U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, NW
Washington, DC 20001-8002
Date Issued: August 5, 1996
Case No. 95-CAA-12
In the Matter of:
THOMAS JEFFERSON KESTERSON,
Complainant
v.
Y-12 NUCLEAR WEAPONS PLANT, et al.
Respondents
RECOMMENDED DECISION AND ORDER GRANTING
RESPONDENTS' MOTIONS TO DISMISS AND/OR FOR SUMMARY DECISION
I. BACKGROUND
This proceeding is brought under the employee protection
("whistleblower") provisions of five federal statutes:
the Clean Air Act ("CAA"), 42 U.S.C. § 7622; the
[Page 2]
Toxic Substances Control Act ("TSCA"), 15 U.S.C. §
2622; the Solid Waste Disposal Act ("SWDA"), as amended
by the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. § 6971; the Comprehensive Environmental Response
Compensation and Liability Act ("CERCLA"), 42 U.S.C.
§ 9610; and the Energy Reorganization Act of 1974, as
amended ("ERA"), 42 U.S.C § 5851 ("the
Acts").
The complainant, Thomas Kesterson, was originally hired as
an hourly security guard at the K-25 plant in Oak Ridge,
Tennessee by Union Carbide Corp.'s Nuclear Division. On August
1, 1984, he became an employee of Respondent Lockheed Martin
Energy Systems ("LMES" or "Energy Systems"),
formerly Martin Marietta Energy Systems, when LMES took over
management of the facilities at Oak Ridge. In 1986, Complainant
was promoted to the position of Security Analyst II.
The named respondents are as follows: (1) LMES, which
manages the K-25 and Y-12 plants under contract with the U.S.
Department of Energy ("DOE"); (2) Lockheed Martin
Technologies ("LMT"), formerly Martin Marietta
Technologies, the parent corporation of LMES; (3) Lockheed Martin
Corporation, formerly Martin Marietta Corporation, corporate
owner of LMT; (4) the K-25 plant; (5) the Y-12 plant; (6) the DOE
Oak Ridge Operations Office; (7) Peter White, manager of the K-25
Plant Protection and Shift Operations Department); (8) R. Bruce
Hunter, Department head for Security Operations; (9)
"Pete" Peterson; and (10) O. J. Sheppard.
Complainant filed a complaint with the Wage and Hour
Division on November 17, 1994. On April 7, 1995, the District
Director found that the complaint was without merit, and that any
adverse actions experienced by the Complainant were not motivated
by protected activities. On April 14, 1995, Complainant timely
appealed the District Director's determination, and requested a
hearing before an Administrative Law Judge. The respondents have
filed motions to dismiss and/or for summary decision, which are
presently before the court.
DOE argues that the Department of Labor does not have
jurisdiction because the complainant has never been a DOE
[Page 3]
employee; that DOE is not an "employer" under the
employee protection provisions of the ERA; that sovereign
immunity has not been waived with respect to DOE for purposes of
the ERA; and that the complaint fails to specify how DOE's
conduct, even if complainant's allegations are taken as true, was
retaliatory, and must therefore be dismissed for failure to state
a claim upon which relief can be granted. The non-DOE
respondents argue that only Energy Systems is complainant's
employer and that all the other respondents must be dismissed;
that various allegations fail to identify any activity protected
by the Acts and must therefore be dismissed or summary decision
granted; that most of the claims are barred by the applicable
statute of limitations; and that the alleged adverse actions
which are timely are unrelated to any protected activity and have
a proper business justification. The respondents have supported
their motions with sworn affidavits by various employees, and
portions of the deposition of the complainant.
Complainant's opposition to the motions essentially
recapitulates the allegations of his complaint to Wage-Hour,
which are discussed below. Complainant also moves to compel the
non-DOE respondents to withdraw the deposition portions cited, or
to introduce the entire deposition. Because complainant has
failed to indicate why the cited portions of the deposition are
irrelevant, or why the other parts of the deposition are
relevant, the motion is DENIED. See 29 C.F.R. §
18.23(a)(5).
As attachments to the opposition, complainant includes a
declaration by his counsel, Edward A. Slavin, Jr., which asserts
that there is not yet sufficient information to allow the court
to rule on a summary judgment motion because discovery and FOIA
("Freedom of Information Act") requests are ongoing.
The declaration also asserts that attorney Slavin was aware of
published reports relating to an investigation of Martin Marietta
Energy Systems for illegal dumping of radioactive waste in
Alabama, that management was nervous about the investigation, and
that Peter White and other managers must have known about these
investigations when they ordered the complainant to go to the
Anderson County, Tennessee Courthouse. Complainant has also
included an unsigned statement by Peter White to a Wage-Hour
investigation form dated March 1, 1995, which discusses some of
[Page 4]
the allegations of the complaint, and a newspaper article in the
News Sentinel dated November 4, 1995, about a controversy between
DOE and an environmental group relating to blending bomb-grade
uranium to reduce its potential for weapons use.
II. ALLEGATIONS OF THE COMPLAINT
The complainant alleges that a hostile working environment
has existed since 1991, when he filed internal complaints about
R. Bruce Hunter for being abusive in a meeting; and that
Respondent LMES and several of its employees targeted him for
abuse commencing in 1992 as a result of protected activities
under the ERA and other whistleblower statutes. It is alleged
that complainant received good performance evaluations and
numerous commendations during the course of his career.
