In The Matter Of:

C. D. VARNADORE,                             CASE NOS. 92-CAA-2
                                                       92-CAA-5
          COMPLAINANT,                                 93-CAA-1
     v.
                                             (VARNADORE
I)
OAK RIDGE NATIONAL LABORATORY
AND LOCKHEED MARTIN ENERGY                  DATE:   June 14, 1996
SYSTEMS, INC.,[1] 

          RESPONDENTS.

                                             

          
IN THE MATTER OF                             

C. D. VARNADORE,                             CASE NOS. 94-CAA-2
                                                       94-CAA-3
                                             
                                             (VARNADORE
II)
          COMPLAINANT,                       

     v.

OAK RIDGE NATIONAL LABORATORY,
LOCKHEED MARTIN ENERGY SYSTEMS, INC., AND
LOCKHEED MARTIN CORPORATION,

          RESPONDENTS.IN THE MATTER OF                             

C. D. VARNADORE,                             CASE NO. 95-ERA-1


      v.                                     (VARNADORE
III)

[PAGE 2]

OAK RIDGE NATIONAL LABORATORY;
LOCKHEED MARTIN ENERGY
SYSTEMS, INC.; LOCKHEED MARTIN CORP.;
LOCKHEED MARTIN TECHNOLOGIES; 
ORNL AND LOCKHEED MARTIN ENERGY SYSTEMS
MEDICAL, HEALTH, HEALTH PHYSICS, OCCURRENCE 
REPORTING, ENVIRONMENTAL
MONITORING, AND INDUSTRIAL HYGIENE DEPARTMENTS;
M. ELIZABETH CULBRETH, ESQ.;
WILBUR DOTREY SHULTS, PH.D.;
SECRETARY OF ENERGY HAZEL O'LEARY AND
DEPARTMENT OF ENERGY; OAK RIDGE OPERATIONS,

          RESPONDENTS.


BEFORE:   THE ADMINISTRATIVE REVIEW BOARD[2] 


FINAL CONSOLIDATED DECISION AND ORDER

     This is a final decision in three cases brought by
Complainant C. D. Varnadore (Varnadore) against his employer,
Lockheed Martin Energy Systems (Energy Systems), Oak Ridge
National Laboratory (ORNL), and various other individuals and
entities.[3]   This decision resolves the issues remaining in
Varnadore I and all issues presented in Varnadore v.
Oak Ridge National Laboratory, et al., Case Nos. 94-CAA-2 and
94-CAA-3 (Varnadore II), and in Varnadore v. Oak Ridge
National Laboratory, Lockheed Martin Energy Systems, Inc., et
al., Case No. 95-ERA-1 (Varnadore III).  Certain facts and
legal principles are common to more than one of the
Varnadore cases.  Moreover, an understanding of the facts
in Varnadore I will enlighten the discussion in this
decision.
BACKGROUND
     A.  Varnadore I
     Beginning in November 1991, Complainant C. D. Varnadore, an
employee of Respondent Energy Systems at ORNL,[4]  alleged in a
series of complaints that he had engaged in activity protected by
the employee protection provisions of the Clean Air Act (CAA), 42
U.S.C. § 7622 (1988); the Toxic Substances Control Act
(TSCA), 15 U.S.C. § 2622 (1988); the Safe Drinking Water Act
(SDWA), 42 U.S.C. § 300j-9(I) (1988); the Water Pollution
Control Act (WPCA), 33 U.S.C. § 1367 (1988); and the
Comprehensive Environmental Response, Compensation and Liability
Act (CERCLA), 42 U.S.C. § 9610 (1988) (sometimes
collectively referred to as 
[PAGE 3]
the environmental whistleblower provisions).  Varnadore asserted
that as a result he had been subjected to a series of retaliatory
acts commencing in 1989 and continuing through and after the
first hearing in that case.  On June 7, 1993, the ALJ issued a
Recommended Decision and Order (Varnadore I R. D. and O.),
recommending that Energy Systems be found to have retaliated
against Varnadore, and that relief be granted.
     On review the Secretary of Labor issued a Decision and Order
on January 26, 1996 (Varnadore I D. and O.), which
concluded that Varnadore's November 1991 complaint had not been
timely filed.  Varnadore I D. and O. at 59-67.  Therefore
those portions of the Varnadore I complaints relating to
retaliation which was alleged to have occurred prior to the
applicable 30 day statutory limitations period were dismissed. 
Id. at 84.  Further, the Secretary held that Varnadore
failed to prove that his performance evaluation for FY-91 was
retaliatory.  Id. at 73-75.  Finally, the Secretary
concluded that allegations of two acts of retaliation occurring
after the filing of the November 1991 complaint were timely, and
that it would be prudent to evaluate those two incidents in
conjunction with Varnadore II and possibly Varnadore
III in order to determine if Varnadore was subjected to a
hostile work environment as a result of his filing of the
November 1991 complaint.  Id. at 68, 82-84.  The Secretary
therefore retained jurisdiction over Varnadore I. 
Id. at 84.
     B.  Varnadore II.   
     In the meantime, by mutual agreement, in February 1993
Varnadore transferred to another division of ORNL at an
equivalent salary.[5]   However, on June 9, 1993, two days after
the ALJ issued his R. D. and O. in Varnadore I, Varnadore
filed the first complaint contained in Varnadore II
(93-CAA-02).  Varnadore alleged that Energy Systems had continued
to retaliate against him in violation of the employee protection
provision of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988 and Supp. V 1993).[6]  
Varnadore alleged the following acts of retaliation:
     *    On January 19, 1993, Varnadore's supervisor, 
          Darrell Wright, gave him a performance
          evaluation for FY-92 which contained negative
          statements about Varnadore's performance.

     *    Although Varnadore received a 3.7 percent salary 
          increase as a result of his FY-92 performance
          appraisal, Varnadore challenged Energy
          Systems' failure to have awarded him
          increases in previous years.

     *    On April 28, 1993, several months after Varnadore 
[PAGE 4]
          had transferred out of the Analytical Chemistry
          Division (ACD), Division Director W. D. Shults held a
          staff meeting to discuss topics of interest to the
          Division.  In response to a question from an ACD
          employee about the status of Varnadore I, Shults
          stated that briefs had been submitted to the ALJ, and
          that a decision was expected in approximately a month.

     *    After the R. D. and O. in Varnadore I was
          issued, Energy Systems released a statement to the
          news media which stated Energy Systems' intention
          to seek review of the decision, but characterized
          the R. D. and O.'s monetary award ($30,000.00) as
          "modest."[7] 

     On July 29, 1993, Varnadore filed a complaint with the Wage
and Hour Division in Docket Number 94-CAA-3, in which he alleged
that Charles R. Levenhagen, an Energy Systems labor management
specialist, had made a derogatory remark about Varnadore to
another Energy Systems employee during a training course for
Energy Systems security personnel.[8]  
     On April 6, 1994, the ALJ issued an order granting partial
summary judgment in Varnadore II (Varnadore II O.
S. J.).  He ruled that there were material facts in dispute with
regard to the FY-92 performance evaluation and the 3.7 percent
salary increase Varnadore was given as a result of that
performance appraisal.[9]   However, the ALJ granted summary
judgment with regard to the Shults statement, the Energy Systems
press release, and the Levenhagen incident.  O. S. J. at 6-7, 9-
12.  Pursuant to the O. S. J. the ALJ dismissed 94-CAA-3. 
Recommended Order of Dismissal of Case Number 94-CAA-3
(Varnadore II R. O. D.), April 29, 1994.
     On May 17-18 a hearing was held on the two issues remaining
in Varnadore II, and on October 17, 1994, the ALJ issued a
Recommended Decision and Order (Varnadore II R. D. and
O.).  With regard to the 3.7 percent raise, the ALJ found that
the raise was in the normal range for raises granted to employees
in  Varnadore's position during FY-92, was not retaliatory, and
that Varnadore had not contested it in any event.  Varnadore
II R. D. and O. at 10.  The ALJ also reaffirmed the granting
of summary judgment regarding the Levenhagen incident.[10]  
However, the ALJ found that the narrative in Varnadore's FY-92
performance appraisal was "suspect" and its retention in
Varnadore's file was "unfair and prejudicial.  Varnadore
II R. D. and O. at 4-10.       The ALJ concluded that an
award of damages was not warranted:
     It was not established that Complainant suffered a
     monetary loss during fiscal year 1992 as a result of
     the performance appraisal and Respondent's conduct has
     not been such that exemplary damages are warranted.

[PAGE 5]

     Varnadore II R. D. and O. at 11.  The ALJ recommended
     that Energy Systems be ordered to expunge Varnadore's FY-92
     appraisal from its records and "not take any adverse actions
     against Mr. Varnadore without good cause shown." 
     Id.[11] 
     C. Varnadore III.
     In the meantime, Varnadore filed his complaint in
Varnadore III on August 2, 1994, asserting jurisdiction
under the whistleblower provisions of the CAA, TSCA, Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. § 6971
(1988), CERCLA, the Solid Waste Disposal Act (SWDA) (which is
another name for RCRA), and the ERA.  Varnadore III
Complaint at 11.  He asserted that he had engaged in protected
activity by bringing Varnadore I, and had engaged in other
protected activity which he did not wish to specify "[f]or
reasons that are obvious in a workplace so hostile to protected
activity . . . ."  Id.  Varnadore made the following
allegations:
     *  Respondent Department of Energy (DOE) retaliated
     against Varnadore by reimbursing Energy Systems for its
     legal expenses incurred in defending Varnadore
     II.  Complaint, ¶¶ 3-11, 61.

     *  Respondent Energy Systems retaliatorily hired M.
     Elizabeth Culbreth, the former Director of the
     Department of Labor Office of Administrative Appeals,
     to assist it in the Varnadore cases "less than a year
     after she left her position on January 20, 1993 
     . . . ."  Id., ¶¶ 11-14, 62A.

     *  At a public "stakeholders' meeting" at Oak Ridge on
     April 29, 1994, Respondent DOE Secretary Hazel O'Leary
     made a negative private remark to Varnadore "expressing
     contempt for Mr. Varnadore with her facial expressions
     and tone of voice."[12]   Id., ¶¶ 15-
     18.

     *  When Varnadore asked a question at the stakeholders'
     meeting Secretary O'Leary claimed that she had to
     leave.  Varnadore asserted that "[a]irline and personal
     schedules of Respondent Secretary O'Leary should be
     verified, as there are apparently later flights that
     could have taken Secretary O'Leary back to Washington
     D.C."  Id., ¶ 20.

     *  "Both Senator [James] Sasser and Representative
     [Marilyn] Lloyd avoided Mr. Varnadore as if he were a
     pariah after the Oak Ridge stakeholder meeting." 
     Id., ¶ 21. 

[PAGE 6]

     *  When Varnadore was introduced at the stakeholders'
     meeting "[t]here were multiple, audible murmurs
     expressing disdain and ridicule, including but not
     limited to grunts and groans" from members of the
     audience, which was made up of ORNL personnel and other
     people.  Id., ¶ 23. 

     *  Varnadore was introduced by Oak Ridge's Vice Mayor
     at the meeting in a "stigmatizing fashion." 
     Id., ¶ 24. 

     *  Energy Systems improperly used Varnadore's
     confidential medical files in Varnadore I. 
     Id., ¶¶ 37-45.

     *  Energy Systems failed properly to post the Energy
     Reorganization Act at its facilities.  Id.,
     ¶ 47-53.

     *  Energy Systems distributed and relied upon an
     "inadequate and inept" report prepared under the
     direction of Judge William Webster by the law firm of
     Milbank, Tweed, Hadley and McCloy "in resisting change
     that would end the hostile working environment" at
     ORNL.  Id., ¶ 35. 

     *  DOE "demonstrated continuing unfitness to protect
     whistleblower rights."  Id., ¶ 91.

     *  Respondents Lockheed Martin Corporation and Lockheed
     Martin Technologies engaged in a pattern and practice
     of discrimination against whistleblowers.  Id.,
     ¶¶ 93-98.

     Varnadore requested wide-ranging relief, including:
     *  "[R]einstatement to a suitable position in a non-
     hostile working environment free of discrimination
     against employee protected speech" (Id., ¶
     114A);

     *  Compensatory damages;

     *  Punitive damages;

     *  "[R]easonable attorney fees and other litigation
     costs, including interim attorney fees and litigation
     costs between the time of the ALJ's order and the final
     decision of the Secretary of Labor" (Id., ¶
     114D);

[PAGE 7]

     *  "[F]rontpay in the event that reinstatement is held
     not feasible" (Id., ¶ 114E);

     *  "[N]on-discriminatory terms and conditions of
     employment including but not limited to purging of all
     derogatory information from all files regarding Mr.
     Varnadore as part of the final order in Varnadore
     I, Varnadore II, and Varnadore III"
     (Id.,¶ 114F);

     *  "[A]n order for each Respondent to cease and desist
     violating employees' civil and constitutional rights to
     engage freely and without coercion in protected
     activity under whistleblower laws, the First Amendment
     to the U.S. Constitution" [sic] (Id., ¶
     114G);
     
     *  An order granting injunctive relief and affirmative
     action to prevent any further discrimination against
     other ORNL and Lockheed Martin employees and ordering
     the posting of a notice to all employees (Id.,
     ¶ 114H);

     *  An order that Secretary O'Leary continue her  prematurely
     concluded April 26, 1994 "stakeholders" meeting in Oak Ridge
     . . . this time answering Mr. Varnadore's questions . . .'
     (Id., ¶ 114I);

     *  An order that the heads of Lockheed Martin, and DOE
     conduct "mandatory meetings of all DOE, [Energy
     Systems] and contractor employees during normal working
     hours of each shift to apologize for the discrimination
     against [Varnadore], and that this meeting be shown
     live on any management television systems . . ."
     (Id., ¶ 114J);

     *  Mandatory sensitivity training for ORNL managers
     (Id., ¶ 114K);

     *  An order requiring all Respondents to "reprimand
     each and every management agent or other employee
     responsible for discrimination against Mr. Varnadore
     and others, and that [Energy Systems] employees
     responsible for discrimination be terminated, including
     Respondent Dr. Wilbur Dotrey Shults . . ." (Id.,
     
     ¶ 114L);

     *  An order to "Respondent M. Elizabeth Culbreth to
     cease work on Mr. Varnadore's case or on any DOL cases 
[PAGE 8]
     filed before January 20, 1993, or on any case involving any
     Varnadore I witnesses who allege retaliation . . ."
     (Id., ¶ 114N);

     *  Injunctive relief against DOE prohibiting DOE from
     reimbursing Energy Systems for legal defense against
     whistleblower actions, ordering DOE to cease and desist
     misinforming employees about their whistleblower
     rights; compensatory and exemplary damages; payment of
     attorneys fees; an order that DOE, Secretary O'Leary,
     and DOE ORO "divest from the routine operations of the
     operating contractor(s) in Oak Ridge, Tennessee and
     elsewhere -- and from those other DOE, DOD, CIA, NSA,
     JRO and NASA contractors and sites currently operated
     by [Energy Systems, Lockheed Martin, Lockheed Martin
     Technologies and other Lockheed Martin subsidiaries] --
     in perpetuity, the functions of:

          a.   environmental protection
               monitoring,
          b.   analysis of environmental samples,
          c.   health physics,
          d.   industrial hygiene,
          e.   occurrence reporting,
          f.   occupational safety and health,
          g.   occupational medicine,
          h.   security,
          i.   any other function involving an
               organizational conflict of interest
               affecting protected activity or
               occurrence reporting regarding
               safety, health and environmental
               matters under the energy and
               environmental whistleblower laws,
               or section 11(c) of the
               Occupational Safety & Health Act
               and DOE orders and regulations" 

     (Id., ¶ 115D.1);

     *  An order requiring DOE 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 misleading
     assurances about employee health in the face of
     radiation and toxic substances" (Id., ¶
     115D.2).

