Date: June 30, 1995
Case No.: 94-CAA-9
In the Matter of
DR. MARGARET DOUGLAS,
Complainant,
v.
TENNESSEE VALLEY AUTHORITY,
Respondent.
BEFORE: THEODOR P. von BRAND
Administrative Law Judge
Appearances:
Helen de Haven, Esq.
Jacqueline O. Kittrell, Esq.
For the Complainant
Edward S. Christenbury, Esq.
Justin M. Schwamm, Sr. Esq.
Brent R. Marquand, Esq.
Thomas F. Fine, Esq.
For the Respondent
RECOMMENDED DECISION AND ORDERPreliminary Statement
Complainant, Margaret Douglas, on October 19, 1993, filed a
complaint under the employee protection sections of six
environmental statutes[1] after the Tennessee Valley Authority
(hereinafter referred to as TVA), Respondent, refused to hire
her. On February 18, 1994, the District Director of the
Wage-Hour Division found Complainant's charges sustained.
Respondent filed a timely appeal and the hearing in this
proceeding was held on September 12-15, 1994 in Knoxville,
Tennessee[2] .
[PAGE 2]
Identity and Background of the Parties Complainant
1. Complainant Margaret Douglas is a forty-three year old
resident of Yellow Springs, Ohio. She has earned a B.A., two
Masters degrees and a Ph.D. in agriculture economics with a
concentration in environmental economics (Douglas 35-6).
Complainant is highly skilled in the area of contingent
valuation, an econometrics methodology wherein one is able to
assign an estimated cost to something that does not have a market
value - i.e. the cost of clean water (Douglas 36).
Respondent
2. Respondent Tennessee Valley Authority (TVA) is a
wholly owned corporation of the federal government created
pursuant to the Tennessee Valley Authority Act of 1933 to control
floods and navigation on the Tennessee River and its tributaries
and to generate electricity for distribution throughout the
Tennessee Valley region (See Complainant's brief at 6).
Complainant's employment at the City of Knoxville
3. In January, 1991, Complainant, along with TVA employee
Roosevelt Allen, piloted a household hazardous waste collection
program funded by TVA. After the plan was adopted, Complainant
went to work for Mr. Allen at TVA on a consulting contract. In
June, 1991, Complainant was hired as a permanent TVA employee
(Douglas 44-6). Complainant received written confirmation of
this job offer in May, 1991 (Douglas 46; CX-127). Complainant's
position at TVA was classified as a senior economist, SC4, Step
3. (Douglas 47).
4. The Mayor of Knoxville, Victor Ashe, asked Complainant
and Roosevelt Allen to make recommendations regarding the City's
Solid Waste Plan. Both she and Mr. Allen became part of the
Citizens Task Force. The recommendations of the Task Force were
passed by the City of Knoxville (hereinafter referred to as the
City) in the spring of 1992 (Douglas 49-50).
5. Part of the Task Force's recommendation included the
suggestion that a new department be set up at the City to manage
solid waste. The City's public services director, Laurens
Tullock approached Complainant in June, 1992, and asked whether
she would be interested in heading up this office (Douglas 53).
She agreed and was hired as the manager of the Office of Solid
Waste for the City of Knoxville (Douglas 54). Complainant's job
was to ensure that Knoxville had the most environmentally and
economically efficient programs, and that those programs were in
compliance with local, state and federal law (Douglas 55). She
was in charge of all City collection, disposal and waste
reduction programs (Douglas 54).
6. As part of the City's waste reduction program,
Complainant was responsible for overseeing the City's composting
project which was contracted out to Compost Corporation of
America (hereinafter referred to as CCA) (Douglas 55). This
venture involved an agreement that the City would pay CCA $20 per
ton for all incoming yard waste to produce compost which would
later be sold or distributed locally (Douglas 57).
[PAGE 3]
Complainant's environmental concerns
7. CCA was subject to Rule 1200-1-7-.02(1)(c), promulgated
under the authority of the State of Tennessee's Solid Waste
Disposal Act, TCA 58-211-101 et seq. which required them
to operate under a permit by rule(Douglas 55; CX-92).
The Act states that under no circumstances shall the commissioner
issue a permit for an activity which would cause a condition of
pollution either by itself or in combination with others. In
addition the permits shall include:
The most stringent effluent limitations and schedules
of compliance either promulgated by the board, required to
implement any applicable water quality standards, necessary to
comply with an areawide waste treatment plan, or necessary to
comply with other state or federal laws or regulations. Tenn.
Code Ann. @ 69-3-108(e)(1)(1994).
8. On August 24, 1992, Complainant sent a memo to her
then-supervisor, Laurens Tullock. The memo indicated that CCA
was not in compliance with their contract with the City
for several reasons and requested advice regarding what action
should be taken to address this problem. Tullock responded with
several suggestions including termination of the contract if
compliance was not forthcoming (CX-94).
9. On February 10, 1993, Complainant sent a memo to her
new supervisor, Director of Public Services, Bob Whetsel,
advising him that due to her concern of public health risk, the
City should cease delivering yard waste to the mulch site until
corrective actions could be taken (CX-95). Again, on March 8,
1993, Complainant sent a memo to Bob Whetsel informing him that
CCA's failure to properly execute the contract provisions was
resulting in a) an uneven distribution of heat to kill pathogens
b) putrification and mold; c) possible hydrogen sulfide gases and
d) odor. Complainant stated "[W]e have an obligation to the
public to operate an environmentally safe and technically sound
yard waste composting operation" (CX-96).
10. In March, 1993, an apartment complex received a notice
of violation related to the mulch odor issued by the Knox County
Air Pollution Control (CX-112). The mulch was
obtained from CCA. In April, 1993, CCA was cited for water
quality violations as a result of testing performed by the state
water quality regulator, John West (Douglas 58, 61; CX-149).
Complainant was advised by Mr. West of the citation (Douglas
61).
11. The site on which CCA was built was part of the state
Superfund priority list in conjunction with CERCLA. It contained
a high level of heavy metals including lead, cadmium, and other
toxic metals (Douglas 66-7).
12. In a memo dated April 19, 1993, addressed to Bob
Whetsel, Complainant wrote the following:
As I have consistently stated to you earlier, the
contractor, Compost Corporation of America (CCA), is in
violation of the
[PAGE 4]
City's contract because CCA has failed to process and market
the yard waste that the City pays CCA to compost. As you
also know, CCA has violated air and water quality
regulations as specified by Knox County Air Pollution
Control and the State of Tennessee Department of Health and
Environment. It continues to be my recommendation that we
terminate the contract with CCA and re-bid the contract so
that we can find a suitable site to compost the City's
30,000 tons of annual yard waste and find a competent
contractor to perform the services (CX-99).
13. On June 17, 1993, Complainant attended a meeting with
CCA counsel Senator Budd Gilbert, officials from the Knoxville
Utilities Board (hereinafter referred to as KUB), John West of
the state water quality office, and state solid waste regulators
Jack Crabtree and Rick Sawyer (Douglas 64). At the meeting, it
was learned that KUB had conducted several tests that showed high
levels of fecal coliform in the compost. In addition, the site
was experiencing water quality problems and a test for heavy
metals in the area revealed concentrations of lead, cadmium and
other toxic metals high enough to require Superfund cleanup
(Douglas 65-6).
14. After the meeting, Complainant met with Mr. Whetsel
regarding her concerns with CCA's operation (Douglas 68). She
also submitted a memo recommending that the City suspend delivery
of mulch to the site based on environmental and other
considerations (CX-101). Her memo specifically addressed the
possibility that CCA was operating on a Superfund site and, if it
were a Superfund site, the City had a "responsibility to make a
public disclosure and follow state procedures for containment or
remediation" (CX-101, p. 2). Complainant was concerned with
making this issue public. Her memo stated:
It appears to me that the attitudes of Mayor Ashe, Randy
Vineyard and you imply that we should not disclose the
nature of our problems or that our problems do not really
pose a health threat. The fact that we have positive tests
on fecal coliform, e. coli, and heavy metals leads me to
believe otherwise. I would like to know from you at what
point, if ever, do you think it would be necessary for the
City to close the current composting operation and notify
the public of the health risks. (CX-101, p. 2).
15. Approximately two days later, Senator Budd Gilbert
called a meeting with the Mayor, the Mayor's spokesperson Mike
Cohen, the finance director Randy Vineyard, Mr. Whetsel and
Complainant to discuss problems at the site (Douglas 69). At
the meeting it was determined that nothing would be said to the
public (Douglas 71). Mr. Whetsel told Complainant that if she
wanted to keep her job, she would support the Mayor's decision
(Douglas 71).
16. Between July 1, 1993, and July 9, 1993, Complainant
acted as the designated spokesperson on the compost issue at the
request of the City (Douglas 78). The compost issue received a
lot of press in the local media. Newspaper accounts documented
environmental issues raised by Complainant, including her request
for an independent investigation by the EPA (CX-31-54).
17. On July 9, 1993, another meeting was held at which it
was determined that CCA would turn one pile of mulch often in an
effort to kill all the contaminants. Sales would be made from
that pile only and the City would say that that particular pile
was safe (Douglas 73).
[PAGE 5]
Complainant did not feel confident that the mulch was safe. At
that point, she called the Environmental Protection Agency,
region IV in Atlanta and requested that independent testing be
done (Douglas 75).
18. When asked for comment by News Sentinel reporter
Betsy Kauffman as to the safety of the mulch, Complainant
indicated that while she didn't think there was cause for panic,
there was cause for concern. Complainant called for an
independent investigation, i.e. by the EPA. (Douglas 79; CX-35).
EPA sludge regulator, Vince Miller indicated that he would do
testing at the CCA site if the state of Tennessee requested it
(Douglas 75).
