DATE: August 9, 1994
CASE NO. 94-CAA-9
IN THE MATTER OF
DR. MARGARET DOUGLAS,
COMPLAINANT,
V.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
Order Denying Motion for Summary Judgment
Preliminary Statement
This is an employee protection action filed pursuant to the provisions of the
following acts: Clean Air Act, 42 U.S.C. §7622; Toxic Substance Control Act, 15
U.S.C. § 2622; Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. § 9610; Safe Drinking Water Act, 42 U.S.C. § 300j-9(i); Water
Pollution Control Act, 33 U.S.C. § 1367; and Solid Waste Disposal Act, 42 U.S.C.
§ 6971. Complainant filed this action on October 19, 1993. On June 1, 1994, employer
made a motion for summary judgment. Employer argues that claimant's charges were untimely
filed and that claimant cannot establish a prima facie case under established case
law. Complainant filed a response to employer's motion on June 28, 1994.
Discussion
An administrative law judge may enter summary judgment for either party if the
pleadings, affidavits, materials obtained by discovery or otherwise, or matters officially noticed
show that there is no genuine issue as to any material fact and that a party is entitled to summary
judgment as a matter of law. 29 C.F.R. §18.40(d); Fed. R. Civ. P. 56. A fact is
material if it tends to resolve any of the issues properly raised by the parties. 10 A Wright and
Miller, Federal Practice and Procedure, §2725 at 93 (1983). If the court
finds a fact or facts to be material, then it must determine whether there is a "genuine issue"
concerning any of them. Id.
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at 95. If no such issues are present, the moving party is entitled to judgment as a matter of
law. If the slightest doubt remains as to the facts, the motion must be denied.
The burden of proof in a motion for summary judgment is borne by the party bringing
the motion. Id. § 2727 at 121. Because the burden is on the movant, the
evidence presented is construed in favor of the party opposing the motion who is given the
benefit of all favorable inferences that can be drawn from it. Id. at 124-5.
Therefore, facts asserted by the party opposing the motion that are supported by affidavits or
other evidentiary material are regarded as true. Id. at 128.
It should be noted that on a motion for summary judgment, the Court cannot summarily
try the facts, rather it must apply the law to the facts that have been established by the parties.
Id. § 2725 at 104. A motion cannot be granted merely because the movant's
position appears more plausible or because the opponent is not likely to prevail at trial.
Id. at 104-5. In short, the trier of fact has no discretion to resolve factual disputes
on a summary judgment motion. Id. § 2728 At 186. Accordingly, "if the
evidence presented on the motion is subject to conflicting interpretations, or reasonable men
might differ on its significance, summary judgment is improper." Id. §
2725 at 106, 109. Once it is determined that a triable issue exists, the inquiry is at an end and
summary judgment must be denied. Id. at 187.
The employer, TVA has made a motion for summary judgment. In support of its
motion, TVA asserts the following:
I. Complainant's charges relating to Mr. Moss were untimely filed; and
II. Complainant cannot establish a prima facie case under the caselaw as
declared by the Secretary of Labor.
Employer's motion is denied on both grounds for the reasons set forth below.
I.
Complainant filed her complaint in this action by mail on October 19, 1994 (First
Amended Complaint, ¶17). Under 29 C.F.R. § 24.3, for the purpose of
determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date
of mailing. The issue presented then, is whether the Complainant's claim for relief in its
October 19, 1994 complaint is barred by the applicable statutes of limitations.
In support of its motion, employer argues that TVA's failure to put Complainant to work
on August 16, 1993 either as an employee or under contract, is dispositive in this case.
Employer's brief states in pertinent part:
Dismissal is thus mandated by the specific admissions found in the amended complaint:
10.On or about August 6, Moss informed Dr. Douglas that his superior Norman
Zigrossi, TVA's Senior Vice-President, Resource Group, had . . . refused to employee
her as a full-time TVA employee under the terms described in Paragraph 9 above.
