and prior to her April, 1990 meeting with Messrs. Maskarinec, Guerin, Pair and Henderson. (Wachter 714). Maskarinec denies using the term "troublemaker". (Tr. 2096).

months. (R. Jenkins 2466). According to Jenkins, Varnadore's performance at that time was very poor and his telephone usage had gone up markedly. (R. Jenkins 2468-2469). In 1990 Jenkins relayed complaints on this score from Jack Moneyhun and other employees and his own observations to Dr. Guerin, his section head. This was the last time that Varnadore performed any work under Roger Jenkins' supervision. (R. Jenkins 2469).

    85. At the time of his move to E-163 Complainant discussed David Jenkins' sampling procedures with Pamela Howell, a quality assurance employee. (Varnadore 175-176).

    91. Thereupon the Resource Conservation Recovery Act made it mandatory to classify the chemicals in E-259 as waste. (Wright 3012). Varnadore was instructed to make up the waste disposal forms for the chemicals in Room E-259. His top priority was to get the chemicals out of that room. (Wright 3013). Varnadore was engaged in making out such forms from June 3, 1991 until the chemicals were subsequently removed in the 90-day time period. (Wright 3013). The last chemicals were moved by September 3, 1991. (Wright 3015). According to Wright, E-259 ceased being an RCRA less than 90-day accumulation area on September 3, 1991. (Wright 3019).

    92. once the chemicals in E-259 were classified as waste, E-259 became a less than 90-day accumulation area. Prior thereto such classification was not necessary. (Wright 3013).

forwarded to the Division Director who subsequently meets with the Section leaders to discuss the recommended ratings. The final evaluation rating is then made by the division, although it is subject to review by higher levels in the organization. (Shults 1310-1311, 1412-1415).

    98. In the Analytical Chemistry Division, absences are a factor which influence an employee's ratings. (Shults 1332). This is not universally applied throughout ORNL but is also utilized in some divisions other than ACD. (Shults 1332). Shults has been applying this factor since he became division director. (Shults 1332). According to Shults, an employee's absence record for the year is reviewed. If it is four times or more the average absence for the division, this is then considered a reasonable basis to review the rating. (Shults 1332-1333). Usually this is equivalent to adding a plus or a minus. (Shults 1333). This criterion, according to Dr. Shults, is also applied to employees on excused absences for illnesses. (Shults 1334). The way Dr. Shults handles absentees is his policy, it is not necessarily that of MMES system wide. (Shults 1490). This policy has not been consistently applied across the company because so many factors go into a performance appraisal other than just attendance. (Hopkins 3148).

    101. Dr. Shults' reason for downgrading of Varnadore from the CM- recommended by group leader Maskarinec to an NI for the period 10/88 to 10/89 was Complainant's absence because of his illness. (Shults 1332-1334, 1369). Dr. Shults for the same reasons downgraded Complainant to a UA from Maskarinec's recommended NI rating for the year 10/89 to 10/90. (Shults 1366, 1379). Shults was aware that Varnadore had valid health problems leading to the absences. (Shults 1383).

    102. The statement on the appraisal for the period October 1989 to October 1990, made by Maskarinec, that Complainant did not work all year is incorrect. (Shults 1492, 1497-1498, 1514). Dr. Guerin apparently felt that Complainant was effectively gone for the entire period although he in fact worked for a few days over a month or a month and a half on an as able basis. (Guerin 22992300).

    103. It is basically true that the Division Director, W. D. Shults, can put whatever writing he wants on the appraisal form of any employee in his division. (Maskarinec 2199).

    104. On December 3, 1986 Dr. Shults wrote in pertinent part as follows:

Varnadore has developed the reputation of a problem employee. He is not able to function as a Senior Laboratory Technician. His performance level is commensurate with that of a Laboratory Aide or at best a Laboratory Technician. This is due in part to lack of training or experience in chemistry, but it is also due to a lack of commitment to the job in ACD. He projects the image of one who thinks that ACD or the Company will take care of him whether he is fully productive or not. He shows little interest in the job and little enthusiasm for improving or learning on the job. He carries out instructions. He requires extensive instruction and close supervision.

(EX 83)

    105. On February 26, 1991, Dr. Shults wrote to Mr. Varnadore as follows with respect to his 1990 performance review:

Performance Review Discussion

I want to summarize the Performance Review we had on February 6, 1991. Your performance is rated as Unsatisfactory.

1 . M. P. Maskarinec states that you were not at work during the review period, October 1, 1989, to September 31, 1990. I said that I would append a copy of your attendance record to your PPR form to document this aspect of your performance accurately.

2. M. P. Maskarinec states that your productivity is low when you are at work. I pointed out that all other supervisors in Analytical Chemistry Division (ACD) for whom you have worked have rated your performance very low. You have a succession of "Needs Improvement" ratings in ACD extending over several years, except for one year in which you received a "Consistently Meets Expectations, Minus" rating.

3. You have been given numerous assignments and worked in several groups since you came to ACD in 1985. There are few, if any, assignments left in ACD which can be considered a full job. In December, you were asked to identify some job that you could do in ACD, but when asked about this you replied that you really had not thought much about it.

4 . You suggested that perhaps a suitable assignment could be found in another division. I said your attendance problem and consistently poor performance ratings make it very unlikely that another division would want you.

5. I stated that it was not fair to Maskarinec or his staff to leave you in their group. You will be placed under the supervision of S. D. Wright and assigned odd jobs. We will try to identify at least one simple analytical procedure for you to learn and perform.

6. We are hesitant about the latter because such work requires care and reliability. You reputation is such that group leaders are afraid to trust you with important work. Also, you have a reputation of distracting those who are trying to work, effectively causing them to lose productivity.

7. I said that I understand and accept that you have had a serious illness. I am told that you can now work without restriction. In view of the fact that ACD saved your job in 1985 and has supported your extensive absenteeism during you illness, I do not understand your continued poor performance.

8. Poor performance and/or poor attendance cannot continue indefinitely. This is a full time job and other workers are supporting you when you do not contribute your fair share.

9. You will be given a set of performance objectives and your performance against them will be reviewed several times throughout the year.

10. Correction of your performance problems is mandatory. Failure to correct them and to meet the full requirements of your job will result in disciplinary action. Positive Discipline is a real possibility and can lead to termination of your employment.

(EX 18B)

The purpose for the MOP was to minimize Complainant's contact with anyone in the group. (Varnadore 278).

    109. In the following year, Varnadore had no meeting with supervisors concerning his performance nor was he given any feedback with respect thereto. (Varnadore 195).

    110. On February 5, 1992, Darrell Wright signed Complainant's Annual Performance Review for the period October 1, 1990 to September 30, 1991. The overall performance rating was NI. The following comments were included:

Needs to cooperate more with Division management and show more interest and initiative in his job assignments.

Has attempted to accomplish what was specifically asked of him. Jobs were completed but not necessarily in a timely fashion. Needs to change attitude toward overall picture of his employment.

(EX 4)

    111. The performance review of February 5, 1992 was attended by

Darrell Wright and W. D. Shults. (Varnadore 272). complainant refused to sign these documents on the date of the interview. (EX pp. 3, 7).

    112. The NI rating had been recommended by Darrell Wright and reviewed by the Division Director and the section heads in October 1991 and it was turned over to MMES' Human Resources and Compensation between October 3 and October 28. (Wright 3057-3058).

no initiative. (Botts 1786).

119. Dr. Stokely wrote the following comment on Complainant's performance appraisal:

Bud's training and capabilities are not very useful' -in the radiochemical and activation analysis group. However, he performs his assignments in a very satisfactory manner. He is a willing worker.

(Performance Appraisal dated October 10, 1986, EX 186, Shults 1511).

    120. Roger Jenkins felt that Complainant spent an excessive amount of time on the telephone and in talking to union personnel coming through the laboratory. (R. Jenkins 2462-2463). In Roger Jenkins' view Complainant's performance in 1990 was poor and had gone down hill from the time that Varnadore had worked for him previously. (R. Jenkins 2466). He felt that Varnadore had a poor attitude. (R. Jenkins 2476).

    121. Jack Moneyhun and Complainant shared office space sometime in 1986-1987 when Varnadore was first assigned to the Special Projects group. Moneyhun felt that he did not integrate Complainant into the work he was then doing. According to Moneyhun, Varnadore spent considerable time on the telephone and had many visitors particularly on his second assignment to Special Projects. With respect to Complainant's use of the telephone he felt it was not work related. (Moneyhun 2866-2869). Moneyhun did not make an express complaint but mentioned it to Roger Jenkins, and probably to Michael Guerin. In 1990, Moneyhun shared office space with Varnadore in Room E-163. He again noted excessive use of the telephone and visitors. (Moneyhun 7872). According to Moneyhun, Varnadore never created difficulty for him in terms of getting his work done. (Moneyhun 2785). Moreover, to the best of Moneyhun's knowledge Varnadore never interfered with the ability of other people to get their work done. (Moneyhun 2875). Moneyhun mentioned Complainant's use of the telephone and visitors in a causal way. (Moneyhun 2875). Moneyhun, moreover, denies characterizing Complainant as a goof off. (Moneyhun 2879, 2883). Moneyhun has not complained to any manager that Varnadore was interfering with his work and never made a request that Complainant be moved away from him. (Moneyhun 2880). Finally, Moneyhun agreed that everyone has personal telephone calls to some degree or another and that he himself had a fair number of such calls. (Moneyhun 2884).

    122. Julian Hackney, a senior technician at ORNL, had occasion to use R-151 in the period April to August 1991. In that time he spent about 8 days total in that room. (Hackney 2886-2887). According to Hackney, when Varnadore was assigned to the room, the phone was used frequently and he had trouble using the phone. He complained about this to Darrell Wright and J. C. Price. (Hackney 2889). Hackney also stated, however, that he would have no objection to having Varnadore home based with him. (Hackney 2893).

    123. Cecil Higgins is employed in the Special Projects group under Michael Guerin and Roger Jenkins. (Higgins 3252). In 1990, Higgins was in the laboratory next to Room E-163. Varnadore never disrupted Higgins I work or distracted him in the performance

of his duties. (Higgins 3253). Higgins does not remember making complaints about Complainant; if he did so they would have been minor. He knows of no reason why he would have made such a complaint. (Higgins 3254). He recalls that he did not speak about this to Michael Guerin. He feels that Guerin got this from Roger Jenkins. (Higgins 3258).