Complainant's termination by the City of Knoxville
19. On July 12, 1993, Mr. Whetsel informed Complainant that
she was no longer authorized to speak to the press on behalf of
the City (Douglas 80). He formally reprimanded her for
disagreeing with the state and local officials who said that the
mulch was safe.
20. Complainant's former supervisor Laurens Tullock called
a meeting on July 14, 1993, at which it was determined that CCA's
contract would be cancelled without cause (Douglas 82).
Complainant was asked to stop talking about the project. It was
her belief that the issue was resolved; however, she learned the
next day that the City had decided not to cancel the contract
(Douglas 83).
21. Mr. Whetsel called a meeting with Complainant on July
15, 1993 at which time he terminated her for failing to follow
the chain of command (Douglas 84-5; CX-79).
TVA Employee Roosevelt Allen's involvement in the compost
controversy
22. Complainant shared her environmental concerns regarding
CCA's operation of the compost site with her friend and former
colleague, Roosevelt Allen (Allen 454). Mr. Allen had been
involved in the development of the City's solid waste plan
(Allen 449). After Complainant was terminated, the City called
Mr. Allen and asked if he could recommend an expert to make an
objective evaluation of the operation (Allen 456). Although
there weren't any experts per se available, Mr. Allen did
forward the names of several qualified people to the City (Allen
456).
23. In a July 26, 1993 letter to TVA's Senior Vice
President of Economic Development Betsy Child, Mayor Ashe and
his press secretary, Mr. Cohen, officially asked Mr. Allen to
come evaluate the site with a yard waste composting specialist
(Allen 458). Mr. Allen complied with the mayor's request to
assist the City in overcoming public concern regarding the
potential health problems associated with the site as well as
with Complainant's termination (Allen 460).
Complainant's dealings with TVA
Positions at issue: 1) Manager Sustainable development, and 2)
Manager Program and Project Appraisal
24. After her termination, Complainant went to Mr. Allen to
request a job at TVA
[PAGE 6]
(Douglas 88). Mr. Allen had recommended Complainant to TVA's
Senior Environmentalist, Larry Moss (Allen 467). Complainant
received a call from Mr. Moss on or about July 21, 1993 (Douglas
91). Mr. Moss had learned that Complainant had been terminated
from her job with the City in the newspaper (Moss 273). As she
was presumably available, Mr. Moss called Complainant to discuss
her interest in working for TVA (Moss 273-4).
25. On the same date, Complainant was sent a letter from Z.
B. Yow-Young, Vice President of TVA's Human Resources Group
(CX-128). The letter outlined TVA's selection process. In
conclusion, the letter stated the following: "Each Vice President
(Mr. Moss was a Vice President) will then meet with the
candidates for positions in their organization and ultimately
make the selection decisions" (CX-128, p. 2).
26. Complainant interviewed with Moss shortly after his
initial call for the positions of Manager of Program and Project
Appraisal and Manager of Sustainable Development (Douglas 91).
Moss indicated that she was particularly qualified for one of the
programs, Manager of Program and Project Appraisal because of her
experience in contingent valuation (Douglas 91). The record
reflects that because she was so well qualified for the position
of Manager of Program and Project appraisal that Mr. Moss did not
continue to consider her for the position of Manager of
Sustainable Development.
27. During this initial interview, Complainant apprised Mr.
Moss of her legal situation with regard to the City and asked
whether it would be an impediment to her serving in a job at TVA
(Douglas 92). Moss replied that any concern was limited to her
ability to devote time to TVA "but not at all with respect to the
fact of her being in a dispute with the City . . . ." (Moss 282).
28. Mr. Moss asked Complainant to take an assessment test
(Douglas 91). He also asked her to sit in on a meeting with his
other managers on July 23 (Douglas 93). Complainant agreed. At
the meeting Mr. Moss asked her to draft a proposed vision for the
Sustainable Development and Program and Project Appraisal
Programs which she also did (Douglas 94).
29. Complainant took the assessment test on August 2, 1993
(Douglas 95). She did well overall and was especially strong in
team building activities (Moss 285). Complainant was so strong
in consensus building that the assessment test did not have the
opportunity to evaluate her confrontational skills (Moss 285).
She was borderline negative in certain of the analytical
reasoning and problem solving skill tests, falling just above the
median of all college graduates (Moss 286). Mr. Moss
acknowledged that this could have been the result of her being
given that part of the test at the end of a long day (Moss 286).
In any event, the results were not considered disqualifying.
30. On August 3, Mr. Moss called Complainant to tell her
that the results of her assessment test were good and that he
wanted to offer her a job. He asked her to meet with him that
day. At the meeting Mr. Moss offered Complainant permanent, full
time employment with full benefits. Her salary was to be $75,000
per year and she was scheduled to start August 16, 1993. Mr.
Moss also told Complainant that she needed to get her problems
with the City behind her as soon as possible (Douglas 96-7).
[PAGE 7]
31. On the same day, Mr. Moss called his immediate
supervisor, Chief Administrative Officer at TVA, Norman Zigrossi
(Zigrossi 531). Mr. Moss informed Mr. Zigrossi via voice mail
that he had extended an offer of employment to Complainant and
that if Mr. Zigrossi had any problems or concerns regarding
either Complainant or her controversy with the City, that they
should speak about it as soon as possible (Moss 288).
32. The next day, Mr. Zigrossi called Mr. Moss and told him
that he did have a problem with Complainant (Moss 289).
Although he did not know the specifics, Mr. Zigrossi was aware
that she was involved in the compost controversy from reading the
papers (Zigrossi 569).
33. Shortly after Mr. Zigrossi's call, Mr. Moss met with
him to discuss his concerns (Moss 289). Mr. Moss interpreted
Mr. Zigrossi's concerns to be the following:
1) . . . . he felt that the simple fact of her (Complainant)
being in a public controversy with the city over this solid
waste disposal issue meant that she lacked the political
skills to handle the situation in a more diplomatic way
without it blowing up into a big public controversy ; and 2)
. . . . she was in a public controversy with the city and if
TVA hired her right away for a senior management position -
- indeed, hired her while she was in the controversy with
the city that some people might interpret that as TVA taking
sides, a TVA slap in the face of the city (Moss 289-
90).
34. Mr. Zigrossi testified that he was concerned about 1)
Complainant's technical competence and 2) his perception that the
controversy had created a media event which was politically
explosive (CX-155, Zigrossi deposition at 65). He further
explained that "it was obvious to me that there was (sic) two
sides of the issue, and somebody was going to be right and
somebody was going to be wrong." He considered the situation
politically explosive for whomever was involved in the
controversy (CX-155, Zigrossi Deposition at 65).
35. Mr. Moss met with Mr. Zigrossi again and raised the
possibility of hiring Complainant under a personal services
contract (Moss 293). Mr. Zigrossi did not agree with Mr. Moss
that his suggestion was an acceptable alternative. He did say
that it was a possibility, provided Complainant was agreeable
(CX-155, Zigrossi Deposition at 69). Mr. Moss testified that
after this conversation he thought there was a "better than 50/50
chance" that Mr. Zigrossi would approve it , but that he said he
still wanted to "touch some bases" which Mr. Moss took to mean he
wanted to speak to people in parallel or higher positions within
TVA whom he felt might be concerned about hiring Complainant
(Moss 298).
36. After his conversation with Mr. Zigrossi, Mr. Moss
called Complainant on August 6 to advise her that there were some
concerns at TVA about hiring her due to her controversy with the
City (Douglas 98; Moss 293, 299). Mr. Moss suggested the
possibility of a one-year personal services contract for the same
position she was originally offered with the same compensation.
Benefits would be paid as part of her salary (Douglas 98).
Although she did not like it, Complainant agreed to accept the
contract (Douglas 98).
[PAGE 8]
37. At the time Complainant agreed to accept the one-year
personal services contract, she was in her attorneys' office.
Her attorneys had just come up with a settlement which was
agreeable to all concerned and they made plans to sign it the
next week (Douglas 99). The signing of the settlement was
scheduled for August 10, 1993 (Douglas 100). Complainant told
her attorneys prior to signing that Mr. Moss "definitely told me
I had a contract and my starting date is the 16th, so we can
proceed" (Douglas 100). As a cautionary measure she decided to
call Mr. Moss and confirm her belief (Douglas 100). Mr. Moss
was not in his office. His secretary, Charlotte Gaylon informed
Complainant that Mr. Moss had signed the contract and sent it on
to be processed (Douglas 100; Gaylon 831).
38. Ms. Gaylon further testified that she called Joyce
Barnes, assistant to Mr. Zigrossi, who informed her that Mr.
Zigrossi had not signed the contract (Gaylon 832). Ms. Gaylon
said she told Complainant that Mr. Zigrossi had not yet signed
the contract (Gaylon 833). In addition, a memo allegedly
authored by Ms. Gaylon stated that she "advised her (Complainant)
that Mr. Moss had no authority to approve the contract unless Mr.
Zigrossi signed it and that the final authority rested with him"
(Douglas 201). Complainant disagrees with Ms. Gaylon's memo in
that she testified that Ms. Gaylon never told her that Mr.
Zigrossi had to approve the contract (Douglas 201-2).
39. Complainant signed the settlement with the City on
August 10, 1993 (CX-77). The City reinstated her pursuant to
the agreement and, believing that her employment with TVA was
assured, Complainant submitted her resignation that same day
(Douglas 102; CX-80). At the press conference immediately
following, Complainant announced that she was going to work for
TVA (Douglas 103; CX-79).
40. On August 11, 1993, Mr. Moss returned Complainant's
call from the day before. Complainant told him she had settled
with the City and was ready to report for work the following
Monday (Douglas 104). Mr. Moss told her that Mr. Zigrossi was
holding up her contract but that ". . . . Norm just had to talk
to one more key person and that he knew he could get back to me
within a week with a positive answer" (Douglas 104).
