DATE: August 22, 1995
CASE NOS: 94-ERA-6 (FREELS I)
In the Matter of
Betty Freels,
Complainant
v.
Lockheed Martin Energy Systems, Inc. (formerly known as Martin
Marietta Energy Systems, Inc. (MMES)); Oak Ridge National
Laboratory (ORNL); Martin Marietta Corporation (MMC); Martin
Marietta Technologies, Inc. (MMT); Oak Ridge National Laboratory
and Martin Marietta Energy Systems, Inc. Medical, Health Physics,
Occurrence Reporting, Environmental Monitoring and Industrial
Hygiene Departments; and Oak Ridge Operations Office,
Respondents,
and
Case No.: 95-CAA-2 (Freels II)
In the Matter of
Betty Freels,
Claimant,
v.
Lockheed Martin Energy Systems, Inc. (formerly known as Martin
Marietta Energy Systems, Inc. (MMES)); Oak Ridge National
Laboratory (ORNL); Martin Marietta Corporation (MMC); Martin
Marietta Technologies, Inc. (MMT); Oak Ridge National Laboratory
and Martin Marietta Energy Systems, Inc. Medical, Health Physics,
Occurrence Reporting, Environmental Monitoring and Industrial
Hygiene Departments; Oak Ridge Operations Office; and Department
of Energy (DOE),
Respondents,
RECOMMENDED ORDER DISMISSING DEPARTMENT OF ENERGY
AS A RESPONDENT AND GRANTING MOTIONS FOR SUMMARY DECISION
IN CASE NUMBERS 94-ERA-6 AND 95-CAA-2
[PAGE 2]
Preliminary Matters The complaint for case number 94-ERA-6 was filed on August
9, 1993. This complaint alleges discrimination in violation of
the whistleblower provisions of Section 210 of the Energy
Reorganization Act ("ERA"), 42 U.S.C. § 5851, and the
implementing regulations of the Secretary of Labor at 29 C.F.R.
Part 24.
On August 3, 1994, the complaint for case number 95-CAA-2
was filed under the employee protection provisions of the Clean
Air Act, 42 U.S.C. § 7622 and the implementing regulations
at 29 C.F.R. Part 24.
Case number 94-ERA-6 was assigned to this Administrative Law
Judge, and case number 95-CAA-2 was assigned to another judge. A
motion to consolidate the two cases was filed by the complainant.
The two cases were reviewed, and it was concluded the cases
involved the same parties (except for the addition of the U.S.
Department of Energy) and that the second filing was merely an
extension of the fact pattern from the first case.
Therefore, on January 4, 1995, the cases were consolidated
with this Administrative Law Judge as the presiding official.
The major respondent in this case was previously known as
Martin Marietta Energy Systems, Inc. This firm merged with
another and since May 19, 1995, it has been known as the Lockheed
Martin Energy Systems, Inc.
HISTORY OF THE CASEOn August 9, 1993, Ms. Freels filed a complaint under
the Energy Reorganization Act with the U.S. Department of Labor
Employment Standards Administration, Wage and Hour Division. On
December 13, 1993, Ms. Freels was informed that her complaint had
been denied. Thereafter, on December 16, 1993, an appeal was
filed with the Office of Administrative Law Judges.
The complaint pertaining to case number 94-CAA-2 (Clean Air
Act) was filed on August 3, 1994, and denied on September 23,
1994, by the Wage and Hour Division. On October 5, 1994, the
Complainant appealed to the Office of Administrative Law Judges.
[PAGE 3]
As previously stated, the two complaints were consolidated
to be heard by this Administrative Law Judge.
The Complainant was hired by "Energy Systems" (MMES) on
February 11, 1985. Ms. Freels was promoted on several occasions,
and she became a senior environmental technician, level 60, on
January 6, 1992. (See letter dated September 20, 1993, from
Patricia L. McNutt, Assistant General Counsel for the Respondent,
to the District Director, U.S. Department of Labor).
Paragraphs 12 and 13 of the above cited letter reflect that
the Complainant missed numerous days of work between 1985 and
1992 for a multitude of medical problems. On June 1, 1992, Ms.
Freels expressed concern that her health problems were related to
exposure (to radiation or toxic materials) at work. (See
paragraph 24.)
Respondent's motion for summary judgment dated February 13,
1995, states in paragraph number 4:
To accommodate Ms. Freels' concerns,
management relieved her from hazwaste
sampling duties in June 1992, while allowing
her to continue doing special projects
sampling on a case-by-case basis, pending
receipt of guidance from ORNL's Medical
Division.
. . .