    124. David Jenkins felt that Varnadore's use of the telephone was excessive and that the calls were not business related. (D. Jenkins 2510-2511).

    125. Until he got sick, Varnadore was performing satisfactorily as far as Michael Maskarinec was concerned. (Maskarinec 2156). Maskarinec agrees that Varnadore had skills useful to his group. (Maskarinec 2189).

    126. Maskarinec never took up with Complainant the issue of excessive talk with visitors. Nor did he ever take any action to document such a complaint. (Maskarinec 2206). Michael Guerin felt that Varnadore, when working under John Caton in the Organic Analysis Group was doing an acceptable job at that time. Compared to other senior technicians, in Guerin's view, Varnadore ranked near the bottom given his absence of experience. (Guerin 2251). Dr. Guerin, however, agreed that when Complainant was in his section he got generally good reviews. Moreover, Michael Maskarinec's initial comments about Complainant were positive. (Guerin 2303). Guerin felt that in some ways Varnadore was disruptive but acknowledged no formal charges in this connection had been filed and that only "comments" had been made. (Guerin 2304). The ACD Division Director has no knowledge that Complainant had ever been disciplined for being disruptive. (Shults 1662-1663).

    127. Dr. Shults expressed his concern to Roger Jenkins in connection with this litigation that-people were softening their assessment of Varnadore and that he would appreciate it, if Jenkins would call things as he sees them on the witness stand in this trial. (R. Jenkins 2495-2496).

    130. R-151 in the relevant time period was a temporary storage area to accumulate waste from other laboratories. (Stokely 1919; Thompson 991). Fifty percent of the floor space was covered with waste. (Hall 1032). It had not been used as a home base for three years. (Price 2809).

    131. The room contained drums of radioactive waste, bags of radioactive waste, bags of asbestos waste and some waste chemicals. Some of the chemicals had a low level of radioactivity. (Shults 1557-1558). There were also radioactive asbestos impregnated counter tops. (Varnadore 218-219).

    132. Darrell Wright selected Room R-151 and the Division Director concurred. Shults knew the radioactive drums were in there as well as yellow sacks of radioactive materials. The Division Director, although he did not know what the level of radioactivity was, thought it was very low. (Shults 1392). Shults agrees that in March of 1991 it would have been possible to assign Varnadore to a room other than R-151. (Shults 1659-1660).

    133. Susan Hayes who had occasion to be in and out of R-151 in the spring of 1991 noted the room had a lot of trash in it. She observed two drums tagged as containing low level radiation 2-3 feet from Complainant's desk. She also observed bags of asbestos waste which were unsealed. (Hayes 1100-1103). There was so much trash on the floor that while putting samples in a hood, she stepped on a bag of asbestos waste dislodging some of the contents. (Hayes 1102-1103). It was not easy to get around R-151 because the bags were all over the floor. There was no clear path to the hood. (Hayes 1129).

    134. Complainant was concerned about the radioactive drums in R-151 within three feet of his desk because they were identified as radioactive, and as containing unidentifiable material. (Varnadore 251-252).

   On April 22, 1991 Mr. Varnadore wrote the following note:

. . . once more, I don't understand management. I was told to move my desk out of chemical lab for health reasons, and now I am told to locate in a lab with chemicals and radioactive.

(Varnadore 249)

    135. Brenda Washington Shelton is a health physics technician employed by ORNL. (EX 204 p. 4). In August 1991, R-151 came to her attention as she was passing by, when she saw it was occupied by Mr. Varnadore. This surprised her since she had seen no one in there before and assumed that it was just a RAD (radiation) waste storage area for that division. (EX 204 pp. 8-9).

    136. Ms. Shelton told Complainant "I don't think you should be here, you know, working here in this space. Let me get some dose readings and, if we can, we will just try to get you moved to some place different than this place." (EX 204 p. 10). She then

took some readings of the drums in question 'and a dose was emitted therefrom. (EX 204 p. 10). She told Mr. Varnadore at that point that either he or the drums should be moved immediately. (EX 204 p. 10).

   137. Ms. Shelton's Journal Entry for August 22, 1991 read in pertinent part as follows:

DRUMS CONTAINING RAD, WASTE SURVEYED IN JAN. 91 REMAIN IN R-151. LAB OCCUPANT'S DESK IS NEAR THE DRUMS AND RECEIVES A DOSE OF 0.09 MREM/HR. HIGHEST RAD. READING AT CONTACT ON DRUMS WAS 1.06 MREM/HR.

    (EX 95, Hollis 2930)

The radiation emitted by these drums was either beta or gamma radiation because it was penetrating the stainless steel of the drums. (Hollis 2931).

    138. Ms. Shelton then reported her findings to Shar Hollis (EX 204 p. 11) another health physics technician. (Hollis 2912). Ms. Hollis did not repeat the tests but accepted what Ms. Shelton had found. (Hollis 2915). Ms. Hollis called Darrell Wright suggesting that either the occupant of the room or the drums be removed. (Hollis 2915). Mr. Wright told her that Mr. Varnadore would be moved. (Hollis 2916). Her recommendation that either the drums or Mr. Varnadore be moved is based on ALARA. (Hollis 2919). Keeping any radiation near your desk or in your desk would not conform to ALARA no matter how low it was because it would be achievable to have it lower. (Caton 627).

    139. When Shar Hollis' section head learned that Complainant had requested the files for R-151, he responded "who is this Varnadore some kind of indian?" (Hollis 2922).

    140. On March 19, 1991, Complainant had an appearance on CBS Evening News. (EX 192).

    143. Room E-259 was assigned to Complainant as his home base around the first of September 1991. (Varnadore 434). Prior to that time, Varnadore had probably spent 3-4 months in that room doing inventory and disposal work. (Wright 3033).

    144. E-259 was a disposition center for mercury and used to store samples and waste. (Peters 493). This space had not been used as a home base for 3-4 years. (Price 2809).

    145. Room E-259 has been classified as an RCRA less than 90 day accumulation area. It was an area recognized by the Solid and Hazardous Waste Compliance Group for temporary collection of solid or hazardous waste. (EX 60). Respondents' records also refer to Room E-259 as the "Hg (mercury) purification lab". (EX 155 p. 0006).

    146. The Industrial Hygiene journal entry for September 30, 1991 noted the following:

9-30-91

Worked on paperwork. Went with MTF to Building 4500S as requested by Howard Hubbard to conduct a mercury survey in Room E-259 the room is considered a RCRA Satellite Accumulation Area -- Bud Varnadore was moved to the area a while back after being moved from a Radiation Zone -- the lab is being used as an office -- his work is unrelated to the work conducted within the lab -- MTF and I noted loose mercury around the lab -- we used a Bachrach Mercury Sniffer Instrument Number 248 -- the readings noted were as follows: (1) center lab bench in and around the white tray .06-112 mg/m3 (2) bkgd on north side of lab .03 mg/m3 (3) bkgd in California hood .05 mg/m3 (4) bkgd noted in general work area .005 mg/m3 (5) Employee's desk .005 mg/m3 (6) North sink drain .4 mg/m3 Employee voiced concern about his working conditions he stated that he has been cut on for cancer and has been through chemotherapy and is concerned about the lab/office condition in which he works -- he voiced that the reason for his present work office is that he is disliked -- we told the employee that we would relay our findings to FKE and have him call concerning the survey. Went with MTF to the filter pit area south of Building 3042 CS-1810-09 02=20.8 (FL=ND CO=ND, used Instrument Number , okay for entry.

(Emphasis supplied) (EX 155 p. 001; Presley 961-962)

    147. On October 28, 1991 Theresa Presley an Industrial Hygienist wrote as follows to Darrell Wright:

S. D. Wright

Industrial Hygiene Area Air Sampling

Building 4500 S

Room E-259

Date Sample Taken: 10/02/91

The result(s) of the Industrial Hygiene sample(s) recently taken in your area have been determined. if available, the Threshold Limit Value/Permissible Exposure Limit (TLV/PEL) has been included. The TLV/PEL is a guideline designed to protect workers and is based on an 8-hour time-weighted average (TWA) concentration. The results below are for the period of time over which the samples were collected and may not be directly correlated with the TLV/PEL-TWA which is used as a point of reference.

                   Area Air Sampling Results

         Sample No.   Contaminant   TLV/PEL     Concentration

         917-1        Mercury       0.05  mg/m  30.0002  mg/m3
         917-2        Mercury       0.05  mg/m  30.0004  mg/m3
         917-3        Mercury       0.05  mg/m  30.0001  mg/m3
         917-4        Mercury       0.05  mg/m  30.0003  mg/m3
         917-5        Mercury       0.05  mg/m  30.0002  mg/m3
         917-6        Mercury       0.05  mg/m  30.0003  mg/m3

Comparing the above concentrations) to the appropriate TLV/PEL(s) shows levels well below the action level for the eight-hour TLV/PEL(s). For the area sampled, based on the above data, there does not, appear to be levels of airborne contaminants in concentrations sufficient to produce adverse health effects in most healthy individuals. However, due to the presence of visible mercury in this room, Industrial Hygiene recommends that this area not be utilized as office space.

(Emphasis supplied) (EX 155 p. 003, Presley 963)

Darrell Wright after receiving Presley's letter felt there was no urgency in moving Varnadore. (Wright 3120-3121).

    149. On November 18, 1991, a RCRA Hazardous Waste Satellite

Accumulation Area Inspection form pertaining to E-259 noted in pertinent part:

In this area, four cardboard boxes are filled with various chemicals ranging from flamable (sic] paint aerosol cans to unknown solids. Two of the boxes are "green taged" (sic) for disposal. The other two have no "green tag". None of the chemicals, containers or boxes have "WASTE" labels and some of the containers have no lable (sic] at all. Also, in one of the cabinets or hood I discovered a few old bottles of acid. If they declared waste, they are also in violation of RCRA improper lableing [sic). None of the liquid wastes had proper containment. Also, this lab is a housekeeping NIGHTMARE is likely filled with Junk and old paper. Chemicals containers are all around the lab in no apparent order. This made it very difficult to determine which chemicals were waste and which were not waste. The cardboard boxes were labeled "Haz. Waste" in the presence of the inspector. 3:00 pm. 11-18-91.