41. Mr. Moss called Complainant on August 20 and said that
he was still trying to get Mr. Zigrossi to sign the contract and
he would get back to her within one more week (Douglas 105).
42. On August 27, Mr. Moss called again and left the
following message on Complainant's answering machine:
Hi Peggy. It's Larry Moss at TVA. Telephone 632-6947.
It's Friday, 2:02 p.m. I spoke to Norm. He thinks he
should be able to resolve this by the end of next week. He
still has to talk to one key person. So I'm still hopeful,
but I'm sorry about the delay. I hope to have some news for
you by the end of next week. Thanks. Bye. (Douglas 317).
43. Mr. Zigrossi testified that he did not recall ever
telling Mr. Moss that there was
[PAGE 9]
anyone at TVA that he needed to speak with prior to making a
decision regarding Complainant's employment status (Zigrossi
596, 599).
44. Mr. Zigrossi continuously put off making a decision
regarding Complainant (Zigrossi 641; CX-155, Zigrossi deposition
at 76; Moss 310). Mr. Zigrossi himself testified that he never
did clearly communicate to Mr. Moss his intent not to hire
Complainant, or in fact anyone, for the position of Manager of
Program and Project Appraisal (Zigrossi 640).
45. Mr. Moss had remarked in his notes dated October 13,
1993, that he intended to tell Mr. Zigrossi that a decision had
to be made regarding Complainant's potential employment with TVA
(Moss 324). On that date, Mr. Moss learned that a decision had
been made to contest Complainant's position. Up to that point,
Mr. Moss felt that the question of hiring Complainant was still
open (Moss 325).
Complainant's attorney Mr. Anderson's contact with
TVA
46. After the settlement with the City, Complainant's
attorney, Bruce Anderson, called Mr. Moss to assure him that the
controversy was resolved. Anderson testified that Mr. Moss
explained that he had no problem with hiring Complainant, but
that there were some concerns about others at TVA, including Mr.
Zigrossi, who felt that they should wait to hire Complainant
(Anderson 399).
47. Mr. Anderson also spoke with Mr. Zigrossi around August
19 or 20 (Anderson 402). Mr. Anderson testified that Mr.
Zigrossi "did not indicate that there was any problem and,
eventually, (sic) going ahead and finalizing the deal with Peggy
" (Anderson 401). Mr. Zigrossi, testified that he told Mr.
Anderson that no decision had been made as to whether or not
Complainant was going to be hired (Zigrossi 600). Complainant
testified Mr. Anderson told her that Mr. Zigrossi fully intended
to let her contract go through but that he just wanted to let the
controversy die down a bit (Douglas 107).
Discussions which involved TVA Chairman Craven
Crowell
48. Mr. Moss testified that several weeks after Complainant
had settled her suit with the City, Mr. Zigrossi told him that
he had had a brief discussion with TVA Chairman Craven Crowell
(Moss 298, 311). Mr. Crowell asked Mr. Zigrossi whether TVA
knew if hiring Complainant would be a problem with the City
(Moss 311). Mr. Zigrossi did not know if it would be a problem,
but it had been decided that he was not going to ask anyone
within the City to find out. Mr. Crowell agreed that asking
would not be appropriate and the discussion was
concluded (Moss 311).
49. Mr. Zigrossi testified that he never discussed
extending a personal services contract to Complainant with
Chairman Crowell (Zigrossi 641).
50. In a deposition dated July 8, 1994, Chairman Crowell
stated that he only spoke to Mr. Zigrossi regarding Complainant
after she filed suit. He indicated that he mentioned it in
passing, but otherwise, avoided the topic absolutely (CX-156,
Crowell deposition at 56).
[PAGE 10]
51. As chairman of Respondent TVA, Mr. Crowell is a party
to this action. At the hearing on September 12, 1994, Chairman
Crowell was ordered to appear and give testimony. In violation
of that order, Mr. Crowell failed to appear. Had he appeared,
his testimony would have been restricted to the "limited issue of
his views as to Mr. Moss" (Tr. at 11; see also 162-3).
Because Complainant did not have the benefit of Mr. Crowell's
testimony at the hearing, Mr. Moss' testimony is found to be
credible with regard to all matters pertaining to Mr. Crowell.
Correspondence between Complainant and TVA
52. On September 17, 1993, Complainant sent a letter to
Mr. Moss asking him to clarify TVA's position on her contract for
personal services (CX-9). Complainant requested that Mr. Moss
respond to her in writing by September 30, 1993. Mr. Moss
immediately brought Complainant's letter to Mr. Zigrossi's
attention (Moss 320). Mr. Moss had also drafted a response
which Mr. Zigrossi turned over to TVA's legal department. The
response, drafted by the legal department, apologized for any
misunderstanding regarding the possibility of Complainant's
employment with TVA (CX-5). The letter further stated that
I thought it was clear that any arrangements for you to work
with TVA were contingent upon further approvals within 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
(CX-5).
53. It was a normal practice for Mr. Zigrossi to screen Mr.
Moss' letters to job candidates before they were sent out
(Zigrossi 608).
54. On October 22, 1993, Mr. Zigrossi sent a letter to
Complainant again regretting any misunderstanding about the
possibility of her employment by TVA (CX-8). Mr. Zigrossi
outlined several changes that had taken place at TVA in recent
months. He informed her that he would be reviewing the Resource
Group's employment needs and that "[W]hen this review process is
completed, I will be in a position to make a decision as to
whether TVA will be able to utilize your services, and I will let
you know my decision at that time" (CX-8). Mr. Zigrossi never
contacted Complainant again (Zigrossi 700). Unbeknownst to him
at the time, Complainant filed a complaint with the Department of
Labor's Wage and Hour division on October 19, 1993 (RX-20, p.
3-10).
TVA's Candidate Selection Model used by Norman Zigrossi
55. Norman Zigrossi became the President of the Resource Group
in April, 1992 (Zigrossi 533). The Resource Group was that
part of TVA which handled appropriated funds from Congress
(Zigrossi 624). Mr. Zigrossi's goal was to establish an
organization that was responsive and would fulfill TVA's mandate
to be an environmental leader (Zigrossi 623). He hoped the
organization would become world class (Zigrossi 541).
56. Mr. Zigrossi gave his vice presidents some latitude to
determine how they were going to structure their organizations to
achieve their goals (Zigrossi 542). Vice presidents were
[PAGE 11]
instructed to submit a business plan based upon a model which was
adopted by the organization (Zigrossi 543). When it was
determined that a position needed to be created or filled, vice
presidents were instructed to post jobs and follow the selection
process as it was established for the Resource Group (Zigrossi
544).
57. The process began with the vice presidents who would
identify positions which needed to be created or filled. If the
position fell within the business plan as described and discussed
with Mr. Zigrossi, Ms. Headrick of the human resources division
would prepare a vacancy announcement (Headrick 720). Interior
candidates would have the opportunity to apply and be considered
before the process was opened to outside candidates (Kudisch
915). Applicants would be screened to be sure that they met
minimal qualification standards for the position (Headrick 720).
This technical screen was conducted based on the job description
and the qualifications required for the position as well as
identified managerial criteria (Headrick 726). Prescreens were
conducted for internal TVA candidates only (Kudisch 927).
Should a candidate be rejected at this stage, his application
would be re-examined by a different person so that the rejection
could be said to be reliable (Headrick 727; Kudisch 938).
Additional information could be requested of an applicant at this
point (Kudisch 917).
58. The next step in the process was a managerial prescreen
that was developed by the Tennessee Assessment Center (Headrick
728). The results were used to determine whether a candidate
should be permitted to proceed to the Assessment Center, itself
(Headrick 729).
59. For those having attended the full Assessment Center,
the final stage in the selection process consisted of an
interview with the selecting manager (Headrick 729). If the
selecting manager determined that hiring a candidate was
appropriate, they would work with the vice president of human
resources in the Resource Group to determine a salary (Headrick
730). At that point, they would go to Mr. Zigrossi with a list
of qualified candidates and a recommendation (Headrick 730).
The vice president would outline the differences in particular
candidates' qualifications for the position so that Mr. Zigrossi
would be able to see why the recommended candidate was the best
choice for the job (Headrick 730). Mr. Zigrossi had final
approval of offers before they were extended (Headrick 741).
60. Mr. Moss was aware that Mr. Zigrossi required
vice-presidents to discuss their candidate choices with him
(Moss 266). However, Mr. Moss interpreted that requirement to be
for purposes of gaining additional information about a particular
candidate, not for purposes of ultimate approval (Moss 267).
61. To hire an employee under Mr. Zigrossi, a vice
president was required to present more than one candidate for
consideration (Zigrossi 575). Mr. Moss testified that Mr.
Zigrossi was of the opinion that, generally speaking, an
organization is never dependent upon hiring any one person
because there are always others as or more qualified for the
position (Moss 296). It was Mr. Zigrossi's policy to refuse to
hire a person if they were the only qualified candidate
presented, regardless of circumstance (Zigrossi 582, 602, 634,
637).
TVA Policy With Regard to Personal Services
Contracts
62. Prior to October, 1993, Mr. Zigrossi was responsible
for approving personal
[PAGE 12]
services contracts for the Resource Group (Sanders 837). As of
October 1, 1993, Tom Sanders, TVA's then-Vice President of
Finance and Contracts for the Resource Group became responsible
for signing personal services contracts between and $100,000
(Sanders 840). Mr. Zigrossi remained responsible for approving
contracts for amounts over $100,000 (Sanders 840-1).
63. Mr. Zigrossi testified that it was his perception that
TVA's new Board of Directors were philosophically opposed to
personal services contracts (Zigrossi 641). He believed that
the Board wanted to reduce and possibly eliminate outside
contracting (Zigrossi 648).