(Complaint pars. 13-15). In December, 1990, however,
complainant refused to cooperate with a request by Peter White,
manager of the K-25 Plant Protection and Shift Operations
Department (PP&SO) to "get rid of ... company-worker Nita
Holley before Bruce Hunter arrives." (Complaint pars. 17-19.) White allegedly then began
retaliating against complainant.
Complainant states that this retaliation occurred because
complainant "refus[ed] to help an MMES manager perpetrate a
campaign of employment discrimination in violation of Title VII
of the Civil Rights Act." (Complaint par. 20).
Complainant further alleges that, on July 22, 1991, when he
conducted a briefing for R. Bruce Hunter, the new department head
for Security Operations, about the security locking system for K-25, Hunter launched into a
tirade which included an anti-Semitic
remark. (Complaint pars. 22-25). Complainant then complained to
division manager C.H. ("Pete") Peterson. Complainant
alleges this is "protected activity under the ERA and DOE
orders because the emotionalism and abusiveness demonstrated
could raise questions about Mr. Hunter's fitness for duty and
fitness to hold a security clearance under provisions of 10 CFR
§§ 710.11(h) & (1)( mental illness' or notoriously
disgraceful conduct.')" He also filed an internal EEO
complaint with a Mr. Spence Echols but did not pursue it with the
plant wide EEO Office. (Complaint pars. 26,27).
The complaint goes on to allege that complainant then was
[Page 5]
requested to identify and list certain surveillance equipment and
to turn it over to Security Officer Bob Finch, and that false
accusations were solicited against him that could result in
criminal prosecution and loss of his Q clearance. He was
directed to turn over the keys to the storage room in office, and
was told that if missing equipment did not turn up, he would be
required to take a lie detector test. After complainant
explained that he had removed a tape recorder and used it with
hostage negotiation equipment, he then returned the tape recorder
but was accused by respondents White and Hunter of returning one
which was different from the missing one. He was also accused of
falsifying classified documents and was ostracized. When
headquarters officials interviewed him about the equipment, he
told them the purchases were approved. No further actions were
taken. He was also accused of falsifying his time cards. These
actions caused him emotional distress and deterioration of his
health. Nevertheless, he was given a positive performance
appraisal for the 1990-1991 fiscal year on January 23, 1992.
(Complaint pars. 34-48).
The complaint further alleges that complainant was directed
to assist in the investigation and criminal prosecution for rape,
sexual molestation of children, and child pornography of a former
LMES employee, John Burrell, by accompanying a detective to the
HAZWRAP Office in Oliver Springs, Tennessee, facility while the
detective searched Burrell's office. The detective told him
that Burrell might have LMES computer software on computer disks.
Complainant passed this on to White, who then ordered him to go
to the courthouse with a technician to erase the company
software. Complainant balked at doing so without checking with
the legal department, on the grounds that such a deletion would
constitute obstruction of justice. Nevertheless, he did so and
this deletion of evidence then allegedly became front page news,
"permanently tarnishing Mr. Kesterson's image in the eyes of
local law enforcement personnel." An investigation ensued,
where he states he answered honestly. He alleges that his
resisting White's orders, urging him to get legal advice, and his
responses to questions asked during the investigation are
protected activity under the Energy Reorganization Act, and that
White became upset with him and subsequently mocked him, and his
health deteriorated. (Complaint pars. 50-90).
[Page 6]
Complainant was transferred from the K-25 to the Y-12
Nuclear Weapons Plant on or about December 1, 1993. He asserts
that the disappearance of handwritten notes regarding his
treatment at work during the move was calculated to prejudice his
rights, and that, after his transfer to Y-12, respondent Sheppard
accused complainant of taking too much time off from work while
out on a workers' compensation-covered injury. (Complaint pars.
91-94).
On March 29, 1994, complainant received an E-mail message
from Hunter which asked him to touch base with all the smokers in
the group and organize a "police call" the next day
because "there are too many cigarette butts on the ground
and the cigarette gizmo needs to dumped. The situation makes us
all look like we don't care and makes the place look more trashy
than it needs to be." Complainant found this humiliating,
and it was not in his job description. (Complaint pars. 95-104
att. 1).
On March 30, 1994, respondent Shepherd showed complainant an
E-mail message from Hunter about security clearance reductions,
stating that, although he can legitimately argue why each person
in Physical Security requires a Q clearance, if pressed, he would
suggest downgrading complainant to an L clearance; complainant
could still be effective since he primarily handles
investigations and might, at worst, require an escort to enter a
Q-cleared only area. On April 16, 1994, complainant's clearance
was reduced from a Q to an L. He was one of thirteen persons
from Protective Services who were so reduced, "to ensure
adherence to the Energy Systems commitment to the DOE that
clearances will be maintained only when essential and even then
at the lowest level required." Complainant alleges that
this downgrading was retaliation and intimidation for protected
activity. He also alleges that, later that year, he was told to
"look" for a job elsewhere in LMES. (Complaint pars.
99, 105-112, atts. 3,4).
On August 2, 1994, a Mr. Harry Williams filed a
whistleblower complaint. Complainant was subsequently
interviewed by LMES attorneys, and allegedly confirmed Williams'
allegations. It is alleged that LMES security managers learned
about the statement and retaliated. (Complaint pars. 113-116).
[Page 7]
It is alleged that complainant was threatened with transfer to
another boss, Lorry Roth, who is abusive. (Complaint pars. 113-119).
On November 7, 1994, respondent Sheppard contacted
complainant, who was at home due to pain in a ruptured disk in
his back, and asked him to come to work. This is alleged to
constitute intimidation and harassment. (Complaint par 120).