     The Respondents all moved to dismiss the complaint on 
[PAGE 9]
several grounds, including that it was untimely filed and failed
to state a claim upon which relief could be granted.  Following
briefing on those motions, on September 20, 1995, the ALJ issued
a Recommended Order of Dismissal (Varnadore III R. O. D.). 
The ALJ concluded that each charge made in the complaint should
be dismissed for a variety of reasons.  The case is now before
the Board for review, and the parties have all filed briefs.

DISCUSSION
     In Varnadore I the Secretary resolved all aspects
of Varnadore's original complaints with the exception of two acts
of post-complaint retaliation:  the "Murphy incident," and the
"posting incident."  The decision stated:
     In the interests of fairness and adjudicatory economy I
     retain jurisdiction of this case so that instances of
     retaliation which occurred after Varnadore filed his
     November 20, 1991 complaint can be considered in lightof the
     history of this case and in conjunction with the allegations
     contained in [Varnadore II].[13] 

Varnadore I D. and O. at 84.  
     As the Secretary indicated in Varnadore I, the two
instances of post-complaint retaliation, which did not involve
"tangible job detriment," are appropriately analyzed within the
"hostile work environment" construct articulated by the Supreme
Court in Meritor Savings Bank v. Vinson, 477 U.S. 57
(1986), and refined in Harris v. Forklift Systems, Inc.,
114 S.Ct. 367 (1993).  See Varnadore I D. and O. at 77-83. 
One of the critical factors in a hostile work environment case is
whether the discrimination was "pervasive and regular." 
Varnadore I D. and O. at 79, citing West v.
Philadelphia Electric Co., 45 F.3d 744 (3d Cir. 1995).  The
goal in electing to evaluate the Murphy and posting incidents
together with any subsequent incidents of retaliation was to
allow an analysis of the "overall, composite effect on
[Varnadore's] terms, conditions, and privileges of employment . .
. ."  Varnadore I D. and O. at 83-84, quoting King v.
Hillen, 21 F.3d 1572, 1581 (Fed. Cir. 1994).  See also
Andrews v. City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir.
1990) (discrimination analysis must concentrate on the "overall
scenario").  These principles first require a determination
whether the claims in Varnadore II and Varnadore
III are sustainable, and then an evaluation of the
Varnadore I post- complaint acts of retaliation together
with the conclusions reached in Varnadore II and
Varnadore III.
     For the reasons discussed in detail below, we conclude that
the ALJ correctly recommended granting partial summary judgment
in Varnadore II, but that he erred in finding that
Varnadore's FY-92 performance evaluation was retaliatory.  We
also conclude that the allegations contained in the Varnadore
III complaint 
[PAGE 10]
should be dismissed on various grounds.  Finally, because there
are no retaliatory acts remaining after an appropriate analysis
of Varnadore II and Varnadore III, we analyze the
Murphy and posting incidents alone.  We conclude that these two
incidents, when considered in conjunction with each other, did
not result in Varnadore being subjected to a hostile work
environment.
     I.  Varnadore II. 
     A.  Whether the ALJ Correctly Recommended Partial Summary
          Judgment. 

     The ALJ recommended summary judgment regarding Shults'
statement, Energy Systems' press release, and the Levenhagen
incident.  For the reason's discussed below we conclude that 
summary judgment is appropriate with regard to the Shults and
press release claims.  The Levenhagen incident is treated
separately.
     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).[14]   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.  
     Application of these standards to this case leads to the
conclusion that the ALJ appropriately recommended that summary
decision be granted to Energy Systems regarding the Shults
statement and the Energy Systems press release issues.
     1.  Shults' Statement.
     The ALJ correctly ruled that summary judgment should be
ordered against Varnadore regarding his allegation that Shults
engaged in retaliatory adverse action when he discussed the
status of Varnadore I at an ACD staff meeting.  In an
affidavit accompanying Energy Systems' Brief in support of its
Motion for 
[PAGE 11]
Summary Judgment (Res. S. J. Br., 94-CAA-2), Dr. Shults described
the meeting at which he made the allegedly retaliatory comments
about Varnadore I:
     We conducted a regular quarterly meeting of employees
     in ACD that was held on April 28, 1993 . . . .  I had
     not scheduled any remarks concerning the Varnadore
     matter.  At the start of the meeting I spoke briefly on
     several items of interest to the Division . . . . At
     the close of my remarks and before introducing the
     principal speaker at the meeting, I asked, as is my
     custom, if there were any questions.  One question
     asked of the status of the Varnadore case.  My response
     was that briefs had been submitted and that a decision
     was expected in approximately a month.  I made no
     statement as to the anticipated nature of the decision. 
     I did not say that paper work would be completed within
     thirty days of the decision or that the case would then
     be over.  I did not say anything regarding "old
     culture" or that "nothing would change."  I deny that I
     spoke in a mocking or condescending tone in any sense
     or that I made any "blacklisting commentary".  Other
     than to say that briefs had been filed and that a
     decision was expected in approximately a month, my only
     other remark in response to the question was that the
     decision would be ultimately made upon review by the
     Secretary of Labor.

Id., Appendix (APX) at 25.
     In his Response to Energy Systems' Motions for Summary
Judgment (Comp. Resp.), Varnadore presented several arguments
regarding Shults' statement:
     In [the ACD meeting] Dr. Shults violated Mr.
     Varnadore's rights yet again by giving a speech about
     this action in which he commented that the
     Administrative Law Judge's decision was due any day,
     that after the ALJ's decision was received, paperwork
     would be completed within thirty days and everything
     regarding this case would be over.  The implication of
     his remarks was that the "old culture" would survive
     the scrutiny of the Administrative Law Judge and the
     Secretary of Labor in this action, and that nothing
     would change.

       Dr. Shults' affidavit makes clear that Dr. Shults
     invaded Mr. Varnadore's privacy by his comments,
     discussing Varnadore I with a roomful of potential
     witnesses in future potential whistleblower action 
[PAGE 12]
     [sic] in Mr. Varnadore's absence.  Dr. Shults did not
     apologize to Mr. Varnadore at that meeting, or any other
     meeting held in ACD since the filing of the complaint. 
     Instead, Dr. Shults had a mocking and condescending tone
     toward Mr. Varnadore, whom the Wage-Hour Division and the
     Administrative Law Judge both hold [sic] has been subjected
     to a hostile working environment.  It appears that Dr.
     Shults' purpose in making the hostile remarks was to further
     isolate Mr. Varnadore and ACD employees who testified
     truthfully at the trial in this action in July and December
     1992.

Comp. Res. at 43-44.  However, Varnadore did not support his
allegations about Shults' statement with any affidavits or other
evidentiary support.
     The ALJ correctly rejected this claim.  First, Varnadore
failed to support his allegation with facts.  The non-moving
party may not defend against a motion for summary judgment with
"mere allegation or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for trial." 
Anderson v. Liberty Lobby, Inc., 477 U.S. at 256.  Here,
Varnadore has presented no facts whatsoever regarding
Shults' statement at the ACD meeting.  Varnadore was not present
at the meeting and heard second hand that Shults had made
reference to Varnadore I.[15]   O. S. J. at 6.  Varnadore
made no attempt to present any evidence regarding what Dr.
Shults said. 
     In any event, it would be preposterous to conclude that a
reference by Dr. Shults to the status of Varnadore I
constitutes retaliatory adverse action.  As the ALJ held:
     Mr. Varnadore contends that the import of this
     statement was to blacklist or isolate him.

 * * * *
                                     
     Mr. Varnadore was not working in Dr. Shults' division
     and did not attend the meeting.  Further, nothing in
     the statement suggests that the remarks impacted upon
     or in any ma[nn]er affected Mr. Varnadore's employment
     status or work environment.  Therefore, I find that the
     record taken as a whole would not lead a rational trier
     of fact to find for Mr. Varnadore on this issue.

Varnadore II O. S. J. at 6-7.  This recommended conclusion
is correct.
     2.  Energy Systems' Press Release. 
     Varnadore's claim regarding Energy Systems' press release
following the issuance of the R. D. and O. in Varnadore I
is equally without merit.  There is no disagreement as to the 
[PAGE 13]
content of the press release, which was quoted by the
Knoxville News-Sentinel:
     While the recommended award is modest, we disagree with
     any conclusion that Martin Marietta Energy Systems
     retaliated against Mr. Varnadore.  It is our intent to
     address this issue with the Secretary of Labor, who has
     the responsibility for issuing a final order that can
     accept, reject or modify the recommendation by the
     Administrative Law Judge.

O. S. J. at 9.  Varnadore asserted that:
     Energy Systems was callous and remorseless, releasing
     the RD&O to the news media on June 8, 1993 with a
     retaliatory and condescending statement that the award
     was "modest." . . . The statement evidences their
     contempt for the DOL process and the need to set higher
     damages upon review . . . .

Comp. Res. at 44-45.  
     The ALJ correctly concluded that reference to the $30,000
award recommended in Varnadore I as "modest" was neither
discriminatory nor an adverse employment action, "especially in
light of the fact that Mr. Varnadore sought over eleven million
dollars in damages."  Varnadore II O. S. J. at 9.  The ALJ
stated that:
     Nothing in the record suggests that Martin Marietta's
     press release impacted in any ma[nn]er upon 
     Mr. Varnadore's employment.  Further, I can find no
     precedent to support the contention that "callous and
     remorseless" language, (Cl. June 9, 1993 Letter at 5),
     amounts to an adverse employment action.  Martin Marietta's
     press release was not physically threatening, humiliating,
     or even an offensive utterance.  Further, it did not
     interfere with Mr. Varnadore's work performance.  Therefore
     the statement did not create a hostile or abusive work
     environment . . . .  Moreover, there is no evidence that the
     statement reflects a pattern of improper actions.

Id. at 9.
     The ALJ's conclusions are amply supported both as to facts
and to the law.  First, it is indisputable that there could be
nothing retaliatory about characterizing as "modest" a $30,000
award in a case in which $11 million was sought.  Thirty thousand
dollars is less than three tenths of one percent of the amount
originally sought. 
     More importantly, nothing in Energy Systems' press release
could possibly be considered to have an adverse impact on 
[PAGE 14]
Varnadore's employment.  It did not cause Varnadore "tangible job
detriment."  See Varnadore I D. and O. at 77 and
n.93.  And no  evidence was presented which could support a
conclusion that it could  have contributed to the creation of a
hostile work environment.  Id.  Thus, the press release
did not cause any adverse impact upon Varnadore.  
     B.  Whether the ALJ Correctly Ruled that the Levenhagen  
     Remark was not Actionable.

 Varnadore alleged that Charles Levenhagen, a labor relations
specialist who provided training to Energy Systems managers, made
a derogatory remark about Varnadore during a management training
session for Energy Systems security personnel.  In response to
Energy Systems' motion for summary judgment, Varnadore submitted
the affidavit of Captain Mincey, a security officer who attended
the training.  Mincey stated that during a break he engaged in
conversation with Levenhagen.  It was during this conversation
that, according to Mincey, Levenhagen stated that Varnadore
"isn't worth a damn, never has been, never will be, and they
ought to take a gun and shoot him."[16]   Mincey Affidavit at 1. 
     In his O. S. J. the ALJ ruled that, assuming for purposes of
summary judgment that Levenhagen made the remark:[17]   1) it was
made during a class break to Mincey; 2) no one else heard the
remark; 3) although Levenhagen allegedly made the remark in early
March 1993, Varnadore did not hear about it until Mincey told
Varnadore's lawyer about it in August 1993, and Varnadore did not
know of any other persons who had heard of the remark from
sources other than the publicity given this case in the news
media; and 4) once Energy Systems managers became aware of the
alleged remark as a result of the filing of the complaint, the
Director of Human Resources at the Y-12 plant counseled
Levenhagen, "informing him that such a remark would be
inappropriate and an indication of poor judgment."  O. S. J. at
10-12.  The ALJ granted Energy Systems' motion for summary
judgment on this issue:
     Assuming for the purposes of summary judgment that 
     Mr. Levenhagen made the remark, I find no evidence that the
     remark would have impacted upon Mr. Varnadore's work
     environment or affected the terms and conditions of his
     employment, especially in light of the geographical
     separation between Mr. Varnadore and Mr. Levenhagen. 
     Further, the comment was not of the severity required to
     create an objectively hostile work environment.

O. S. J. at 12.  
     Although the ALJ granted summary decision regarding the
Levenhagen incident, he allowed testimony by both Mincey and 
[PAGE 15]
Levenhagen at the subsequent evidentiary hearing.  Mincey
testified that:  Levenhagen made the remark during a break in a
training session in March 1993 (T. 177); Mincey told no one about
the remark until he read in the newspaper about the filing of the
first complaint in Varnadore II (T. 188); and Mincey told
Varnadore's attorney about the remark two days after Mincey
learned that he might be included in a massive layoff of Energy
Systems employees.  T. 189.  
     On the other hand, Levenhagen flatly denied that he had made
the remark attributed to him by Mincey.  T. 347-348, 353
(Levenhagen).  Moreover, in response to a question by Varnadore's
counsel about Mincey's possible motive to lie about him,
Levenhagen testified that he had been involved in an
investigation which resulted in Mincey's wife being terminated by
Energy Systems for stealing.[18]   T. 353-354 (Levenhagen).
     In his decision on the merits, the ALJ expressly credited
Levenhagen's version of events:
       Despite the granting of summary judgment, Mr.
     S[la]vin was permitted to present evidence on this
     issue at the hearing . . . . Mr. Levenhag[e]n denied
     having made the statement and stated further that Mr.
     Mincey's motive for making the allegation could have
     been Mr. Levenhag[e]n's prior involvement in a company
     investigation of Mr. Mincey's wife for stealing . . .
     and her subsequent discharge from employment and Mr.
     Mincey's job demotion . . . .