64. Complainant's proposed contract for personal services
was in the amount of $79,000 (RX-5). Had the request been
submitted after October, 1993, Mr. Moss would have been
responsible for determining the technical competence of the
contractee (Sanders 857-8). Mr. Sanders would have been
responsible for ensuring that there were no services within TVA
that could have performed the requested function at a competitive
rate (Sanders 858). Those two criteria having been met, Mr.
Sanders would have approved the request for contract language
and, if it met the contracting requirements, the transaction
would have been complete (Sanders 858).
The TVA Budget
65. All TVA vice presidents under Mr. Zigrossi were charged
with developing an environmental management plan that would
restructure each organization to meet TVA's environmental goals
(Zigrossi 561). The process, which included development of a
budget for fiscal year 1994, began in January, 1993 and continued
throughout early fall (Zigrossi 561).
66. During the time Mr. Moss was developing his budget, Mr.
Zigrossi did not restrict his plans because he did not want to
"stifle his imagination or his ability to do his job" (Zigrossi
569). Mr. Zigrossi supported Mr. Moss' efforts (Zigrossi 569).
67. Mr. Moss proposed a budget of $5.5 million in August,
1993 (CX-4, p. 29). Mr. Moss' organization had received
approximately $3 million for fiscal year 1993 (CX-4, p. 29).
Chief Financial Officer, Bill Malac, rejected Mr. Moss' request
(Zigrossi 645).
68. All vice presidents submitted higher budgets than they
were ultimately awarded (Zigrossi 646). Mr. Zigrossi and his
financial advisor, Tom Sanders, discussed the budget situation on
October 11, 1993, after Mr. Malac had rejected the vice
presidents' requests (Zigrossi 646). On October 12, 1993, Mr.
Zigrossi met with the vice presidents and informed them of their
budget awards (Zigrossi 647). Mr. Moss' budget was cut to $2.8
million (Moss 329).
69. Mr. Moss asked Mr. Zigrossi to request approval for
additional funds from TVA's Board of Directors (Moss 330;
Zigrossi 655). Mr. Zigrossi agreed to speak to Craven Crowell
and, if necessary, the full Board (Moss 330). To Mr. Sander's
knowledge, a request to the Board for additional funds was never
made (Sanders 850). Further funds were not forthcoming (Zigrossi
655).
70. As a result of these budget cuts, a number of planned
positions were not filled (Zigrossi 647).
[PAGE 13]
71. The budget cuts also impacted on TVA's hiring practices
as to contract employees (Zigrossi 648). The new Board of
Directors implemented a transition program to attempt to relocate
current TVA employees whose positions were going to be eliminated
(Zigrossi 648). As a result, TVA was attempting to reduce and
possibly eliminate outside contracting (Zigrossi 648).
72. Mr. Zigrossi testified that at the time Complainant was
initially presented as a candidate for either a management
position or the one-year personal services contract, money was
available to fund the position (Zigrossi 618).
Complainant's dealings with TVA
Position at issue: Position in Community Partnerships
73. Complainant is a personal friend of TVA Manager for
Community Infrastructure Services, Roosevelt Allen (Allen 442,
458). He was also her boss at TVA from 1990-92 (Allen 443;
Douglas 45).
74. Mr. Allen was involved in the development of the City's
solid waste plant (Allen 449). Complainant discussed the
problems the City was having with CCA in July, 1993 (Allen 453).
He was surprised to learn of her termination (Allen 455).
75. Complainant spoke with Mr. Allen around July 20, 1993,
regarding possible employment at TVA (Douglas 88). Mr. Allen
informed her that he had a job in mind that she might be
interested in (Douglas 88). The job had not yet been posted
internally, however, Mr. Allen told Complainant that he would
talk to her about the position if an internal search for
qualified candidates was unsuccessful (Douglas 89).
76. Mr. Allen also recommended Complainant to Mr. Moss for
the positions of Manager of Sustainable Development and Manager
of Program and Project Appraisal (Allen 466-7). Complainant met
with Mr. Moss and, thereafter, informed Mr. Allen that she had
been offered a position (Allen 468).
77. Later, Mr. Allen saw Complainant and she told him that
she was still unemployed. Mr. Allen was surprised, as he thought
she would have been working for TVA by then (Allen 470). Mr.
Allen asked Mr. Moss why Complainant's contract had been held up.
Mr. Moss told him that there were still some internal discussions
going on, but that he was hopeful things would work out (Allen
471).
78. In late October, Mr. Allen spoke with Complainant about
an Environmental Scientist position in his organization. He
first discussed this job with Complainant in July or August,
before he had any official approval for the position (Allen
501). He told her that the position was now approved by his
respective vice president (Allen 473). He had not started the
internal selection process, but told Complainant that, depending
on what happened with her situation with respect to Mr. Moss, she
might be interested in applying for the job (Allen 473).
79. The position was located in the Center for Rural Waste
Management which was being run by Mr. Malia who, at that time,
was on a personal services contract (Allen 475). Mr.
[PAGE 14]
Allen suggested that Complainant speak with Mr. Malia regarding
the position (Allen 478). He, himself, spoke to Mr. Malia about
Complainant. Mr. Malia did not raise any serious concerns about
hiring Complainant, but they did discuss her situation with
regard to Mr. Moss (Allen 479).
80. Complainant spoke with Mr. Malia regarding the position
around November 1, 1993 (Douglas 112). Complainant testified
that Mr. Malia indicated that he was somewhat hesitant to
consider her for a position in light of the fact that she had
filed a complaint with the Department of Labor (Douglas 112-3).
She also testified that he indicated that he would discuss the
situation with Mr. Allen and get back to her, but he never
contacted her regarding the job again (Douglas 113).
81. At some point after the discussion with Mr. Malia,
Complainant again spoke to Mr. Allen. Mr. Allen told her that he
was no longer able to discuss a position for her at TVA (Douglas
114).
82. In his testimony, Mr. Malia stated that he did not
remember saying that he was worried that Mr. Allen was
considering Complainant for a job even through she had filed a
complaint with the Department of Labor (Malia 898).
83. Complainant never had the opportunity to apply for the
position because it was never advertised outside of TVA (Allen
509). The internal selection process did not produce strong
candidates, so the decision was made not to hire anyone
internally (Allen 509). Additionally, because of monetary
constraints created by the new reduced budget, a decision was
made to put the hiring decision on hold for six months and
reexamine it then (Allen 509). At the time the issue was
revisited in February, 1994, a decision was made not to fill any
more positions with outside candidates (Allen 510).
84. The position remains unfilled (Allen 510). Although
it still exists on paper, as a result of TVA's reorganization,
the position will not be continued (Allen 510).
85. Mr. Allen learned that Complainant was suing TVA in
late October or early November (Allen 529). Mr. Malia does not
recall when he learned that Complainant had filed a complaint
(Malia 903).
Discussion
Dr. Margaret Douglas, Complainant, has a B.A. two Masters
degrees and a Ph.D. in agriculture economics with a concentration
in environmental economics. She was employed by Respondent
Tennessee Valley Authority in the period 1990-92 under the
supervision of Roosevelt Allen. In June, 1992, she was hired by
the City of Knoxville as the manager of the Office of Solid
Waste.
Complainant was employed by the City of Knoxville during a
prolonged controversy involving a local compost site. As manager
of the Office of Solid Waste, Complainant publicly made known her
concerns regarding potential environmental and health problems at
the site. On July 15, 1993, Complainant was terminated for
failing to follow the chain of command regarding
[PAGE 15]
the compost controversy. Complainant negotiated a settlement
with the City on August 10, 1993, whereby she was reinstated and
immediately resigned her position.
On August 3, 1993, Complainant was offered and accepted the
position of Manager of Program and Project Appraisals by TVA's
Senior Environmentalist Lawrence Moss. On August 6, 1993, Mr.
Moss withdrew his offer and, instead suggested a one-year
personal services contract for the same position at equivalent
compensation (Finding No. 36). In late October, TVA employee
Roosevelt Allen discussed with Complainant the possibility of a
position as an Environmental Scientist at the Center for Rural
Waste Management (Finding No. 78).
Complainant has not been placed in any of these positions.
She alleges Respondent TVA has unlawfully refused to employ her
because she had engaged in activities protected by the Acts
(See footnote 1). Respondent argues that Dr. Douglas'
complaint was untimely. Furthermore, Respondent argues that
Complainant did not engage in protected activities, that if it is
found that she did engage in protected activities, that Mr.
Zigrossi was not aware that she had engaged in said activities,
and that Complainant failed to prove discrimination.
Issues which require resolution include the following:
I. Was the complaint timely filed.
II. Is Complainant protected under the applicable
whistleblower statutes.
A. Did Complainant engage in protected activity.
B. If Complainant is found to have engaged in
protected activity, was Respondent aware of
Complainant's protected activity.
C. Did Respondent fail to hire Complaint for a valid
nondiscriminatory reason or was this a pretext.
D. If Complainant established a prima facie
case of illegal discrimination, has it been
rebutted.
III. Damages
A. Back pay
B. Compensatory Damages
IV. Are sanctions appropriate as a result of the failure of
TVA's Chairman of the Board Craven Crowell to appear as
ordered by the undersigned on September 12, 1994 and
for alleged ex parte communications.
I. Was the complaint timely filed[PAGE 16]
In a whistleblower case, the statute of limitations
commences running the day that an employee becomes aware, or
reasonably should have been aware, that she was discriminated
against. Rex v. EBASCO Services, Inc., No. 87-ERA-6,
preliminary D&O of ALJ at 4 (Jan. 27, 1987), adopted by SOL
(April 13, 1987). The statute requires that the complaint be
filed within 30 days of the alleged violation. 29 C.F.R.