(Emphasis supplied) (EX 60)

    150. There were 44 boxes of chemicals in E-259 then to be surplused (Shults 1399) or 777 bottles of reagent chemicals (Shults 1425). In addition there were some non reagent chemicals in the room. (Shults 1425). Boxes of chemicals in Room E-259 covered roughly 60 percent of the floor space. (Stokely 1932). There were unidentified chemicals in Room E-259 as well as others that would constitute a health hazard under the Material Safety Data Sheet system. (Maskarinec 2165).

    159. Sandra Glover, a technician in Michael Maskarinec's group, in 1992 noticed Maskarinec's secretary, Ramona Williams, throwing out files and documents. (Glover 836). Her estimate is that two trash cans were filled up. (Glover 840).

    160. Charles Przybylec, Chief Counsel of the Oak Ridge field office of DOE received a message from Complainant's counsel indicating a likelihood that evidence was being destroyed. (Przybylec 2037). He called Varnadore's co-counsel to confirm the message. Co-counsel gave him Sandra Glover's number who directed him to the dumpster where she thought the discarded documents would be found. (Przybylec 2035-2039). Przybylec went to the dumpster and, in fact, stepped into it and proceeded to look for records documenting violations of or noncompliance with procedures. Przybylec, who did not examine all the papers in the dumpster, found nothing which in his view related to Complainant's case. (Przybylec 2039-2040).

    161. According to Ramona Williams, she merely cleaned out the files on her own initiative without being asked to do so to eliminate clutter. (Williams 2003-2004). She estimates she filled up nine trash cans. (Williams 2007). She denies throwing away any surveillance reports. (See EX 198; Williams 2007).

known Varnadore for in excess of 27 years, stating:

    167. The purpose of MOP 5 pertaining to the relocation of Mr. Varnadore's home base, formulated after discussions between Darrell Wright and W. D. Shults, was to minimize Complainant's contacts with other employees. (EX 18B). As Darrell Wright told Roger Jenkins, the decision had been made to get Complainant away from all other employees. (R. Jenkins 2498).

directed these changes. (Hopkins 3145-3147).

    173. On February 11, 1992, the Manager of DOE's Oak Ridge Field Office wrote MMES' President stating in relevant part:

It is essential that you ensure a work environment where employees are encouraged to raise concerns and have them addressed objectively and promptly. It is also very important that employees are dealt with by all levels of supervision fairly and equitably . . . .

(EX 131A)

    174. The following comments by MMES managers and employees are relevant to the transition of MMES from the old culture to the new:

    W. D. Shults, Division Director of ACD, is of the opinion "that there is a phobia about radiation effects in this country-" (Shults 3371-3372). In the same vein, Dr. Shults further stated he would not hesitate to wash his hands in mercury. (Shults 1699).

    G. Wilson Horde, MMES General Counsel is of the view that "there is certainly a phobia that exists concerning radiation, and it is exactly what you have called it -- a 'phobia"'. (EX 266).

    J. R. Stokely, a section head in ACD, in his performance review for 1991 stated "the demands of the new culture is often excessive and unnecessary [and] that the lab overkills on some environmental safety and health issues." (Stokely 1849, 1938).

    According to Roger Jenkins, ACD group leader, "morale in his group is good considering all the EPA requirements that are being laid on them." (EX 143 DOE Panel Interview).

    George E. Smith, a radiation control officer in the Robotics and Process Systems Division is of the opinion that "[t]he radiation phobia in the United States is just that..... a phobia brought about by an over zealous health physics establishment." (EX 258). He also believes that restrictions on radiation exposure are excessive and unduly restrictive. (Smith 3332).

    Robert Shannon, a process supervisor in the Robotics Division reiterated the theme about radiation phobia stating on October 22, 1992 to the Department of Labor investigator:

If everybody did not have a phobia about radiation, Varnadore would not stand a chance of winning his case against Martin Marietta over radiation. That is what I think the last sentence means. Mr. Varnadore probably worked in a place somewhat like we work in every day. If everyone knew and understood there is no problem with radiation at low levels, Varnadore would not have a case.

(Shannon 3402, 3406)

    J.R. Stokely and James Botts requested that Harold Hall be removed from the Safety Committee because "a large fraction of his job was being spent on safety related issues, outside of his own group.". (Stokely 1948).

was raised by Jim Eldridge in April, 1988, that Varnadore did not raise the issue, and that Keller did not associate Varnadore with that concern in any way. (Tr. 1842-1848; Stipulation 3248-3249).

    181. The solution to the Grubb concern ultimately was to build a box on the back of the pickup truck in which the container for radioactive materials could be placed and removed by technicians. (Varnadore 396).

Luckey (as set forth in your memo) available here -- if you have a copy, I certainly would like to borrow it or obtain a copy for our use.

I certainly appreciate the interest of not only yourself , but all the others in this pending matter -- while I am not certain what brought it about, there is certainly a phobia that exists concerning radiation, and it is exactly what you have called it -- a "phobia". Give me a call with this requested information, of if I am not available, please give it to my secretary so that I might follow through on obtaining a copy.

Again -- thank you.

(EX 266)

    189. Later Mr. Smith was advised by Wilson Horde that the memo had had media exposure in a news broadcast and in the Oak Ridger. Mr. Smith denies that he intended the memorandum to be posted on a company bulletin board. (Smith 3333).

    190. Mike McClung, an ACD employee, (see infra) saw EX 258 around August 1 when Roy Norman, a worker in the Robotics and Process Systems Division, showed it to him. (McClung 3352). Norman thought McClung as an ACD employee would be interested. (McClung 3352). McClung sent EX 258 to Mr. Botts on August 5, 1992, because Botts had been involved in the case. (McClung 3353-3354, 3357). He did not discuss the memorandum with Botts prior to faxing it. (McClung 3354).

    194. Mr. Botts explains his posting of the memorandum as follows:

I have a number of young employees that have not been with Martin Marietta and have not worked in the field of radiation. They have only been there a short period of time, and I thought it would be of interest to them to know that there is another side to the radiation effects on the human body, there is another side to that issue.

It has always been perceived that being exposed to radiation is harmful, and I thought that it would be of interest to them to know that there is actually another theory that says it is not harmful, that indeed in some instances low levels of radiation can be beneficial to the body.

(Botts 3280)

    195. Botts denies discussing EX 258 with his superior J. R. Stokely or the division director W. D. Shults prior to posting. (Botts 3282; see also Stokely 3378-3379).

    196. Complainant was interviewed by the Oak Ridger concerning EX 258 for an article appearing on August 14, 1992. (EX 263; Varnadore 3314-3317). After learning that the memorandum had become the subject of newspaper comment, Mr. Botts removed it from the bulletin board. (EX 263; Botts 3283). He took EX 258 down within a day or so of reading about it in the newspaper. (Botts 3291).

    197. W. D. Shults first became aware of EX 258 when he saw the August 14 article in the Oak Ridger. (Shults 3363). When he learned that it had been posted in 2026, he talked to James Botts. (Shults 3364). After the document had been taken off the board, Shults told Botts on August 18 the posting was a bad idea. (Botts 3276; Shults 3363, 3367) . In retrospect, Botts agrees. (Botts 3277). Dr. Shults felt the memo should not have been posted in view of the sensitivity of the Varnadore case. (Botts 3283). Dr. Stokely, Botts' section head, agrees that the posting was poor judgment. (Stokely 3381).

    198. On August 20, 1992, Dr. Shults wrote to Mr. Botts as follows:

This is a follow-up to our conversation of August 18, 1992.

After reading the Smith letter and reviewing the sequence of events with you, I can see how the letter found its way to a bulletin board in Bldg. 2026. It could be of interest to new employees who may have some uncertainty about radiation effects. on the other hand, since the letter mentions Mr. Varnadore specifically, it should not have been posted. Rightly or wrongly, an argument can be made that posting that letter results in a hostile working environment for him. We want to avoid even the perception of a hostile working environment for him and for all other ACD people.

Please be extra cautious in the future and avoid episodes like this. The slightest event can turn into a major issue.

(EX 261)

    199. After the end of the trial Dr. Shults on August 6 told employees at a division wide meeting that retaliation will not be tolerated. (Shults 3366-3368). Dr. Shults believes that had Botts attended the August 6 meeting and gotten the message his judgment would have been better. (Shults 3370).

    200. On August 25, 1992, Dr. Shults talked with Mr. Varnadore about an opportunity for reassignment in another division. (Shults 3374-3375).

    205. In Complainants office visit of December 1991, the subject of working in radiation areas was mentioned. (EX 203 p. 21). This is the first time that the problem of Complainant's office space was mentioned to Dr. Antonucci. (EX 203 pp. 22, 23). That was also the first time that Mr. Varnadore mentioned mercury contamination. (EX 203 p. 23). In early 1991, Complainant told Dr. Antonucci of problems with his supervisors. Dr. Antonucci in January 1991 stated in a letter that Claimant's ability to work full time had to be brought gradually into phase. (Ex 203 p. 22).

    206. Dr. Antonucci, except for benzene and tolume, is not in a position to give a medical opinion on the carcinogenic effects of the chemicals which Complainant was required to inventory. (EX 203 pp. 23-25). In Dr. Antonucci's opinion Complainant would have no problem with methylene chloride providing there were appropriate safeguards to prevent significant exposure to chemical fumes. (EX 203 pp. 25-26).

    207. Dr. Antonucci in his examination and tests of Complainant has not seen evidence of adverse effects due to chemical exposure. (EX 203 p. 27). Nor has he seen evidence of adverse effects to Mr. Varnadore due to radiation. (EX 203 p. 27).

    208. There was no clinical evidence of a suppressed immune system in Mr. Varnadore due to chemotherapy. (EX 203 p. 28). Patients under chemotherapy are advised that their immune system may be impaired and they should avoid sources of infection. (EX 203 p.28). After chemotherapy there should be no suppression of the immune system. (EX 203 p. 28). In the case of the type of chemotherapy received by Mr. Varnadore, the immune system should be functioning normally in 6 to 8 weeks. (EX 203 p. 29). Varnadore's chemotherapy had concluded in August 1990. (EX 203 pp. 10, 17-18).