       Having observed Mr. Levenhag[e]n and Mr. Mincey
     testify and having considered their testimony, I credit
     Mr. Levenhag[e]n's testimony over that of Mr. Mincey
     and reaffirm the granting of summary judgment on this
     issue.

Varnadore II R. D. and O. at 3 n.2.  The ALJ's credibility
determinations based upon demeanor are entitled to substantial
weight.  Bartlik v. Tennessee Valley Authority, Case No.
88-ERA-15, Sec. Dec. and Ord., Apr. 7, 1993, slip op. at 5 n.2,
citing NLRB v. Cutting, Inc., 701 F.2d 659, 663 (7th Cir.
1983).  In any event, Levenhagen's unrebutted testimony that
Mincey had a motive to lie about Levenhagen, together with the
evidence that Mincey thought he might be slated for layoff at the
time he chose to tell Varnadore's attorney about the alleged
remark, creates significant doubt about Mincey's credibility.  We
conclude that the ALJ correctly credited Levenhagen's testimony
that he did not make a derogatory remark about Varnadore to
Mincey and affirm the dismissal of this allegation.
[PAGE 16]
     C.  Whether the FY-92 Performance Evaluation Constituted
          Retaliatory Adverse Action. 

     Varnadore was given a rating of EA ("Extended Absence") for
FY-92.[19]   Varnadore has not alleged that rating was
retaliatory.  Varnadore II R. D. and O. at 2.  However,
Varnadore felt that the narrative in "the appraisal was
derogatory and inaccurate 
. . . ."  Id. at 7.  
     The ALJ did not explicitly find that the narrative was
retaliatory or discriminatory.  Rather, he deemed it to be
"suspect" and stated that its retention in Varnadore's personnel
file would be "unfair and prejudicial."  Varnadore II R.
D. and O. at 8.  Elsewhere in his opinion the ALJ noted that "the
validity of the . . . appraisal and the motives of Dr. Shults and
Mr. Wright in recommending a needs improvement rating are subject
to question."  Id. at 9.  Finally, the ALJ concluded that:
       It appears that the spectre of unfairness that hung
     over the appraisal was recognized by senior management.
     Its members met and decided to give an EA rating and a
     pay raise to complainant despite Mr. Wright's and Dr.
     Shults' recommendation of an NI rating and no pay
     raise.  
Id. at 10.  The ALJ recommended that Energy Systems be
ordered to  expunge the evaluation from Varnadore's personnel
record, and not take adverse action against Varnadore without
good cause shown.  Id. 
     The ALJ's analysis of Varnadore's evaluation is internally
inconsistent and logically flawed in significant ways.  Moreover,
his findings regarding the evaluation do not support his apparent
conclusion that the evaluation was retaliatory.  An appropriate
analysis of the facts leads to the conclusion that the FY-92
evaluation accurately described Varnadore's job performance, and
therefore cannot be found to have been retaliatory.  In order to
adequately address this issue it is necessary to discuss the
evaluation and the ALJ's analysis of it in some detail.
     Energy Systems has a detailed annual Performance Planning
and Review System, which is documented for each employee on a
lengthy form.  The first part of the form consists of the
Employee's Performance Review Input.  Respondents' Exhibit (RX)
1-A at 1-2.  This part is to "be completed by the employee before
the performance review--optional."  RX 1-A at 1. 
     On page 3 of the form an employee's supervisor, in
conjunction with the employee, is to list the employee's "plans
and goals for the next review period" and the means to accomplish
them.  RX 1-A at 3, 8.  These are commonly referred to as
"measures of performance," or "MOPs" at Energy Systems.[20]  

     The third part of the evaluation is the Annual Performance
Review.  That review is divided into several subparts:  
[PAGE 17]
Significant Accomplishments, in which the supervisor evaluates
the employee's performance relative to his or her MOPs; Primary
Performance Factors, in which the employee is evaluated on such
factors as quality, job knowledge, initiative, etc.;[21] 
Employee Development, in which the supervisor describes the
employee's primary strengths and areas for improvement and
suggests ways in which the employee can improve current
performance; and a Performance Summary.  RX 1-A.  These subparts
of the appraisal are not mutually exclusive.  Thus, an employee's
performance on a MOP may be reflected in more than one section of
the Performance Review.  
     Darrell Wright gave Varnadore the employee input pages of
the Performance Review form to fill out shortly after the end of
the 1992 fiscal year.  T. 208-209 (Wright).  Varnadore returned
the form to Wright in blank.  He had underlined the word
"optional" on the form, and Wright noted on it that 
"Mr. Varnadore declined to complete or sign the Employee's
Performance Review Input form when given the opportunity."[22]  
Id. at 209.  When Wright gave Varnadore his
performance appraisal on February 5, 1992, Varnadore declined
either to sign it or to discuss its contents.  T. 284, 309-313
(Varnadore); RX 1-A at 8.  Rather, Varnadore told Wright that he
"would have to take the appraisal and have [his] lawyer see it." 
T. 284 (Varnadore).
     The ALJ analyzed Varnadore's performance and his performance
appraisal in detail and concluded that, "[b]ased on the testimony
of witness[es] and the record before me, I believe that
Complainant's performance appraisal for fiscal year 1992 was a
reasonable, although not entirely accurate representation of his
job performance."[23]   Varnadore II R. D. and O. at 8. 
The ALJ also found that:
     Mr. Wright and Dr. Shults are honorable men, who tried
     to prepare an objective appraisal of complainant's
     performance for fiscal year 1992.  I believe that 
     Dr. Shults is a caring supervisor who is concerned about the
     employees under his supervision.  His concern for employees
     is demonstrated by his willingness to hire Complainant in
     1985, when complainant was about to los[e] his job with
     another division due to a lay-off, knowing that complainant
     lacked a chemistry background; by his agreement to the EA
     performance rating that complainant ultimately received and
     by his cooperation and efforts to relocate complainant to
     another job in another division in 1993.

Id. at 8-9. 
 
     In spite of these facts, however, the ALJ found that:
     [W]hatever one thinks of the appraisal, the
     circumstances that existed in the ACD between 

[PAGE 18]
     Mr. Varnadore and other ACD personnel, and in particular 
     Mr. Wright and Dr. Shults, make the validity of the
     appraisal suspect and the continuation of it in
     complainant's personnel file unfair and prejudicial.

Id. at 8.  In other words, the ALJ concluded that the
atmosphere in the ACD was "so emotionally charged" as a result of
the Varnadore I litigation that it was impossible for
Shults andWright to give Varnadore a non-retaliatory appraisal.  Id.
at 9. Thus, the ALJ concluded: 
     [T]he atmosphere that existed in ACD and the attitudes
     of the Complainant, Mr. Wright, Dr. Shults, and others
           in the company were such during fiscal year
          1992 that the validity of the resulting appraisal and
          the motives of Dr. Shults and Mr. Wright in
          recommending a needs improvement rating are subject to
          question.

 * * * *

     Despite his testimony, I do not believe that Dr. Shults
     had neutral feelings toward complainant and de[s]pite
     his best efforts, could impartially participate in and
     review complainant's performance appraisal. [sic]

                                 * * * *
                                    
     I do not believe under the circumstances, that Mr.
     Wright's attitude toward Complainant was one of
     impartiality or that he could be totally impartial in
     supervising and rating Complainant's job performance.

Id. at 9.  
     In so ruling, the ALJ focused upon the wrong concern. 
Whether it was possible for Shults and Wright to have neutral or
impartial feelings toward Varnadore is irrelevant.  The relevant
question is whether retaliatory animus in fact infected
the performance evaluation Wright and Shults gave to Varnadore
for FY-92.  If it did not, then Varnadore was not retaliated
against by being given the evaluation, no matter what Shults and
Wright may have felt about him.[24]   The ALJ erroneously applied
a strict liability standard to his review of the appraisal after
finding that the atmosphere in ACD was emotionally charged.
     The appropriate analysis to be applied to this issue has
been articulated repeatedly.  Complainants in environmental
whistleblower cases must prove, by a preponderance of the
evidence, that they were retaliated against for engaging in
protected activity.  Thus, they must prove that they engaged in 
[PAGE 19]
protected activity; the employer knew about it; and the employer
then took adverse action against them, which was motivated at
least in part by the employee's protected activity.  Dartey v.
Zack Company of Chicago, Case No. 82-ERA-2, Sec. Dec., Apr.
25, 1983, slip op. at 7-8.  See also McCuistion v. TVA,
Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 5-6;
Mackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159, 1162 (9th Cir. 1984).  In so-called 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.  Price Waterhouse v. Hopkins, 490 U.S. 228
(1989); Carroll v. U.S. Dept of Labor, 78 F.3d 352, 357
(8th Cir. 1996).
     There is no dispute here that Varnadore engaged in protected
activity and that Energy Systems was aware of it -- Varnadore
filed his environmental whistleblower complaints in Varnadore
I.[25]   The ALJ also correctly ruled that the narrative
contained in a performance appraisal may constitute adverse
action, even if the ultimate rating does not.  Bassett v.
Niagra Mohawk Power Corp., Case No. 85-ERA-34, Sec. Dec. and
Ord., Sept. 28, 1993, slip op. at 4.  Here, it is safe to
conclude that the narrative, which found that Varnadore had
failed to complete -- or in some instances even to begin -- half
of his MOPs, and which rated him as "below expectations" on seven
of eleven performance factors, was "adverse action."  Therefore,
analysis of the performance evaluation hinges upon causation: 
did Energy Systems give Varnadore a negative performance
evaluation, at least in part because of his protected activity? 
If so, it would have been incumbent upon Energy Systems to prove
that it would have given Varnadore that evaluation even if he had
not engaged in protected activity.  For the reasons discussed
below, we conclude that Varnadore failed to prove that
illegitimate motives played a part in Wright's drafting and
Shults' approval of Varnadore's FY-92 performance appraisal. 
Therefore the appraisal did not constitute retaliatory adverse
action.
     The most useful measure of whether a performance appraisal
was given out of retaliatory motive is whether it is a fair and
accurate description of an employee's job performance.[26]  
See, e.g., Abu-Hjeli v. Potomac Electric Power Co.,
Case No. 89-WPC-1, Sec. Dec. and Ord., Sept. 24, 1993, slip op.
at 14-15; Jain v. Sacramento Municipal Utility Dist., Case
No. 89-ERA-39, Sec. Dec. and Ord., Nov. 21, 1991, slip op. at 9;
Boytin v. Pennsylvania Power and Light Co., Case No. 94-
ERA-32, Sec. Dec. and Ord. of Remand, Oct. 20, 1995, slip op. at
9-10; Blake v. Hatfield Electric Co., Case No. 87-ERA-4,
Dep. Sec. Dec. and Ord. of Remand, Jan. 22, 1992, slip op. at 5-
12.  We conclude that 
[PAGE 20]
Varnadore's testimony about his performance, the uncontroverted
testimony of Wright and Shults, and the ALJ's findings,
demonstrate that the narrative in Varnadore's performance
appraisal was fair and accurate, and was not motivated by
retaliatory animus.
     Wright evaluated Varnadore on his performance of each of the
MOPs listed in the performance plan.[27]   Each of the MOPs will
be discussed in turn. 
     1. MOP 1, Generator Certification Official Training.
     In order to become a Generator Certification Official it was
necessary for Varnadore to pass at least three training
courses.[28]   The general format of the courses was to have
several hours of training followed by a written examination. 
Wright noted on Varnadore's review that Varnadore had failed two
of three training courses during the appraisal period.[29]   RX
1-A at 4.  This MOP was central to Varnadore's performance
because Energy Systems management intended to use Varnadore as a
Generator Certification Official, which would have become a major
portion of Varnadore's responsibilities.[30]   T. 149-150
(Shults).
     Varnadore did not dispute the accuracy of Wright's
evaluation of this MOP.  Rather, he attempted to explain away his
failure to complete it.  As the ALJ noted: 
     As to why [Varnadore] failed training courses, he
     stated that a majority of the students in the training
     classes were already in those jobs . . .; that he did
     not have a chemical background and was unfamiliar with
     many of the terms and chemicals identified on the exams
     . . .; that some of the students opened their books
     during the exams . . . ; that on one exam he thought he
     had used an incorrect answer sheet; that he felt it was
     unfair to expect him to train for waste generation
     certification when he had no background in chemistry.

Varnadore II R. D. and O. at 7.  The ALJ correctly
rejected these excuses for Varnadore's failure to complete the
certification training:
       I do not accept Complainant's reasons for failing the
     training exams.  His contention that he used the wrong
     answer sheet was contradicted by Mr. D. Allen White,
     who is responsible for the administrating of [sic]
     training programs and examinations, and the exams
     themselves . . . .  Mr. Allen [sic] testified that
     there were no separate answer sheets; that the answers
     were written on the exams.  Also, the fact that other
     students were already working in the jobs for which
     certification was sought or that some students used
     open books during the exams have not been shown to have
     
[PAGE 21]
     had an adverse impact on Complainant, who simply did not
     correctly answer a sufficient number of questions to pass
     the exams.

Id. at 8.  
     The bottom line was that during the appraisal period
Varnadore had failed two out of three tests necessary to become a
Generator Certification Official, and had passed the third.  As
noted by Wright in the appraisal, after the appraisal period
Varnadore retook one of the exams he had previously failed and
passed it.  Thus, Wright's evaluation of this MOP was accurate in
all respects.
     2. MOP 2, Work with ACD supervisors in order to clean
out  and organize attic storage cages as well as building        
7041.

     MOP 2 had also applied to Varnadore for two years.  In his
May 14 memorandum, Wright gave Varnadore detailed instructions
for carrying out this assignment:
     Contact supervisors or persons responsible for idle
     equipment stored in ACD storage cages 4500-S and ACD
     area of 7041.  Tell them we are getting rid of all
     items which are not reasonably calculated to be put
     into service within the next 24 months.  Anything that
     has been in storage for over 36 months will require a
     strong written justification for continuation of
     storage signed by their section head.  This is the only
     way we can rid ourselves of pack-ratitus.

RX 1-A at 10.  In the written performance review, Wright stated
that Varnadore, "[d]id not make any progress on cleaning out
storage areas."  Id. at 4.
     Varnadore did not contest the accuracy of this statement. 
Instead he tried to shift the responsibility for his failure toperform this MOP to ACD supervisors and to Wright:
     Q.  Did you make any progress in cleaning out the waste
     storage areas in Analytical Chemistry Division at Oak
     Ridge National Laboratory?