In a meeting on November 11, 1994, respondent Hunter asked for
information about his medication, injuries and treatment.
Complainant suggested that he contact the Y-12 medical department
or his workers' compensation attorney, Mr. Roger L. Ridenour of
Clinton, Tennessee. Respondent Sheppard stated that, if
complainant is unable to climb, stand or walk, he would ask
Hunter to replace him. Complainant's
workers' compensation attorney then telephoned Mr. Robert M.
Stivers, Jr., of the Energy Systems Legal Office, who agreed to
check into the situation. Sheppard then told complainant that if
the medical department continued his restrictions, he was going
to send a written request to Hunter to replace him immediately.
Later that same day, Dr. Roberts of the Y-12 medical office
changed complainant's existing medical restriction, which had
been in place since November, 1993, from a 35- to 25- pound
weight lifting limit and prescribed no standing, walking and
sitting for prolonged periods. When complainant gave a copy of
the newly revised restriction to Sheppard, Sheppard again stated
that he was going to send a written request to Hunter to replace
him. On November 15, 1994, Hunter met with complainant,
discussed his workers' compensation claim, asked him what he
could do, and suggested that he needed to find another job.
Hunter allegedly pushed complainant to perform a survey with
regard to precious metals which allegedly involved "a great
deal of climbing, standing and walking." Complainant told
him about a comment by respondent Sheppard that "I can kick
you in your ass to straighten your back out." Complainant
alleges that "[t]here was no discussion of reasonable
accommodation of complainant's disability," and that,
"to retaliate against protected activity, the respondents
have repeatedly pestered him to find other work outside of the
LMES security department." (Complaint pars. 121-140).
On November 17, 1994, Hunter asked complainant to attend a
[Page 8]
meeting with Labor Relations personnel on Friday, November 18,
1994. Complainant stated that he had vacation plans, and that,
if the meeting was mandatory, he wished to bring a lawyer.
Hunter also stated that there would be a meeting on November 21,
1994 with Dr. Roberts to discuss his medical problem.
Complainant states that this was another act of intimidation and
harassment. (Complaint pars. 142-147).
The complaint then goes on to set forth various allegations
about another case, the Varnadore case, general
descriptions of Martin Marietta's management structure which is
allegedly "highly complex and much like in the
military," and its purported pattern and practice of
discrimination against whistleblowers, discussions about the
Anderson County District Attorney General James Nelson, and
descriptions of Oak Ridge Tennessee as a "company
town." These allegations do not include any additional
information about Mr. Kesterson. (Complaint pars. 154-177).
Extensive relief is requested against the non-DOE
respondents, including an investigation by Wage Hour,
reinstatement of complainant's Q clearance, transfer to Oak Ridge
National Laboratory (ORNL), compensatory and punitive damages,
back pay and a promotion to an ORNL security management position
or front pay, accommodation to complainant's high blood pressure
and back condition by means of, inter alia, an automobile
and exercise equipment, public apologies by respondents White,
Hunter, Sheppard, Peterson and by Norman Augustine, Chairman of
the Board of Martin Marietta and Joe LaGrone, manager of Oak
Ridge Operations, including videotapes of the apologies. As
relief against DOE, complainant requests compensatory and
exemplary damages, attorney fees and expenses, and various types
of injunctive relief, including orders to inform DOE ORO,
contractor and subcontractor employees of their rights under
whistleblower statutes, and to post notices of coverage of
Department of Labor environmental and energy whistleblower laws.
Finally, complainant requests an order for DOE and DOE ORO to
divest various environmental, industrial hygiene, safety and
security functions from Martin Marietta and its subsidiaries and
to "enter into contracts with fiercely independent providers
of such services lacking any organizational, personal or
financial motivation for providing inaccurate data and untrue or
[Page 9]
misleading assurances about employee health in the face of
radiation and toxic substances." (Complaint pars. 178-186).
III. DISCUSSION
In C.D. Varnadore v. Martin Marietta Energy Systems,
DOE, 95-CAA-2, 92-CAA-5, 93-CAA-1, 94-CAA-2, 94-CAA-3, 95-ERA-1 (ARB June 14,
1996)(Varnadore), the Administrative
Review Board ("ARB") of the Department of Labor
considered many of the same issues raised here. That matter
involved three consolidated cases brought under the Acts by an
individual whistleblower complainant represented by the same
counsel of record here against many of the same parties. Various
individuals were also included as respondents. A hostile work
environment was also alleged. Similar sweeping relief was
requested. (See Varnadore, slip op. at 10-12).
The standards governing motions for summary decision and for
failure to state a claim on which relief can be granted in
environmental whistleblower cases are set forth at
Varnadore, slip op., pp. 15-16. Such motions are
governed by 29 C.F.R. §§ 18.40 and 18.41. The ARB
applies the standards set forth by the United States Supreme
Court in the cases of Anderson v. Liberty Lobby, 477 U.S.
242 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317
(1986) to motions for summary decision. A party opposing such a
motion is not permitted to rest upon mere allegations or denials
of his pleading, but must set forth specific facts showing that
there is a genuine issue of fact for the hearing. To defeat a
properly supported motion for summary decision, the non-moving
party must present affirmative evidence. If the non-movant
fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial, there is no genuine
issue of material fact and the movant is entitled to summary
decision.