24.3(d); CAA, 42 U.S.C. 7622(b)(1); TSCA, 15 U.S.C. 2622(b)(1);
CERCLA, 42 U.S.C. 9610(b); SDWA, 42 U.S.C. 300j-9(i)(2)(A); WPCA,
33 U.S.C. 1367(b); and SWDA, 42 U.S.C. 6971(b). A complaint is
deemed filed as of the date it was mailed. 29 C.F.R. 3(b);
See also Sawyers v. Baldwin Union Free School Dist.,
No. 85-TSC-1, D&O of remand by SOL, slip op. at 5 (Oct. 5, 1988).
Margaret Douglas filed a complaint in this action on October
19, 1993, alleging violations of the CAA, 42 U.S.C. 7622; TSCA,
15 U.S.C. 2622; CERCLA, 42 U.S.C. 9610; SDWA, 42 U.S.C.
300j-9(i); WPCA, 33 U.S.C. 1367; and the SWDA, 42 U.S.C. 6971.
An amended complaint was filed on December 9, 1993. Ms. Douglas
alleges that Respondent TVA refused to employ her 1) as a regular
TVA employee in the position of Manager of its Program and
Project Appraisal Program; 2) under a one-year personal services
contract and 3) as a regular TVA employee as an Environmental
Scientist in its Community Partnership Program.
1) TVA Senior Environmentalist, Lawrence Moss, offered and
Complainant accepted the position of Manager of Program and
Project Appraisal on August 3, 1993 (Finding No. 30). On August
6, 1993, Mr. Moss contacted Complainant to inform her that there
were some concerns at TVA about hiring her due to her controversy
with the City (Finding No. 36). He suggested the possibility of
a one-year personal services contract for the same position and
equivalent compensation (Finding No. 36). Although Dr. Douglas
was unhappy about this new proposal, she agreed to accept the
contract (Finding No. 36). During the thirty days following
August 6, 1993, Complainant took no action to file a complaint
based on the withdrawal of Mr. Moss' offer to come on board as a
regular, full-time TVA employee. She was not misled or prevented
from asserting her rights with regard to this position and she
voluntarily agreed to its withdrawal. Therefore, Complainant's
cause of action as to the position of Manager of Program and
Project Appraisal is untimely filed.
2) The one-year contract position suggested by Mr. Moss
entailed essentially the same tasks as the Manager of Program and
Project Appraisal position (Finding No. 36). Mr. Moss agreed
that compensation would be equivalent to that of the withdrawn
job (Finding No. 36). Complainant agreed to accept the contract;
however, it was never ratified. On August 11, 1993, five days
after the initial offer, Mr. Moss called Complainant to tell her
that his boss, Mr. Zigrossi, was holding up her contract due to
her role in the controversy with the City (Finding No. 40).
Again, on August 20, Mr. Moss called to tell Complainant that he
was still trying to get Mr. Zigrossi to sign the contract and
that he would get back to her within a week (Finding No. 41).
The following week, on August 27, Mr. Moss left a message
informing her that the contract was still being delayed, but that
he hoped to have some news by the end of the next week (Finding
No. 40). Mr. Moss never called again (Douglas 204).
Complainant's attorney, Mr. Anderson spoke with Mr. Moss
sometime after his client executed the settlement with the City
(Finding No. 40). Mr. Anderson wanted to ensure that
[PAGE 17]
Respondent was aware of the settlement and that the controversy
was resolved (Finding No. 46). Mr. Anderson testified that Mr.
Moss told him that there were people at TVA who felt that they
should wait to hire Complainant until the controversy died down a
bit (Finding No. 46; Anderson 400). Mr. Anderson also spoke
with Mr. Zigrossi who indicated that eventually TVA would
finalize the deal with Complainant, but that he was concerned
about TVA's image with the City (Finding No. 47; Anderson 400).
On September 17, 1993, Complainant wrote to Mr. Moss asking
him to clarify TVA's position on her contract for personal
services (Finding No. 52; CX-9). Complainant requested that Mr.
Moss respond to her in writing by September 30, 1993. Mr. Moss
did respond to Complainant's request on September 30 (CX-5). He
stated, inter alia, that "TVA has not yet made a final
determination about this matter but will inform you of its
decision in the near future." (Finding No. 52; CX-5).
Furthermore, On October 22, 1993, three days after the
complaint was filed, Mr. Zigrossi, himself, wrote to Complainant
and informed her that after he reviewed the Resource Group's
employment needs ". . . . I will be in a position to make a
decision as to whether TVA will be able to utilize your services,
and I will let you know my decision at that time." (Finding No.
54; CX-8).
Respondent argues that . . . ."Equitable tolling is
inappropriate when plaintiff has consulted counsel during the
statutory period. Counsel are presumptively aware of whatever
legal recourse may be available to their client, and this
constructive knowledge of the law's requirements is imputed to
[plaintiff]." citingHays v. Wells Cargo, Inc.,
596 F. Supp. 635, 640 (D.Nev., 1984), aff'd, 796 F.2d 478
(9th Cir. 1986)(additional citations omitted). While the
legal premise upon which Respondent's arguments are based is
valid, the facts of this case reveal that Employer, through
statements made by Mr. Moss and Mr. Zigrossi, actively misled
Complainant as to the possibility of her employment with TVA.
Complainant diligently followed up on her employment prospects
with Mr. Moss. She was assured and reassured that he would get
back to her shortly with positive news. Complainant's attorney,
Mr. Anderson's conversations with Messrs. Moss and Zigrossi were
encouraging. In light of those conversations, it did not appear
that filing an action against TVA would be in Complainant's best
interest if the situation was likely to resolve itself in the
near future without resorting to litigation.
However, twenty days after Mr. Moss' last contact with
Complainant, Complainant wrote and asked him to define TVA's
position with regard to her employment. Mr. Moss responded on
September 30, 1993, that TVA had not yet made a final
determination and did not say if or when TVA would be able to
execute her contract. As a result of that response, on October
19, 1993, well within 30 days of September 30, Ms. Douglas filed
her complaint with the Department of Labor. Even after the
October 19, 1993 filing date, Mr. Zigrossi continued to string
Complainant along by telling her that after he completed a review
of his employment needs he would let her know of his hiring
decision. Based upon the facts and circumstances of this case,
it is evident that Complainant was unaware of the discrimination
until some time after Mr. Moss' letter of September 30. The
allegations of the complaint relating to the one-year contract
proposal were timely filed.
3) Complainant's initial contact with Respondent after her
termination by the City was with Mr. Roosevelt Allen in July,
1993 (Finding No. 75). Mr. Allen mentioned a job that she might
be interested in; however, the position had not been posted or
even approved at that time
[PAGE 18]
(Finding No. 75). Mr. Allen told her that if an internal search
for qualified candidates was unsuccessful, he would speak to her
again about applying for the position (Finding No. 75). In late
October, Mr. Allen spoke with Complainant again about the
position of Environmental Scientist at the Center for Rural Waste
Management (Finding No. 78). The position was approved, but
still not posted internally (Finding No. 78).
The position in question fell under the management of Mr.
Jim Malia (Finding No. 79). Complainant spoke to Mr. Malia about
the job around November 1, 1993. Mr. Malia told her that he was
somewhat hesitant to consider her for the position in light of
the fact that she had filed a complaint with the Department of
Labor against Respondent TVA (Finding No. 80). At some time
after the November 1 conversation with Mr. Malia, Complainant
spoke again with Mr. Allen. Mr. Allen told her that he was no
longer able to discuss the possibility of a position at TVA with
her (Finding No. 81).
Complainant was aware or should have been aware, that she
was discriminated against with regard to the position of
Environmental Scientist after the November 1, 1993 conversation
with Mr. Malia. Mr. Malia specifically stated that he was
hesitant to consider Complainant for a position in light of
the fact that she had filed a complaint with the Department of
Labor. At that point she became aware that she was
discriminated against based solely on the fact that she filed a
complaint; this is precisely the kind of discriminatory conduct
that the whistleblower statutes were enacted to prevent.
However, Complainant did not file the amended complaint until
December 9, 1993. This is nine days too late under the thirty-day
limitation set forth in the statutes. Therefore, Complainant's amended
complaint as to the position of Environmental Scientist was
untimely filed.
II. Is Complainant protected under the applicable
whistleblower statutes.
To invoke the protection of the whistleblower statutes, an
employee must show that: 1) he engaged in protected conduct; 2)
the employer was aware of said conduct; and 3) the employer took
some adverse action against him. The employee must also present
evidence to raise the inference that the protected conduct was
the likely reason 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.
If the employee establishes a prima facie case, the
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. Id. If the employer is
likewise successful, the burden shifts once again to the
employee, who has the 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 the employer's proffered explanation is worthy of
credence or whether the discriminatory reason alleged by the
complainant was a more likely motivation. Id.
The presence or absence of retaliatory motive is a legal
conclusion and provable by circumstantial evidence, even if there
is evidence to the contrary by witnesses perceiving lack
of improper motive. Id.
[PAGE 19]
The Prima Facie CaseA. Did Complainant engage in protected activity.
In June, 1992, Complainant was solicited by Knoxville Public
Services Director, Laurens Tullock, to become manager of the
City's Office of Solid Waste (Finding No. 5). Complainant
agreed. As part of her position, Complainant was responsible for
overseeing the City's composting project which was contracted out
to CCA (Finding No. 6). On August 24, 1992, Complainant sent a
memo to Mr. Tullock advising him that CCA was not in compliance
with their contract with the City (Finding No. 8).
Six months later, on February 10, 1993, Complainant sent the
first of four memos to her new supervisor, Knoxville's Director
of Public Services, Bob Whetsel, advising him of her concerns
regarding public health risks as a result of CCA's mulching
operation (CX-95). In March, 1993, Complainant became aware that
CCA was cited for violations of Section 69-3-108 of the Tennessee
Water Quality Control Act. The Act requires compliance with all
state and federal laws or regulations. Tenn. Code. Ann.