     A.  No, sir, I was not contacted by any of the people
     to ask for any assistance in it.

 * * * *
 
     JUDGE CLARKE:  Now, cleaning out the storage areas,
     what were you told to do, if anything, about cleaning
     out the storage areas by Mr. Wright?

     THE WITNESS:  Now, are we relating to the -- which 
[PAGE 22]
assignment are we talking about?  Are we talking about the attic
storage areas:

     JUDGE CLARKE:  The second MOP.  It says, "Did not make
     any progress on cleaning out storage areas."

     THE WITNESS:  That is the one that the memo was put out
     that they were supposed to mark what they wanted to
     keep, and then that I would get rid of whatever they
     had not marked.  And that hadn't been done before I
     relocated to my other job.

     JUDGE CLARKE:  So they never marked the memo pages that were
     required?

     THE WITNESS:  No.  No, sir.

T. 245-247 (Varnadore).
     On cross examination Varnadore was asked specifically about
the instruction in the May 14 memorandum that Varnadore was to
contact supervisors:
     Q.  And look at the next section entitled, "Clean out
     storage areas."

     A.  Yes, sir.

     Q.  Where it says, "Contact supervisors or persons
     responsible for idle equipment."  I take it you did not
     contact the supervisors, and you were not contacted by them?

     A.  Mr. Wright informed me that he would issue a memo
     to that effect, because he had an awful lot of trouble
     having them respond to him when he asked them.

     Q.  But in the meantime he was asking you to check with
     them periodically, was he not?

     A.  At the same time.  This was along when he told me
     about the memo that he was going to put out the first
     time.[[31] ]

T. 301 (Varnadore); see also T. 321 (Varnadore).  The ALJ
accurately distilled this testimony:
     [Varnadore] testified that he did not clean waste
     storage areas in ACD because he "was not contacted by
     any of the people to ask for any assistance in it." 
      . . . He further stated that he had not cleaned the
     storage areas because no one had marked the items to be
     
[PAGE 23]
     removed. 

R. D. and O. at 7.  However, the fact that Varnadore was not
contacted by any personnel regarding disposal of items in the
attic cages is largely irrelevant for purposes of evaluating
Varnadore's performance of this MOP:  Varnadore was instructed to
initiate contacts with ACD personnel regarding equipment in the
cages, and he acknowledged that he had not done so.  Thus,
Wright's assessment that Varnadore "did not make any progress" on
this MOP was accurate.  RX 1-A at 4.
     3.  MOP 3: Continue to provide waste disposal service to
ACD  labs.

     Wright's May 14 memorandum elaborated on this assignment:
     Please routinely check with supervisors to see if they
     have any waste which they need assistance in filling
     out or following up on the paperwork.

Id. at 10.  Wright wrote in Varnadore's performance
appraisal that Varnadore, "[t]ook no actions to aid ACD personnel
with waste disposal."  Id. at 4.  Again, Varnadore did not
quibble with the accuracy of this statement.  Instead, he
testified that supervisors had not contacted him:
     Q.  Did you take actions to help ACD personnel with
     waste disposal?

     A.  In the position that I was in, I was rather
     cautious to approach most ACD personnel.

     JUDGE CLARKE:  Well, were you instructed to approach them
     and do that job?

     THE WITNESS:  I was instructed that I was to help the
     section, yes, with those problems when they needed it.

     JUDGE CLARKE:  Well, did you wait for them to come to you? 
     Or did you go to them and tell them you were available?

     THE WITNESS:  Well, I waited for them to come to me.  There
     was a memo sent that that was one of my responsibilities.

     JUDGE CLARKE:  Was to wait?

     THE WITNESS:  No, sir.  I assumed by them being told by Mr.
     Wright, that they were aware that I was available.

 * * * *
                                    
                              
[PAGE 24]

     Q.  And then did [Wright] tell you, also, that you
     should periodically check with the supervisors to see
     if there was any waste which they needed assistance in
     filling out?  Waste documents and that sort of thing? 
     Did he tell you that?

     A.  I think probably, as I said earlier, that he had
     issued a memo, he had told me.  And in being in their
     areas, I tried to not have any more contact with any of
     the other people than I had to.  Judging by the
     reaction of some of them, I was a little bit nervous
     about it.[[32] ]

                                 * * * *

     Q. Does [Wright] not say [in the May 14 memorandum],
     "Please routinely check with supervisors to see if they
     have any waste which they need assistance in filling
     out?"

     A.  Yes, sir, that's what it says.

     Q.  But you felt that you should await the call of the
     supervisor, is that right?

     A.  Well, I felt that I should await the call.  Or
     also, any time I was in their area, their holding areas
     were always pretty well empty.

     Q.  Did you check with the supervisors?

     A.  No, sir, I don't recall discussing that with any of
     the supervisors.

T. 245-246, 299, 301 (Varnadore).     The ALJ described Varnadore's failure to contact any
supervisors in order to complete this MOP:
     [Varnadore] stated that he did not take action to help
     ACD personnel with waste disposal because he "was
     rather cautious to approach most ACD personnel." . . .
     He stated that he waited for them to come to him; that
     he did not volunteer for jobs.

Varnadore II R. D. and O. at 7.  Thus, there is no
disagreement on this issue; Varnadore did not attempt to comply
with this MOP.
     4.  MOP 4: Work with Jim Botts and Darrell Wright to     
     initiate Bar coding of chemical inventory.

[PAGE 25]

     Wright accurately stated on Varnadore's Performance Review
that "[b]ar coding of chemical inventory has been delayed by lack
of progress from HMIS organization.  Planned for FY93."  RX 1-A
at 4.  Wright testified that his comment on this MOP was to
assure "that it was clear that that wasn't [Varnadore's] problem,
that wasn't his fault that he didn't do it."  T. 212 (Wright). 
     5.  MOP 5:  Inventory ACD 2C-Series Locks at all ACD     
     facilities.

     Wright's May 14 memorandum contained detailed instructions
for the completion of this MOP.  RX 1-A at 10.  As the
performance evaluation accurately noted, Varnadore "[c]ompleted
inventory of ACD 2C-Series Locks."  Id. at 4.
     6.  Tool stores inventory.
     In the May 14 memorandum Wright added this item to
Varnadore's MOPs, together with instructions for completion of
the task.  RX 1-A at 9.  Varnadore's performance evaluation
correctly noted that he had "[c]ompleted facilitation of tool
stores inventory."  Id. at 4.
     7.  Computer inventory.
     This project was also assigned in the May 14 memorandum.  RX
1-A at 10.  In the appraisal Wright accurately noted that
Varnadore had "[a]ttempted to begin computer inventory assignment
late in the year; was delayed because of possible job change." 
Id. at 4.
     8.  90 Day Accumulation Area Training.
     This assignment was included in the May 14 memorandum.  RX
1-A at 9.  Varnadore failed to take this training, and Wright
accurately noted that fact on his evaluation.  RX 1-A at 4;
Varnadore II R. D. and O. at 6.
     In summary, Wright's description of Varnadore's significant
accomplishments in the appraisal was accurate.  Wright noted
those tasks which Varnadore had completed and also those which
Varnadore had not, and the ALJ correctly confirmed Wright's
assessment of the MOPs which Varnadore did not successfully
complete. 
     The ALJ also discussed Wright's evaluation of Varnadore
relative to the "performance factors" listed on the evaluation
form.  These factors include quality; job knowledge; initiative;
performance improvement; interpersonal skills; productivity;
attitude; environment, safety and health; attendance; ethics; and
Energy Systems values.  RX 1-A at 5.  In his testimony, Varnadore
was highly critical of the ratings and comments he received on
these factors.  As detailed below, there is ample factual basis
to support the accuracy of these ratings and comments.
     Varnadore was given a "meets" for "quality."  Wright's 
[PAGE 26]
written comment was that "[w]ork that is completed has been
correct and neat."  Id.  This was the most favorable
rating that Varnadore received in this part of his evaluation. 
As it is beyond dispute that Varnadore did not complete many of
his assignments, it is hard to question Wright's comment.  
     Varnadore was rated "below expectations" for "job
knowledge."  Wright wrote:
     Bud lacks knowledge to [sic] commensurate with his job
     level.  He was instructed to take training in waste
     generator certification this year, to improve job
     knowledge.  He failed two of three courses.  He has not
     suggested or requested additional training.

Id.  Varnadore evidently thought that this comment was
unfair:
     In job knowledge, I feel that yes, I was aware that I
     did not have the ability to do the job.  But I also
     feel that I had gone to the class; I didn't know that
     it was mandatory that I had to pass that class the
     first time that I went.  And due to no fault of mine, I
     was getting into the classes as soon as I could, and
     tried to go back through and complete the training. 
     And that hadn't been --

       So I felt like [Wright] left out that I was really
     putting an effort into trying to get the qualifications
     to be able to do that job.  And just to come out and
     say, "He lacks the knowledge."  That's a little harsh
     to me.  I think it would have been nice of him to say,
     you know, "He failed two of the three courses, but he
     has put forth an effort and tried to get back into the
     courses and pass them."[[33] ]

T. 326 (Varnadore).  Thus, Varnadore thought the wording was too
harsh.  However, Varnadore himself agreed that he did not possess
an understanding of the job, Wright accurately noted that
Varnadore had repeated one class and passed it after the close of
the evaluation period, and there is no evidence in the record
that Varnadore attempted to retake the other class.  Varnadore
failed to demonstrate that Wright's evaluation of him on this
performance factor was inaccurate or unfair in any respect.
     Varnadore was rated "below expectations" on "initiative,"
with a comment that he "[h]as shown no improvement over 90-91
rating period."  RX 1-A at 5.  In this regard, Varnadore engaged
in the following colloquy with the ALJ:
     JUDGE CLARKE:  Did you volunteer or take on any
     additional work duties, other than those Mr. Wright
     asked you to do?

[PAGE 27]

     WITNESS:  I don't really recall volunteering for any
     other jobs.  As I think I stated earlier, I was in a
     somewhat precarious position in being around some of
     the other people that had testified in the first case.  
     And I tried to keep down as much ill will toward me as
     I could.

 * * * *
                                    
     I would have thought that I would have improved [on
     initiative] considerably, under the circumstances, and
     tried to, too, and be certified as a waste generator, 
     and even feeling as strong as I did about holding that
     position.[[34] ]

     JUDGE CLARKE:  Do you think that is the initiative you
     showed in trying to get the certification for waste
     generator service?

     THE WITNESS:  I would think so, yes, sir.

     JUDGE CLARKE:  Do you think you showed initiative in
     any other ways?

     THE WITNESS:  Well, I don't really, I don't really
     know.  I'd have to think pretty hard on the situation. 
     But that's just more or less the first thing that comes
     to mind, since I have the waste generator right above,
     that I referred to.

T. 320, 326-327 (Varnadore).  Consistent with this testimony, the
ALJ found:
       In order to complete the MOPS, Complainant had to
     exhibit a degree of initiative and interact with other
     employees and supervisors.  Complainant, however, was
     nervous around some of the other employees as a result
     of the [Varnadore I] litigation . . . . He
     tended to stay in his office as much as possible, to
     keep down what he perceived as ill-will toward him by
     other employees . . . .  He did not volunteer for jobs
     . . . . He was under treatment by a doctor and a
     psychiatrist and had major sleep disorders.  While he
     had experienced problems in his personal life, he was
     depressed and angry at the way he had been treated at
     Martin Marietta for the last eight to nine years 
     . . . .

[PAGE 28]
 
       It was obvious from Complainant's testimony and that
     of other witness [sic] that he was angry, depressed and
     trying to maintain a low profile at work by staying in
     his office as much as possible and avoiding contact
     with other employees.[[35] ] 

R. D. and O. at 5.  This description of Varnadore, which is based
upon Varnadore's own testimony, is consistent with Wright's
evaluation of Varnadore's initiative.
     Wright rated Varnadore as "below expectations" on
"performance improvement" and noted that he hadn't "perceived any
effort to improve performance."  RX 1-A at 5.  Varnadore did not
contest this portion of the evaluation and the R. D. and O. does
not discuss it.  However, it is plain that the rating on this
factor was consistent with Varnadore's failure to complete four
of his MOPs.
     Varnadore was given a "below expectations" rating on
"interpersonal skills," and Wright noted that he had "received
complaints from co-workers of sarcastic attitude."  RX 1-A at 5. 
Wright and another witness testified at the hearing regarding the
origin of this comment, and the R. D. and O. referred to one
incident:
     Complainant's job dissatisfaction came to the surface
     when he took business papers to Ms. MacDougall, an
     employee in Analytical Services in ACD.  She described
     the occurrence as an encounter during which Complainant
     made derogatory remarks about ACD and Mr. Wright; which
     she immediately reported to Mr. Wright.
  
Varnadore II R. D. and O. at 5.  Moreover, Varnadore,
although he complained that Wright had not told him prior to his
evaluation about the allegation that he had been sarcastic,
admitted that he was, in fact sarcastic:
     Q.  Mr. Varnadore, have you not, in your testimony,
     previously said that you had a habit of bad-mouthing
     people?

     A.  I think that probably was in, what is it we were
     referring to, [Varnadore I]?

     Q.  Okay.

     A.  That I was somewhat vocal when I shouldn't be.

     Q.  And you were vocal about employees or managers a
     lot, were you not?

[PAGE 29]

     A.  I think probably that was said.

     Q.  Are you suggesting that you changed your habits in
     that regard?

* * * * 
                                    
     [A.]  I want to think that -- I had very little contact
     with the other employees in ACD.  After the hearing [in
     Varnadore I], I feel sure that I had very little
     contact.

T. 302-303 (Varnadore).  Varnadore was more direct in response to
the ALJ's question whether he could have made sarcastic remarks
to coworkers:  Varnadore stated that he didn't "doubt it in the
least."  T.327-328 (Varnadore).
     With regard to "productivity," Wright rated Varnadore as
between "meets expectations" and "below expectations" and
commented that Varnadore had "shown some improvement over 90-91
rating period.  Level of effort and time required to accomplish
tasks are well below expectations."  RX 1-A at 5.  The ALJ noted
that "[Varnadore] testified that he was hampered in completing
assignments by Mr. Wright's failure to send memos to supervisors
requesting their cooperation . . . ."  Varnadore II R. D.
and O. at 7.  However, it is clear from the record as well as
from the ALJ's findings that it was Varnadore's responsibility --
which he admittedly shirked -- to initiate the contacts necessary
for him to perform his MOPs.  See, e.g. Varnadore II R. D.
and O. at 5; RX 1-A at 10; T. 299-301 (Varnadore); T. 224
(Wright).
     Wright rated Varnadore as "below expectations" in "attitude"
and noted that "Mr. Varnadore exhibits a negative attitude about
his work by showing little interest or initiative in completing
assignments, successfully completing necessary training, and
taking on additional responsibility."  RX 1-A at 5.  Varnadore
testified:
     I have to wonder about the negative attitude and the
     initiative, because I asked [Wright] on two or three
     occasions about the program that he and Mr. Botts were
     supposed to help me with, and he says never did come
     about.  So I did try to inquire as much as I could, as
     I was trying to work on the other jobs that I was
     doing.  And like I say, on into each area I went into,
     I tried to observe as much as I could.