The burdens of proof in environmental whistleblower cases
are as follows. Complainants must prove, by a preponderance of
the evidence, that they were retaliated against for engaging in
protected activity. Such a showing requires proof that they
engaged in protected activity; the employer knew about it; and
[Page 10]
the employer then took adverse action against them, which was
motivated at least in part by the employee's protected activity.
In dual motive cases, once the complainant has proven by a
preponderance of the evidence that unlawful motive played a part
in the employer's decision to take adverse action, the employer
then has the burden of proving that it would have taken adverse
action for legitimate reasons in any event. (Varnadore,
slip op. at 31-32).
The standards for dismissal for failure to state a claim
upon which relief can be granted are as follows. The facts
alleged in the complaint are taken as true, and all reasonable
inferences are made in favor of the non-moving party. A
dismissal is purely on the legal sufficiency of the complainant's
case. Even if the complainant proved all of its allegations,
[s]he could not prevail. In other words, even if the facts
alleged are taken as true, no claim has been stated which would
entitle the complainant to relief. (Varnadore, slip op.
at 58-59).
Applying these standards, as discussed below, I find that
the claims must be dismissed for multiple reasons, including
untimeliness, sovereign immunity, improper parties, lack of
subject matter jurisdiction, failure to state a claim on which
relief can be granted, and/or failure to raise a genuine issue of
material fact for a hearing under the cited statutes.
A. Parties
In Varnadore, the ARB dismissed the Department of
Energy as a party because the United States has not waived DOE's
sovereign immunity under the ERA, the complainant was not DOE's
employee, and the complainant failed to articulate how DOE's
actions had an adverse affect upon the terms, conditions, or
privileges of his employment with Energy Systems. Slip op. at
55-60. DOE must be dismissed here on the same grounds. See
alsoTeles v. U.S. Department of Energy, No. 94-ERA-22
(Sec'y August 7, 1995). The Secretary has also ruled that, with
the exception of whistleblower complaints involving lead-based
paint, Congress has not waived sovereign immunity for purposes of
the TSCA employee protection provision. Stephenson v.
NASA, 94-TSC-5 (Sec'y July 3, 1995). The claims here do not
The complaint fails to state a claim against DOE because it
fails even to allege that DOE is the complainant's employer or
that he is an employee of DOE. As the ARB points out in
Varnadore, an employment relationship between the
complainant and respondent is an essential element of any claim
brought under the Acts. (Slip op. at 57-61). The Department of
Labor's jurisdiction under the Acts extends only to
"employers" and "employees." In Reid v.
Martin Marietta Energy Systems, Methodist Medical Center of Oak
Ridge, Tennessee, Medical Management, et Administrative Law
Judge., No. 93-CAA-4 (Sec'y April 3, 1995), the Secretary
applied the United States Supreme Court's test for an employment
relationship as articulated in Nationwide Insurance Company v.
Darden, 112 S. Court. 1334 (1992) to a complainant in a
whistleblower case, and found that dismissal was proper. That
test requires an analysis of
According to the sworn affidavit of Lois J. Jago, Chief of
the Personnel and Management Analysis Branch of DOE, Oak Ridge
Operations ("ORO") in Oak Ridge, Tennessee, (attachment
to DOE Br. I), complainant has never been a federal employee. He
is employed, managed and supervised by Energy Systems, which
contracts with DOE. Although complainant works in a DOE
facility, DOE does not manage, supervise, or control the manner
or means by which he performs or accomplishes his duties; DOE has
[Page 12]
no authority to instruct complainant when or how long he must
work; DOE did not hire and has no authority to fire him; no DOE
employee supervises or manages his work or evaluates his work
performance; Energy Systems pays him for work performed,
withholds taxes, and provides employee benefits.
Because the complainant has not countered with affidavits or
documentary evidence, the Jago affidavit is unrebutted.
Discovery is unnecessary for complainant to counter the Jago
affidavit because necessary facts to do so are within
complainant's own personal knowledge and could have been supplied
by his own sworn affidavit. Even assuming that complainant had
alleged that he was a DOE employee, DOE's affidavit establishes
that it is not the complainant's employer. Since complainant has
failed to present affirmative evidence to the contrary, no
genuine issue of material fact as to complainant's status as an
employee of DOE has been presented for hearing and summary
decision is appropriate. Finally, the complaint fails to state
a claim because it fails to articulate any manner in which any
DOE actions have had an adverse affect upon the terms,
conditions, or privileges of complainant's employment with
Energy Systems or even to claim that anyone at DOE has shown any
retaliatory animus toward the complainant. Accordingly, the
complaint against DOE is hereby DISMISSED.
In Varnadore, the ARB also dismissed as improper
parties various individuals on the grounds that, inter
alia, the complainant had failed to allege that they were his
employer. The four individuals included as respondents here are
Peter White, manager of the K-25 Plant Protection and Shift
Operations Department, R. Bruce Hunter, Department head for
Security Operations; "Pete" Peterson; and O.J.
Sheppard. The complainant has failed to allege anywhere in his
complaint that any of them were his "employers" within
the meaning of the Acts or that he was the "employee"
of any of these individuals. He has failed to set forth any
allegations that, even if taken as true and construed in the
light most favorable to him, establish an employment relationship
with these individuals rather than a mere supervisory
relationship. Accordingly, the claims against these individuals
are hereby DISMISSED.