By late October 1992, Ms. Freels was removed
from all sampling activities and was
transferred, with her consent, to the
instrument coordinator position which
involved no sampling work and no exposure to
radiation or toxic materials.
. . .
A few weeks later, she applied for a leave of
absence under Energy Systems' Short Term
Disability Plan (STD). Her application was
granted and she was off work on STD, at full
pay, from November 24, 1992 to May 5, 1993.
. . .
[PAGE 4]
5. Ms. Freels returned to work on May 5,
1993. Since then (pursuant to a decision
announced at upper management meetings in
December 1992 and January 1993 while she was
off work on STD) Ms. Freels has not been
assigned to any work involving exposure to
radiation or toxic materials. In August
1993, Ms. Freels applied for STD benefits a
second time.
. . .
Again her application was granted. She was
off work at full pay on STD from July 25,
1993 until February 1, 1994, at which time
she went on Long Term Disability (LTD), at
60% of her full salary. Ms. Freels remains
on LTD today. (February 3, 1995)
(Jurisdiction under the cited statutes)
To establish a prima facie case under the applicable
employee protection provisions of the Energy Reorganization Act
and the Clean Air Act, a complainant must show:
(a) that she engaged in protected activity;
(b) that the employer knew that the employee engaged in
protected activity;
(c) that the employer took some adverse action against the
employee; and
(d) that employee must present evidence sufficient to at
least raise an inference that the protected activity
was the likely reason for the adverse action.
It is clear that Lockheed Martin Energy Systems is an
employer under the Acts and that the Complainant is considered to
be an employee under the pertinent criteria. The parties agree
that Ms. Freels engaged in protected activity and that the
Employer knew that she engaged in such activity. However, (c)
and (d) as listed above are in dispute in this case.
Issues Raised in this Case[PAGE 5]
1. Harassment by the Respondent regarding testimony in the
case of Varnadore v. Oak Ridge National Laboratories
and Lockheed Martin Energy Systems, Inc. (92-CAA-2,
92-CAA-5, and 93-CAA-1), decision of Administrative Law
Judge von Brand on June 7, 1993.
2. Respondent's refusal to issue a medical profile
excluding the complainant from exposure to heavy
metals, hazardous chemicals, and radiation.
3. Violations of rights of confidentiality regarding
medical records.
4. Violations of Respondent's duties to post notices to
employees regarding protected activity.
5. Further discovery regarding E-mail.
6. Department of Energy as a respondent in this case.
7. Bar Department of Energy from using funds to allow
contractors to defend against whistleblower complaints.
Motion to Dismiss by the U.S. Department of Energy
In case number 95-CAA-2, the U.S. Department of Energy was
cited as a respondent. The Complainant has argued that the
Department of Energy should be restrained from funding
Respondent's (such as Lockheed Martin Energy Systems, Inc.)
defense of whistleblower complaints.
On April 28, 1995, the Department of Energy filed a motion
to be dismissed as a party in case number 95-CAA-2. Department
of Energy argued:
that this proceeding is beyond the statutory
jurisdiction which Congress conferred on the
United States Department of Labor because (A)
for purposes of the employee protection
provisions of the environmental statues the
complaint cites, the Complainant has never
been employed by DOE; and (B) DOE is not an
"employer" under the employee protection
provisions of the Energy Reorganization Act.
[PAGE 6]
It is argued that:
The complaint fails to specify how the DOE's
conduct, even if done in the manner the
complaint describes, was retaliatory and
(thereby) discriminatory against the
Complainant "with respect to her
compensation, terms, conditions, or
privileges of employment."
On September 23, 1994, the District Director, Wage and Hour
Division, informed the Complainant that:
Our initial efforts to conciliate the matter
did not result in a mutually agreeable
settlement. Assuming arguendo that
the Department of Energy is a joint employer
of the complainant, our examination of the
issues raised in the complaint led us to the
following conclusions:
- The Department of Labor has no
jurisdiction over the contractual
relationship between the Department of
Energy and its contractors;
The Department of Energy has cited the April 3, 1995,
decision of the Secretary of Labor in Reid v. Martin Marietta
Energy Systems, Methodist Medical Center of Oak Ridge, Tennessee
Medical Management, Inc., et al, 93-CAA-4.
I find the decision in Reid to be on
point, and I find that the Department of Energy cannot be
considered as an employer of the Complainant. See Teles v.
U.S. Department of Energy, 94-ERA-22, decision of the
Secretary of Labor, (August 7, 1995).
Therefore, I find that the Department of Energy
should be dismissed as a respondent in case number 95-CAA-2
(Freels II).