T. 329 (Varnadore).  Nothing in Varnadore's testimony supports a
conclusion that it was inaccurate to state that he had a negative

[PAGE 30]
attitude.  In fact, the ALJ found that Varnadore was "depressed,
angry, and withdrawn. . . . His attitude and feelings of
repression were not conducive to performing his job duties in a
professional and appropriate manner in ACD."  R. D. and O. at 9. 
This finding is supported by ample evidence.
     Varnadore's greatest criticism regarding his ratings on
performance factors is that he was not rated at all by Wright on
two of those factors:  environment, safety, and health; and
ethics.
     JUDGE CLARKE:  Now, can you tell me specifically where
     you disagree with Mr. Wright's appraisal?  In other
     words, what did you do that he has not recognized?

     WITNESS:  To me, I felt like it was almost flagrant by
     not filling out the blanks on ethics and environmental
     safety and health.  After spending 16 days in a hearing
     [in Varnadore I] pertaining to such issues.

T. 324-325 (Varnadore).  However, the ALJ found that Wright's
failure to rate Varnadore on these two factors was not
significant:
     Mr. Wright testified that he didn't think he had a
     basis to rate complainant in these two areas
     [environment, safety, and health, and ethics] . . . .
     Assistant ORNL director B. R. Appleton didn't think it
     was unusual to not rate an employee on all areas
     specified on the appraisal form . . . . That view was
     shared by Murray W. Rosenthal, a former Deputy Director
     at ORNL . . . . I accept their testimony and find
     that it was not unusual to omit ratings in appraisal
     categories and that the omissions complained of in this
     case were not discriminatory.  

R. D. and O. at 6 n.5 (citations omitted, emphasis supplied).  
     We concur with this conclusion.  Both Appleton and Rosenthal
testified that it was not mandatory that every factor be
evaluated for all employees.  Moreover, Wright was questioned
about this by Varnadore's counsel:
     Q.  Sir, is there a reason why, in Mr. Varnadore's 1991
     to 1992 performance appraisal, you did not rate him on
     either ethics or environment, safety and health?

     A.  As I stated in my affidavit for this case, I didn't
     feel I had a basis to make a judgment in those two
     areas.

     Q.  Why?

[PAGE 31]

     A.  I didn't feel like the jobs that I had him doing
     lended themselves to give me any basis for that.

     Q.  Do the jobs that you have him doing not involve
     environmental issues and environmental laws?

     A.  That's the jobs I would like for him to be doing,
     yes.

     Q.  Do the issues that he raised in his Department of
     Labor complaint not involve both ethics and
     environment, safety and health?

     A.  His issues do, but I don't necessarily agree with
     the issues he raised.

T. 196-197 (Wright).

     Evidence in the record in Varnadore I also supports
the ALJ's conclusion that not all performance factors are
necessarily evaluated.  Varnadore's performance appraisals
reflect that in FY-87 He was not rated on quality, performance
improvement, attitude, safety, attendance, or ethics. 
Varnadore I, EX 18-G.  In FY-90 Varnadore was not rated on
any performance factor other than attendance.  Id. at 18-
B.  And in FY-91 Varnadore was not rated on ethics or Energy
Systems values.  Varnadore I, EX 4 at 5.
     For these reasons we concur with the ALJ's conclusion that
it was not out of the ordinary, and was not discriminatory for
Wright to have failed to evaluate Varnadore on ethics and
environment, safety, and health.
     Varnadore was rated "below expectations" on attendance.  In
reaching this rating, Wright did not take into account work days
that Varnadore missed because of the Varnadore I
litigation.  Even so, Wright noted that Varnadore had been
"absent 33 days this year" when the ORNL average was 7 days.  RX
1-A at 5. Wright's rating on this factor is unassailable.[36] 
     In summary, nothing in Varnadore's FY-92 performance
evaluation is significantly out of line with Varnadore's own
assessment of his performance, or with the facts found by the
ALJ.  As the evaluation is an accurate assessment of Varnadore's
performance, we cannot conclude that it was retaliatory.  
     The ALJ stated that "whatever one thinks of the appraisal,
the circumstances that existed in the ACD between Mr. Varnadore
and other ACD personnel, and in particular Mr. Wright and Dr.
Shults, make the validity of the appraisal suspect and the 
[PAGE 32]
continuation of it in complainant's personnel file unfair and
prejudicial."  Varnadore II R. D. and O. at 8.  In fact
the opposite is true:  Whatever one thinks of the "circumstances
that existed in the ACD" vis a vis Varnadore, the
appraisal is an accurate rendition of Varnadore's job performance
in FY-92, and therefore cannot be found to have been retaliatory. 

     Of course, employees and their supervisors who are engaged
in litigation against each other -- whether it is over charges of
discrimination or a labor/management dispute -- face the
difficult challenge presented by continuing to work with each
other while the litigation is in progress.  In spite of his
litigation against Energy Systems, Varnadore was entitled to be
treated and evaluated in a non-retaliatory manner.  He was not
entitled to be treated more favorably than other employees who
were not in litigation against Energy Systems.  In short,
Varnadore had a continuing responsibility to do his job.  The
evaluation he received was both a reasonable and accurate
assessment of his performance, and as such could not have been
retaliatory.
     D.  Whether the Raise Accorded Varnadore in 1993 was     
     Retaliatory. 

     Varnadore challenged the fact that he had not received any
pay raises in several years other than the 3.7 percent pay raise
he received in 1993.  In his summary judgement decision the ALJ
ruled that issues relating to Varnadore's salary prior to 1993
already had been decided by the ALJ in Varnadore I and
were thus res judicata.  O. S. J. at 8; C. O. S. J., at 2-
3.  In his decision on the merits the ALJ found:
       Mr. Varnadore was not displeased with the 3.7 percent
     raise he received with the EA rating.  However, he
     wants raises for the preceding years with ACD during
     which he did not receive salary increases . . . . The
     3.7 percent raise was established, through the
     testimony of Fred Shull, Manager of Compensation, to be
     the norm for raises granted to employees in
     complainant's position during fiscal year 1992 . . . .
     As such it appears reasonable.

     As the 3.7 percent pay increase was not even contested by
Varnadore, and, moreover, as it is reasonable and in accord with
standard Energy Systems procedures, we concur with the ALJ's
recommendation that the pay increase not be found to be
retaliatory.  We also concur with the ALJ's conclusion that the
issues relating to Varnadore's salary prior to 1993 were
litigated and decided in Varnadore I and therefore are not
part of Varnadore II.

[PAGE 33]
     E.  Summary.
     Because there were no material facts in dispute and Energy
Systems was entitled to summary judgment as a matter of law
regarding the Shults statement and the Energy Systems press
release, summary judgment is granted in favor of Energy Systems
on these issues.  Because we adopt the ALJ's well supported
finding that Levenhagen did not make the derogatory remark about
Varnadore attributed to him by Mincey, we conclude that Varnadore
did not establish that Energy Systems engaged in adverse action
in that regard.  Varnadore failed to prove that the narrative in
his FY-92 performance evaluation was retaliatory.  He did not
contest the raise he received as a result of the rating on that
evaluation, and issues relating to previous years' salaries were
previously litigated and are foreclosed.  Therefore Varnadore's
claims regarding the performance appraisal and his salary are
denied. 
     Because Varnadore has failed to establish any of the acts of
retaliation alleged in Varnadore II, that case is
dismissed.
     II.  Varnadore III.
     Although we disagree with minor portions of the ALJ's
analysis in Varnadore III, for the reasons articulated
below, we agree with his recommendation that the case be
dismissed.  
     A.  Scope of Review.
     It is, of course, a given that ALJs' recommended decisions
under the environmental whistleblower provisions are subject to
plenary review by the Secretary of Labor or his or her delegatee. 
See n.2 above.  For that reason we address the multitude
of issues raised in the Varnadore III complaint.  However,
we note that Varnadore has chosen to discuss only three issues in
his briefs:  whether the ALJ erred in denying Varnadore an
evidentiary hearing (Varnadore III, Motion for Summary
Reversal and Complainant's Opening Brief at 4-8); whether DOE,
Secretary O'Leary, and DOE's Oak Ridge Operations Office (the DOE
Respondents) are proper party respondents in this case
(Id. at 8-13); and whether the ALJ erred in denying
discovery into the question whether Respondent Culbreth's alleged
actions in providing legal advise to Energy Systems are
unethical.  Id. at 14-16.  Thus, virtually none of the
issues raised in the complaint, some of which are capsulized in
the Background portion of this decision, are discussed in
Varnadore's briefs.  We emphasize at the outset that all of
Varnadore's claims in this case were appropriately recommended
for dismissal on at least one, and in some cases as many as
three, different grounds. 
     B.  Claims Brought Against the DOE Respondents.
     Varnadore made two major claims against the DOE
Respondents:[37]   that they retaliated against him at an April
29, 1994 "stakeholders' meeting" held at the Oak Ridge Museum of 
[PAGE 34]
Science and Energy (Complaint, ¶¶ 15-24); and that DOE
improperly reimbursed Energy Systems for fees and costs related 
to its defense of Varnadore II.  Id. at
¶¶ 3-10.
     The ALJ correctly ruled that the complaint was untimely
filed with regard to the stakeholders' meeting held on April 29,
1994, under all of the environmental whistleblower provisions
other than the ERA.  Varnadore III R. O. D. at 4-5.  The
CAA, TSCA, RCRA, and CERCLA each contain a 30 day statute of
limitations.[38]   As the stakeholders' meeting occurred more
than 30 days prior to August 2, 1994, Varnadore's complaint was
untimely filed as to events related to that meeting under all
environmental whistleblower provisions other than the ERA.
     Because the ERA as amended contains a 180 day statute of
limitations, the allegations of DOE retaliation related to the
stakeholders' meeting are timely under that statute.  42 U.S.C. 
§ 5851 (1988 and Supp. V 1993).  However, as the Secretary
has previously held, DOE is not a proper party Respondent in an
ERA whistleblower case, because the United States has not waived
DOE's sovereign immunity under that statute.  Teles v. U.S.
Department of Energy, Case No. 94-ERA-22, Sec. Dec. and Ord.,
August 7, 1995.  Therefore, Varnadore's claims relating to the
April 29, 1994 stakeholders' meeting are not actionable against
DOE under the ERA either, and are dismissed.
     Varnadore's claims against Secretary O'Leary must be
dismissed for the same reason.  In addition, claims against
Secretary O'Leary must be dismissed because she is not
Varnadore's employer within the meaning of the ERA.  The ERA as
amended prohibits retaliation by "employers" which include:
     (A) a licensee of the [Nuclear Regulatory] Commission
     or of an agreement State under section 274 of the
     Atomic Energy Act of 1954 . . .;

     (B) an applicant for a license from the Commission of
     such an agreement State;

     (C) a contractor or subcontractor of such a licensee or
     applicant;

     (D) a contractor or subcontractor of the Department of
     Energy that is indemnified by the Department under
     section 170 d. of the Atomic Energy Act of 1954 
     . . . , but such term shall not include any contractor
     or subcontractor covered by Executive Order No. 12344.

42 U.S.C. § 5851(a)(2) (1988 and Supp. V 1993).  In
Stevenson v. National Aeronautical and Space
Administration, Case No. 94-TSC-5, Sec. Dec. and Ord. of
Remand, July 3, 1995, slip op. at 3-5, 
[PAGE 35]
the Secretary of Labor held that individuals were not subject to
suit under the environmental whistleblower provisions of TSCA and
the CAA, which, like the ERA, prohibit "employers" from
retaliating against employees who engage in protected activity. 
The Stevenson rationale applies here; persons who are not
"employers" within the meaning given that word in the ERA may not
be held liable for whistleblower violations.[39]       
     The ALJ also correctly dismissed, pursuant to Rule 12(b)(6),
Fed. R. Civ. P., the claim that DOE improperly reimbursed Energy
Systems for its defense of Varnadore II.[40]  
Varnadore III R. O. D. at 7-10.  Neither the rules
governing hearings in whistleblower cases, 29 C.F.R. Part 24
(1995), nor the rules governing hearings before ALJs, 29 C.F.R.
Part 18 (1995), provide for dismissal of a complaint for failure
to state a claim upon which relief can be granted.  Therefore,
the analogous Federal Rule of Civil Procedure governs
Respondents' motion to dismiss.  29 C.F.R. § 18.1(a)(1995). 