    209. Dr. Antonucci does not feel that he is in a position to express an expert opinion on the effects of occupational radiation doses. (EX 203 pp. 34-35). According to Dr. Antonucci there is some evidence that exposure to higher than accepted levels of radiation on a continuous basis can be carcinogenic. (EX 203 p. 39). Health consequences from chronic low level exposure to radiation can be expected in about six years. (EX 203 p. 41).

    210. it is his opinion that it is unwise to expose a recovering cancer patient to greater than normal background levels of radiation. (EX 203 pp. 42-43). Varnadore's fear on this score in Dr. Antonucci's view are legitimate. (EX 203 p. 43). Dr. Antonucci agrees there are levels of radiation so slight as to be de minimis and of no medical consequence. (EX 203 p. 45). Dr. Antonucci assumed that on Complainant's return to work EPA standards would be followed. (EX 203 p. 46).

    211. According to Dr. Antonucci, Complainant, since he had had one type of cancer, was at an increased risk of developing other types of cancer on the order of two to six times greater than the normal population. (EX 203 p. 37).

    212. Robert Gelose Demers, M.D., is a Board-certified psychiatrist practicing in Knoxville, Tennessee. (EX 201 p. 6). The Complainant is his patient. (EX 201 p. 7).

    213. Dr. Demers' initial diagnosis of Mr. Varnadore in 1985 was depression amended to atypical depression on following visits. (EX 201 p. 8). In the period 1985-1991, Complainant's depression under treatment diminished. (EX 201 p. 9). Mr. Varnadore was on medication during this period. (EX 201 p. 9). In the course of that period, Complainant experienced a number of traumatic events including the death of his son and father as well as the development of cancer. (EX 201 p. 9). These events did not exacerbate or aggravate his depression. (EX 201 p. 10).

    214. In January 1991, Mr. Varnadore saw Dr. Demers and was upset and angry at a supervisor who he felt was harassing him. (EX 201 p. 7). Complainant's anger became a great concern to his wife on approximately June 17, 1991. (EX 202 p. 42).

    215. On July 26, 1991, Dr. Demers became aware of increased irritability on the part of Complainant. He was described as angry at his supervisor. (EX 201 p. 10). The increase in irritability was with Complainant's wife. (EX 201 p. 11).

    216. On October 27, 1991, Dr. Demers noted Complainant's long term problem in adjusting to an adversarial work situation. (EX 201 p. 11).

    According to Dr. Demers,

. . . [H)e has at least believed in his own mind, and I have no evidence to disbelieve him, that he has had some harassment at work. He has described this, and as a consequence has had some increase in his irritability with his family and possibly in other areas that I am not sure of.

(EX 201 p. 11)

    217. Complainant's statements to him, according to Dr. Demers, could be characterized as nearly continuous harassment in Mr. Varnadore's judgment. (EX 202 p. 61). In this conversation, Complainant cited the attitude of various supervisors and management personnel, his problems with work assignments and moves at work, as well as a feeling that he was ostracized. (EX 202 p. 61). In this connection, Mr. Varnadore also complained about being assigned to inappropriate rooms as his work spaces. (EX 202 p. 63).

    218. Although an increase of irritability is not a psychiatric diagnosis per se it has clinical significance. Generally it means increased stress for the wife of the irritable person. (EX 201 p. 11-12).

    219. It is Dr. Demers' opinion that after reporting problems at work, Complainant evidenced mild to moderate impairment at work, with his family, and possibly his

co-workers. In his view this is related to the problem at work. (EX 201 pp. 14-15). He has concluded with a reasonable degree of medical certainty that Mr. Varnadore's increased stress and irritability was related to the problems Complainant was having at work. (EX 201 p. 13).

    220. However, in Dr. Demers' opinion not all of Complainant's experiences of anger and irritability are caused by work related problems. (EX 202 p. 46). Some of Complainant's level of impairment may be attributed to cancer. (EX 202 pp. 46, 48). 40 to 50 percent of Complainant's impairment may be related to that cause. (EX 202 pp. 39, 48).

    221. In June of 1991, Complainant expressed concerns about his cancer and getting well. (EX 202 p. 45). In Dr. Demers' view the stress at work and the stress of the cancer produced an impairment which would not have resulted except for the combination of the stress at work and the stress arising out of the cancer. (EX 202 pp. 55-56).

    222. Prior to the time Complainant was reporting problems at work, Dr. Demers' note of November 30, 1991 indicated that Complainant was doing well. (EX 201 p. 14).

    228. Dr. Demers stated the impairment he found is related to stress and if the stress was removed from his environment the impairment should disappear in the natural course of events. (EX 202 pp. 17, 50). An individual is more vulnerable at a future point in time if stress reoccurs. (EX 202 p. 52).

    Charles D. Varnadore, the Complainant, has filed three complaints alleging that his employer, Martin Marietta Energy Systems, Inc., discriminated against him for engaging in activity protected by various environmental statutes. (See footnote 1).

    Martin Marietta Energy Systems, Inc., (MMES) a wholly-owned subsidiary of the Martin Marietta Corporation, manages five government-owned production research facilities employing a total of some 21,000 persons. The facility under consideration here is the Oak Ridge National Laboratory (ORNL) located in Oak Ridge, Tennessee. It is a center for basic and applied research and technology development. MMES also operates at Oak Ridge the K-25 Plant and the Y-12 Plant. The Oak Ridge National Laboratory has approximately 5, 000 employees. MMES has managed, operated and maintained the Department Of Energy facilities in Oak Ridge since April 1, 1984. Prior thereto since the late 19401s, these facilities were managed by the Union Carbide Corporation. Respondent's performance under the contract is subject to the supervision of the U.S. Department of Energy (DOE). (Findings 1-4, 5-6, 9).

    The Complainant, who is 52-years old, was hired as a laboratory technician at the K-25 Plant in October of 1974. In September of 1985 he transferred to the Analytical Chemistry Division in ORNL. Mr. Varnadore alleges that after his transfer to the Analytical Chemistry Division (ACD) he was subjected to retaliation for protected activity by such discriminatory practices as being assigned to jobs below his skill level and experience, poor performance appraisals, numerous transfers from job to job far above the average for comparable employees, and being assigned to office space both inappropriate and life threatening. He also alleges that MMES retaliated against him for pursuing his claims under the employee protection provisions of the applicable statutes after the trial of this proceeding by posting a pejorative memorandum pertaining to him. Mr. Varnadore seeks various forms of injunctive relief, appointment to a managerial position, and compensation in the form of compensatory and exemplary damages in excess of $10,000,000.

    The Respondent denies that Complainant engaged in protected activity, that the management officials responsible for the actions complained of knew of the alleged protected activity, that any of Mr. Varnadore's alleged protected activities were within the scope of the applicable statutes, and that it engaged in retaliation of any kind. Finally, MMES contends that Complainant's request for relief is barred by the applicable statutes of limitations.

    Generally, in order to establish a prima facie case under the applicable employee protection provisions, a complainant must show that he engaged in protected activity of which the respondent employer was aware and that the employer took some adverse action against him. Complainant must, moreover, present evidence sufficient to at least raise an inference that the protected activity was a likely motive for the adverse action. Dartey v. Zack Company of Chicago, Case No. 82-ERA-2 Secretary's Decision and Final Order (April 25, 1983) slip. op. at 5-9.

    In short, the issues presented here are (1) whether Mr. Varnadore engaged in protected activity, (2) whether Complainant was aware of such activity, (3) whether Respondent retaliated for such alleged protected activity, and (4) whether the complaints were timely filed.

    If the employee establishes a prima facie case, employer has the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate nondiscriminatory reasons. Dartey v. Zack Company, supra. If the employer successfully rebuts the prima facie case, the employee still has an opportunity to demonstrate that the reasons proffered by the employer were not the true reasons for the employment decision. In that event, the trier of fact must decide whether or not a discriminatory reason was a more likely motivation or whether the employer's proffered explanation was worthy of credence or not. Id.

    Finally, if the trier of fact decides that the employer was motivated both by illegal and legitimate reasons, then the dual motive test comes into play. Under the dual motive test, the employer, in order to avoid liability, has the burden of persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. Id.

    Complainant asserts that Respondent has destroyed evidence and that adverse inferences should be drawn as a result. Those allegations should accordingly be considered at the outset of this inquiry. These charges revolve around the removal of the radioactive drums from Room R-151, his former home base, in October of 1991, the subsequent disposal of their contents, the destruction of related documentation, as well as alleged destruction of documents by the secretary of OAG's group leader in 1992.

    Harold Hall removed the barrels in question from R-151 to the 2026 facility, at the direction of James Botts pursuant to the request of Darrell Wright, Administrative Assistant to the ACD Director. The removal in October of 1991 of the drums in question from R-151 was prior to the filing of the complaint. To dispose of the drums and their contents as waste, Hall was required to generate new documentation. He finished disposing of the contents of the barrels on December 31, 1991. He destroyed original documentation pertaining to a previous attempt to dispose of the drums, while they were still in Room R-151, on the ground that they were of no use to him, apparently, in December 1991. Evidently, no one advised him that the contents of the barrels or such documents were evidence in the instant proceedings and that the drums and such documentation should be preserved. (Findings 155-157).

    It is arguable that after the issuance of the Complaint on November 20, 1991, Hall should have been instructed to preserve the contents of the barrels and original waste disposal documents. Nevertheless, it does not appear that Respondent willfully destroyed evidence. Hall was clearly a witness not under the influence of ACD management. His testimony that his decision to dispose of the documents was made on his own, because they were useless to him, is credible. The contemporaneous Health Physics documents pertaining to the barrels in question, moreover, suffice for purposes of this decision. Under the circumstances, sanctions will not be applied.