[Page 13]
The same infirmity also applies to the two nuclear plants
listed as respondents, the Y-12 and K-25 plants. Nowhere does
the complaint allege that the plants are employers, or that the
complainant is their employee. The complainant has failed to
set forth any allegations that, even if taken as true and
construed in the light most favorable to him, establish an
employment relationship with the plants. Accordingly, they are
hereby DISMISSED as parties.
In Varnadore, the ARB also dismissed as parties
Respondents Lockheed Martin and Lockheed Martin Technologies,
because they were not alleged to have employed the complainant,
and were merely parent companies of Energy Systems. The same is
true in this case; there is no allegation that these respondents
employed the complainant and there is no indication that they
are anything but parent companies of Energy Systems.
Accordingly, Lockheed Martin and Lockheed Martin Technologies are
hereby DISMISSED as parties.
LMES does not dispute that it is complainant's employer.
(Non-DOE respondents' brief in support of motion for summary
decision ("non-DOE Br.") at p. 7.) Accordingly, I
find that, as complainant's employer, LMES is the only properly
named party respondent in this complaint.
B. Adverse Actions
The ERA has a limitations period of 180 days. The other
Acts have limitations periods of 30 days. The complaint was
filed on November 17, 1994. Under the ERA, any alleged adverse
actions or reprisals that occurred before May 21, 1994 are time
barred. Under the other Acts, any alleged adverse actions or
reprisals that occurred before October 18, 1994, are time barred.
I find that the following alleged adverse actions occurred
before the limitations periods of all the Acts:
(1) Peter White's 1990 accusation that complainant was not
a team player and his criticism of complainant's work performance
in connection with his refusal to help get rid of Nita Holley.
(Complaint pars. 20-21).
[Page 14]
(2) R. Bruce Hunter's outburst involving complainant at the
July 1991 meeting. (Complaint pars. 22-30).
(3) Hunter's attempt to force complainant to see a
physician in July 1991.
(Complaint pars. 32-33).
(4) Questioning and accusations by Plant Manager Lincoln
Hall, Peter White, R. Bruce Hunter, Pete Peterson, Jim Nations
and DOE headquarters officials in connection with missing
surveillance equipment in mid 1991. (Complaint pars. 34-46).
(5) An accusation by White and Hunter in 1991 that he had
falsified classified documents. (Complaint par 43).
(6) An accusation in 1991 that he had falsified his time
cards. (Complaint par 47).
(7) Retaliation in 1992 for his involvement in the
destruction of records in evidence in a criminal case at Anderson
County courthouse. (Complaint pars. 50-90).
(8) December 1993 relocation to the Y-12 plant and
destruction of handwritten notes. (Complaint pars. 91-94).
(9) The March 1994 memorandum from Hunter ordering a cleanup
of cigarette butts. (Complaint pars. 95-104).
(10) April 1994 security clearance reduction and suggestion
to look for another job at Energy Systems. (Complaint pars. 105-112).
I find that the following alleged adverse actions occurred
after May 21, 1994, within 180 days prior to the filing of the
complainant on November 17, after the interview with Energy
Systems attorneys about the Harry Williams complaint.
(1) Threatened transfer to Lorry Ruth. (Complaint par.
119).
(2) Telephone call by O.J. Sheppard at home on November 7,
1994. (Complaint par. 120).
(3) Meetings on November 11 and 15, 1994, with Hunter and
[Page 15]
Sheppard about
complainant's ability to perform his job functions. (Complaint
pars. 121-147).
(4) November 17, 1994 request by Hunter to attend meetings
on November 18 and 21, 1994 with Labor Relations and Medical
Personnel.
Complainant seeks to avoid the timeliness problems obvious
in this case by claiming that all of the adverse actions alleged
since 1990 are part of a hostile work environment and that the
violation is therefore a continuing one. To establish a
continuing violation, complainant must prove that these alleged
adverse actions are somehow connected, rather than a set of
isolated decisions involving disparate facts, and that at least
one of them occurred within the limitations period. It is not
sufficient to show simply that the actions all affected his
working conditions. Bonanno v. Northeast Nuclear Energy
Company, 92-ERA-40, 41 (Sec'y August 25, 1993); Gillilan
v. TVA, 92-ERA-46, 50 (Sec'y April 20, 1995). As the
Secretary has also noted in an earlier decision in one of the
Varnadore cases, hostile work environment and continuing
violation claims have similar requirements of frequency or
pervasiveness. Isolated or single incidents of harassment are
insufficient to constitute a hostile environment. C.D.
Varnadore v. Oak Ridge National Laboratory and Lockheed Martin
Energy Systems, Inc., Nos. 92-CAA-2, 92-CAA-5, 93-CAA-1
(Sec'y January 26, 1996), slip op. at 78-79.
Other than their effect on complainant's working conditions,
there is no commonality to the events since 1990. They are
discrete and isolated. They are, on their face, miscellaneous
incidents that occurred at intervals over a four-year period
involving different job assignments, terms and conditions of
complainant's employment, and his ability, in the face of an
admittedly serious medical condition, to continue to perform his
job duties. Notwithstanding the 1990-1991 incidents, complainant
admittedly received a "glowing" annual performance
review on January 23, 1992, for the period 1990-1991 (complaint
par. 48), thus reinforcing the isolated and unconnected nature of
these events. Accordingly, I conclude that the only timely and
therefore potentially viable allegations of retaliation are the
[Page 16]
threatened transfer to Lorry Ruth and the November 1994 events
with respect to complainant's physical condition and worker's
compensation claim.