     In considering dismissal under Rule 12(b)(6), the facts as
alleged in the complaint are taken as true, and all reasonable
inferences are made in favor of the non-moving party.  RMI
Titanium Co. v. Westinghouse Electric Corp., 1996 U.S.
App. LEXIS 5131 at *26-27 (6th Cir. 1996), citing Mortensen v.
First Federal Savings and Loan Assn., 549 F.2d 884, 890 (3d
Cir. 1977).  A dismissal under Rule 12(b)(6) "is then purely on
the legal sufficiency of the plaintiff's case:  even were
plaintiff to prove all its allegations, he or she would be unable
to prevail."  Mortensen v. First Federal Savings and Loan
Assn., 549 F.2d at 890.[41]   Varnadore here has failed to
state a claim which, even if the facts alleged are taken as true,
would entitle him to relief.       First, as the ALJ correctly
pointed out, by no stretch of the facts or the law can it be
concluded that Varnadore is DOE's employee.  See Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-324 (1992);
Reid v. Methodist Medical Center of Oak Ridge, Case No.
93-CAA-4, Sec. Dec. and Ord., Apr. 3, 1995, slip op. at 8-19;
appeal pending sub nom., Reid v. Secretary of
Labor, No. 95-3648 (6th Cir.).  Second, Varnadore has failed
to articulate how DOE's funding policies (which are contained in
DOE's contract with Energy Systems) had an adverse effect upon
the compensation, terms, conditions, or privileges of Varnadore's
employment with Energy Systems.  Third, Varnadore has failed to
claim that DOE's funding of the Varnadore II defense was
motivated by retaliatory animus.  Thus, this aspect of
Varnadore's complaint collapses of its own weight, and it is
dismissed.  See Varnadore III R. O. D. at 7-9.
     C.  Claims Brought Against M. Elizabeth Culbreth.
     The ALJ correctly held that the claims against Culbreth 
[PAGE 36]
should be dismissed for a variety of reasons.  First Varnadore
did not allege that he was Culbreth's employee.  Varnadore III
R. O. D. at 6.  Culbreth's only connection to Varnadore is
that she is alleged to have been employed by Energy Systems to
provide advise on the Varnadore cases.  See
Complaint at ¶¶ 11-12.  As an employment relationship
between the complainant and respondent is an essential element of
any claim brought under the environmental whistleblower
provisions, this cause of action must be dismissed for failure to
state a claim upon which relief can be granted.  Rule 12(b)(6),
Fed. R. Civ. P.
     In any event, the gist of Varnadore's claim against Culbreth
is that she allegedly acted in an unethical manner by advising
Energy Systems on an environmental whistleblower case which was
pending in the Department of Labor at the time she was Director
of the Department's Office of Administrative Appeals.  Even
assuming that acting as an advisor to Energy Systems (as opposed
to appearing as an attorney before the Department in a case which
had been pending during her employment) was an ethical violation,
see 29 C.F.R. § 2.2 (1995), such a claim would not be
actionable under the environmental whistleblower provisions. 
Thus, this claim is also appropriately dismissed for lack of
jurisdiction over the subject matter.  Rule 12(b)(1), Fed. R.
Civ. P.
     D.  Claims Against the Other Energy Systems
Respondents.[42] 
     The ALJ correctly dismissed all claims against the remaining
Energy Systems Respondents.  As the ALJ correctly held in
Varnadore I, and as the ALJ in this case also held, ORNL
is an unincorporated division of Energy Systems and is not a
legal entity.  Varnadore III R. O. D. at 5; Varnadore
I R. D. and O. at 83.  Thus, ORNL is dismissed as a party. 
The same holds true for several other entities named in
Varnadore's complaint:  Energy Systems Medical, Health, Health
Physics, Occurrence Reporting, Environmental Monitoring, and
Industrial Hygiene Departments.  As they are merely departments
within Energy Systems, they are not proper respondents and claims
against them are dismissed.  Finally, although Shults is a named
Respondent in this case, Varnadore does not allege that Shults
was his employer, or that Shults retaliated against him within
the period covered by the applicable statutes of limitations. 
Therefore Shults is dismissed as a Respondent.  See Varnadore
III R. O. D. at 6.  Similarly, Respondents Lockheed Martin
and Lockheed Martin Technologies are not alleged to have employed
Varnadore and are merely parent companies of Energy Systems. 
They too are dismissed as Respondents.  Id. 
     Varnadore's claims against Energy Systems fall into four
categories.  First, Varnadore alleges various retaliatory acts
committed by Energy Systems before and at the April 29, 1994
stakeholders' meeting.  Complaint at ¶¶ 23-24.  They
include 
[PAGE 37]
allegations that improprieties were committed at the meeting,
such as the claim that when Varnadore was introduced there were
"multiple, audible murmurs expressing disdain and ridicule,
including but not limited to grunts and groans" from the
audience.  Complaint at ¶ 23.  Energy Systems is also
charged with "blacklisting" Varnadore "in the form of defamatory
statements or bad references spread by phone or in writing,
including to the Secretary of Energy herself. . . ."  Complaint,
¶ 36.  Energy Systems is also alleged to have unethically
used Varnadore's company medical records in Varnadore I
and II, by, among other things providing those records to
its attorneys.  Complaint at ¶¶ 37-45.  Finally, Energy
Systems is alleged to have failed adequately to post the ERA's
environmental whistleblower provision at ORNL, apparently in
violation of 42 U.S.C. § 5851(a)(1) (1988 and Supp. V
1993).[43]   As discussed below, the ALJ correctly dismissed
these remaining claims.  Because the ALJ correctly dismissed all
Varnadore III claims, he also correctly denied Varnadore's
request to depose M. Elizabeth Culbreth and correctly denied
Varnadore a hearing on the merits.
     1.  The Stakeholders' Meeting.   
     Varnadore alleged that at the stakeholders' meeting he was
introduced in a  stigmatizing fashion (e.g., "we all know him")
by [Energy Systems] manager Will Minter, Vice Mayor of the City
of Oak Ridge . . . ."  Complaint, ¶ 24.  Second, Varnadore
alleged that when he was introduced there were "multiple audible
murmurs expressing disdain and ridicule" from the audience. 
Complaint, ¶ 23.  Third, Varnadore alleged that Secretary
O'Leary's allegedly unfriendly treatment of Varnadore at the
stakeholders' meeting was a result of Energy Systems'
"blacklisting communications."  Complaint, ¶ 35.  None of
these claims can withstand scrutiny under Rule 12(b)(6).[44]     
     Varnadore alleged almost no facts about the stakeholders'
meeting.  It appears that the meeting, which was public, was
organized by DOE, was held at the DOE owned Oak Ridge Museum of
Science and Energy, and that DOE invited Varnadore to be on the 
panel.[45]   Varnadore's claim that Minter introduced him by
saying "[w]e all know him," does not support Varnadore's
contention that he was introduced in a "stigmatizing manner." 
Given the amount of publicity that the Varnadore cases have
generated, Minter's comment was merely a statement of fact. 
Certainly nothing which even arguably had an adverse impact on
Varnadore's work environment can be read into this innocuous
remark.  Thus, Varnadore has alleged no facts from which a
reasonable person could conclude that Minter's introduction
constituted retaliatory adverse action by Energy Systems.  
     Second, Varnadore's allegation that the "murmurs and groans"
which were generated by his introduction on the panel constitute 
[PAGE 38]
retaliatory adverse action on the part of Energy Systems is
frivolous.  The alleged "murmurs and groans" came from an
audience which Varnadore asserted was made up of a "diverse group
of people" including people who were not employees at ORNL
(Complaint, ¶ 23).  The alleged murmurs and groans occurred,
not in the auditorium where the panel (with Varnadore) was
located, but in an "overflow" room where a group of approximately
200 to 250 people were watching the proceedings on television
monitors.  Complaint, ¶ 23.  Thus, Varnadore did not even
allege that he was personally subjected to these "murmurs and
groans."  In any event, Varnadore failed to allege any facts
which could lead to a conclusion that the "murmurs and groans"
contributed to a hostile work environment. 
     Third, Varnadore asserted that a remark that Secretary
O'Leary allegedly made in private to him at the April 29, 1994
meeting: 
     . . . is redolent with the smell of blacklisting
     communications directed against Mr. Varnadore by
     [Energy Systems] propagandists.
    
                                 * * * *
                                    
     The Wage-Hour Division must learn who spread to the
     Secretary and her top assistants and managers any
     disinformation, including blacklisting in the form of
     defamatory statements or bad references spread by phone
     or in writing, including to the Secretary of Energy
     herself, whose cold reaction to Mr. Varnadore betokens
     Martin Marietta's desperate propaganda efforts against
     Mr. Varnadore at the highest levels of government. 

Complaint, ¶¶ 35-36.  The ALJ concluded that: 
     General allegations, without well-pleaded facts of a
     specific discriminatory act within the limitations
     period, are not sufficient to raise the inference of
     discrimination . . . . 

       Furthermore, even assuming all facts in Count Two to
     be true, the Complaint fails to adequately express how
     such acts by [Energy Systems], such as allegedly bad-
     mouthing him to DOE officials, adversely effected the
     Complainant's compensation, terms, conditions or
     privileges of employment.

R. O. D. at 12.  Therefore, the ALJ recommended dismissal of this
claim pursuant to Rule 12(b)(6), Fed. R. Civ. P.
     The ALJ's conclusion is clearly correct.  A decision on a 
[PAGE 39]
Rule 12(b)(6) motion is "purely on the legal sufficiency of
plaintiff's case:  even were plaintiff to prove all its
allegations, he or she would be unable to prevail."  Mortensen
v. First Federal Sav. and Loan Ass'n, 549 F.2d at 891 (3d
Cir. 1977).  Pursuant to a hostile work environment analysis, it
is not enough for Varnadore to allege that Secretary O'Leary had
a negative reaction to him, and that negative reaction must have
been caused by "blacklisting communications" from Energy Systems. 
Varnadore must allege facts that show that Energy Systems made
blacklisting remarks to Secretary O'Leary which in turn 
contributed to a hostile work environment.  In the absence of any
alleged facts regarding this element of his claim, it must be
dismissed pursuant to Rule 12(b)(6).       2.  Varnadore's Medical Records.
     This allegation relates to activities which occurred during
the preparation for the Varnadore I hearing.  See
Complaint, ¶¶ 37-46.   As that hearing took place in
1992, this claim is clearly barred by the applicable statutes of
limitations, and therefore is dismissed.  Even if the claim were
timely, however, Energy Systems would be entitled to summary
decision.[46] 
     First, Varnadore failed to present any evidence that Energy
Systems' use of his medical records in Varnadore I had an
adverse effect on the terms, conditions, or privileges of his
employment.  Second, Energy Systems submitted uncontroverted
evidence to the ALJ which demonstrated that Varnadore's
allegations that Energy Systems misused medical information to
force him "to relive the death of his son and his near-death
experience with cancer under intense questioning in depositions
and at trial by counsel for Respondents" (Complaint, ¶ 37)
were not based upon fact.  See Varnadore III, Br. in
Support of Respondents' Motion to Dismiss at 11-15 and APX G. 
Varnadore made no attempt to counter this evidence.  Thus, there
are no outstanding issues of material fact regarding this claim,
and Energy Systems is entitled to summary decision as a matter of
law.
     3.  Posting of the ERA. 
     Varnadore alleged that Energy Systems had not properly
posted the whistleblower provision of the ERA as required by 42
U.S.C. § 5851(a)(i) (1988 and Supp. V 1993), which states
that "[t]he provisions of this section shall be prominently
posted in any place of employment to which this section applies." 
Varnadore III Complaint, ¶¶ 47-53.  However, Varnadore
conceded that Energy Systems has posted "the text of the statute.
. . ."  Id. at ¶ 50.  Varnadore's complaint
apparently is that Energy Systems has posted the text of the
statute "rather than explanatory material that would make it
meaningful for Oak Ridgers."  Id.  As such, Varnadore has
not stated a claim upon which relief can be granted, and the
claim is appropriately 
[PAGE 40]
dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P.
     4.  The Denial of Discovery and a Hearing on the
Merits. 
     The ALJ denied Varnadore's request to depose Culbreth. 
Because we concur with the ALJ's ruling that Culbreth was not a
proper party respondent in this case, and that the claims against
her must be dismissed, we also agree that discovery was
appropriately denied.[47]   Varnadore has also failed to
demonstrate that he is entitled to a hearing on the merits of any
of his allegations, as they were all appropriately dismissed on
one or more grounds, as set out above.[48]   
     III.  Issues Remaining in Varnadore I.
     As a result of our holdings regarding Varnadore II
and Varnadore III, the sole issue which remains to be
decided is that which was held over from Varnadore I: 
whether the Murphy incident and the incident of the posting of
the Smith memorandum created a hostile work environment for
Varnadore.  See Varnadore I D. and O. at 82-84.  The
Secretary held that in both of these instances an Energy Systems
supervisor was motivated, at least in part, by retaliatory
animus.  With regard to the Murphy incident, which occurred in
February 1992, the ALJ concluded that Murphy, a supervisor in
another Division of ORNL, discouraged his employees from having
contact with Varnadore in the halls.  Varnadore I R. D.
and O. at 80.  The Secretary concluded that "Murphy engaged in a
retaliatory act when he warned his employees not to be seen
talking with Varnadore."  Varnadore I D. and O. at
80.  
     In the posting incident in August 1992, just after the
completion of the first hearing in Varnadore I, an ACD
supervisor (Botts) posted on an ACD bulletin board a memorandum
from an ORNL employee to an Energy Systems attorney which
referred to Varnadore and his whistleblower case.  Varnadore
I D. and O. at 53-55.   The ALJ held: 
     Two sentences in that memorandum, "[t]he radiation
     phobia in the United States is just that . . . a phobia
     brought about by an over-zealous health physics
     establishment.  It's time to illuminate this unreality
     at the expense of Mr. Varnadore" is on its face
     ridicule of Complainant for pursuing this proceeding. 
     the action of Botts in posting the memorandum on a
     company bulletin board is clearly retaliatory.

Varnadore I R. D. and O. at 74.  The Secretary concluded
that:
     [T]he true reason that Botts posted the Smith
     memorandum was to retaliate against Varnadore for
     filing his whistleblower complaint . . . .

     . . . [T]here is no doubt that it was thoughtless and
     cruel of Botts to post a memorandum which made a 
[PAGE 41]
     comment on this litigation and named Varnadore.  It is
     understandable that Varnadore would have found the posting
     of the memorandum upsetting . . . . [T]he posting was a
     senseless, obnoxious, offensive act of an ACD middle
     manager.

Varnadore I D. and O. at 80-81.  We must now determine
whether these two retaliatory incidents, which did not result in
a "tangible job detriment," created a hostile work environment
and therefore constituted unlawful retaliation for Varnadore's
filing of his complaint in Varnadore I.    
     As the Secretary noted in Varnadore I, the concept of
a hostile work environment, first developed in the context of
race and sex based employment discrimination, is applicable to
whistleblower cases.  Varnadore I D. and O. at 79.  The
Supreme Court has articulated standards to be applied in hostile
work environment cases:
     . . . [W]hether an environment is "hostile" or
     "abusive" can be determined only by looking at all the
     circumstances.  These may include the frequency of the
     discriminatory conduct; its severity; whether it is
     physically threatening or humiliating, or a mere
     offensive utterance; and whether it unreasonably
     interferes with an employee's work performance.  The
     effect on the employee's psychological well-being is,
     of course, relevant to determining whether the
     plaintiff actually found the environment abusive.  But
     while psychological harm, like any other relevant
     factor, may be taken into account, no single factor is
     required. 

Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 371
(1993).  As the Secretary noted in Varnadore I, based upon
Harris the Third Circuit has articulated factors to be
weighed in a hostile work environment case, which "can be
tailored to a whistleblower retaliation claim alleging a hostile
work environment."  Varnadore I D. and O. at 80.  These
factors are:
     (1)  the plaintiff suffered intentional discrimination
     because of his or her membership in the protected
     class;

     (2)  the discrimination was pervasive and regular;

     (3)  the discrimination detrimentally affected the
     plaintiff;

     (4)  the discrimination would have detrimentally
     affected a reasonable person of the same protected 
[PAGE 42]
     class in that position; and,

     (5) the existence of respondeat superior liability.

