On February 24, 1999, I issued a first pre-hearing order in this matter in which I ordered the Complainants to file a specific description for each Complainant of the activities engaged in which are alleged to be protected by the federal environmental whistleblower statutes by not later than March 10, 1999. I further ordered the Respondents to file a statement of all factual allegations being contested and all legal defenses being asserted by not later than March 19, 1999. I also deferred ruling on the Complainants' motions for summary judgement on the issues of sovereign immunity, timeliness and protected activity until the parties complied with the above-described requirements of the pre-hearing order.

   In Varnadore v. Oak Ridge National Laboratory et al., Case Nos. 92-CAA-2 and 5, 93CAA-1, 94-CAA-2 and 3, 95-ERA-1 (June 14, 1996) (Varnadore III), aff'd, 141 F.3 d 625 (6th Cir. 1998), the Administrative Review Board (ARB) discussed motions for summary judgement

in environmental whistleblower cases:

    A motion for summary decision in an environmental whistleblower case is governed by 29 C.F.R. §§18.40 and 18.41 (1995). See, e.g., Webb v. Carolina Power & Light Company, Case No. 93-ERA-42, Sec. Dec. and Ord., July 17, 1995, slip op. at 4-5. A party opposing such a motion "must set forth specific facts showing that there is a genuine issue of fact for the hearing." 18 C.F.R. § 18.40(c) (1995). Under the analogous Rule 56(e), Fed. R. Civ. P., the non-moving party "may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial . . . . [T]he [party opposing summary judgment] must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 256-257 (1986). See also, Celotex Corp. v. Catrett, 477 U.S. 317(1986). 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 judgment. Celotex Corp. v. Catrett, 477 U.S. at 322-323.

Slip op. at 10 (footnote omitted, quotations and ellipsis in original). The determination of whether a genuine issue of material fact exists must be made in the light most favorable to the

non-moving party. Gillilan v. Tennessee Valley Authority, Case Nos. 91-ERA-31 and 91- ERA34 (Sec'y August 28, 1995), slip op. at 3. With these principles in mind, I will now turn to the merits of the parties' motions.

   DOE responded to the provision in the first pre-hearing order requiring it to file a statement of all factual allegations being contested and all legal defenses being asserted by filing its motion for summary dismissal. In its motion, DOE asserts no defense based on either sovereign immunity or the timeliness of the complaints. Therefore, the Complainants' motions for partial summary judgement on these two issues stand unopposed, and summary judgement is warranted.

1. With Complainant's Byrum's encouragement, Complainants Johnson, McQuade and Warden filed environmental whistleblower complaints with Wage Hour in April 1995, protected activity under the "proceedings clause" and the "opposition clause," for which all four Complainants have been retaliated against.

2. With Complainant's Byrum's open help, encouragement and assistance in the presence of DOE lawyers at a deposition of former DOE Oak Ridge operations Manager Joe Ben La Grone on October 30, 1995, Complainants Johnson, McQuade and Warden pursued and actively litigated their environmental whistleblower proceedings, for which all four Complainants have been retaliated against.

3. With Complainant Byrum's assistance, Complainants Johnson, Warden and McQuade on December 18, 1995 filed their First Summary of Environmental Protected activity with Judge Barnett, attached incorporated herein by reference.

4. Complainants Johnson, McQuade and Warden filed environmental whistleblower complaints with Wage-Hour on August 24, 1995, incorporated herein by reference.

5. Complainants Johnson, McQuade and Warden filed environmental whistleblower complaints with Wage-Hour on October 13, 1995, incorporated herein by reference.

6. Complainants Johnson, McQuade and Warden filed environmental whistleblower complaints with Wage-Hour on November 13, 1995, incorporated herein by reference.

7. Complainants Johnson, McQuade and Warden filed environmental whistleblower complaints with Wage-Hour on January 3, 1996, incorporated herein by reference.

8. Complainants Johnson, McQuade and Warden filed environmental whistleblower complaints with Wage-Hour on May 9, 1996, incorporated herein by reference.

9. Complainants Johnson, McQuade, Warden and Byrum fled environmental whistleblower complaints with OSHA dated March 28, 1997, incorporated herein by reference.

10. Complainants Johnson, McQuade, Warden and Byrum filed environmental whistleblower complaints with OSHA on the complaints dated April 10, 1997, incorporated herein by reference.

11. Complainants Johnson, McQuade, Warden and Byrum filed environmental whistleblower complaints with OSHA dated June 13, 1997, incorporated herein by reference.