It is noted that the Complainant seeks to bar
the Department of Energy from using funds to allow contractors to
defend against whistleblower complaints. However, the record
contains a letter from the Department of Energy, and the letter
indicates that the Department of Energy has refrained from such a
practice since 1992. Therefore, I find this issue to be moot.
Motion for Summary Judgement[PAGE 7]
On February 14, 1995, the Respondents
(excluding the Department of Energy) filed a motion for summary
judgment in both cases.
Initially, Lockheed Martin Energy Systems
argues that the statute of limitations under the Energy
Reorganization Act is 180 days, and as the ERA complaint was
filed on August 9, 1993, allegations of discrimination must
pertain to events since early February 1993. The other Acts
cited, including the Clean Air Act, have a 30 day statute of
limitations.
Lockheed Martin Energy Systems notes that Ms.
Freels testified in the Varnadore case in July 1992, and
that she appeared before a Department of Energy panel in April
1992. However, no instance of retaliation since early 1993 has
been attributed to these appearances.
In June 1992, the Complainant indicated that job duties
could be affecting her health. When deposed, Ms. Freels
testified "But I was never told not to do hazardous waste
sampling until August (1992)." (See pages APX 149 and 387,
appendix to respondent's motion for summary judgment.)
Lockheed Martin Energy Systems states that the Complainant
was off work from November 24, 1992, to May 5, 1993. Again, she
was on STD from July 25, 1993, to February 1, 1994, and at the
later date she was placed on LTD. The respondent states that no
discrimination occurred from May through July of 1993.
The complainant argues that a hostile working environment
for Ms. Freels began in 1992 after her testimony in the case of
Varnadore I. (The case before Judge von Brand.) The Complainant
became ill due to toxic exposures as an environmental technician
in 1992. A medical exclusion as to hazardous exposure was
requested but was never granted.
In the summer of 1993, Mr. Murphy stated that the
Complainant would no longer be working in his section. During
1993 and 1994, Lockheed Martin Energy Systems managers reviewed
her medical records without her consent. In addition, Ms. Freels
requests an extensive search of Lockheed Martin Energy Systems E-
mail to discover comments about her which were made by company
officials. Moreover, intentional discrimination of a continuing
nature requires equitable tolling of the statute of limitations.
This Administrative Law Judge must initially note that there
[PAGE 8]
is no indication that Ms. Freels was ever demoted, or lost income
through January 1994, prior to the time when she began receiving
LTD.
There has been extensive discovery in this case as indicated
by numerous depositions, Respondent's interrogatories dated
December 22, 1993, and Complainant's January 1994 response,
Complainant's 86 interrogatories in mid 1994 and Respondent's
responses, and other discovery that has occurred since the filing
of the first complaint.
(E-mail search and further discovery)
Much time and many responses have been given to the
Complainant's request for searches of E-mail. Each party has
submitted affidavits as to procedures involved in programming
software and in the length of time needed for processing the E-
mail pertaining to a 13-month period.
This Administrative Law Judge has previously stated that the
cost of a search of E-mail was not a major consideration.
Respondent's computer expert indicated that it would take 80 days
of work to design a program and run such a program.
Complainant's expert has stated that such information could be
processed in a much shorter period of time.
The undersigned notes that Lockheed Martin Energy Systems
has argued that sufficient discovery had already been conducted
as the Complainant had deposed eight employees and had received
some eight thousand pages of documents.
The Complainant has not specifically identified any
particular message, time frame, or individual in requesting the
search of 13 months of E-mail (more than 10 million messages).
In view of the extensive discovery completed to this date, the
non-specificity of the request for a search of E-mail, and the
time required for such a search, this request must be denied.
(Medical profile)
Ms. Freels contends that Lockheed Martin Energy Systems was
discriminatory in not issuing a medical profile prohibiting
exposure to hazardous chemicals, heavy metals, and radiation.
The Respondent acknowledges that the issue of the assignment
of a profile to restrict exposure to toxins was raised as early
as June 1992. The Respondent concedes that such a profile has
[PAGE 9]
never been assigned.
However, Lockheed Martin Energy Systems states that such an
alleged oversight has no bearing on the Complainant's status with
the firm. Reportedly, Ms. Freels has been away from "toxins"
since August 1992. In addition, notations have been made in her
records which would preclude any assignment to a job involving
exposure to toxins.
Ms. Freels has acknowledged that she has not been exposed to
these materials since the summer of 1992. As the Complainant was
recovering from leg surgery when she returned to work in May
1993, her duties through July 1993 were primarily related to
office work.