    Complainant also alleges that Ramona Williams, the secretary of OAG's group leader, discarded relevant files and documents in 1992. The record, however, does not support a finding that she destroyed documents pertinent to this proceeding. Her testimony that she was simply clearing out her files is credible. To a considerable degree, her testimony is confirmed by Charles Przybylec, Chief Counsel of the Oak Ridge DOE Field Off ice, who sorted through some of the documents in the dumpster where Williams' files had been discarded. There is no support for a finding that Williams destroyed evidence relevant to this proceeding. (Findings 159-161).

    The chain of events involved in this case begins in 1985 with Mr. Varnadore's employment in the Transuranic Facility (TRU) of the Analytic Chemistry Division (ACD) in ORNL. Complainant, after notification that he would be terminated from the K-25 facility, because of the end of the program on which he was employed, interviewed for another position with ACD. (Findings 11, 13).

    At the time of that interview, ACD had limited opportunities for a technician with a mechanical background such as Mr. Varnadore. He was, however, offered employment as a senior laboratory technician in ACD with no change in pay and accepted the offer. When he reported to work on September 23, 1985, he was assigned to work in the TRU facility which involved, among other things, preparing and analyzing samples of transuranic materials. This work is performed using glove boxes, chemical hoods, and hot cells designed to protect the worker from exposure to radioactive or toxic materials. Reporting to work he was asked to do hot cell work involving the use of mechanical hands. He attempted this work and caused several spills in a hot cell because of his vision impairment depriving him of or limiting his depth perception. Operating hot cells and glove boxes utilizing mechanical hands is, however, an integral part of a technicians job in the TRU facility. According to Complainant, he discussed his concern about his inability to do the work because of his depth perception problem and fear of resultant spills and escape of radioactivity with Malcolm Peters and James Botts, respectively, his task leader and group leader. He did not refuse to do the hot cell work but stated it would be wise to take into consideration the problem he had and the people who had to clean up the mess he was making. As a practical matter, he asked for reassignment to other work. (Findings 15, 35-37).

    Complainant further discussed his concern with William Laing, then the section leader in overall charge of TRU. The latter was upset by his inability to do the job with mechanical hands. Laing referred Complainant to Dr. Shults, the Division Director, who was also concerned that Varnadore could not perform this work. In his interview with Shults, Complainant informed the Division Director that he had a depth perception problem and therefore could not work with mechanical hands. He also advised Shults in the course of this interview that this lack of depth perception had caused him to make a couple of spills while using the mechanical hands. The Division Director responded that this was the job Complainant was hired to do and it would be difficult to find him another assignment within the division. Dr. Shults still feels that Varnadore could have done the hot cell and glove box work at TRU had he wanted to. (Findings 38-39).

    On December 13, 1985, Dr. Shults wrote in pertinent part to Barbara Ashdown of the ORNL staffing organization seeking assistance in finding Complainant a position in another division stating:

It now appears that Varnadore cannot perform laboratory operations that require depth perception. He has extremely poor vision in one eye. I understand that he has tried to adapt to hot cell and glove box operations, but simply cannot judge distance well enough to perform satisfactorily or safely.

(Finding 40).

    Respondent denies that Complainant raised a safety issue, apparently relying on the fact that Complainant did not refuse to do the work and Shults' testimony that he did not complain about working with glove boxes where Shults conceded there might be a safety problem.

    The contention must be rejected. There is a cognizable safety claim inherent in Varnadore's raising the concern of radioactive spills in connection with his inability to use mechanical hands. A concern of this nature to be protected need not be provable or correct. Concerns even if not ultimately sustained are protected. Cf. Guttman v. Passaic Valley Sewerase Commissioners, Vol. 6 DOL Decisions No. 2 pp. 261, 265 (1992). Respondent denies that there is a safety problem involved in the hot cells. Shults, however, conceded that there could be a problem in working with the glove boxes. The record, moreover, is clear that if Varnadore were to perform the work at TRU he would have had to work both with hot cells and glove boxes. Shults' statement that: "I understand that he has tried to adapt to hot cell and glove box operations, but simply cannot judge distance well enough to perform satisfactorily or safely" is a contemporaneous statement on his part demonstrating that Varnadore had in fact raised a safety issue at the time. That contemporaneous statement is more persuasive than denials at trial that safety was involved in this concern. Complainant's concern is protected by the employee protection provision of the Clean Air Act.

    On December 1, 1985, Complainant was transferred to the 2026 facility under Dr. Costanzo. On his arrival Costanzo called the employees together telling them Varnadore would be there only a short time, they did not need to waste time trying to train him, and that he would be relegated to menial jobs. It was the impression of a fellow worker of Complainant's that management seemed to get mad at him when he was moved out of TRU into the 2026 facility. The same worker felt that it was part of Complainant's workplace reputation that Shults did not like him. The question of whether such managerial resentment, particularly on the part of the Division Director, lingered over the years should be considered in the context of succeeding events. (Finding 43).

    When Varnadore came into the Organic Analysis Group (OAG), a unit in Dr. Guerin's section, it was involved in the preparation of the analysis of environmental samples for the DOE Environmental Site Survey in 1987. At that time it was overloaded with samples, and the staff was pushed to the limit. The purpose of the site survey was to evaluate various DOE sites around the country to see what kind of contamination problems they had and what remedies were needed. The preparation of samples prior to analysis is crucial, because, if the samples are not prepared properly, the results are likely to be invalid. (Findings 54-57, 59-60).

    According to Dr. Caton, Complainant did what he was asked to do as did the whole group. He noted that Complainant had excellent manual dexterity but not a lot of chemistry background which had to be learned as he went along. Dr. Caton had no serious complaints about Varnadore's work and gave him CM (average) ratings on the two performance evaluations in which he was involved. Dr. Caton felt Varnadore was making significant progress in his group. Dr. Caton further put a note on Varnadore's appraisal that he was making an excellent contribution to the Organic Analysis effort. The Division Director, W. D. Shults, acknowledged that Dr. Caton was pleased to have Varnadore in the sample preparation group, because he was willing to come in early and sometimes on the weekend to get projects started. It was a help to have someone who was willing to do that. It is the Division Director's recollection that Complainant did an acceptable job while working for Dr. Caton. (Finding 58).

    In June of 1989, Michael Maskarinec replaced John Caton as group leader. This was the decision of the section leader, Michael Guerin, because although he considered Caton to be a superb scientist and a good teacher, he felt meeting deadlines and communicating were not Dr. Caton's strengths. (Finding 61).

    Varnadore, who was then working on sample preparation, was diagnosed with colon cancer shortly thereafter. He was operated on July 8, 1989, received chemotherapy and returned to work in November of 1989 on an as able basis. On his return to work in November of 1989, Complainant returned to the sample preparation laboratory where he had been prior to his surgery. David Jenkins, a new employee, had been assigned to the same laboratory in the meantime. Complainant worked part time in the period January June 1990. He did not work at all in the period June to October 1990 because of a broken ankle. (Findings 62-64).

    The starting point for resolving this conflict is that the evidence shows that in February of 1990 Pam Howell, a quality assurance specialist, told William Laing that Complainant had raised with her the concern about Jenkins' handling of soil sample procedures. A surveillance was then conducted of Jenkins, preparation of fish samples. (Finding 67).

    Lise Wachter testified that she was present in Varnadore's laboratory when Complainant raised the concerns to Maskarinec concerning David Jenkins' handling of samples. She was also present when Complainant expressed those concerns directly to David Jenkins. Ms. Wachter, moreover, heard Maskarinec use the term "troublemaker" more than once with respect to Varnadore. It is her recollection that she heard Maskarinec use the term after Complainant had been moved into Room E-163, away from the laboratory, which Jenkins and Varnadore had jointly occupied. Maskarinec denies using that term. (Findings 69, 72; fn. 6).

    In April of 1990, Lise Wachter arranged for a meeting between herself, Guerin, Maskarinec, Gary Henderson, and Don Pair with respect to David Jenkins. At that meeting, Lise Wachter raised her concern pertaining to David Jenkins' handling of samples. This is denied by Guerin. Neither Henderson nor Pair testified in this proceeding. In addition, much of the meeting was devoted to the contention that Maskarinec was favoring Jenkins with awards of overtime. (Finding 73; fn. 6).

    In determining whether Complainant raised the concerns with respect to David Jenkins, sample preparation procedures to Maskarinec and whether Maskarinec knew of such protected activity, it is necessary to resolve the conflict of testimony between Complainant and Lise Wachter on the one hand and Michael Maskarinec on the other. The testimony of Varnadore and Wachter is more convincing. First, the fact that Complainant had raised the issue with the quality assurance specialist by February of 1990 is undisputed. This demonstrates that Varnadore was concerned with this issue and had, in fact, raised it. Equally important, Lise Wachter corroborated that Varnadore had raised these concerns to Maskarinec and to David Jenkins. Lise Wachter had nothing to gain by giving this testimony and she was, moreover, a straight forward and very convincing witness. Her testimony on these points is more persuasive than the contrary testimony of Dr. Maskarinec and David Jenkins. Her testimony that Maskarinec used the term "troublemaker" with respect to Complainant is credited for the same reason. In short, it is found on the basis of this record that Complainant raised the issue of David Jenkins, soil sampling procedures to Michael Maskarinec precipitating his transfer out of the soil sample laboratory. This transfer led to the chain of events resulting in his removal from OAG, his detachment from Guerin's section, his assignments to Rooms R-151 and E-259 as home bases and a hostile work environment such as isolation from his fellow employees.

    Lise Wachter's testimony that she herself raised a concern with respect to David Jenkins' sample preparation procedures at the April 1990 meeting is also credited, as opposed to the contrary statement of Guerin, for the aforementioned reasons.

    Respondent denies that Complainant's transfer from the soil sample laboratory to Room E-163 in February 1990 and his ultimate exit from the Organic Analysis

Group and Guerin's section were due to concerns raised with respect to David Jenkins' sample preparation procedures. Respondent contends that the decision to move Complainant out of the laboratory had been made prior to his return to work in November of 1989 after cancer therapy, because of a concern that Varnadore, a known cancer victim, would be exposed to methylene chloride, a carcinogen. Dr. Guerin felt that Complainant should be moved, because his inability to work full time would preclude him from working in the soil sample laboratory, which was production line oriented, each part depending on someone being there. (Findings 78-80).