12. Complainant McQuade was quoted in an Associated Press news story in April 1995, which led to the reported "retirement" of SES manager Joe Ben La Grone as Oak Ridge Operations Manager, a post he had held since 1983. That deposition was specially ordered by the late Administrative Law Judge Barnett because Mr. La Grone said he was going to be out of the country for a year working for British Nuclear Fuels Ltd. in England. (Mr. La Grone is now a Senior Vice President with Lockheed Martin in Bethesda, Maryland, in charge of obtaining environmental restoration contracts from his former employer, Respondent DOE).

13. Complainants Warden and McQuade have appeared on local television news programs discussing their environmental, safety and health concerns relative to granting of security clearances to dangerous felons and lack of security at the Oak Ridge nuclear weapons complex, where the Nation's storehouse of enriched uranium is kept, and massive quantities of environmental pollutants have been discharged since 1943.

14. Complainants Johnson, Warden, McQuade and Byrum have cooperated with investigations into Oak Ridge security and environmental risks, including but not limited to interview with the Central Intelligence Agency in 1998, with the DOE Inspector General, with the Federal Bureau of Investigation, and shared their concerns over the years with members of Congress, including Reps. John Dingell and John Duncan, Jr, Senator Fred Thompson, et al.

15. Complainant McQuade, shortly before his notice of firing in 1997, accompanied Mr. Floyd Glenn, Jr. on a retaliatory security clearance interview at the DOE ORO Federal Building, where Messrs. Boatner and James and Ms. Hudson were present, harassing an environmental whistleblower who had reported spills from the Y-12 Nuclear Weapons Plant into East Fork Poplar Creek by DOE and its contractors.

Second Summary of Environmental Activity. The Complainants also stated that they "reserve the right to disclose further protected activity after discovery from DOE, as literally hundreds of Case Review and Analysis Sheets (R&A sheets) are responsive to discovery requests and include their contemporaneous notes about particular individuals and how their holding clearances is a threat to environment, nuclear proliferation and theft at the Oak Ridge operations nuclear facilities in Tennessee, Kentucky and Ohio." Id. at 3

Womack v. Munson, 619 F.2d 1292, 1298 (1980) (citations and footnotes omitted), cert. denied, 450 U.S. 979 (1981). In view of this clear line of precedent. I find that DOE's reliance on Holden v. Owens-Illinois Inc., 793 F.2d 745 (6th Cir.1986), where the court held that an employee's efforts to implement an affirmative action program was not protected by Title VIPs "opposition clause" because Title VII does not mandate the implementation of affirmative action programs, is misplaced.

   In their response to DOE's motion, the Complainants do not allege that they are or were employed by any of the individual respondents or the DOE IG. However, they request I deny DOE's motion to dismiss the individual respondents and "assemble the facts for the ARB to decide whether the individual actors in this case should be found liable for their intentional discrimination, reversing prior case law that was ill-advised." Complainants' Response to Motion to Dismiss Individual Respondents and Motion to Disqualify DOE Counsel at 2.

   In the absence of any factual allegations which, when viewed in a light most favorable to the Complainants, would tend to establish the existence of an employment relationship between any of the Complainants and any of the individual respondents or the DOE IG, and in the absence of any legal authority for holding individual employees who are not the Complainants' employers individually liable for conduct which violates the environmental whistleblower protection laws, I concur with DOE that dismissal of the individual respondents and the DOE IG is in order.

   As for Mr. McQuade, DOE contends: that his August 24, 1995 complaint should be dismissed because it is based on a letter which he characterizes as threatening but which merely encourages him to seek help from his psychiatrist and through DOE's employee assistance program; that his October 13, 1995 complaint should be dismissed because it is based on DOE's conduct in sending a pleading, which contained a letter from Mr. McQuade's psychiatrist, to Mr. McQuade's attorney at a hotel room, conduct which does not constitute a tangible adverse action and which raises an alleged violation of the Privacy Act which is within the exclusive jurisdiction of the United States district courts;. that his November 13, 1995 complaint, alleging that DOE retaliated against him by reprimanding him for requesting information under the Freedom of Information Act (FOIA), must be dismissed because the reprimand letter states that it does not constitute a tangible employment detriment; that his January 3, 1996 complaint, which alleges that DOE unlawfully retaliated against him by requiring a security clearance interview and psychiatric evaluation, must be dismissed based on res judicata because Judge Barnett previously dismissed this allegation since she found no evidence that Mr. McQuade had engaged in any activities protected by the environmental statutes and because no tangible adverse action was ever taken; that his May 9, 1996 complaint alleging that his access to the federal Building was discriminatorily restricted must be dismissed as such restriction was not a tangible employment action which negatively impacted his compensation, terms, conditions or privileges of employment; and that his December 16, 1996 complaint, which alleges that DOE (a) gave him little or no meaningful work and no supervision for over a year, (b) gave him an unsatisfactory performance rating, (c) forbade him representation in a grievance meeting and (d) obtained approval for such actions at the highest levels of DOE, should be dismissed because it does not allege any tangible employment action with respect to his compensation, terms, conditions, or privileges of employment. Id. at 12-16, 19-20. DOE further contends that whether an unsatisfactory performance rating is a tangible employment action need not be determined in this