With respect to the Lorry Ruth matter, according to
complainant's own deposition testimony, neither Sheppard nor
Hunter threatened to transfer him to work for Ruth or anyone else
or indicated in any way that he was compelled to apply for a job
with Ruth. (Dep. pp. 284-287, 293). On the contrary, Sheppard
informed complainant of the job opening after he told Sheppard
that he was going to try to move out of the Security Department.
(Dep. p. 290). Complainant testified that he was merely advised
of a job opening with Ruth and that, after speaking with Ruth and
other employees about the job, decided that he did not want the
job. (Dep. pp. 284-285).
For an employer's action to constitute an "adverse
action" within the meaning of the Acts, some "tangible
job detriment" must occur, i.e. something adverse affecting
a complainant's compensation, terms, conditions or privileges of
employment. Varnadore, Slip op. at 20. See alsoDeford v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir.
1983); Smith v. Tennessee Valley Authority, 90-ERA-12
(Sec'y April 30, 1992), 6 Department of Labor Decisions #2, pp.
231,232. A supervisor's discussion of possible job openings
elsewhere with a subordinate after the subordinate mentions his
interest in such openings does not constitute a tangible job
detriment. Accordingly, I find no genuine issue of material
fact for hearing.
With respect to the November 1994 events, the complaint
includes allegations that complainant was threatened with
replacement if he was physically incapable of performing his job
functions. (Complaint pars. 121, 129, 130, 138). Construing
these allegations in the light most favorable to the non-moving
party, I find that they state a claim of adverse action because
loss of an employee's job is clearly a tangible job detriment.
As discussed below, however, I find that they must be dismissed
because there is no genuine issue of fact that they were
motivated by discriminatory animus prohibited under the Acts.
C. Protected activity
[Page 17]
A protected activity is an essential element of the
complainant's case. An employee's complaint must be
"grounded in conditions constituting reasonably perceived
violations" of the Acts. SeeTyndall v. United
States Environmental Protection Agency, Nos. 93-CAA-6; 95-CAA-5 (ARB June 14, 1996),
slip op. at 4.
As discussed below, the allegations which do not involve
protected activity are: (1) that complainant was asked and
refused to help get rid of Nita Holley in December 1990; (2) that
he complained to Pete Peterson regarding Bruce Hunter's behavior
during a meeting on July 22, 1991; (3) that he complained to EEO
division officer Spence Echols regarding Bruce Hunter's behavior
at the July 22, 1991, meeting; (4) that he participated in a
search for missing surveillance equipment in 1991; (5) that he
allegedly resisted Peter White's orders to destroy computer
software evidence at the Anderson County courthouse in 1992; and
(6) that he had a problem with absenteeism in 1994.
Even assuming that Peter White in fact retaliated against
complainant in the Nita Holley matter, the complaint admits at
paragraph 20 that any such retaliation was motivated not by
environmental and safety concerns, but by complainant's
opposition to employment discrimination alleged to be in
violation of Title VII of the Civil Rights Act. (42 U.S.C.
§2000e-2). Title VII prohibits employment discrimination on
the basis of race, religion, color, sex and/or national origin.
Such discrimination is not a violation of these Acts nor could it
be reasonably perceived as a violation.
With respect to his complaint to Peterson about R. Bruce
Hunter's allegedly abusive and anti-Semitic comments in a 1991
meeting, complainant has admitted in his deposition that he was
concerned about his job situation, not about Hunter's fitness for
duty or to hold a security clearance. He admits that he said
nothing about any need to remove Hunter from his position because
of emotional instability. He admits that he was unable to make a
judgment about Hunter's emotional stability or mental capability
on the basis of these comments. (Dep. pp. 55-58). Ordinary
employment disputes between supervisors and supervisees, as this
was, are not protected activity under the Acts. SeeDeveraux v. Wyoming Association of Rural Water, 93-ERA-18
[Page 18]
(Sec'y October 1, 1993), slip op. at 5-6. His EEO complaint to
Spence Echols, like his complaint in the Nita Holley matter, at
best implicates opposition to employment discrimination on the
basis of religion under Title VII, which is not a violation of
these Acts nor reasonably perceived as such.
Complainant argues that his truthful answers during the
investigation and search for missing surveillance equipment were
protected activity because whistleblowers often face some type of
surveillance and his truthful answers may halt future
lawbreaking. (Complainant's br. at 21-22). This argument is
mere speculation. A security department for a nuclear plant
could well be expected to maintain surveillance equipment for its
legitimate business. The fact that the security department had
surveillance equipment, and that some of it was missing, is, in
and of itself, entirely unremarkable. Complainant has made no
affirmative showing that these events had anything to do with
unlawful surveillance of whistleblowers or that he had any
concern about such surveillance.
Counsel's declaration describing his personal knowledge of
an investigation of illegal dumping of radioactive waste in
Alabama by respondent LMES and its chairman, Clyde Hopkins, is
apparently intended to tie complainant's allegations about his
role in deleting computer records in a criminal case at the
Anderson County, Tennessee, courthouse to a protected activity.
It fails to do so. These allegations, even if taken as true,
fail to articulate any connection with any activity protected
under the Acts, or to raise a material issue for hearing that a
protected activity was somehow involved in these events.
