On June 11, 2001, Rockefeller entered DOE premises in an attempt to obtain a document from one of its employees. The local police issued him a criminal trespass summons, and on June 14, 2001, DOE distributed an internal memorandum to its contractor and subcontractor managers advising that Rockefeller was not to be allowed admission to any DOE property under any circumstances.17
DOE argued below that it was entitled to summary decision on Rockefeller's blacklisting claim because Rockefeller had not demonstrated that the internal memorandum concerning his trespassing constituted blacklisting. We have found that blacklisting was the only adverse action cognizable in Rockefeller's complaint. Proof of adverse action is essential to prevail on a whistleblower claim. Thus, whether or not DOE blacklisted Rockefeller is a material fact in Rockefeller's case. Therefore, in opposing summary judgment, Rockefeller had the burden to establish blacklisting. At this stage of the litigation, he did not have to prove blacklisting by a preponderance of the evidence. In opposing summary judgment, he had only to produce sufficient evidence that a genuine fact exists as to whether DOE blacklisted him.
Rockefeller did not produce any evidence that DOE blacklisted him. His response to DOE's summary judgment motion, though verified under oath, contains little more than conclusive statements that DOE blacklisted him. He provided no evidence that DOE, by issuing the internal memorandum about his trespassing or by "vilifying" him on the Internet, intended to prevent Rockefeller from obtaining employment. Therefore, because no genuine issue exists as to whether DOE blacklisted Rockefeller, we grant summary judgment to DOE and dismiss Rockefeller's complaint.
1 The complaint in ARB No. 03-084 is captioned "New DOL Environmental Whistleblower Complaint" and indicates that "Mr. Rockefeller hereby files this new environmental whistleblower complaint . . . ." The ALJ's Recommended Decision and Order (R. D. & O.), however, states that "it appears that the complaint was orally modified to allege a violation under Section 211 of the Energy Reorganization Act of 1974, as amended 42 U.S.C. 5881 [sic], and was treated as such by OSHA." March 28, 2003 R. D. & O. at 1. We will consider the complaint as alleging violations of the environmental statutes and the ERA. We note that DOE would be immune from a complaint seeking monetary damages under section 5851 of the ERA. Pastor v. Veterans Affairs Med. Cent., ARB No. 99-071, ALJ No. 1999-ERA-11 (ARB May 30, 2003).
2Cf. 29 C.F.R. §§ 7.13 (consolidating Federal construction contract cases), 8.14 (Federal service contract cases).
3Rockefeller v. United States Department of Energy, 2002-CAA-0005 (ALJ Jan. 24, 2003); Rockefeller v. United States Dep't of Energy, Carlsbad Field Office, 2003-ERA-10 (ALJ Mar. 28, 2003).
4See Rockefeller v. Carlsbad Area Office, United States Dep't of Energy, ARB Nos. 99-002 (Rockefeller I), 99-067 (Rockefeller II), 99-068 (Rockefeller III), and 99-063 (Rockefeller IV), ALJ Nos. 98-CAA-10, 99-CAA-1, 99-CAA-4 and 99-CAA-6 (ARB Oct. 31, 2000); Rockefeller v. Carlsbad Area Office, United States Dep't of Energy, ARB No. 00-039 (Rockefeller V), ALJ Nos. 99-CAA-21, 99-CAA-22 (ARB May 30, 2001); Rockefeller v. Abraham, Nos. 01-2054, 00-2480, 2001 WL 1434623 (10th Cir. Nov. 15, 2001)(appeal of New Mexico District Court D.C. No. 99-CIV-1059 PJK/KBM, Sept. 29, 2000); Rockefeller v. Department of Energy, Initial Decision of the Merit Systems Protection Board (MSPB Doc. No. DE-0752-98-0138-I-1 (Apr. 6, 1998)); Complaint of Tod N. Rockefeller against the United States. Dept. of Energy's Carlsbad Area Office, Decision of the U.S. Office of Special Counsel (OSC File No. MA-97-1639, Sept. 24, 1997); Rockefeller v. LABR, Dist/Ag docket; 99-002, 10th Cir. Case No. 00-9545 (appeal of Rockefellers I-V), dismissed for lack of prosecution, Nov. 20, 2001.