West v. Philadelphia Electric Co., 45 F.3d 744, 753 (3d
Cir. 1995).  See Rabidue v. Osceola Ref. Co., 805 F.2d
611, 619-20 (6th Cir. 1986), cert. denied, 481 U.S. 1041
(1987); Gebers v. Commercial Data Center, Inc., 1995 U.S.
App. LEXIS 614 (6th Cir. 1995); (unpublished decision
articulating necessary factors in hostile work environment case
in light of Harris).
     In Varnadore I the Secretary concluded that Varnadore
had established the first West factor because both Murphy
and Botts had retaliated against Varnadore for filing his
Varnadore I complaint.  Varnadore I D. and O. at
80.  For the reasons that follow, we conclude that Varnadore
failed to establish other  elements of his hostile work
environment claim.
     First Varnadore failed to establish that the discrimination
which he suffered was "pervasive and regular."  Harris v.
Forklift Systems, Inc., 114 S.Ct. at 370-371; West v.
Philadelphia Electric Co., 45 F.3d at 753.  Although
Varnadore has attempted to do so through allegations that he was
retaliated against beginning in 1989 and continuing through 1993,
the Secretary has concluded in Varnadore I, and we have
concluded in this decision, that the only two actionable
incidents of retaliatory conduct are the February 1992 Murphy
incident and the August 1992 posting incident.  We cannot
conclude that these two incidents, when considered cumulatively,
were pervasive or regular. 
     The Murphy incident took place in a division other than the
one in which Varnadore worked.  See Varnadore I D. and O.
at 53.  There is no evidence that Murphy's statement to the
effect that employees should be careful not to talk to Varnadore
in the halls actually altered anyone's behavior, or that
Varnadore was even aware of Murphy's statement until months after
Murphy made the comment.[49]   Similarly, the posting of the
Smith memorandum was an isolated incident, which was not shown to
have had any significant impact upon Varnadore's working
environment, although Varnadore was understandably upset by it. 
In fact, it is not clear that the posting would have received any
attention in ACD absent the publication of a story about it in
the Oak Ridger, which was arranged by Varnadore or his
counsel.  Varnadore I, T. 3317 (Varnadore).  The Court in
Harris stated that a workplace constitutes a hostile work
environment when it is permeated with "discriminatory
intimidation, ridicule, and insult" that is "sufficiently severe
or pervasive to alter the conditions of the victim's employment
and create an abusive working environment. . . ."  Harris v.
Forklift Systems, Inc., 114 S.Ct. at 370, quoting Meritor
Savings Bank v. Vinson, 477 U.S. at 67.  However  "mere 
[PAGE 43]
utterance of an . . . epithet which engenders offensive feelings
in an employee," . . . does not sufficiently affect the
conditions of employment to implicate Title VII.'  Id.  See
Batts v. NLT Corp., 844 F.2d 331 (6th Cir. 1988) (five
isolated incidents of racial hostility over a six-year period,
which either were not brought to management's attention, or were
effectively attended to after they were, did not constitute a
hostile work environment); Davis v. Monsanto Chemical Co.,
858 F.2d 345 (6th Cir. 1988)(same).  We conclude that the two
remaining incidents of retaliation considered together were not
pervasive, severe or regular discrimination.
     Moreover, there is no testimony that the Murphy incident 
detrimentally affected Varnadore or would have detrimentally
affected a reasonable person in Varnadore's position.  Thus,
Varnadore did not satisfy the third and fourth elements of the
West test with regard to that incident.  
     The Secretary has held, in essence, that the posting of the
Smith memorandum did detrimentally affect Varnadore, and
reasonably so.  We emphasize that we fully concur with the
Secretary's characterization of the posting.  See Varnadore
I D. and O. at 80-81 (posting was "thoughtless and cruel," "a
senseless, obnoxious, offensive act of an ACD middle manager"). 
However, the factor upon which the posting incident founders is
respondeat superior.  As the Supreme Court has made clear in
Meritor Savings Bank v. Vinson, 477 U.S. at 73, employers
are not to be held absolutely liable "for the acts of their
supervisors, regardless of the circumstances of a particular
case."  The Sixth Circuit has expounded upon the relevance of
employer knowledge and action in evaluating hostile work
environment cases:   
     In a hostile working environment claim, the
     determination of whether an employer is liable for its
     supervisor's actions depends on 1) whether the
     supervisor's harassing actions were foreseeable or fell
     within the scope of his employment and 2) even if they
     were, whether the employer responded adequately and
     effectively to negate liability.

Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803
(6th Cir. 1994).  In a footnote the court emphasized that its
rule in this regard  allows for the "negation of an employer's
liability" regarding supervisors if the employer responds
"adequately and effectively" to the harassment.  . . .'  Id.
at 803 n.10.  Similarly, the Second Circuit has held that: 
     [A]n employer is liable for the discriminatorily
     abusive work environment created by a supervisor if the
     supervisor uses his actual or apparent authority to
     further the harassment, or if he was otherwise aided in
     
[PAGE 44]
     accomplishing the harassment by the existence of the agency
     relationship . . . . In contrast, where a low-level
     supervisor does not rely on his supervisory authority to
     carry out the harassment, the situation will generally be
     indistinguishable from cases in which the harassment is
     perpetrated by the plaintiff's co-workers; consequently, . .
     . the employer will not be liable unless "the employer
     either provided no reasonable avenue for complaint or knew
     of the harassment but did nothing about it."

Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.
1994).
   The ALJ in Varnadore I found that the posting of the
Smith memorandum was "almost inevitable" in light of the anti-
whistleblower environment which the ALJ found to exist at ORNL. 
R. D. and O. at 75.  The Secretary in Varnadore I, and we
here, have not adopted the Varnadore I ALJ's anti-
whistleblower environment findings.  Therefore we cannot concur
that the posting was "almost inevitable."  See Varnadore I
D. and O. at 59-73.  In any event, we conclude that ACD Director
Shults' reaction to the posting, once he was made aware of it by
an article in the local newspaper,[50]  effectively negated any
potential liability Energy Systems might have had for the
posting.
     When Shults read about the posting, he immediately called a
meeting with Botts, at which he informed Botts that the posting
was inappropriate:
     Q.  Can you relate briefly to us the substance of your
     conversation with Jim Botts?

     A.  Well, I asked him, you know, why he posted the memo
     and his reasons for doing that, and we talked about the
     significance of it, in view of the fact that there had
     been the litigation and the complaints, and I
     essentially told him that I thought that it was not
     good judgment on his part to have posted that memo.  I
     also told him that I would follow up our conversation
     with a memo.

Varnadore I, T. 3364 (Shults).  Shults then sent Botts a
memorandum on the subject:
     After reading the Smith letter and reviewing the
     sequence of events with you, I can see how the letter
     found its way to a bulletin board in Bldg. 2026.  It
     could be of interest to new employees who may have some
     uncertainty about radiation effects.  On the other
     hand, since the letter mentions Mr. Varnadore
     specifically, it should not have been posted.  Rightly 
[PAGE 45]
or wrongly, an argument can be made that posting that letter
results in a hostile working environment for him.  We want to
avoid even the perception of a hostile working environment for
him and for all other ACD people.

     Please be extra cautious in the future and avoid
     episodes like this.  The slightest event can turn into
     a major issue.

Varnadore I, Ex. 261.
     The Seventh Circuit has provided useful guidance on how to
determine whether an employer's reaction is sufficiently
effective to warrant a conclusion that it should not be held
liable for an employee's retaliatory conduct toward another
employee:
     [T]he employer's legal duty is . . . discharged if it
     takes reasonable steps to discover and rectify acts of
     sexual harassment of its employees.

       Here we add that what is reasonable depends on the
     gravity of the harassment.  Just as in conventional
     tort law a potential injurer is required to take more
     care, other things being equal, to prevent catastrophic
     accidents than to prevent minor ones, . . . so an
     employer is required to take more care, other things
     being equal, to protect its female employees from
     serious sexual harassment than to protect them from
     trivial harassment . . . .
 * * * *
                                    
     The test is reasonableness, and reasonableness, as we
     have said, depends among other things on the gravity of
     the harassment alleged.  No one would think it rational
     to spend more money investigating a traffic offense
     than a murder or to punish the traffic offender more
     heavily.    

Baskerville v. Culligan International Co., 50 F.3d 428,
431-432 (7th Cir. 1995).   
     Analysis of the posting incident in light of these
considerations leads to the conclusion that Shults' immediate
response to Botts' retaliatory act was sufficient to negate any
possible liability for Botts' actions.
     Contrary to the assertions of Varnadore's counsel, this case
is readily distinguished from Smith v. Esicorp, Inc., Case
No. 93-ERA-00016, Sec. Dec. and Ord. of Remand, Mar. 13, 1996. 
In Smith, a known whistleblower was, over a period of two
and one-
[PAGE 46]
half months, the subject of "sarcastic and derogatory" cartoons. 
Smith, slip op. at 25-26.  The cartoons, which were drawn
by a company foreman on a drawing board located in the company
lunchroom, ridiculed Smith and his whistleblowing activities. 
Smith, slip op. at 25-26.  The ALJ held that although the
cartoons were of an "abusive and harassing nature," they were not
sufficiently severe and pervasive to create a hostile work
environment.  Smith, slip op. at 24.  The Secretary
rejected this finding:
       The cartoons constitute a series or pattern of
     retaliatory jokes and comments sufficient to satisfy
     the [pervasive and regular] element of proof . . . .
     During this several month period, a pattern of overtly
     retaliatory cartoons appeared in a common workplace
     area frequented by employees and utilized by carpenter
     foremen as an office.  Dixon, who was a foreman,
     acknowledged repeatedly, "there were so many drawings."
     . . .  Morgan testified that he saw at least four or
     five different cartoons of Smith. . . . As explained by
     both Dixon and Morgan, a cartoon would remain on the
     drawing board for a period of time and then be replaced
     by another. . . .

       Numerous witnesses testified, without contradiction,
     that the cartoons were sarcastic and derogatory. . . .
     Morgan confessed that some were funny and some were
     tacky, but for the most part they were insulting to
     Smith.

Smith, slip op. at 25-26.  
     This case does not present facts remotely approaching those
of Smith.  Although the Secretary held that Botts' posting
of the Smith (no connection to Smith v. Esicorp)
memorandum was "thoughtless and cruel," and that Murphy's warning
that the employees in his section should not be seen talking to
Varnadore in the halls was retaliatory, there is no indication
that these were anything other than completely isolated incidents
-- one occurring in February, and the other in August of 1992.  
     Moreover, in stark contrast to the facts in Smith,
when Shults learned of the posting of the Smith memorandum he
held a meeting with Botts and emphasized the importance of
avoiding even the appearance of harassment.[51]   Thus, unlike
Smith, in which upper level managers knew of the repeated,
derogatory cartooning that was being done in the lunchroom, and
took no action whatsoever to remedy the situation (Smith,
slip op. at 27), here Shults took immediate action.
     Shults' action also must have been effective, for although
Varnadore has made numerous claims regarding acts of retaliation
which allegedly occurred after the Smith posting incident in
August 1992, none of them has withstood adjudicative
scrutiny.[52]    Thus, the records of these three cases reveal
two isolated retaliatory acts, one which Varnadore may not even
have known about until months later, and did not testify about
(the Murphy incident), and the other which was effectively
handled by
higher level management (the posting incident).  Based upon this
record we cannot conclude that Varnadore was subjected to a
hostile work environment as a result of the filing of his
whistleblower complaint.  
CONCLUSION
     For the reasons articulated above the three
Varnadore cases are dismissed.
     SO ORDERED.




                              _______________________
                              DAVID A. O'BRIEN




                              _______________________
                              KARL J. SANDSTROM



                              _______________________
                              JOYCE D. MILLER



[ENDNOTES]
           
[1]   Effective May 19, 1995, the name of Respondent Martin
Marietta Energy Systems, Inc., was changed to Lockheed Martin
Energy Systems, Inc.  Respondent Martin Marietta Corporation's
name was changed to Lockheed Martin Corporation.  The case
captions have been changed accordingly.

[2]   These matters were filed with the Secretary of Labor
pursuant to 29 C.F.R. § 24.6 (1995).  On January 26, 1996,
the Secretary issued a Decision in Varnadore I.  On April
17, 1996, a Secretary's Order was signed delegating jurisdiction
to issue final agency decisions under the statutes at issue here
to the newly created Administrative Review Board.  61 Fed. Reg.
19978 (May 3, 1996) (copy attached).
   
     Secretary's Order 2-96 contains a comprehensive list of the
statutes, executive order, and regulations under which the
Administrative Review Board now issues final agency decisions.  A
copy of the final procedural revisions to the regulations (61
Fed. Reg. 19982), implementing this reorganization is also
attached.

[3]   The first case, Varnadore v. Lockheed Martin Energy
Systems, Inc., Case Nos. 92-CAA-2, 92-CAA-5, and 93-CAA-1
(Varnadore I), resulted in a Secretarial Decision and
Order (Varnadore I D. and O.), which resolved most of the
issues presented, but retained jurisdiction of the case so that
two allegations of post-complaint retaliation could be considered
in light of the other Varnadore cases.  Varnadore I
D. and O., Jan. 26, 1996, slip op. at 84.  The Board has reviewed
the decision issued by the Secretary and the entire record in
these cases in rendering this Final Consolidated Decision and
Order.

[4]   Energy Systems operates ORNL under contract with DOE. 
See Varnadore I D. and O. at 5 n.6.

[5]   On August 20, 1993, Varnadore wrote to one of his new
supervisors, informing him that since transferring he had "been
very fortunate to have had the help and support of everyone [he
had] come in contact with."  Varnadore II, Respondent's
Exhibit (RX) 15.

[6]   Unlike Varnadore I, which was brought under the CAA,
TSCA, SDWA, WPCA, and CERCLA, the first complaint in Varnadore
II explicitly was brought solely under the ERA.  Complaint to
DOL Wage and Hour Division, dated June 9, 1993.  Therefore the
"CAA" docket identification is erroneous.  However,  no purpose
would be served by altering the docket designation at this late
date.

[7]   Varnadore had sought $11 million in compensatory and
exemplary relief in Varnadore I.

[8]   Levenhagen was alleged to have said that Varnadore was not
"worth a damn, never has been, never will be, and they ought to
take a gun and shoot him."  Mincey Affidavit at 1.

[9]   On May 5, 1994, the ALJ issued a Clarifying Order of
Summary Judgment (C. O. S. J.) explicitly limiting the salary
increase issue to the March 1, 1993 salary increase, and
clarifying that questions pertaining to Varnadore's salary level
based upon prior performance appraisals were res judicata
as a result of Varnadore I.

[10]   Although the ALJ had granted summary judgment regarding
the Levenhagen incident, he permitted testimony on that issue at
the evidentiary hearing.  

[11]  On June 23, 1995, the ALJ issued a Recommended Order
Awarding Attorney's Fee and Cost [sic] in this case.  On
September 11, 1995, the Secretary of Labor pursuant to 29 U.S.C. 
§ 5851(b)(2)(A) and (B) (1988 and Supp. V 1993), issued a
Preliminary Order that Energy Systems expunge Varnadore's FY-92
performance appraisal from his personnel file and pay counsel for
Varnadore $27,174.83 in attorney's fees and costs.