The allegations about complainant's medical problems and
absences in November 1994, and his supervisors' reactions, fail
to articulate any connection to any activity protected by the
Acts. Complainant had a workers' compensation claim related to
his medical problems. Filing a workers' compensation claim or
utilizing workers' compensation benefits may be protected
activity under applicable workers' compensation statutes, but it
is not a protected activity under these Acts. Likewise,
opposition to the failure to accommodate a disability, assuming
that claimant had a disability arising from his medical problems,
may be protected activity under applicable statutes banning
[Page 19]
disability discrimination in employment, but it is not a
protected activity under these Acts. Finally, complainant has
cited no authority to show that absenteeism is a protected
activity under these Acts.
I find that the only allegations of the complaint which
state a claim of protected activity are paragraphs 113-116
relating to complainant's interview with the Energy Systems'
attorneys investigating Harry Williams' August 2, 1994
whistleblower complaint to Department of Labor. Construing these
allegations in the light most favorable to the non-moving party,
complainant was about to give a statement to the Wage-Hour
investigator in regard to Williams' whistleblower complaint
brought under the same authorities relied on here, and to testify
at the hearing in his case. Protected activity under the Acts
expressly includes "testify[ing or being] about to testify
in any ... proceeding [under one of the Federal statutes listed
in 29 C.F.R. § 24.1]; or ... assist[ing] or participat[ing]
or [being] about to assist or participate in any manner in such a
proceeding or in any other action to carry out the purposes of
such Federal statute." 29 C.F.R. § 24.2(b)(2), (3).
D. Motivation to Discriminate
As discussed, an essential element of complainant's case,
and one on which he bears the burden of proof, is a showing that
any adverse action against him was motivated, at least in part,
by his protected activity. Accordingly, complainant would have
to prove at hearing that the November 1994 activities of his
supervisors Hunter and Sheppard with respect to his workers'
compensation injury were motivated at least in part by his
interview with Energy Systems' lawyers regarding Harry William's
whistleblower complaint, and his intent to give a statement to
the Wage-Hour investigator and to testify at the hearing in his
case. Complainant would also have to prove that those
supervisors were aware of these matters.
O.J. Sheppard's affidavit of October 9, 1995, states the
following with respect to the Williams' matter and his November
1994 contacts with complainant. Because it was standard
operating procedure for complainant to advise Sheppard of his
whereabouts, in view of Sheppard's responsibilities for making
[Page 20]
his assignments, setting priorities, and suggesting
methodologies, complainant told him that he was going to see the
Energy Systems attorneys about Harry Williams. Sheppard states
that the name meant nothing to him; he had never heard the name,
had never met the man, and did not recognize the name as someone
involved in any of their investigations. He states that he did
not mention complainant's visit to the Energy Systems attorneys
to anyone else, including Bruce Hunter. Complainant's deposition
confirms that the only subjects he discussed with Sheppard in
this regard were that he had to have an interview with the Energy
Systems Legal Department about Williams' complaint and that,
during the interview, he had discussed some documents. (Dep. pp.
264-265).
Sheppard further states that a meeting had been scheduled on
Monday, November 7, 1994, with the DOE Oak Ridge Safeguards and
Security Survey Team, to discuss and answer questions about a
precious metals crime prevention survey complainant was assigned
to perform at the Oak Ridge National Laboratory. Since
complainant had worked on the survey alone, he was in the best
position to answer any questions from DOE. After complainant
called on November 7 and told Gina Brown that he would not be
coming to work that day, Sheppard called him at home to find out
how he was and to ask if he would come in the afternoon for the
meeting if he felt better. Complainant said "no."
Sheppard denies badgering, harassing or intimidating complainant
about coming in or not coming in. After complainant returned
from sick leave, Sheppard asked him on November 11, 1994 about
the extent of his back problem, what he was able to do, and
whether he was on medication, so that Sheppard could make
appropriate assignments, share projects or get someone else to
help him, and could determine if complainant could drive or
perform other duties that medication-related drowsiness might
preclude.
Complainant's deposition confirms Sheppard's affidavit with
respect to the November 7, 1994 meeting. Complainant had been
working alone on the precious metals survey and would have been
the best person to answer any DOE questions, the meeting for
November 7, 1994 had been previously scheduled and complainant
was aware of it, Sheppard called him only to see if he could come
in to the office just for the meeting, and, after complainant
[Page 21]
refused to do so, Sheppard said little else and hung up. (Dep.
pp. 296-298).
In his affidavit of October 2, 1995, R. Bruce Hunter, O. J.
Sheppard's supervisor and head of the Physical Security
Department in the LMES protective services organization, states
that he did not know that complainant had even been interviewed
in connection with Williams' Department of Labor whistleblower
complaint until he read the complaint in this matter.
He also states that his contacts with complainant on
November 11, 15 and 17, 1994 were related to complainant's
limping and absence on Monday through Wednesday, November 7, 8
and 9; that a meeting had been scheduled for complainant during
that period to discuss the survey on precious metals with the DOE
Oak Ridge Safeguards and Security Survey Team; that, upon
complainant's return after November 9, he asked complainant's
immediate supervisor, O.J. Sheppard, to find out the extent of
complainant's back problems and whether he was on medication to
see what to expect from him and whether he could or should drive
a vehicle; and that Sheppard advised that, when he asked
complainant about these matters, complainant said that it was
none of his business and if he wanted answers, he should call
complainant's worker's compensation lawyer. Hunter then had a
meeting in his office with complainant, Sheppard, and Greg
Herdes, another member of the department, who was asked to act as
an observer. Complainant stated that he was not going to answer
any questions about his physical condition and if he was on
medication. He stated that, if Hunter wanted to know anything,
he had to talk to his worker's compensation lawyer. Herdes'
affidavit of October 2, 1995 confirms Hunter's description of
this meeting.