    Sara Harmon and Robbie Edwards Scott testified that they had discussed with Maskarinec their concern about Varnadore's exposure to methylene chloride prior to Complainant's return to work. Maskarinec recalls such a conversation with Robbie Edwards. Maskarinec did not raise this concern with Shults. According to Guerin, he and Maskarinec had some discussions on Varnadore's job assignments prior to Complainant's return to work but principally shortly thereafter. These discussions, according to Guerin, involved Maskarinec's concern about Varnadore's exposure to organic solvents. (Findings 78-79).

which he was involved for two to three months. Jenkins rated his performance poorly. Jenkins at that time also complained to Guerin, his section head, about Complainant's use of the telephone which he felt had gone up markedly. (Findings 83-84).

    Guerin wanted Varnadore removed from his organization and placed on division overhead. In fact, according to Shults, Guerin campaigned for that transfer. Varnadore, on November 1, 1990, was placed on division overhead and under the supervision of Darrell Wright, Shults' administrative assistant. Complainant was officially placed under Wright's supervision on a permanent basis on March 6, 1991. As already noted, Guerin asserted he wanted Complainant transferred because of his inability to work regularly. Varnadore, however, was transferred from Guerin's section to Division overhead, at the latter's insistence, in November 1990, the month in which Complainant was released for full time work. This-circumstance casts doubt on Respondent's asserted reason for the transfer. (Findings 80, 86).

    The transfer to Division overhead in November 1990 significantly worsened Varnadore's position. That transfer, as a practical matter, precluded future assignments consistent with his qualifications as a technician. Under Wright, Complainant was given a series of miscellaneous jobs such as inventorying idle equipment in the attic of Building 4500 South. His second job was to identify surplus chemicals in Room E-259, a project taking place from the second or third week of November through the first week of December 1990. Beginning the second week of December, Complainant was to do a computerized inventory of the remaining laboratory stock reagent grade chemicals involving all laboratories in ACD. (Findings 87-89, 93).

    The lap top computer which Wright gave to Complainant to perform this

inventory malfunctioned. It would not retain the data. Complainant, not an expert in computers, came to Wright with this problem. Wright, who is knowledgeable with respect to computers, did not locate the difficulty. Varnadore had to turn to a fellow employee, Cyril Thompson, who diagnosed the problem and showed him how to save the data in the computer. The Division Director concedes that in this instance Complainant was not at fault. It is, nevertheless, clear his difficulties with this assignment were held against him. (Findings 93-94).

    In January or February of 1991 Complainant was asked to assist in waste disposal in the division including generating the necessary paperwork. (Finding 96).

    In the meantime, Varnadore received two personnel appraisals of which he complains. The first was for the year October 1, 1988 to October 1, 1989. Maskarinec, his group leader, recommended a CM- which was downgraded to an NI or needs improvement by the Division Director. For the year October 1, 1989 to October 1, 1990, Maskarinec recommended an NI which was changed to a UA or unacceptable by W. D. Shults. Maskarinec noted on that form that Complainant was absent all year and did not work all year. (Findings 100-102).

    These events were followed almost immediately by the Measures of Performance (MOPs) given Complainant by Darrell Wright on March 6, 1991. Measure of Performance 5 is critical to an understanding of the events that follow. It states as follows:

5. Relocate "home base" to area assigned by S. D. Wright and use it when not working on assignments in laboratories. The intent of this MOP is to minimize interruption of or interference with others who are working. (Finding 108).

    The intent was to isolate Complainant from his fellow employees. It is significant in this connection that Darrell Wright, Shults' assistant, told group leader Roger Jenkins that the decision had been made to get Complainant away from all other employees. This makes explicit that the purpose of MOP 5 was to isolate Complainant. These measures of performance were discussed by Wright and the Division Director, although it is unusual for the Division Director to have input on such matters. Complainant's home base assignment to R-151 on March 6, 1991, ties directly into MOP 5. (Findings 108, 129).

    R-151 in the relevant time period was a temporary storage area for the accumulation of waste from other laboratories. Fifty percent of the floor space was covered with waste, and it had not been used as a home base for three years. The room contained drums of radioactive waste, bags of radioactive waste, bags of asbestos waste and some waste chemicals. The two drums tagged as containing low level radioactive waste were two to three feet from the desk assigned to Complainant. It was difficult to move around the room because of the trash on the floor. (Findings 130-131, 133). On April 22, 1991, Varnadore wrote the following note:

. . . Once more, I don't understand management. I was told to move my desk out of chemical lab for health reasons, and now I am told to locate in a lab with chemicals and radioactive.

(Finding 134).

    In August 1991, R-151 came to the attention of Brenda Washington Shelton, a health physics technician employed at ORNL. She was surprised to see it occupied by Varnadore since she had seen no one in there before and assumed that it was just a RAD (radiation) waste storage area for the division. Shelton told Complainant "I don't think you should be here. You know, working here in this space. Let me get some dose readings and if we

can, we will just try to get you moved to someplace different than this place." (Finding 135-136).

The Health Physics Journal entry for August 22, 1991 read as follows in pertinent part:

DRUMS CONTAINING RAD, WASTE SURVEYED IN JAN. 91 REMAIN IN R-151. LAB OCCUPANT'S DESK IS NEAR THE DRUMS AND RECEIVES A DOSE OF 0.09 MREM/HR. HIGHEST RAD. READING AT CONTACT ON DRUMS WAS 1.06 MREM/HR.

(Finding 137).

    Another health physics technician, Shar Hollis, called Darrell Wright suggesting that either the occupant of the room or the drums be removed. Wright responded that Varnadore would be removed. Her recommendation was based on ALARA. As Dr. Caton noted, any radiation near your desk or in your desk would not conform to ALARA no matter how low, because it would be achievable to have it lower. (Finding 138).

    Room E-259 was then assigned to Complainant as his home base around the first of September 1991. Varnadore, prior to that time, had probably spent three to four months in that room doing inventory and disposal work. E-259 was a disposition center for mercury and used to store chemical samples and waste. This space had not been used as a home base for three to four years. (Findings 143-144).

An industrial hygiene entry for September 30, 1991, noted in pertinent part as follows:

. . . I noted loose mercury around the lab....... employee voiced concern about his working conditions -he stated that he has been cut on for cancer and has been through chemotherapy and is concerned about lab/office condition in which he works -- he voiced that the reason for his present work office is that he is disliked.....

(Finding 146).

    On October 28, 1991, Theresa Presley, an industrial hygienist wrote in pertinent part as follows pertaining to readings of air samples pertaining to mercury in Room E-259:

. . . For the area sampled, based on the above data, there does not, appear to be levels of airborne contaminants in concentrations sufficient to produce adverse health effects in most healthy individuals. However, due to the presence of visible mercury in this room, Industrial Hygiene recommends that this area not be utilized as office space.

(EX 155 p. 003, Presley 963; Finding 147).

    Darrell Wright after receiving Presley's letter, however, felt there was no urgency in moving Varnadore. (Finding 148).

    On November 18, 1991, an RCRA hazardous waste satellite accumulation area inspection form pertaining to E-259 noted in pertinent part:

. . . Also, this lab is a housekeeping NIGHTMARE is likely filled with junk and old paper. Chemicals containers are all around the lab in no apparent order. This made it very dif f icult to determine which chemicals were waste and which were not waste. The cardboard boxes were labeled "Haz. Waste" in the presence of the inspector. 3:00 p.m. 11-18-91.

(Finding 149).

    Complainant was not moved immediately out of E-259, and, in fact, in November of 1991, Wright told Complainant that he would be moved back to R-151 or that such a move was under consideration. Bags of radioactive waste remained in R-151 in the October-December time period when moving Varnadore back to R-151 was being discussed. In fact, Complainant's home base was not changed until December 9, 1991, subsequent to the filing of the first complaint. At that time, Darrell Wright directed Complainant to move his home base to Room G-12, the office of a Ph.D. on assignment away from Oak Ridge. That move to appropriate office space, it might be noted, was linked to discussions with the legal department. (Findings 153-154).

    Passing for the moment whether the environment in R-151 and E259 was in fact life threatening, or a direct threat to health, it is clear that both Wright and Shults knew what the condition of these rooms were. It is further clear, on the basis of Respondent's contemporary health physics and industrial hygiene documents, that Complainant was intentionally assigned to inappropriate and unpleasant office space. In short, he was put into a hostile work environment. The chain of events leading to these space assignments is related directly to Maskarinec's and Guerin's attempt to detach Varnadore from OAG and Guerin's section which, as already noted, was in retaliation for Varnadore's complaints with respect to David Jenkins' sampling procedures. The record further compels the inference that Wright's and Shults, decision to isolate Complainant in home bases situated in waste accumulation areas is due to Shults' continuing animus from Varnadore's exercise of protected activity in the TRU facility in December of 1985.

    The pervasiveness of Complainant's isolation is illustrated by an incident in the spring or summer of 1991 when Cyril Thompson, an ACD employee, was told by Michael Guerin that "it would be a good idea that I (Thompson] not be seen in the hall talking with the craf ts or with Bud [Varnadore ] . 11 Guerin's explanation to Thompson was, if there was a perception that Thompson was wasting time, this might affect his performance appraisal. Thompson felt that Guerin's warning implicitly referred to W. D. Shults. Guerin denies ever telling anyone not to talk to Complainant. (Finding 163). Thompson's testimony is, however, more persuasive. He was clearly very careful in giving this testimony and had absolutely nothing

to gain by misquoting Guerin. This incident supports the inference that Guerin was acting in concert with Wright and Shults in isolating Varnadore in the workplace. As already noted, Wright had told another supervisor that it was the intention to get Complainant away from all the other employees. (Finding 129).

    This incident also ties into a warning by John Murphy, a MMES supervisor outside of ACD, to Betty Freels, a senior environmental technician, in February of 1992 after the start of this litigation, when he told a group of his employees:

. . . not to speak to Bud Varnadore' that it didn't look good in his opinion, that it could be mistaken f or talking about other things, and we should not stand in the hall and be seen talking to him.

(Finding 164).

Murphy, in this connection, singled out Wayne Parsons, who had known Varnadore in excess of 27 years, stating:

"You talk to him [Varnadore] in the hallway every morning?" and he said, "Yes," and he said, "Well, somebody could think you were talking about other things. You don't need to do that."