   With regard to Mr. Warden, DOE urges dismissal of his May 9, 1996 complaint (alleging that DOE retaliated against him by using threatening language during a meeting), and his July 22, 1996 complaint (alleging retaliation based on statements made in a meeting attended by Messrs. Warden and Byrum and statements made in correspondence to the Secretary of Energy) on the ground that the complained-of actions do not rise to the level of a tangible employment action. Id. at 17-18. As noted above, DOE also seeks dismissal on Mr. Warden's October 1, 1996 and November 5, 1995 complaints, which raise allegations of retaliation including a changes in job assignment because Mr. Warden raised concerns about the attempted theft of a nuclear weapons component, on the ground that Mr. Warden's disclosures were not protected. Id. at 18-19.

   Lastly, DOE contends that the two complaints involving Mr. Byrum, May 23, 1996 (alleging retaliation by conducting an interview concerning allegations that he was involved in conflicting outside employment) and July 22, 1996 (alleging retaliation based on statements made in a meeting attended by Messrs. Warden and Byrum and statements made in correspondence to former Secretary of Energy, Hazel O'Leary) also should be dismissed for failure to allege that DOE took tangible employment actions which negatively affected his compensation, terms, conditions or privileges of employment. Id. at 17-18.

   In their response to DOE's motion for summary dismissal, the Complainants aver that "[t]his case of post-complaint retaliation concerns a hostile working environment" and that their complaints include allegations of the following retaliatory acts by the Respondents:

A. Transmission of blacklisting documents to Secretary O'Leary aimed at the Complainants,

B. Calling the Complainants "disgruntled employees" in documents circulated to the highest levels of DOE and concealed from Complainants for years,

C. Seeking to have Mr. McQuade fired for lawfully obtaining documents through FOIA and the Privacy Act,

D. Firing of Mr. McQuade, his being subjected to a retaliatory PIP,

E. Mr. McQuade's being threatened with arrest at work,

F. Violation of Mr. McQuade's doctor-patient privacy rights by Mr. Boatner by sending a psychiatric report to a hotel fax machine,

G. A reprimand for filing a FOIA request raising concerns about DOE ORO management,

H. Subjecting Mr. McQuade to a retaliatory psychiatric referral and personnel security interview where protected activity was inquired into and stigmatized,

I. Harassment, intimidation and transfer of Mr. Warden,

J. Harassment and intimidation of Mr. Byrum,

K. Threats to workers intended to chill protected activity regarding granting criminals security clearances,

L. Refusal to assign Ms. Johnson any official travel to Oak Ridge despite the nationwide nature of her inspection and evaluation duties,

M. Idling of Mr. Warden with demeaning tasks and little or no work using his intelligence and experience, and

N. Harassment and intimidation of all of the Complainants.

Complainants' Response to Rest, Residue and Remainder of Respondents' Motion for Summary Dismissal at 2-3. The Complainants further respond that their sworn complaints establish that the Respondents' actions did affect their working conditions by creating a hostile environment, and they argue that their allegations of a hostile work environment can not be fairly considered on a "piecemeal" basis and that the overall, composite effect of the Respondents' actions must be evaluated in determining whether the Respondents' engaged in unlawful retaliation. Id. at 3-4.

   In English v. Whitfreld, 858 F.2d 957 (1988) (English), the Fourth Circuit held that a claim of discrimination based on retaliatory harassment is cognizable under the whistleblower protection provisions of the Energy Reorganization Act (ERA). The Court found the "abusive or hostile work environment" concept of discrimination developed in Title VII cases and approved by the Supreme Court in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) (Meritor) to be directly analogous to whistleblower discrimination, and it stated that when a superior harasses an employee because of the employee's protected whistleblowing conduct, the superior discriminates on the basis of the employee's protected activity. The Court remanded the case, which had been dismissed by the Secretary, for further consideration, and it directed the Secretary to be guided by Meritor in assessing whether the alleged harassment was of such nature and degree to create an "abusive or hostile working environment" amounting to discrimination. Id. at 963-964. The Secretary subsequently specifically agreed with the English court and found the principles articulated by the Supreme Court in Meritor and reaffirmed in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (Harris), to be equally applicable to

environmental whistleblower discrimination cases. Varnadore v. Oak Ridge National Laboratory, Case No. 92-CAA-2 (Sec'y January 26, 1996) (Varnadore 1) at 47-48. The Secretary also held in Varnadore I that a showing of a "tangible job detriment" is not a prerequisite to proof of unlawful discrimination on the basis of retaliatory harassment which creates an abusive or hostile work environment:

Neither the posting incident nor the Murphy incident were acts which involved "tangible job detriment." Rather, they were acts that related to the "environment" in which Varnadore worked. That does not mean that these incidents are not actionable, however. If these two incidents created a hostile work environment for Varnadore, and they occurred in retaliation for Varnadore's protected activity, they are remediable under the hostile work environment theory of discrimination.

Id at 47. With regard to the test for determining whether retaliatory harassment creates an abusive or hostile work environment, the Secretary noted that the Supreme Court has stated that such a determination can only be made by looking at all of the circumstances, Id. at 48, quoting Harris at 22-23, and he rejected a piecemeal analysis of each individual act of alleged harassment:

A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario . . . . The factfinder in this type of case should not necessarily examine each alleged incident in a vacuum. What may appear to be a legitimate justification for a single incident of alleged harassment may look pretextual when viewed in the context of several other related incidents.

Id. at 51-52 (ellipsis provided by the Secretary), quoting Andrews v. City of Philadelphia, 895 F 2d 1469, 1485 (3rd Cir. 1990).

   From the foregoing, it is clear that the Complainants need not demonstrate that particular incidents of alleged harassment involved any tangible employment detriment to prove their claims of retaliatory' harassment. It is also clear that a determination of whether the Respondents' alleged conduct rises to the level of an abusive or hostile work environment can only be made after a full consideration of all relevant facts and assessment of the "overall, composite effect [of the alleged harassment] on the terms, conditions, and privileges of employment . . .." Varnadore I at 51, quoting King v. Hillen, 21 F.3d 1572, 1581 (Fed. Cir. 1994). Such a determination can not be fairly made on the basis of a motion for summary dismissal on a bare record which provides no means of evaluating the credibility of witnesses or meaningful insight into the relevant work environment. This matter obviously presents genuine issues of material fact which require a full evidentiary hearing. Under

these circumstances DOE's motion for summary dismissal for want of actionable adverse employment action must be denied. I do, however, find that res judicata applies to Mr. McQuade's allegation in his January 3, 1996 complaint that he was discriminatorily subjected to a security clearance interview and psychiatric examination as this issue was previously litigated before and adjudicated by Judge Barnett. Recommended Decision and Order at 18. Finally, I disagree with DOE's claim that res judicata applies to the allegation in the December 16, 1996 complaint concerning the unsatisfactory performance rating given to Mr. McQuade because review of the MSPB Administrative Judge's initial decision does not indicate that the issue presented in this proceeding (i.e., whether the unsatisfactory rating was given to Mr. McQuade in retaliation for protected activities under the environmental whistleblower protection statutes) was litigated before the MSPB. Compare Billings v. Tennessee Valley Authority, Case No. 91-ERA-12 (ARB June 26, 1996) at 8 (under the doctrine of res judicata, a judgement on the merits bars a second suit involving the same parties and the same cause of action).

   IT IS HEREBY ORDERED that:

   (1) the Complainant's motions for partial summary judgement are granted on the following issues: (1) that sovereign immunity is not available to shield the Respondents from liability for any conduct found unlawful based on the complaints tiled in these cases; (2) that the complaints were timely filed; and (3) that Complainants Johnson, McQuade and Warden engaged in activity protected by the environmental whistleblower protection statutes by filing and prosecuting their April 1995 whistleblower discrimination complaints;

   (2) the Complainant's motion for partial summary judgement on the issue of whether Complainant Byrum engaged in activity protected by the environmental whistleblower protection statutes is denied;

   (3) DOE's motion for summary dismissal is granted in part and the following respondents are dismissed: Patricia Howse Smith; Rufus Smith; Dan Wilken; Jennifer Fowler; Ivan Boatner; and the DOE Inspector General; and

   (3) DOE's motion for summary dismissal is otherwise denied.

       Daniel F. Sutton
       Administrative Law Judge

Dated: APR 29 1999
Camden, New Jersey