69-3-108(e)(1)(1994). On April 19, 1993, Complainant sent Mr.
Whetsel another memo which specifically stated that CCA had
violated air and water quality regulations and that, as a result,
she recommended that the City terminate its contract (CX-99).
On June 17, 1993, Complainant learned that, inter
alia, tests for heavy metals in the area revealed
concentrations of lead, cadmium and other toxic metals high
enough to require Superfund cleanup (Finding No. 13). CCA was
advised to consult with legal counsel regarding its federally
mandated reporting requirements under Section 103(c) of CERCLA by
Environmental Consulting Engineers, Inc., the firm hired by CCA
to test the soil at the site (CX-113). Upon learning of these
test results, Complainant sent off yet another memo to Mr.
Whetsel. This memo, dated June 16, 1993, reiterated that
significant levels of heavy metals including lead, manganese,
boron and other metals were found on the CCA composting site. The
memo also stated the following:
After meeting with the Mayor, Randy Vineyard,
Bud Gilbert, Tim Burchette, and you yesterday, I am
concerned about the direction [of] sic the city is
taking to deal with the serious health risks raised by
the composting operations. I believe that we must
discontinue sending our mulch to the Lorraine Street
site to diminish our contribution to the problems on
Lorraine Street. Due to the positive fecal coliform
tests on the compost, we must insist that CCA
discontinue the sale of the material.
In my opinion, we should landfill the existing
mulch on the Lorraine Street site rather than continue
to sell it to the public. I also think that we have an
obligation to the public to continue testing the
Lorraine Street site for hazardous waste. The state
suggested in our meeting today that given the water
samples that showed a high metal content in parts of
the site, we may be
[PAGE 20]
operating a composting facility on a superfund site.
If so, then we have a responsibility to make a public
disclosure and follow state procedures for containment
or remediation. (emphasis added).
It appears to me that the attitudes of Mayor
Ashe, Randy Vineyard and you imply that we should not
disclose the nature of our problems or that our
problems do not really pose a health threat. The fact
that we have positive tests on fecal coliform, e. coli,
and heavy metals leads me to believe otherwise. I
would like to know from you at what point, if ever, do
you think it would be necessary for the City to close
the current composting operation and notify the public
of the health risks. (CX-101).
It is clear from the subject matter of these memos that
Complainant engaged in activity protected, at a minimum, under
CERCLA and the Safe Drinking Water Act.
B. If Complainant is found to have engaged in
protected activity, was Respondent aware of
Complainant's protected activity.
Complainant acknowledges that Respondent's Chief
Administrative Officer, Norman Zigrossi, had final approval of
her personal services contract for employment at TVA
(RX-8, p.2; Findings No. 40, 42, 62). It is Mr. Zigrossi's
uncontradicted testimony that he was aware of the facts and
circumstances surrounding Complainant's involvement in the
compost controversy only through what he read in the papers.
(CX-155, Zigrossi deposition, 58). Mr. Zigrossi testified in his
deposition that he receives the Knoxville News-Sentinel
newspaper and reads it "Every day, religiously." (Id. at
11-12). The events surrounding the compost controversy were
widely covered by the media. Twenty-five News-Sentinel
articles related to the controversy, most dated between July 2,
and August 25, 1993, have been accepted into evidence (CX-31-57;
RX-3). At least six of those articles specifically reported that
Complainant had voiced safety concerns related to the presence of
heavy metals in the soil at the compost site (CX 31, 32, 33, 35,
38, 41; RX-3).
In an article dated July 2, 1993 and entitled Tests
indicate toxic wastes present at compost firm site,
Complainant was quoted as saying she was concerned about ". . . .
lead, arsenic and barium because those were the metals we found
to be the highest over the acceptable levels." (CX-31). She
further stated that if CCA's compost is found to be contaminated,
it will likely have to be sent to a hazardous waste landfill.
Id. The article went on to explain that officials were
considering whether they should include the CCA site on the
Superfund list. Id. On the front page of the Sunday
edition of the Knoxville News-Sentinel, dated July 18,
1993, just three days after Complainant's termination, an article
clearly stated that "[E]arlier in July, Douglas had warned the
public not to eat vegetables grown in compost purchased from CCA
because the compost might be contaminated with fecal coliform
bacteria and/or toxic heavy metals." (CX-41).
A person who read the paper "every day religiously" would,
of necessity, have taken notice of the large number of articles
devoted to one issue - the compost controversy, especially as it
involved concerns directly related to his particular line of
work. A high percentage of these articles mentioned safety
concerns of one kind or another raised by Complainant and a fair
amount specifically mentioned her concerns related to high
concentrations of toxic metals[3] . It
[PAGE 21]
is, therefore, reasonable to conclude that Mr. Zigrossi was aware
of Complainant's protected activities[4] , as they were published
in a medium he was exposed to and read daily. In fact, his
testimony referring to the controversy surrounding Complainant
compels the inference that he was aware of her protected activity
involved in her dispute with the City.
C. Respondent took adverse action against
Complainant because of her protected
activity.
As soon as Mr. Zigrossi learned that Mr. Moss had
extended an offer of full-time, permanent employment to
Complainant, he called Mr. Moss to inform him that he had a
problem with Complainant and her role in the controversy with the
City (Finding No. 32). Mr. Zigrossi expressed concerns about
Complainant's technical competence and his perception that the
controversy had created a media event which was "politically
explosive" (Finding No. 34). As a result, Mr. Moss withdrew his
offer to Complainant on August 6, 1993, three days after it was
initially made (Finding No. 36). In its place, Mr. Moss
suggested the possibility of a one-year personal services
contract for the same position she was originally offered with
equivalent compensation (Finding No. 36). Complainant
reluctantly agreed (Finding No. 36).
On August 10, 1993, prior to signing her settlement with the
City, Complainant attempted to confirm her contract with TVA.
She called Mr. Moss from her attorneys' office, but he was not in
his office that day. Mr. Moss' secretary, Charlotte Gaylon
testified that she informed Complainant that Mr. Moss had no
authority to approve the contract unless Mr. Zigrossi signed it
and that the final authority rested with him." (Finding No. 38).
Complainant contests the claim that Ms. Gaylon told her that the
final authority to authorize the contract rested with Mr.
Zigrossi (Finding No. 38). However, if his approval was not
necessary to the agreement, Mr. Moss could have executed the
contract himself. By informing Complainant that Mr. Zigrossi had
not yet signed the contract, Ms. Gaylon was, in essence, telling
Complainant that his signature was necessary to a binding
agreement. In any event, Complainant was aware at the time she
executed her settlement with the City that the personal services
contract at TVA was not yet executed.
When Mr. Moss returned Complainant's call the next day, he
informed her that Mr. Zigrossi was holding up her contract, but
predicted a positive outcome in the near future (Finding No.
40). Complainant was aware that the reason Mr. Moss had changed
the terms of his original offer of a permanent employment
position to a personal services contract was related to her
controversy with the City (Finding No. 36; Moss 303). Mr. Moss
told her that Mr. Zigrossi was holding up her contract for the
same reason (Douglas 204). His statement was corroborated by
reports from her attorney, Mr. Anderson, who spoke with both Mr.
Moss and Mr. Zigrossi about Complainant's employment status at
TVA. Mr. Moss told him that TVA intended to hire Complainant,
but wanted to let the compost controversy die down a bit first
(Findings No. 46, 47; Anderson 399-400). Anderson also testified
that Mr. Zigrossi indicated some concern over TVA's image with
the City with regard to this situation. Id.
On August 20, 1993, Mr. Moss called and told Complainant
that he was still trying to get Mr. Zigrossi to sign the contract
and could get back to her within one week (Finding No. 41).
Again, on August 27, Mr. Moss called Complainant and left the
following message on her answering machine:
[PAGE 22]
Hi Peggy. It's Larry Moss at TVA. . . . I spoke to Norm.
He thinks he should be able to resolve this by the end of
next week. He still has to talk to one key person. So I'm
still hopeful, but I'm sorry about the delay. I hope to
have some news for you by the end of next week. Thanks.
Bye.
(Finding No. 42).
Mr. Moss did not initiate contact with Complainant again.
On September 17, 1993, Complainant sent Mr. Moss a letter
requesting him to clarify TVA's position on her contract for
personal services (Finding No. 52). In his response dated
September 30, 1993, Mr. Moss indicated that "TVA has not yet made
a final determination about this matter but will inform you of
its decision in the near future" (Finding No. 52). In an
unsolicited letter from Mr. Zigrossi, dated October 22, 1993, he
informed Complainant that after a review of his employment needs
". . . . I will be in a position to let you know my decision at
that time" (Finding No. 54).
From August 3, 1993, the date of Mr. Moss' first offer of
employment, until September 30, 1993, the date of Mr. Moss' last
correspondence, Complainant had been anticipating a job at TVA.
The ultimate authority on whether or not she received that job
rested with Norman Zigrossi. Mr. Zigrossi continually put off
Mr. Moss' attempts to resolve the issue of Complainant's
employment status (Finding No. 44). Mr. Moss testified that he
repeatedly asked Mr. Zigrossi whether he was in a position to
make a decision over many days and weeks, but that until October
13, 1993, the question of Complainant's employment was still
open (Finding No. 45; Zigrossi 640; Moss 310, 325). Mr.
Zigrossi, himself, testified that he never did clearly
communicate his intent of not hiring Complainant, or anyone, for
the position. When he was asked why he did not address the issue
with Mr. Moss, Mr. Zigrossi replied "Well, I don't know
the reason." (Zigrossi 604; 640).