(Finding 165).

    Murphy denies telling the group not to talk to Varnadore or to decrease their friendship with him. Murphy contends he simply told the group that there was a need to be careful because statements could be taken out of context. (Fn. 22) . Again, Ms. Freels had nothing to gain by this testimony and her detailed recollection of the conversation is simply more convincing than Murphy's version. In addition, this incident is strikingly similar to the occasion in the previous year where Michael Guerin warned Cyril Thompson about not talking to Varnadore in the hallways. Accordingly, Freels' testimony on this point is also more persuasive than the testimony of Murphy for that additional reason.

    Malcolm Peters' testimony that, when he stated he was going to see how Varnadore was doing, some technicians responded they "wouldn't go around him with a ten foot pole" is revealing in this context. It illustrates Varnadore's workplace environment. (Finding 166).

    Respondent urges that the assignment to Rooms R-151 and E-259 were not retaliatory and not intended to isolate Complainant as such. MMES contends there were valid business reasons for the space assignments in question, namely, to prevent disruption of other employees by Varnadore's excessive nonbusiness telephone calls and too many visitors at work.

    To evaluate that argument, it is necessary to review the workplace

perceptions of Complainant. There is considerable variation in the assessments of Varnadore at work. At the outset, it might be noted that at the K-25 plant before coming to ACD, Complainant had an exceptionally good rating. (Finding 11). His problems clearly began with the assignment to ACD and TRU and his concern about working with mechanical hands.

    Complainant's pursuit of a remedy under the employee protection provisions of the applicable environmental statutes is protected. By July 30, 1992, the first round of hearings in this case was concluded. On that date George E. Smith, a radiation control officer in the Robotics and Process Systems Division, wrote a memorandum to MMES' general counsel stating in pertinent part that:

Defense of the case brought by Varnadore v. MMES could be enhanced by expert testimony to demonstrate that Varnadore's life and well being is probably extended and improved due to the low level ionizing radiation exposure that he implies to have been harmful.

Throughout the world, 2 million persons a year seek out LET radiation exposure in radon-rich surroundings for improvement of their well being! The radiation phobia in the United States is just that..... a phobia brought about by an over-zealous health physics establishment. It is time to illuminate this unreality at the expense of Mr. Varnadore.

(Hereinafter Smith memorandum or EX 258).

this proceeding. The action of Botts in posting the memorandum on a company bulletin board is clearly retaliatory.

    The evidence in particular cases is not always so finely tuned so as to fit neatly within the analytical rules set forth in the Dartey v. Zack Company case, supra. Shusterman v. Ebasco Services, Inc., 6 DOL Decisions No. 1 157, 158 (1990). This truism applies in particular to multifaceted cases such as this where a hostile work environment arose over an extended period of time. Nevertheless, the instant proceeding essentially meets the criteria of that formula.

    First, the record shows, for the reasons already stated, that Complainant engaged in protected activity when he raised the concern in 1985 with respect to working with mechanical hands in the TRU unit and when he raised his concern about David Jenkins' soil sampling preparation procedures after his return to work in November of 1989 from cancer treatment. For the reasons noted above, this protected activity resulted in animus to the Complainant particularly on the part of Michael Maskarinec and W. D. Shults. That animus for the reasons hitherto stated compels the inference that the protected activity is the likely cause of the adverse treatment of which Varnadore complains. Such retaliation is comprised of his transfer out of the Organic Analysis Group to Division Overhead with resultant indefinite relegation to miscellaneous job assignments not consistent with his job classification and experience, assignment to clearly inappropriate office space, the policy of isolation from his fellow employees, as well as retaliatory personnel appraisals. Together these actions evolved into a hostile work environment. Complainant has met his burden of establishing a prima facie case.

    Respondent asserts that the reasons for Varnadore's transfer from the OAG

laboratory and Guerin's section and the home base assignments in R-151 and E-259 were legitimate and rooted in business necessity. In short, Respondent urges that it has rebutted Varnadore's prima facie case. Among the reasons given for these actions were concern about Complainant's exposure to carcinogenic solvents in the soil preparation laboratory, his inability to work regularly after his return on an as able basis, and the desire to prevent disruption of other employees at work. As noted previously, Respondent's asserted reasons for the actions taken are pretextual. MMES has failed to meet its burden. (See pages 63-65, 71-72, supra.

    The reasons given for Complainant's adverse personnel appraisals, viz., extended excused absences for illness are also pretextual. That conclusion is compelled by Maskarinects misstatement concerning Varnadore's absences on one of the appraisal forms and Shults' misstatements in the letter of February 26, 1991. (See pp. 65-67, supra). This precludes a findings that the appraisals in question resulted from a neutral application of a generally applicable policy pertaining to extended excused absence for illness.

    If it is assumed for the sake of argument that legitimate reasons played a part in Varnadore's discriminatory treatment, then the dual motive analysis applies. Under this formulation, Respondent must show by a preponderance of the evidence that it would have taken the actions complained of even in the absence of the protected conduct. Guttman v. Passaic Valley Sewerage Commissioners, 6 DOL Decisions No. 2, 261, 266 (1992). Respondent has not met its burden of proof in this respect. The hostility to Complainant has been so pervasive that it precludes the conclusion that the action complained of would have been taken for the reasons asserted by MMES, even absent Varnadore's activity. "[I]n dual motive cases employer bears the risk that the influence of legal and illegal motives cannot be separated." Ibid.

    The posting of the Smith memorandum by James L. Botts subsequent to the trial clearly falls within the Dartey v. Zack Company formula. Participation in a proceeding pursuant to the employee protection provisions of the environmental statutes under consideration here is protected activity. For the reasons stated, the contents of the memorandum and the timing of its posting compel the inference that such retaliation was directly in response to Varnadore's pursuit of his remedy under these statutes. Complainant's burden in establishing a prima facie case has been met.

    Respondent's explanation that the intent of the posting was not retaliatory but rather to educate newer employees about another view of the radiation issue is untenable on its face. The explanation was clearly a pretext. Respondent has failed its burden of establishing rebuttal. In the case of this incident the dual motive analysis is not applicable under any circumstances.

    Respondent asserts that Complainant's action is barred by the 30-day statute of limitations in the applicable environmental statutes. The complaint challenging the

posting of the Smith memorandum in August of 1992 attacking Varnadore for pursuit of this proceeding is within the 30-day limit. The question remains whether the prior complaints alleging violations in the period 1985-1991 were timely filed. If the 30-day statute of limitations is strictly applied, then Respondent prevails. The issue, accordingly, is whether the statute should be tolled on equitable grounds.

    At the outset it should be noted that an employee's ignorance of his statutory rights in itself will not toll the filing period. Price v. Georgia Power Company, 6 DOL Decisions No. 5, 108, 110 (September 8, 1992). The equitable tolling doctrine is not available. There is no evidence that Respondent's actions through deception or otherwise prevented Varnadore from filing his complaints on an earlier date. See Eisner v. M.S. Environmental Protection Agency, 6 DOL Decisions 97 (1992).

    Another equitable exception to the statutory limitations is the doctrine of continuing violations. To invoke that exception Complainant must show that an ongoing violation and not just the effects of a previous violation extends into the statutory period. Put another way, a "discrete, consummated, immediate violation is not continuing merely because its effects carry forward." McCuistion v. Tennessee Valley Authority, 5 DOL Decisions No. 6, 89, 93 (1991) . One rationale for the execption is that many discriminatory acts occur in such a way that it is difficult to define with precision when they take place. "They unfold rather than occur." Invocation of the continuing violations doctrine is appropriate where a hostile work environment develops over the years out of a series of incidents. See Bell v. Chesapeake and Ohio Railway Company, 929 F.2d 220, 223 (6th Cir. 1991).

    The doctrine is properly applicable in this case. Here, Respondent has discriminated against Complainant by fostering a hostile work environment from at least February 1990 into the posttrial period of this proceeding. For example, in this case Varnadore evidently did not realize in February 1990 that his transfer from the soil preparation laboratory was the first step in separating him from the Organic Analysis Group thus leading to an indefinite period of miscellaneous job assignments not compatible with his and aptitudes. The hostile work environment to which he was subjected also included assignment to inappropriate office space, utilized as depositories for waste, and a deliberate policy of isolating him from his fellow workers. Also contributing to the hostile work environment in this proceeding were a number of adverse performance appraisals influenced by the hostility arising out of his protected activity. The hostile work environment culminated in August 1992 with the posting of the Smith memorandum attacking and ridiculing Varnadore for pursuit of a remedy in this proceeding.

    A hostile work environment arising out of a related series incidents, is not a discrete, consummated, immediate violation. Rather, a hostile work environment persists into the future. Here the various acts creating the hostile work environment to which Varnadore was subjected, were connected rather than isolated. Measure of Performance 5 expressly stated the policy of isolating Complainant was to continue. The continuing nature of that discrimination is confirmed by two incidents in which MMES managers warned other employees not to talk to Complainant. Moreover, the inappropriate work assignments clearly persisted. At the time that

Varnadore found the Smith memorandum in August 1992, he was inventorying door locks. Under these circumstances, the application of the continuing violation exception to a hostile work environment extending over a period of years is appropriate. In this case, the ongoing violation extended to the statutory period of September 4, 1992 when the last complaint was filed. In determining remedy, discriminatory acts going back to at least February of 1990 may be taken into consideration.

    Complainant requests compensatory damages and punitive damages in the amount of 10.5 million dollars, reinstatement to a management position and various forms of affirmative and structural relief. In connection with the claim for damages, it should first be noted that Complainant has lost neither salary nor benefits as a result of Respondent's illegal activities. The basis for the claim of damages is the effect on Varnadore of the hostile work environment into which he was thrust upon his return to work from cancer therapy and treatment on an as able basis. The hostile work environment need not again described. However, at this point its effect on Complainant must be considered. Initially, consideration should be given to Complainant's assignment to Rooms R-151 and E259 as home bases or office space. These rooms, as already noted, contained contaminants such as low level radioactive waste, asbestos waste, chemicals and visible mercury.