[12]   Elsewhere in the complaint Varnadore asserted that
Secretary O'Leary's comment to Varnadore was "redolent with the
smell of blacklisting communications . . . ."  Complaint, ¶
35.

[13]  The Secretary also stated that if he deemed it prudent he
would consider Varnadore III in conjunction with the
issues remaining in Varnadore I and those raised in
Varnadore II.  Varnadore I D. and O. at 84.

[14]  However, "[t]he evidence of the non-movant is to be
believed and all justifiable inferences are to be drawn in his
favor."  Anderson v. Liberty Lobby, 477 U.S. at 255.

[15]  Varnadore did not attend the ACD staff meeting because he
had transferred to another division.

[16]   At the hearing, Mincey testified that Levenhagen had said,
"Varnadore -- I ought to get a gun and take him out and shoot
him."  T. 177 (Mincey).

[17]   By affidavit Levenhagen denied making any such
statement. Res. Br. in Support of S.J., Case No. 94-CAA-3,
APX 11 at 2.

[18]   Mincey himself was demoted as a result of another aspect
of that investigation.  T. 353 (Levenhagen).

[19]   Darrell Wright initially rated Varnadore as NI--needs
improvement.  Shults approved of that rating but sought review
from his superiors in light of the pending Varnadore I
litigation.  Higher level Energy Systems management, in
consultation with Shults, decided to rate Varnadore as EA, even
though Varnadore had not missed enough work to qualify for that
rating under its literal terms.  T. 377 (Rosenthal); T. 461
(Bryson).  The EA rating enabled Varnadore to receive the same
salary increase as he would have received if he had been rated as
CM--"Consistently Meets."  Varnadore would not have received any
pay raise in FY-93 if he had received the NI rating for FY-92. 
See Varnadore II R. D. and O. at 7; T. 462 (Bryson).

[20]   At the time Varnadore's MOPs and other assignments were
given to him for FY-92 he made no objection to any of them. 
Consistent with Energy Systems' practice, Varnadore was given the
opportunity to review his MOPs and sign them.  Supervisor Wright
noted on the form that Varnadore "[r]efused to sign at date of
interview.  SDW 2-5-92."  RX 1-A at 8.  Varnadore also did not
object to any of the assignments which were added to his MOPs in
a May 14, 1992 memorandum.  RX 1-A at 9-11; Varnadore II
R. D. and O. at 5.  The May 14 memorandum was partially in
response to a note which Varnadore wrote to Wright on May 7:

     Even though I have been instructed by management not to
     leave my home base unless directed to do so and group
     leaders do not trust my work, any work you might have
     available I would be more than willing and happy to do. 
     Please let me know if you have anything available.

RX 1-A at 12.  Wright clarified Varnadore's misunderstanding
about the necessity to remain in his home base:

     To clarify and correct your "Home Base" assignment
     interpretation you should refer to item 5 on the
     attached copy of your Performance Plan, dated 3-6-91,
     it states that you should use your assigned space as
     your "home base" when not out working on other
     assignments.  This in no way implies that you are
     confined to that room at any time.  The intent of this
     MOP is clearly defined.  This is not different from
     "home base" assignments given to other ACD personnel.

Id. at 9.
     

[21]   In this section the employee is rated on a three-adjective
scale:  E, "consistently exceeds job expectations;" M, "meets job
expectations;" and B, "is below job expectations."  Id. 
In addition the supervisor may include comments explaining his or
her rating on a given factor.

[22]   When asked to explain why he had not filled out this
portion of the appraisal, Varnadore indicated that he felt that
his input would have had little influence in the appraisal
process.  T. 240-241 (Varnadore).  The R. D. and O. erroneously
notes that Varnadore's assumption was correct, "because Mr.
Wright testified that employee input is rarely considered in the
appraisal process."  Varnadore II R. D. and O. at 6.  The
ALJ misunderstood Wright's testimony.  Counsel was asking Wright
about the voluntary aspect of the employee input section:

     Q.  Employees at Martin Marietta Energy Systems are
     under no obligation to fill out the input form on the
     performance evaluation, is that not correct?
     
     A.  Prior to this past year, it was listed as optional. 
     It's no longer.
     
     Q.  Employees often leave it blank because their views
     are not taken into consideration, is that not true?
     
     A.  I don't think often, no.  Very rarely, as a matter
     of fact.

T. 223 (Wright).  It is evident from the context of his statement
that Wright was saying that it was rare for employees to fail
to fill out their section of the appraisal, even though it
was optional.  

[23]   The ALJ does not point out any inaccuracies in the
appraisal.  As discussed below, we do not find that there are any
of significance.

[24]   It is possible to read this portion of the R. D. and O. as
finding Shults' and Wright's claims to impartiality incredible. 
We reject this conclusion, because it is not based upon evidence,
but apparently upon the ALJ's assessment that it would not have
been humanly possible for Shults and Wright to give Varnadore an
impartial evaluation given the "atmosphere" in ACD.  Varnadore's
counsel attempted to pursue this line when he tried to question
Shults and Wright about their "brain chemistry."  See T.
138 (Shults), T. 204-206 (Wright).  The judge appropriately
terminated this inquiry.  Both Shults and Wright testified that
they evaluated Varnadore impartially.  The best test of those
statements is the performance evaluation itself, which, as we
conclude below, was both accurate and fair.    

[25]   In the Varnadore I D. and O. the Secretary did not
decide whether the hot cells incident in 1985 or Varnadore's
complaints about David Jenkins in 1989 were protected activities. 
See Varnadore I D. and O. at 12-16, 33-35.  These issues
need not be decided here either, because the filing of the
Varnadore I complaints themselves clearly constituted
protected activity.

[26]   Of course, the fact that an evaluation is not fair
or accurate does not automatically mean that it was motivated by
animus, but it would be evidence from which such animus
appropriately could be inferred:  "The fact that a court may
think that the employer misjudged the qualifications of the
[employee] does not in itself expose [the employer] to . . .
liability, although this may be probative of whether the
employer's reasons are pretexts for discrimination."  Texas
Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981).

[27]   Varnadore's plan for FY-92 listed five MOPs.  The plan was
amended by the May 14, 1992 Wright memorandum.  RX 1-A at 9-11. 
The first section of the Annual Performance Review in turn was
keyed to the MOPs as amended.  Id. at 4.  

[28]   Varnadore's MOPs for two years running had contained this
particular requirement.  T. 150 (Shults).

[29]   Wright also noted that Varnadore retook one of these
courses after the close of the FY-92 appraisal period and passed
it.  RX 1-A at 4. 

[30]   The position of Generator Certification Official for which
Varnadore was to be trained involved preparing the paperwork that
accompanies waste to certify that the waste has been properly
packaged for disposal.  T. 150 (Shults).  The position which
Shults and Wright planned to put Varnadore in evidently did not
involve dealing with medium or high levels of radioactive waste. 
T. 221 (Wright).  

[31]   Wright's memorandum stated:

       I will send a memo to all supervisors making them
     aware of your assignments prior to the start of each. 
     This will save you some grief and arguments, which is
     what I get every time I do similar assignments.  So let
     me know when you are starting a particular assignment.

RX 1-A at 10.  Varnadore evidently did not notify Wright when he
was starting a particular assignment.  It is not clear whether
Wright issued any memos to staff outlining Varnadore's
responsibilities.  See T. 246 (Varnadore).

[32]   Varnadore did not elaborate on this comment.

[33]   Varnadore did not mention that the Generator Certification
Official training requirement had been in his MOPs for two years.


[34]   This comment is in reference to Varnadore's apparent
objections to Energy Systems' plans to make him a Generator
Certification Official.  See n.30 above. 
Nothing in the record indicates that Varnadore ever voiced these
objections to his supervisors.

[35]  All of Varnadore's MOPs required him to be out of his
office.

[36]  Varnadore was also rated "below expectations" on Energy
Systems values." This factor is explained on the form as:
"Actively supports Energy Systems values through personal
commitment and modeling; inspires and promotes others to practice
values."  RX 1-A at 5.  Although the meaning of this factor is
not self-evident, Wright commented on it that Varnadore's
"[n]egative attitude and non productivity do not promote others
to practice values."  Neither Varnadore nor the ALJ took issue
with the rating on this factor.

[37]   Varnadore named, in addition to DOE, the Department of
Energy's Oak Ridge Operations Office (ORO) and DOE Secretary
Hazel O'Leary.  As ORO is merely a subdivision of DOE, it is
subsumed within DOE and cannot be held independently liable. 
See Varnadore III R. O. D. at 6.  Secretary O'Leary's
status as a Respondent is discussed below.

[38]   42 U.S.C. § 7922(b)(1) (1988)(CAA); 15 U.S.C. §
2622(b) (1988)(TSCA); 42 U.S.C. § 6971 (1988)(RCRA); 42
U.S.C. § 9610(b) (1988)(CERCLA).

[39]   The ALJ also correctly concluded that "Varnadore did not
adequately articulate how the alleged actions or omissions by
Secretary O'Leary constitute discriminatory conduct which
adversely affected the terms or conditions of his employment."
  Varnadore III R. O. D. at 11.  It is an understatement
to find that Varnadore's accusations in this regard are
frivolous.  See, e.g., Complaint at ¶¶ 16-23. 

[40]   The ALJ also ruled that this claim should be dismissed
because "DOL maintains no jurisdiction to decide claims
contesting the DOE's . . . use of funds appropriated to it by
Congress."  Varnadore III R. O. D. at 9.  That holding is
patently correct.

[41]   Varnadore argues against dismissal, citing the Secretary
of Labor's decision in Helmstetter v. Pacific Gas and Electric
Co., Case No. 91-TSC-1, Sec. Dec. and Ord. of Remand, Jan.
13, 1993, slip op. at 8.  There the Secretary held that
"[d]ismissal for failure to state a claim is disfavored,
particularly in cases which present a novel or extreme theory of
liability since it is important that new legal theories be
explored."  Helmstetter is distinguishable on the facts. 
There complainant sought to litigate a novel theory of
retaliation:  that the employer retaliatorily failed to provide
Helmstetter with information regarding hazardous substances to
which he had been exposed.  Helmstetter at 8.  It was
certainly arguable that under some asserted facts the employer's
actions could be determined to have been retaliatory under the
environmental whistleblower provisions.  Here, on the other hand,
the point is that under the  facts alleged DOE could not, as a
matter of law, be determined to be Varnadore's employer.  Even
more fatal under Rule 12(b)(6), under the facts alleged the
Department of Labor could not possibly have authority under the
environmental whistleblower provisions to evaluate DOE's
reimbursement of Energy Systems for its defense of Varnadore
II.

[42]  Included within this category are Oak Ridge National
Laboratory; Energy Systems; Lockheed Martin, Inc.; Lockheed
Martin Technologies; ORNL and Energy Systems Medical, Health,
Health Physics, Occurrence Reporting, Environmental Monitoring,
and Industrial Hygiene Departments; and Wilbur Dotrey Shults. 

[43]   The complaint also includes numerous paragraphs of
"allegations" which are virtually verbatim repetitions from
Complainant's Post Hearing Brief before the ALJ in Varnadore
II.  Compare Complaint, ¶¶ 68-90, 99-109
with Post Hearing Brief at ¶¶6-29, 61-71.  These
paragraphs contain rambling discussions of the history of the
Varnadore cases, the history of Oak Ridge, Tennessee, the
corporate structure of Lockheed Martin, and other topics.

[44]   Varnadore did not address these issues in his Response to
the motions to dismiss filed by Energy Systems and DOE.

[45]  Varnadore alleged that:

       On April 29, 1994, Energy Secretary O'Leary held a
     public session in Oak Ridge, including a luncheon and
     public "stakeholder" meeting to which Mr. Varnadore was
     invited as a guest, along with leaders of Citizens for
     Better Health, unions and other entities.  

Complaint, ¶ 15.  See also DOE's Motion to Dismiss
Mr. Varnadore's Complaint, November 23, 1994, at 4:  On
approximately April 29, 1994, Secretary O'Leary visited Oak
Ridge.  During her visit, Ms. O'Leary conducted a "stakeholders"
meeting, in which she met with various members of the public at
the Oak Ridge Museum of Science and Energy.' 

I have already dismissed Varnadore's claims against the DOE
Respondents related to this meeting.

[46]   Because Energy Systems introduced evidence in support of
its motion to dismiss this allegation, this claim is converted by
operation of Rule 12(b), Fed. R. Civ. P. to a motion for summary
decision.  See Stephenson v. National Aeronautics & Space
Administration, Case No. 94-TSC-5, Sec. Ord. of Remand,
September 28, 1995, slip op. at 4-5.

[47]   Varnadore makes no claim that deposing Culbreth could lead
to discoverable information regarding any Respondents other than
Culbreth herself.

[48]  Therefore Varnadore's Motion to Supplement the Record,
filed March 19, 1996, with its attendant request for an Order of
Remand, is denied.

[49]   Varnadore did not testify regarding the Murphy incident. 
The only testimony regarding Murphy's statement was that of
employee Freels and of Murphy himself.  Varnadore I, T.
940-958 (Freels); T. 2675-2693.

[50]   As was found in Varnadore I, D. and O. at 54, when
Varnadore found the Smith memorandum posted on an ACD bulletin
board, he:
 
     . . . copied it and supplied a copy to his attorneys 
     . . . . Within a day, Varnadore was interviewed by the
     Oak Ridger for an article about the Smith
     memorandum 
     . . . . The article was published on August 14 . . . .
     Thereafter Botts removed the memorandum from the
     bulletin board . . . .


     

[51]  Shults also testified that he had held staff meetings at
which he emphasized that harassing conduct was contrary to ACD
and Energy Systems values:

     Q.  And, what have you told [ACD employees]?

     A.  Basically that we will not tolerate retaliation in
     any form, and I encourage people to report any instance
     that they even perceive to be retaliation.

 * * * *
                                    
     Q.  Is this a meeting of all employees, not just
     supervisors?

     A.  Yes.  In general, it is attended by 125 people or
     so.  And, at that, I devoted a considerable amount of
     time at that meeting to the events of the trial, to the
     events of the panel investigation, to the Webster
     report, and wound up by making essentially a speech
     about retaliation.  At that time I indicated all of the
     various avenues that people could take if they wanted
     to report it and urged them to do that.  

Varnadore I, T. 3367 (Shults).

[52]   Thus, for example, Varnadore alleged that Shults made
retaliatory remarks regarding Varnadore at an ACD staff meeting,
Energy Systems released a retaliatory press release regarding the
Varnadore I R. D. and O., and Levenhagen made a derogatory
retaliatory remark about Varnadore to another Energy Systems
employee.  See discussion of Varnadore II, above.