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11.On or about August 6, Moss offered and induced Dr. Douglas to accept a one-year
personal services contract with TVA in the amount of $100,000.00 beginning August 16,
1993, to perform in the position described in Paragraph 9 above. Moss stated that the
one-year personal services contract was in the nature of a probationary period, after
which he anticipated that Dr. Douglas would become a permanent TVA employee. . .
.
14.On August 12, Moss informed Dr. Douglas that Zigrossi refused to sign her personal
services contract. . . . (Employer Motion p. 5).
However, Complainant has presented evidence that employer's officials continued
to communicate with her with respect to employment at TVA after August 16, 1993. In
this connection, she received a letter from Lawrence Moss dated September 30, 1993
stating as follows:
I am sorry if there has been a misunderstanding about the possibility of your working
with TVA. Your letter includes a number of statements about various events and
discussions that occurred during the summer. I do not agree with your characterizations
of those events or the conclusions that you have reached about the arrangements we
discussed with respect to your potential work; however, I do not think it would serve any
purpose for me to respond in detail to those specific matters. I would point out that
during our discussions, and certainly before you resolved your differences with the city,
I thought it was clear that any arrangements for you to work with TVA were contingent
upon further approvals with TVA, and your letter reflects that you were aware of this
requirement.
TVA has not yet made a final determination about this matter but will inform you
of its decision in the near future.
(Douglas Depo. EX 3)
(EmphasisSupplied)
Mr. Zigrossi's letter a month later also stated that no final determination on this
question had been made (Moss Depo. p. 140).
Accordingly, there is a genuine issue of material fact as to whether TVA'S
managers toward the end of September 1993 led Complainant to believe she was still
under consideration for a position with TVA. Under the circumstances, there are two
issues to be litigated: when did Complainant finally become aware that Respondent
would not hire her and whether the doctrine of equitable tolling applies.
Respondent objects that these issues have not been pleaded and are outside the
scope of the complaint. The short answer is that they are reasonably related to the
allegations of the complaint. Furthermore;
In other cases arising under employee protection statutes covered by the same
regulations, the Secretary has held that a complaint under these laws need not meet
the requirements of formal court pleadings. In Richter v. Baldwin
Associates, Case No. 84-ERA-9, Secretary's Decision issued March 12, 1986,
the Secretary said that a complaint under 29 C.F.R. Part 24, "is not a formal
pleading setting forth legal causes
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of action. Rather it is an informal complaint filed . . . for the purpose of initiating an
investigation on behalf of the Secretary of Labor. . . ." Slip op. at 9. Similarly,
the Secretary held in Bassett v. Niagara Mohawk Power Co., Case No.
86-ERA-2, Secretary's Order of Remand issued July 9, 1986, that "it is not
required that every element of a legal cause of action be set forth" in a whistleblower
complaint. Slip op at 5.
Sawyers v. Baldwin Union Free School District, 2 DOL Decisions
No. 5, 159 (1988).
II.
Employer TVA further argues that Complainant has failed to plead a
prima facie case of discrimination. The requirements for establishing a
prima facie case were originally set forth in Texas Department of
Community Affairs v. Burdine, 450 U.S. 248 (1981) and adopted by the
Secretary of Labor for whistleblower cases in Dartey v. Zack Company of
Chicago, Case No. 82-ERA-2 (Decision and Order of the Secretary of Labor,
April 25, 1983); Sherrod v. AAA Tire and Wheel, Case No. 85-CAA-3.
Three elements comprise the prima facie case:
1) that Complainant engaged in protected conduct; 2) that the employer was aware of
that conduct and; 3) that, thereafter, the employer took an employment action adverse
to the plaintiff.