    Dr. Antonucci, Varnadore's oncologist, in his examination and tests of the Complainant, has not seen evidence of adverse effects due to chemical exposure nor has he seen evidence of adverse effects to Complainant due to radiation. (Finding 205). Nor did he see any clinical evidence of a suppressed immune system in Varnadore due to chemotherapy. According to Dr. Antonucci, in the case of the chemotherapy received by Complainant, the immune system should be functioning normally six to eight weeks after conclusion of the chemotherapy which in fact ended in August of 1990. This was well before Complainant was assigned to office space in Rooms R-151 and E-259. (Finding 206). Complainant's oncologist further stated that he does not feel that he is in a position to express an expert opinion on the effects of occupational radiation doses. Id. It is nevertheless his opinion that it is unwise to expose an recovering cancer patient to greater than normal background levels of radiation. (Findings 207-208). Dr. Antonucci's opinion, without more, will not support a finding that Complainant suffered adverse physical consequences or that such consequences are probable from his assignments to R-151 and E-259. Dr. Antonucci on the basis of his own testimony does not, in any event, have the expertise on which such a judgment could be based.

    The opinions of Respondent's experts on the physical consequences of the exposure to the contaminants found in Rooms R151 and E-259 is that such exposure was not at levels where harmful health effects would be expected and below the applicable Permissible Exposure Limits or Threshold Limit Values. (Findings 226-229, 232). Under the circumstances, the record does not permit a finding that the health consequences to Complainant of the exposures in the two rooms in a physical sense were adverse or that adverse physical consequences are probable in the future. Accordingly, a finding that adverse physical health consequences are likely

would be speculative.

    There is an ongoing debate in the scientific community over the health effects of chronic low level radiation. (Costanzo 786). That question, however, cannot be resolved on the basis of this record.

    This, however, does not end the inquiry. Complainant has been a patient of Robert G. Demers, M.D. , a psychiatrist, for depression since 1985. It is his opinion on the basis of Complainant's description of his work environment, which he credited, that Varnadore evidenced mild to moderate impairment at work, with his family and possibly co-workers as a result of stress at work. In his view, based on a reasonable degree of medical certainty, Mr. Varnadore's increased stress and resultant irritability with his family and others were related to Complainant's difficulties in the workplace. (Findings 210-211, 214, 217). He would also attribute some of Complainant's impairment to his cancer apportioning 40 or 50 percent to that cause. (Finding 218). In Dr. Demers' opinion, Complainant's most important impairment involved the activities of daily living and social functioning including his marriage and his ability to get along with people. He felt these problem areas were new and ascribed them to Complainant's workplace difficulties. (Finding 221).

    Impairment levels preclude useful functions, a Class II impairment being a mild impairment compatible with most useful functions, while a Class III moderate impairment is compatible with some but not all useful functioning. (Finding 222). To sum up, Dr. Demers found that the impairment he found was related to stress. (Finding 226).

    Dr. Demers' testimony is generally corroborated by the testimony of Complainant's wife with respect to the effect of stress on the Complainant and on his family life. (See EX 210). The evidence, moreover, demonstrates that Respondent's officials created a hostile work environment which they knew or should have known would be stressful to Complainant. on the basis of this record it must be concluded they deliberately set out to achieve this result. The record supports the finding that Complainant's stress related impairment in significant part is due to Respondent's retaliatory acts. An award of damages is warranted in light of applicable precedent. See generally, McCuisition v. Tennessee Valley Authority, 5 DOL Decisions No. 6, 89, 94-95 (1991).

    Damages of this nature are essentially intangible and cannot be calculated with slide rule precision. Nevertheless, Respondent will be ordered to pay Complainant $10,000 in compensatory damages. The award is authorized under the environmental acts in question and supported by the evidence of discriminatory treatment and resultant psychological impairment.

    Exemplary awards serve to punish for wanton or reckless conduct and to deter such conduct in the future. Here, the threshold inquiry centers on the wrong doer's state of mind, namely, did the wrong doer demonstrate reckless or callous indifference to the legally protected rights of others and did the wrong doer engage in conscious action in deliberate disregard of such rights. If such a state of mind is present, the inquiry is to focus on the issue of

whether such an award is necessary for deterrence. See Johnson, et al v. Old Dominion Security, Inc., 5 DOL Decisions No. 3, 128, 135, 137 (1991).

    Respondent's officials deliberately enveloped Complainant in a hostile work environment. The only conclusion which can be drawn from this record is that they intentionally put him under stress with full knowledge that he was a cancer patient recovering after extensive surgery and lengthy chemotherapy. Under the circumstances, he was particularly vulnerable to the workplace stresses to which he was subjected. The preconditions for exemplary damages have been met and $20,000 will be awarded. The requested award for 10.5 million dollars will not be granted in the light of prior precedent. See generally McCuistion v. Tennessee Valley Authority, supra and Johnson v. Old Dominion Security, supra. Policy arguments to break with precedent in support of the requested award should be addressed by the Secretary of Labor.

    In addition, Respondent will be required to reimburse Complainant for past and future psychiatric treatment for his work related impairment. Such payments should continue until such time as his treating psychiatrist certifies that the effects of Respondent's discriminatory treatment have abated.

    Certain of the affirmative or structural relief requested by Complainant such as continuous monitoring of Respondent's operations will be denied. Respondent is already subject to the supervision of the U.S. Department of Energy which has a substantial field office located in Oak Ridge precisely for that purpose. In fact, the Department of Energy's investigation of this matter demonstrates that it is aware of its responsibilities in this area. (See generally EX 212). Day to day supervision of Respondent's management practices relevant to this proceeding is best left to that agency. A copy of the Secretary's Decision and Order should be served on the Department of Energy to facilitate its oversight of Respondent.

    The most critical relief after several years of inappropriate assignments, pertains to Complainant's future work at MMES. Respondent will be required to offer him another position at the Oak Ridge facility, outside ORNL, consistent with his qualifications and experience. The requirement that a position be offered to Complainant outside ORNL is compelled by the level of animosity towards Mr. Varnadore generated by this proceeding and demonstrated by this record.

    Respondent will also be required to expunge the unfavorable personnel appraisals found to be discriminatory.

    The record does not support Complainant's request that Respondent be ordered to give him the position of administrative assistant to the Division Director of ACD or an equivalent position. The evidence does not show that his failure to secure the position -was due to the exercise of protected activity on Complainant's part. The record shows instead that he did not apply for the job. (Finding 182). Complainant, apparently, contends that the posting by E-mail did not adequately advise him of the vacancy. However, there is no record support for a finding that

the methodology for such posting was devised to exclude Complainant from consideration. If such posting did not adequately give him notice, other employees similarly situated, would be affected in the same way. In short, no cognizable discrimination under the applicable environmental acts can be found on the basis of Varnadore's failure to secure this position.

    The nature of the violations demonstrated in this proceeding require two further provisions. Respondent will be ordered to post on all bulletin boards within ORNL, where official documents are posted, a copy of the Secretary's Decision and order for a period of 60 days. Respondent will also be required to take reasonable steps to ensure that this notice is not altered, defaced or covered by any other material.

    In addition, MMES will be ordered to send a written notification to each witness in this proceeding that retaliatory action against individuals for testifying in this case is illegal and that the remedy for such a violation, if it occurs, is a complaint filed with the U.S. Department of Labor. The notification must set forth in detail the procedures for filing such a complaint. The retaliation against Complainant in the posting of the Smith memorandum after the trial in this case compels such a provision. The ACD Division Director's, expression of concern to Roger Jenkins that potential witnesses were softening their assessment of Complainant and that he hoped that Jenkins would call things as he saw them is relevant to this issue. This remark compels the inference that the Division Director was keeping track of the testimony of those employees appearing in this proceeding. (See Finding 127).

    Finally, Complainant urges that the Oak Ridge National Laboratory be held as a party to this proceeding and subjected to the terms of this order. Complainant contends ORNL should be named as a party, since MMES may be displaced as the Government contractor responsible for its operation. Complainant urges that, absent Respondent as operator of the facility, the provisions of the order would be unenforceable, if ORNL is not named as a party.

    ORNL, which is unincorporated, is a government owned contractor operated facility, managed and staffed by the contractor's employees. It has been operated by a succession of government contractors, including Respondent. (Stipulated) . on the basis of this record, no finding can be made that ORNL is a legal entity independent of either MMES or the Department of Energy. Even if ORNL had independent status, such status because of Federal ownership would of necessity be that of a government agency, managed at different periods by varying government contractors. However, government agencies may only be sued, when Congress has expressly authorized such litigation or when a statute provides that the agency in question has the capacity to sue or to be sued. Wright & Miller, 14 Federal Practice and Procedure §3655 (1985). There is no legislation authorizing ORNL to sue or be sued. Under the circumstances, a provision naming ORNL as a party under the order would be ineffective. Complainant's rights are adequately protected by specifying that Respondent and its successors and assigns are subject to the order.

    Respondent Martin Marietta Energy Systems, Inc., its successors and assigns, shall:

    1. Offer to Complainant, a position at his present grade of pay consistent with his qualifications and experience outside the Oak Ridge National Laboratory at one of its other facilities in Oak Ridge, Tennessee.

    2. Expunge from Complainant's records the personnel appraisals for the year October, 1988 - October 1989 and succeeding years.

   3. Pay to Complainant the sum of $10, 000 as compensatory damages.

   4. Pay to Complainant the sum of $20,000 as exemplary damages.

    5. Reimburse Complainant for his past and present psychiatric treatment for work related stress until such time as the treating physician certifies that the impairment arising out of the hostile work environment, imposed by Respondent, has abated.

    6. Post on all bulletin boards of the Oak Ridge National Laboratory, where Respondent's official documents are posted, a copy of the Secretary of Labor's Decision and order for a period of 60 days, ensuring it is not altered, defaced or covered by any other material.

    7. Notify in writing all witnesses in this proceeding, who testified either at the hearing or by deposition, that retaliation for such testimony is illegal.

    8. Set forth in the notification, required by item 7 of this order, in detail the procedures for filing a complaint with the Secretary of Labor should such a violation occur.

         THEODOR P. VON BRAND
         Administrative Law Judge

TPVB/jbm