The weight of the evidence shows that Mr. Zigrossi
repeatedly delayed making a decision about Complainant's
prospects of working for TVA. The evidence also compels the
inference that his procrastination resulted from concern over
Complainant's involvement in the compost controversy with the
City. Mr. Zigrossi repeatedly refused to address the issue and
was irritated with Mr. Moss for continuing to bring it up
(Zigrossi 604). It appears that by his inaction, Mr. Zigrossi
was hoping that the matter would go away and that he would not
have to directly address it himself. However, his inaction,
motivated by Complainant's protected activity, was discriminatory
and constitutes adverse action against her. Complainant, by
showing that her protected activity was the likely cause of the
discrimination, has established her prima facie case.
D. Rebuttal
Establishing the prima facie case "in effect creates
a presumption that the employer unlawfully discriminated against
the employee." Respondent now has the burden of producing
evidence to rebut the prima facie case, namely, that the
adverse action was taken for a legitimate nondiscriminatory
reason. If Respondent can successfully carry this burden, the
presumption drops from the case. Complainant must then show
that Respondent's proffered reason was not the true reason for
the employment decision and that retaliation for protected
activity was the motivating factor. Complainant retains the
ultimate burden of demonstrating that he was a victim of improper
discrimination. St. Mary's Honor Center v. Hicks, 113
S.Ct. 2742, 125 L.Ed.2d 407 (1993).
[PAGE 23]
Respondent asserts that Complainant was not hired for
nondiscriminatory business reasons, namely, that Mr. Zigrossi did
not want to hire a contract person who was not a part of the
organization to come in and establish an organization that
someone else would be responsible for; that TVA was turning away
from using contract personnel; that there was concern regarding
Complainant's managerial competence; and that budget problems
prohibited the hiring of anyone, in any capacity, to fill the
position.
Mr. Zigrossi testified that he "didn't think it was wise for
a contract person who was not a part of the organization to come
in and establish an organization that someone else would be hired
to run. . . . " (Zigrossi 606). He also took the position that
TVA did not need to spend money for an outside consultant to do
the things that Mr. Moss could and, in Mr. Zigrossi's opinion,
probably should be doing himself (Zigrossi 592). This was in
keeping with Mr. Zigrossi's alleged perception that the
philosophy of the new Board of Directors was to reduce and
possibly eliminate the need for outside contracting (Zigrossi
641, 648). He testified that it was his feeling that the new
Board expected work to be done internally; therefore, he refused
to approve Complainant's contract (Zigrossi 641).
In addition to his desire not to hire a contract person for
a position he felt Mr. Moss should be responsible for, Mr.
Zigrossi also expressed concern that Complainant was not
competent to handle the position (Finding No. 34).
Complainant's assessment center results indicated that she had
high analytical skills, but that she had some shortcomings in the
management area (Finding No. 29; Zigrossi 579; Moss 289). Mr.
Zigrossi also noted that there was some concern over her handling
of the controversy with the City. He stated that ". . . . one's
credibility is at stake [when] (sic) you are in a controversy of
this nature and that it goes to the competency of the individual
in terms of their professional competency. . . . " (Zigrossi
576). To Mr. Zigrossi, the answer as to whether or not
Complainant was competent would be found in whether or not she
was technically correct in her dispute with the City (Zigrossi
573). Mr. Zigrossi acknowledged that he was not in a position to
resolve that issue. Therefore, he simply decided not to hire
Complainant (Zigrossi 580).
In keeping with his testimony that the new Board of
Directors desired to reduce and possibly eliminate outside
contracting in favor of doing all necessary work internally, Mr.
Zigrossi refused to approve Complainant's contract for personal
services (Finding No. 63). However, TVA's Policy on
Contracting, released in December, 1993, does not support Mr.
Zigrossi's alleged perception that the new Board of Directors
were philosophically opposed to hiring outside contractors
(CX-143). The record supports the finding that Mr. Moss had
conducted an unsuccessful search for qualified internal
candidates[5] . Based on the established contracting policy,
when faced with filling a position which requires expertise not
available at TVA, the acceptable course of action would have been
to utilize a personal services contract. As Complainant was
found to be qualified for the position and she possessed skills
in the area of contingent valuation, which were absent inside
TVA, a personal services contract would have been an appropriate
means, in accordance with TVA policy, of bringing her on board.
Therefore, Mr. Zigrossi's refusal to do so because of his belief
that it was not in keeping with TVA policy supports the inference
that his articulated rationale was pretextual and his motivation
discriminatory.
[PAGE 24]
His refusal to hire a contractor for a position that someone
else would be hired to run is likewise pretextual. If Mr.
Zigrossi's argument had merit, it would abolish the need for
personal service contracts. Furthermore, his argument that Mr.
Moss should be performing the tasks assigned to the position he
sought to fill with Complainant cannot be supported as Mr. Moss
lacked the contingent valuation skills he considered central to
the position.
Furthermore, Mr. Zigrossi's concern regarding Complainant's
competency is also pretextual. Mr. Zigrossi linked Complainant's
competence directly to the compost controversy and whether or not
the position she took was, in fact, correct. Mr. Zigrossi felt
that "the controversy smacked upon (sic) her technical competency
and other competencies, managerial skills, her ability to get
along with people, her ability to play on the team, and all of
the other things that are involved in management and leadership
positions" (Zigrossi 709). Complainant engaged in protected
activity (See Section B). The fact that controversy
ensued as a result of that activity does not necessarily reflect
on a person's competence. Controversy is inherent in the
whistleblowing process. The overriding concern as to
Complainant's competency was linked to the controversy arising
out of her environmental concerns. Accordingly, the asserted
question as to her competence is pretextual and, thus
discriminatory.
Mr. Zigrossi also alleges that Complainant's Assessment
Center results indicated weakness in the management area
(Zigrossi 579). Mr. Zigrossi took the position that he "didn't
need to hire anybody. . . . It was not my position to resolve the
issue (of Complainant's competency)." (Zigrossi 580). He had no
plan to resolve the issue of her competency, and he, in fact,
took no steps to satisfy himself as to her competence (Zigrossi
580). His complete indifference to Complainant's actual ability
to do the job at issue supports the inference that Mr. Zigrossi
was not, in fact, concerned with her ability to do the proposed
job; instead, he relied upon unsubstantiated shortcomings as a
reason not to hire her.
If the foregoing reasons had, in fact, been true reasons for
refusing to hire Complainant, there would have been no reason for
procrastination and Mr. Zigrossi, more likely than not, would
have immediately turned Complainant down for a position at TVA.
His procrastination and admission that he was influenced by the
controversy surrounding Complainant supports the finding that
the business reasons he advanced in support of his conduct were
nothing more than after-the-fact rationalizations. Mr.
Zigrossi's alleged concerns regarding TVA's contracting policies
and Complainant's competence appear to be pretext for not hiring
her. His articulated rationale has been found not to be the true
reason for his employment decision. The facts support the
conclusion that the motivating factor behind Mr. Zigrossi's
decision was based on Complainant's involvement in a controversy
arising out of a protected activity and, therefore, constitutes
illegal discrimination.
Although it was not a consideration when discussions about
hiring Complainant first began, as time went on, TVA's budget
clearly became a factor in Mr. Zigrossi's refusal to approve her
contract (Zigrossi 591). In August of 1993, Mr. Moss proposed a
budget of $5.5 million (Finding No. 67). He, along with all the
other vice presidents submitted higher budget requests than were
ultimately awarded (Finding No. 68). On October 12, 1993, Mr.
Moss was informed that his budget request was cut to $2.8 million
(Finding No. 68). As a result of this budget cut, a number of
planned positions, including the position which is the subject of
Complainant's suit, were not filled (Finding No. 70). However,
had Mr. Zigrossi not
[PAGE 25]
procrastinated with regard to hiring Complainant, the budget
would not have been an issue. In fact, if he had ratified her
contract for personal services, which was ready for signature on
August 10, 1993, it is undisputed that the budget would not have
been a bar to her employment at TVA (Finding No. 72).
It is evident that TVA's budget concerns became an issue and
a valid bar to Complainant's employment under the personal
services contract only after Mr. Zigrossi had repeatedly and
continually put off addressing the issue of her employment at TVA
(Findings No. 44, 72). Had he addressed the employment issue
early on in this case, the budget would not have been a
prohibitive factor in his hiring decision with regard to
Complainant. The reasons for Mr. Zigrossi's delay in addressing
this issue were motivated by retaliation for Complainant's
protected activity. The budget subsequently provided a
fortuitous yet pretextual reason for Mr. Zigrossi to refuse to
hire Complainant.
III. Relief
A. Back pay
As a result of Respondent's unlawful discrimination,
Complainant was denied a one-year personal services contract with
Respondent in the amount of $79,000[6] (Finding No. 64). The
contract was to have extended from August 16, 1993 through August
15, 1994. There was no guarantee that Complainant's contract
would have been renewed or that she would have been offered a
full time position with TVA at the conclusion of the contract's
term. Therefore, as a result of Respondent's unlawful conduct,
Complainant is entitled to relief in the amount of $79,000, minus
any setoff for wages earned by Complainant during the contract
period.
Respondent argues that by not following up on inquiries
about her interest in employment from several companies that have
experienced environmental problems in the past, Complainant
failed to mitigate her damages and is therefore barred from
making a claim for back pay. Respondent has not presented any
evidence to show that Complainant would have received a job
offer from one of these companies had she applied for a position.
Furthermore, there is no evidence to suggest that the offer would
have been comparable to the one-year personal services contract
at TVA.