Hunter further states that Energy Systems attorney Bob
Stivers then informed him that he thought complainant was going
to file a workers' compensation lawsuit against the company, and
had received a telephone call from complainant's worker's
compensation lawyer accusing Hunter of harassment. Hunter then
went to the medical office, and, after advising of complainant's
apparent lawsuit and refusal to discuss his medical condition
("I had absolutely no idea where Kesterson was coming
from"), was told that complainant's case would be referred
[Page 22]
to a medical review board.
On November 14, 1996, he told O.J. Sheppard to tell
complainant to complete his precious metals survey, write his
report, and be prepared to give a briefing on the results of the
survey by December 1, 1994. Complainant then told Sheppard that
he refused to prepare or give a briefing, and that briefings were
not part of his job description. On November 15, Hunter had a
one-on-one discussion with complainant in his Office.
Complainant stated that he expected Hunter to stop harassing him,
to stop trying to find out what was wrong with him, and that he
did not like Hunter. He stated that he was unable to perform the
survey work because it required too much walking and standing and
he could not negotiate stairs. Hunter offered to give him a
government car, let him take as many breaks as he needed, sit
down during meetings with the precious metal custodians, complete
only those areas above ground floors that were serviced by
elevators, and complete the survey later than the December 1,
1994 deadline if necessary. Nevertheless, complainant still
refused to do the work.
On November 16, 1994, Hunter met with Dr. Brown in the
medical department about complainant's accusation of harassment
and his new physical limitations profile. Dr. Brown stated that
complainant had said he would try to complete the precious metal
survey. Hunter told him that complainant had refused to do so.
Brown then suggested that Hunter bring complainant in to discuss
the profile with Stan Roberts, the physician's assistant in the
medical department, and that he would refer the case to the
medical review board.
On Thursday, November 17, 1994, Hunter contacted Joyce
Conner in the Y-12 Ethics Office about his problems with
complainant, and she stated that she would try to set up a
meeting with Charlie Minor and complainant and would get back to
him. When complainant asked to take a vacation day on Friday,
November 18, 1994, Hunter permitted complainant to do so despite
the lack of lead time on the request, but pressed him for answers
to his questions about what he could and could not do on the job
in light of his back problems and physical limitations profile,
and whether he could finish the survey; if not, why not; and, if
so, an anticipated completion date. Complainant said only that
he would try to complete the survey, but if it bothered him he
[Page 23]
would stop because he did not wish to further injure his back.
He also refused to meet with Joyce Conner and Charlie Minor
without his worker's compensation lawyer. Hunter then told him
that, since complainant was refusing to discuss whatever was
causing his insubordination, the problem between Sheppard,
Hunter, and complainant would have to be moved "into Human
Resources channels." Complainant was getting very angry,
and the meeting then concluded.
Complainant has failed to file any additional affirmative
evidence with respect to these events or to refute the Sheppard
and Hunter affidavits in any way. These affidavits are fully
consistent with complainant's deposition and complaint.
Complainant himself testified that Sheppard and Hunter wanted to
find out about his workers' compensation accident and what he
could or could not do. (Dep. pp. 307-308). Significantly, when
he felt he was being harassed in this regard, he told his
supervisors to talk to his workers' compensation attorney, not to
his whistleblower attorney. He also specifically alleges at
Paragraph 141 of his complaint that the November 15, 1994 meeting
with Hunter, which was part of the chain of alleged retaliatory
events during that period, "was harassment and intimidation
resulting from your Complainant's retaining the services of
attorney Roger L. Ridenour to represent Mr. Kesterson in his
worker's compensation action." Since complainant himself
attributes any retaliatory events to his filing of his worker's
compensation action, rather than any protected whistleblower
activity, the court has no reason to supply another motivation.
Finally, there is no indication in the record that Hunter
even knew that complainant had an interview with the LMES
attorneys about the Harry Williams' complaint, or that he was
about to have additional involvement in Williams' complaint. No
affirmative evidence has been presented to suggest that the
actions of Sheppard, who did know about the interview, were in
any way related to it. The Sheppard and Hunter affidavits
demonstrate that their actions during November 1994 were
motivated not by animus based on a protected activity under the
Act, but by their legitimate concern, as his supervisors, over
his injury, absences, and ability to continue to perform his job
functions.
[Page 24]
In his reply brief, complainant alleges that the court
"must look these witnesses in the eye to gauge their
credibility" (p. 37). That is insufficient. Complainant
is not permitted to rest upon mere allegations or denials of his
pleading. Varnadore, slip op. at 15. Any affidavit can
be attacked on the grounds that it does not allow the trier of
fact to confirm a witness' credibility by looking at the witness.
Summary judgment could never be granted on this premise.
Where, as here, no affirmative evidence has been presented that
would call into question these affiants' credibility on these
events, there is no issue of credibility for a hearing.
Accordingly, summary decision is hereby granted under the Acts on
the November 1994 allegations of retaliation.
RECOMMENDED ORDER
The respondents' motions are hereby GRANTED, and the case is
DISMISSED.
EDITH BARNETT
Administrative Law Judge
Washington, D.C.
EB:bdw
g:\barnett\95caa12.do
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for final
decision to the Administrative Review Board, United States
Department of Labor, Room S-4309, Frances Perkins Building, 200
Constitution Ave., N.W., Washington, D.C. 20210. See 61
Fed. Regulation. 19978 and 19982(1996).