5See 29 C.F.R. § 24.8 (2001); see also Secretary's Order No. 1-2002, 67 Fed. Reg. 64, 272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).
6See Administrative Procedure Act, 5 U.S.C.A. § 557(b) (West 1996); 29 C.F.R. § 24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-72 (11th Cir. 1997); Berkman v. United States Coast Guard Acad., ARB No. 98-056, ALJ Nos. 97-CAA-2, 97-CAA-9, slip op. at 15 (ARB Feb. 29, 2000).
7Honardoost v. Peco Energy Co., ARB No. 01-030, ALJ 00-ERA-36, slip op. at 4 (ARB Mar. 25, 2003).
9Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
10Id. at 249, citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-290 (1968).
11Hodgens v. General Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998).
12 Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e).
13Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
14See Johnsen v. Houston Nana, Inc., JV, ARB No. 00-064, ALJ No. 99-TSC-4, slip op. at 4 (ARB Feb. 10, 2003) ("[I]n ruling on a motion for summary decision we . . . do not weigh the evidence or determine the truth of the matters asserted. Viewing the evidence in the light most favorable to, and drawing all inferences in favor of, the non-moving party, we must determine the existence of any genuine issues of material fact.") (internal citation and quotation marks omitted); Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 99-STA-21, slip op. at 6 (ARB Nov. 30, 1999).
15See Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 1988-SWD-2, slip op. at 9 (ARB Feb. 28, 2003). Under the ERA, Rockefeller must show that the protected activity was a "contributing factor" in the adverse action. 42 U.S.C.A. § 5851 (b)(3)(C).
16 Answer to Amended Complaint and Renewed Motion for Summary Judgment, Exhibit 11.
19 Answer to Amended Complaint and Renewed Motion for Summary Judgment at 12-13.
20 Rockefeller's response is dated January 7, 2003, and is titled "Complainant's Sworn Response to Respondents' Renewed Motion for Summary Judgment, His Motion to Strike Insufficient Defense to Amended Complaint and His Motion for Partial Summary Judgment." We will refer to this document as Rockefeller's "Response."
22 ARB Nos. 02-056 and 02-059, ALJ No. 2001-CAA-18, slip op. at 8-9 (ARB Nov. 28, 2003) (citations omitted).
23See Respondent's Reply to Complainant's Opening Brief and Motion for Summary Reversal and Motion for Summary Judgment, Exhibit 2.
24See Respondent's Reply to Complainant's Request for Hearing and Motions for Remand for Proper Investigation and for Partial Summary Judgment and Respondent's Motion for Summary Decision and Motion to Enjoin Complainant From Filing Further Complaints on Matters Collaterally Estopped, Having Been Decided with Finality at 2.
27 29 C.F.R. § 18.3 (b) ("Service of any document upon any party [or the party's attorney] may be made by personal delivery or by mailing a copy to the last known address."); 29 C.F.R. § 18.4 (c)(2) ("Service of all documents other than complaints is deemed effected at the time of mailing.").
28 29 C.F.R. § 18.6 (b) ("Within ten (10) days after a motion is served, or within such period as the administrative law judge may fix, any party to the proceeding may file an answer in support or in opposition to the motion, accompanied by such affidavits or other evidence as he or she desires to rely upon."); 29 C.F.R. § 18.4 (c)(3) ("Whenever a party has the right or is required to take some action within a prescribed period after the service of a pleading, notice, or other document upon said party, and the pleading, notice or document is served upon said party by mail, five (5) days shall be added to the prescribed period.").
29Rockefeller v. United States Dep't of Energy Carlsbad Field Office, 2003-ERA-10 (ALJ Mar. 28, 2003).