It is evident that Complainant diligently sought and found
employment and did, in fact, mitigate her damages. After her
termination with the City, Complainant wrote environmental
articles for The Shopper, a local paper, for which she was
paid ,000 (Douglas 114). In November, 1993, Complainant was
awarded a contract with Loudon County in the amount of $15,000
(Tr. 115). In January, 1994, Complainant was awarded a
three-month contract from TIA Solid Waste Consultants in Tampa,
Florida, for which she was paid $6,200 (Douglas 116)[7] . In
May, Complainant obtained an associate professor position at
Antioch College at a rate of $36,000 per year. Three months of
Complainant's employment at Antioch was performed within the term
of the one-year personal services contract. Respondent is
entitled to set-off in the aggregate amount of wages earned by
Complainant between August 16, 1993, and August 15, 1994,
totalling $31,200.00. As Complainant has been awarded relief in
the full amount of the one-year personal services contract minus
setoff, she has not suffered a loss of earning capacity.
[PAGE 26]
B.Compensatory Damages
Complainant alleges that she suffered damage to her
professional reputation, professional relationships, loss of
earning capacity and emotional distress as a result of
Respondent's discrimination against her. Complainant requests an
award of compensatory damages in the minimum amount of
,000,000.00. Compensatory damages are those damages awarded to
replace the loss caused by the wrong or injury. Blacks Law
Dictionary at 354 (5th ed. 1979). The record does not
support a claim for such damages in this case.
In May, 1994, after the events which comprise the record in
this case, Complainant successfully obtained a two-year contract
for a tenure-track position as an Associate Professor of
Environmental Services at Antioch College (Douglas 116). That
Antioch College was willing to hire Complainant after the events
of the preceding two years demonstrates that she maintained her
professional stature as a member of the environmental community.
Throughout her testimony, Complainant named several
respected colleagues who supported her during the past several
years (Douglas 88, 207, 211; CX-43). The record contains four
letters of recommendation on behalf of Complainant dated
September 27, 1993, through December 20, 1993; clearly after the
majority of acts which comprise this lawsuit took place
(CX-121-124). The last letter was dated after Complainant filed
this cause of action (CX-124). There is no evidence to suggest
that any of those who drafted letters of recommendation for
Complainant would not continue to stand behind those letters
today. TVA's Team Leader, Jim Malia, thought so highly of
Complainant that he asked her to be a guest lecturer for his
University of Tennessee class in November, 1993 (Douglas 207).
The evidence also does not suggest that Mr. Allen, with whom
Complainant shares a long history of professional friendship,
held her in any less esteem as a result of TVA's actions. Thus,
Complainant's claim that she has suffered damage to her
professional reputation or relationships is not supported by the
record.
Complainant also alleges emotional distress as a result of
Respondent's actions. The record reflects that most of the
publicity in this case was related to Complainant's dealings with
the City. There is no specific evidence in the record as to the
impact of TVA's actions on Complainant's mental state. The only
evidence which addresses Complainant's emotional state is her own
testimony that the compost controversy with the City was
difficult for her and that she sought psychological counseling
around the time of her first reprimand (Douglas 85). The
record does not support the claim for compensatory damages.
IV. Sanctions
Complainant has requested that sanctions be imposed against
Respondent for its failure to produce TVA Chairman Craven Crowell
and for alleged ex parte communication with the
undersigned after the hearing, and that Respondent be required to
post for no less than 60 days a copy of the Secretary's decision
and order in this matter in all places where notices to employees
are routinely placed.
A. Respondent's failure to produce Chairman
Crowell
On the first day of the hearing in this matter,
Complainant's counsel requested that Craven Crowell be called to
testify as to "his dissatisfaction as he has expressed on the
record with Mr.
[PAGE 27]
Moss' performance in view of the chairman's stated environmental
goals for the agency and the current state of the budget" (Tr.
9). Counsel for Respondent objected. The undersigned ruled that
Complainant would be permitted to call Dr. Crowell to testify "to
the limited issue of his views as to Mr. Moss" and also the
substance of any contacts between Mr. Crowell and Mr. Zigrossi
pertaining to Mr. Moss (Tr. 11; 883).
On the second day of the hearing, Counsel for Respondent
indicated that Chairman Crowell would not appear at the hearing
(Tr. 271). Respondent argued that because Mr. Crowell previously
made himself available for deposition, answered all of
Complainant's questions and stayed as long as she wanted, that he
had nothing to add to the hearing and declined to appear (Tr.
271). In addition, Respondent argues that agency heads such as
Chairman Crowell are not required to give testimony "unless a
clear showing is made that such a proceeding is essential to
prevent prejudice or injustice." Respondent's Brief in
Opposition to Complainant's Motion, citingWirtz v.
Local 30, International Union of Operating Engrs, 34 F.R.D.
13, 14 (S.D.N.Y. 1963); additional citations omitted.
The trier of fact and not Respondent is charged with
determining whether a party's presence is necessary to the
resolution of a particular matter. The order of the undersigned
clearly indicates that Mr. Crowell's testimony with regard to Mr.
Moss was found to be relevant and necessary to a determination in
this matter. Thus, Respondent's opinion that Chairman Crowell
had nothing to add to the hearing is irrelevant and does not
excuse him from failing to appear. Furthermore, Respondent's
argument that he appeared for a deposition does not excuse him
from obeying an order by the court to appear at the hearing.
Moreover, Chairman Crowell's appearance at the deposition waives
any right he may or may not have had to argue he was exempt from
appearing at the hearing.
Respondent refused to produce Mr. Crowell at the hearing in
response to the order to appear. Accordingly, adverse inferences
are justified. As a result, Mr. Moss' testimony is found
credible and TVA is precluded from litigating the credibility of
this witness[8] .
B.Ex Parte Communication
Complainant alleges that Respondent engaged in ex
parte communication in the form of a letter delivered by hand
to the undersigned on September 16, 1994. This letter indicated
on its face that a copy was being contemporaneously sent to both
of Complainant's counsel of record, Ms. de Haven and Ms.
Kittrell. By Ms. de Haven and Ms. Kittrell's response dated
September 19, 1994, it is evident that they received Respondent's
letter. Thus, the communication was not ex parte and no
sanctions are warranted.
Complainant's request that the Secretary's decision in the
case be posted is hereby denied.
RECOMMENDED ORDER
1. Complainant's cause of action as to the position of
Manager of Sustainable Development is dismissed as untimely.
2. Complainant's cause of action as to the Environmental
Scientist position is dismissed as untimely.
3. Respondent shall pay Complainant for a one year period,
representing the length of the personal services contract which
was intended to begin on August 16, 1993, and continuing for a
period of one year, ending on August 15, 1994. The back pay
award, in the amount of $79,000, shall be set-off in the amount
of $31,200.00, representing Complainant's earnings during that
time.
4. Adverse inferences are drawn from the non-appearance of
Chairman Crowell at the hearing. As a result of such adverse
inferences, Mr. Moss' testimony is found credible and TVA is
precluded from raising as a defense any argument as to Mr. Moss'
credibility.
______________________________
THEODOR P. von BRAND
Administrative Law Judge
TPvB/LMF
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave., NW, Washington, DC 20210. The
Office of Administrative Appeals has the responsibility to advise
and assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] The Clean Air Act, 42 U.S.C. §7622; the Safe Drinking
Water Act, 42 U.S.C. §300j-9; the Solid Waste Disposal Act,
42 U.S.C. §6971; the Water Pollution Control Act, 33 U.S.C.
§1367; the Superfund law, 42 U.S.C. §9610; and the
Toxic Substances Control Act, 15 U.S.C. §2622.
[2] The following abbreviations will be used as citations to the
record:
RX - Employer's Exhibit
CX - Complainant's Exhibit
Tr. - Transcript (For purposes of clarity, all citations to
the record are labeled by the testifying witness's name. All
citations to colloquy on the record are labeled by the denotation
"Tr.")
[3] As already discussed (see II. A., supra), the
subject matter of Complainant's statements make it clear that
they constitute protected activity under CERCLA.
[4] Respondent's argument that Mr. Zigrossi "did not relate what
he had read in the newspaper to 'protected activity' on the part
of Complainant" (see Respondent's brief at 24
citing Zigrossi at 535, 647-8), is irrelevant for purposes
of this analysis. The second element of Complainant's prima
facie case requires that Respondent be aware of the
underlying action which constitutes protected activity. It does
not require that Respondent equate the action with the concept of
protected activity. As Mr. Zigrossi was aware of the statements
made by Complainant, which have been found to be protected, he
will be found to have been aware of her protected activity for
purposes of establishing a prima facie case.
[5] In October, 1993, an internal candidate, Juan Gonzales,
marginally passed TVA's internal screen and was scheduled to go
to the Assessment Center for consideration regarding the Program
and Project Appraisal position (Headrick 759-60). Mr. Gonzales
was a late applicant for the position (Headrick 759). Jenny
Headrick, manager of research and development in TVA's corporate
human resources department, became aware that Mr Gonzales was
scheduled to go to the Assessment Center. At that point in time
she was also aware that budget was becoming more of an issue in
the Resource Group. Therefore, she asked Mr. Zigrossi whether
she should continue to process Mr. Gonzales' application
(Headrick 761). Mr. Zigrossi informed her that because the
budget had not been approved for environmental management at that
time, she should cancel the Assessment Center testing scheduled
for Mr. Gonzales (Headrick 761).
[6] Although the record reflects testimony which indicates that
Complainant was to be compensated under the personal services
contract in an amount equal to the compensation and benefits
under the original full-time offer of employment, the request for
personal services contract, (RX-5), indicates that the total
dollar amount of the contract was limited to $79,000. Therefore,
Complainant will be limited to a maximum recovery of $79,000.
[7] Complainant requests that the back pay order include the
value of moving expenses from Tennessee to Florida and back, from
Tennessee to Yellow Springs Ohio, and the legal costs and fees
necessitated by custody proceedings so that she could remove her
minor children from the State of Tennessee. The record does not
provide documentation sufficient to support these claims.
Therefore, Complainant's request will be denied.
[8] Nothing in the record casts doubt as to the credibility of
Mr. Moss. Therefore, even without the issue of sanctions in this
case, Mr. Moss' testimony would be found to be credible.
