Smith v. Tennessee Valley Authority, 90-ERA-12 (Sec'y Apr. 30, 1992)

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Smith v. Tennessee Valley Authority, 90-ERA-12 (Sec'y Apr. 30, 1992)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: April 30, 1992
CASE NO. 90-ERA-12

IN THE MATTER OF

JERRY D. SMITH,
COMPLAINANT,

TENNESSEE VALLEY AUTHORITY,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER OF DISMISSAL

Before me for review is the (Recommended) Decision and Order Granting Summary Judgment (R.D. and O.) of the Administrative Law Judge (ALJ) in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, 42 U.S.C. §5851 (1988) (ERA). The ALJ recommends granting summary dismissal of the complaint, on the grounds that Complainant has not raised any genuine issue of material fact concerning the alleged blacklisting by the Respondent (TVA). The ALJ specifically rejects Complainant's allegation of a per se violation of the ERA. Both parties filed briefs before the Secretary.

I agree with the ALJ's decision that Respondent's motion for summary judgment should be granted and the complaint dismissed. As the ALJ concluded, Complainant failed to establish a prima facie case of blacklisting in retaliation for protected

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conduct.¹ For purposes of clarification, I add the following discussion.

It is undisputed that TVA's General Counsel prepared and disseminated a memorandum, dated May 25, 1989, with an attached status report on ERA cases alleging retaliation by TVA. The status report contains a brief summary of 26 ERA cases brought by former and current TVA employees, including Complainant. A local newspaper article on July 26, 1989, referenced the challenged memorandum and status report.

The dispositive issues in this case are whether Complainant has sufficiently alleged adverse action by TVA, and whether a summary judgment is appropriate in this instance. The regulations at 29 C.F.R. §§18.40, 18.41 (1991), provide that a summary judgment is appropriate if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact. As Respondent's motion with supporting affidavits, was filed in accordance with the provisions of 29 C.F.R. §18.40, Complainant's response in opposition to the motion, "must set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. §18.40(c).

In this case, although Complainant was afforded an opportunity for discovery, he has failed to show that a genuine issue of material fact exists with respect to the allegation of a blacklist, such that a hearing is required. In his complaint, Complainant states "It has come to my attention from local newspaper accounts and from hearsay accounts that my name and several others are on a "blacklist" prepared by TVA." In TVA's discovery deposition of Complainant, he alleged to have suffered trauma and embarrassment from knowing that this list existed, but admitted that he had no specific evidence to support an allegation of blacklisting by TVA, other than the existence of this memorandum and status report. Tr. at 63-64, 87.

Although Complainant generally alleges that TVA's issuance of the May 25 memorandum and status report is a blacklist, no specific facts were set forth to allege adverse action against Complainant based on this memorandum and status report. Complainant has not demonstrated that TVA used this memorandum and status report for any purpose other than TVA's stated legitimate and nondiscriminatory business purposes: a communication between legal counsel and a newly appointed Senior Vice President of Nuclear Power to apprise him of the status of ERA activity, all of which was a matter of public record.

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Without further indications of specific adverse action, the existence of the memorandum and status report which contain no language or instructions detrimental to Complainant, is not sufficient to establish the requisite elements of a prima facie case. See generally Howard v. Tennessee Valley Authority, Case No. 90-ERA-24, Sec. Final Dec. and order of Dismissal, July 3, 1991, slip op. at 3-6; Doyle v. Bartlett Nuclear Services, Case No. 89-ERA-18, Sec. Dec. and order of Dismissal, May 22, 1990, slip op. at 4-6, aff'd, No. 90-7519 (11th Cir. April 2, 1992) (dismissal of complaint of blacklisting for failure to allege any discriminatory conduct by named Respondent); Doyle v. Alabama Power Company, Case No. 87-ERA-43, Sec. Final Dec. and Order, Sept. 29, 1989, slip op. at 2-3, aff'd, No. 89-7863 (11th Cir. April 2, 1992) (dismissing a claim of blacklisting for failure to allege an act of discrimination within 30 days prior to the filing of the complaint); Faulkner v. Olin Corp., Case No. 85-SWD-3, Sec. Dec., Nov. 18, 1985, slip op. at 1.

Consequently, I conclude that Complainant failed to allege sufficient facts, which if established at a trial, would support a finding that the TVA memorandum and attached status report of ERA complaints against TVA, constitutes discriminatory action or was used for a discriminatory purpose. Here, Complainant has failed to raise any genuine issue of material fact concerning whether TVA took any adverse action against him. Accordingly, TVA's motion for summary judgment is granted. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989).

Accordingly, the case is dismissed.

SO ORDERED.

Lynn Martin
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹In order to establish a prima facie case of discrimination under the ERA, a complainant must show that he engaged in protected activity of which the respondent was aware and that respondent took some adverse action against him. In addition, complainant must present evidence sufficient to at least raise an inference that the protected activity was the likely motive for the adverse action. See Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Dec. and Final Order, April 25, 1983, slip op. at 5-9. Here, it is undisputed that Complainant engaged in protected activity of which Respondent was aware.