The Complainant must also present evidence to raise the inference that the protected
conduct was the likely reason for the adverse action. Id. However,
Complainant need not "prove that he was treated differently from other similarly situated
employees" to establish a prima facie case. DeFord v. Secretary of
Labor, 700 F.2d 286 (6th Cir. 1983); Accord, Batts v. TVA, Case
No. 82-ERA-5, Final Dec. and Ord., Mar. 6, 1985, slip op. at
3 n.2; Wells v. Kansas Gas & Electric Co., Case No. 83-ERA-12,
slip op. at 9 n.4, aff'd sub nom. Kansas Gas & Electric
Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985) cert. denied, 478 U.S.
1011 (1986). Helmstetter v. Pacific Gas & Electric Co., 7 DOL Decisions
No. 1, 122, 124 (1993). Evidence to that effect would merely strengthen such a case.
Employer admits for purposes of this motion only that claimant has met elements one and
two of her prima facie case.
Complainant alleges in her amended complaint that TVA's Vice-President of
Environmental Management, Larry Moss formally offered her the position of Manager
of Program and Project Appraisal (Amended Complaint ¶ 9). Thereafter,
Complainant alleges that his superior, TVA Senior Vice-President Resource Group,
Norman Zigrossi, refused to employ her as a full-time employee (Id. at
¶ 10). Complainant further alleges that Mr. Moss offered her a one-year personal
services contract which Mr. Zigrossi also refused to sign (Id.
at ¶¶ 11, 14). Complainant alleges that Mr. Moss informed her that Mr.
Zigrossi had determined that she was "controversial" because of her dispute with the City
of Knoxville and this was the reason he refused to employ her (Id., at
¶ 10; Douglas Depo. at p. 152; Seealso, Zigrossi Depo.
at p. 64-65).1 Mr. Zigrossi is also alleged to have said that hiring claimant might be
interpreted as "a slap in the face of the City" or "taking sides in the disagreement"
between claimant and the City" (Moss Depo.
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at p. 111).
As in all motions for summary judgment, the party opposing the motion is given
the benefit of all favorable inferences that can be drawn from the relevant evidence.
Having resolved all inferences in favor of the claimant, it is evident that a material
question of fact remains to be decided with regard to elements three and four of
Complainant's prima facie case. On its face, Complainant's allegations
suggest that employer took an employment action adverse to her and that there was a
causal connection between the employment action and the protected activity. Without
deciding the veracity of Complainant's allegations, and viewing the evidence in the light
most favorable to Dr. Douglas, Mr. Zigrossi's use of the word "controversial" and other
statements permits the inference that his actions may have been in retaliation for a
protected act. A ruling on Mr. Zigrossi's motive or intent based on the depositions and
counsel's statements would be premature at this time. Summary procedures are to be
sparingly employed in whistleblower cases where motive and intent play lead roles.
Richter, et al v. Baldwin Associates, 84-ERA-9-12 (1986) slip op. at 13.
Employer's argument that Mr. Moss lacked the requisite authority to hire
Complainant is also not dispositive. The evidence presented permits the inference that
Mr. Moss had authority to discuss with Dr. Douglas the position in question. It is
irrelevant for purposes of this discussion whether Moss had actual authority to hire
Complainant, if Mr. Zigrossi refused to hire her because of participation in a protected
activity.
Respondent also urges that Complainant may not proceed under the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
§9610 (CERCLA). TVA urges that, since 29 C.F.R. Part 24 (1993) does not
apply to CERCLA proceedings, there is no jurisdiction in this proceeding. The
contention is rejected. The statute provides for investigation by the Secretary of Labor
of alleged violations and for public hearings pursuant to 5 U.S.C. §554. The
Wage/Hour Division in its investigation did in fact consider the alleged CERCLA
violations. The instant proceeding is the adjudicative hearing pursuant to the
Administrative Procedure Act for which provision is made in 42 U.S.C. §9610.
IT IS ORDERED that the Tennessee Valley Authority's motion for summary
judgment be, and it hereby is, denied.
THEODOR P. VON BRAND
Administrative Law Judge
TPvB/LMF