The undersigned does not agree that Ms. Freels has been
damaged by the absence of a medical profile. She has not been
exposed to toxins for two years, and there is no certainty as to
future exposure.
(Confidentiality of medical records)
The Complainant has alleged improper disclosure of her
medical records to Lockheed Martin Energy Systems personnel.
This Administrative Law Judge is aware that the right to privacy
does extend to medical records. However, an employer should have
the right to review medical records in its possession where an
employee is receiving disability benefits.
Lockheed Martin Energy Systems has a policy of providing no
more than six months of STD, with full pay for such a period.
Thereafter, LTD is assigned at a lower rate of pay, or the
employee must work for several months to regain eligibility for
STD.
It is conceded that the medical records that were reviewed
were properly in the possession of the Respondent. The ability
to assess potential jobs must be based on a worker's restrictions
and the availability of work in the company. Therefore, it is
reasonable to expect conferences between physicians and managers
in determining restrictions and the ability to work. There is no
indication that the medical records were disclosed to parties
outside of Lockheed Martin Energy Systems.
This case is complicated by the numerous alleged
disabilities and by the multitude of evaluating physicians. In
[PAGE 10]
essence, I conclude that the record does not reflect that
Lockheed Martin Energy Systems acted improperly regarding the
medical records.
(Harassment subsequent to testimony in a July 1992 trial)
Ms. Freels feels that she has been harassed by Lockheed
Martin Energy Systems since her July 1992 testimony in the case
of Varnadore I. The complaints are rather non-specific but
primarily focus on John Murphy who allegedly did not treat her
well on occasion.
When Ms. Freels returned to work in May 1993, Mr. Murphy
reportedly told her that he did not have a permanent position for
her. However, Murphy helped her find a full-time position in
another department, and the Complainant seemed to be satisfied to
be working for Mr. Baxter in July 1993. (See APX 187, deposition
of Complainant, submitted as part of Respondent's motion for
summary decision.)
Once again, I would note that there is no record of a
demotion or of a loss of pay in this case. The Complainant's
depositions do not indicate dissatisfaction with her assigned job
when she last worked in early August 1993.
I do not find continuing violations in this case as none of
the complaints of harassment are well founded and as Ms. Freels
worked for less than 90 days in 1993 with an absence from work
from late November 1992 through April 1993. There is no basis
for equitable tolling of the statute of this case.
(Posting of notices regarding whistleblower statues)
In the complaint in 95-CAA-2, Ms. Freels alleged that her
rights were prejudiced by inadequate posting of ERA notices in
the Oak Ridge facilities.
On September 23, 1994, the District Director, U.S.
Department of Labor, informed the Complainant, in part:
The alleged inadequate posting had no adverse
effect on Ms. Freels as previous
investigations conducted by this office
revealed that she was aware of the employee
protection provisions of these statutes.
It should be noted that the Complainant raised the issue of
[PAGE 11]
inadequate posting of ERA notices in the complaint for Freels II.
By August 1994, the Complainant was clearly aware of her rights
under the whistleblower statutes in view of the filing of the
August 1993 complaint in Freels I.
The Complainant has argued that while notices were posted,
these notices were enclosed in glass cases and did not provide
explanatory information for others to file whistleblower
complaints. However, this case focuses on Ms. Freels, alone, and
she had adequate notice prior to the complaint in Freels II.
There is not showing that the notices were not posted as
required by the statute. Therefore, there is no merit to this
issue as raised by the Complainant.
ConclusionIt is clear in these cases that the primary concern is a
workers' compensation issue. Ms. Freels has been out of work
since early August 1993 and since then she has been paid either
STD or LTD by the Respondent.
There is no indication in this case that the Respondents
would not return the Complainant to work if medical personnel
approved such action. In addition, since the alleged
discrimination began in 1992, there has been no showing of a
demotion or of assignment to demeaning work. The Complainant has
not shown that she was discharged or otherwise discriminated
against with respect to her compensation, terms, conditions, or
privileges of employment.
I conclude that there is no genuine issue as to a material
fact in this case.
Recommended Order
On the basis of the foregoing, I recommend that the
Department of Energy be dismissed as a respondent and that the
motions for summary decision filed by the other respondents be
granted and the above-captioned complaints be dismissed with
prejudice.
SO ORDERED
RICHARD K. MALAMPHY
Administrative Law Judge
RKM/dlh
Newport News, Virginia
NOTICE: This Recommended Order and the administrative file in
this matter will be forwarded for review by the Secretary of
Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, DC 20210. The Office of
Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and the issuance of final
decisions in employee protection cases adjudicated under the
regulations of 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
