TR. 1956.
Ms. Sweeting acknowledged that Steve Land did report to her that he was asked during an interview about what he would do if employees were bad-mouthing EG&G management. TR. 1251. Ms. Sweeting testified that she responded that the question was job-related but was not totally appropriate. TR. 1251-52. Ms. Sweeting testified that she informed Mr. Land she would ensure that the issue was addressed in EG&G's supervisor management training. TR. 1252. Ms. Sweeting testified that Mr. Land never raised a concern to her about not being hired as PAS operator. TR. 1252.
C. EG&G's Safety and Environmental Policies
Ms. Mugleston testified that she received a very negative response from EG&G regarding her safety and environmental memos. TR. 77. She testified that while management indicated her ideas were very good, management felt that the procedures at issue were open to interpretation and that her safety and environmental concerns were not valid. TR. 77. Ms. Mugleston also took issue with EG&G's attitude regarding safety versus production during the months leading up to the 2002 Salt Lake City Olympic Games. TR. 64-65. Ms. Mugleston testified that during that time, EG&G was pushing production over safety, basically offering bonuses to employees if the GB campaign were finished before the Olympics. TR. 65. Other workers, including Steve Land, Pat Vario, and Andy Harris, likewise testified that EG&G during the several months leading up to the Olympics, was pushing production over safety in order to finish its munitions processing before the Olympics started. TR. 599, 664, 844-45. According to Andy Harris, EG&G slowed down on production and prioritized safety only after the July 15, 2002 contamination incident involving Matt Glavin. TR. 845.
According to Tonya Elkington and Tim Olinger, the Army wanted EG&G to complete processing of its GB stockpiles before the Olympics, in order to reduce the risks of terrorism. TR. 1384, 1771-72. Terrorism was a concern following the events of September 11, 2001. TR. 1771-72. Mr. Olinger testified that a bonus of $750 per employee, regardless of position, was offered by the Army if the GB campaign was completed before the Olympics. TR. 1772. EG&G employs about 700 workers at TOCDF. TR. 1852. The terms of this bonus entailed not only completing the GB processing, but also having a reportable injury rate of less than 3.5, no injuries causing lost time, no confirmed agent exposure to individuals, and no confirmed agent releases to the atmosphere. TR. 1385, 1772-73. In order to prevent workers from hiding injuries that would jeopardize the bonus, anyone who was identified as not reporting an injury during that period would be ineligible for the bonus. TR. 1772-73. The GB processing ultimately was not completed prior to the Olympics. TR. 1385. Nevertheless, each employee received the $750 bonus when the GB was completed on March 17, 2002. TR. 1385.
Mr. Olinger testified that, independent of the Olympics bonus and of EG&G's base contract compensation, an award fee is available to EG&G from the Army every six months. TR. 1852-54. This award fee is based on the following formula: 35% related to safety, 30% related to environmental compliance, 20% related to technical performance, and 15% related to cost to performance. TR. 1852-53. Mr. Olinger acknowledged that non-compliances were part of the award fee, so that EG&G's award fee would be negatively affected if employees reported valid environmental violations. TR. 1853-54. Mr. Olinger was proud of TOCDF's safety record and indicated that the plant was over one million man hours without a lost time work incident. TR. 1834.
Mr. Olinger testified that TOCDF's operations are overseen by the Army's Chemical Management Agency (CMA), the successor to PMCD. TR. 1748. Mr. Olinger testified that there are always at least two CMA representatives on-site at TOCDF, and he estimates that there are 50 full-time Army employees working in the immediate vicinity of TOCDF. TR. 1748-49. Mr. Olinger testified that CMA's representatives have an office just outside the control room and that there is general interaction between EG&G employees and CMA officials. TR. 1749-50.
Mr. Olinger testified that EG&G has always encouraged its workers to bring forward any safety or environmental concerns. TR. 1750. He testified that EG&G has had programs in place for years to encourage such reporting, including a recently implemented Safety Concern and Improvement Program. TR. 1750. The Safety Concern and Improvement Program seeks to have employees document concerns, work with their supervisors on a proposed corrective action, actually implement that corrective action if it is approved, and bring the issue to closure. TR. 1750-51. Mr. Olinger testified that it is difficult for EG&G to merely receive suggestions. TR. 1751. EG&G instead is seeking specific solutions. TR. 1751-52. If the employee's concern is brought to closure, the employee is entered into a drawing for monthly incentives. TR. 1751.
Mr. Olinger testified that EG&G has a central day shift core safety committee and smaller safety committees for each of the shifts, made up of department representatives from within that shift. TR. 1752. Mr. Olinger testified that the safety committees on each crew have about 8 to 10 members, while the central day shift core crew has more. TR. 1752. Mr. Olinger testified that the safety committee is responsible for several activities, including weekly meetings to discuss the status of issues that have been raised, sending blank posters home for employees' children to make safety posters, holding drawings based on those posters, and providing feedback to the company and employees about the progress of corrective actions. TR. 1752-53. Mr. Olinger testified that employees raise issues to the safety committee, and the committee, using a database that tracks the progress of safety issues, will in turn report back to the employees about the progress of the investigation into that concern. TR. 1753. Mr. Olinger testified that he tries to resolve safety and environmental issues that have been raised by employees to the satisfaction of those employees, but that it is not always possible because there are personal preferences that may be involved. TR. 1834.
Tonya Elkington testified that there are 10 employees in the Environmental Compliance Division of EG&G's Environmental Department. TR. 1355. Ms. Elkington testified that there is one Environmental Shift Inspector per shift. TR. 1355. These inspectors have the authority to stop operations due to a noncompliance. TR. 1355. According to Ms. Elkington, the Environmental Department roams the plant, performs environmental inspections, and audits of the plant's operating record. TR. 1354. Ms. Elkington testified that the Environmental staff encourages workers to report environmental issues by taking the initiative to talk to workers and by conducting informal training sessions to make the workers aware of their responsibility to report environmental violations. TR. 1365.
Ms. Elkington testified that the Army has oversight over TOCDF, with at least one full-time worker and 10 support workers at the plant per shift. TR. 1363. EG&G is also regulated by the State of Utah, Division of Solid and Hazardous Waste (DSHW). TR. 1357. Ms. Elkington testified that there are about 10 employees from DSHW that have inspection authority at TOCDF. TR. 1362. The access of these DSHW officials is not restricted, and the officials are typically available daily around the plant to speak with EG&G employees. TR. 1362.
Ms. Elkington testified that the EG&G Environmental Department performs self-inspections at TOCDF through on-site inspections of TOCDF's various work areas, inspections of waste, double checking inspections conducted by Operations, and inspections of recordkeeping. TR. 1356. Ms. Elkington testified that these inspections are performed on a daily, weekly, monthly, quarterly, semi-annual, and annual basis. TR. 1356-57. A failure to perform the requisite inspections is reported to DSHW. TR. 1357-61. Ms. Elkington testified that the Environmental Department also compiles annual noncomplianace reports that are submitted to DSHW. TR. 1360. Ms. Elkington testified that DSHW reviews the report and typically compiles a Notice of Violation to send back to EG&G. TR. 1361. Ms. Elkington testified that on average, 90% of the violations in the Notice of Violation have been self-reported by EG&G. TR. 1361.
Ms. Elkington testified that EG&G prepares incident reports for ACAMS alarms, injuries, and unusual occurrences. TR. 1363-64. Ms. Elkington testified that the Army always gets a copy such reports and the DSHW almost always gets one, depending on the nature of the incident. TR. 1364. The incidents are investigated, and corrective actions are researched and implemented. TR. 1364. Ms. Elkington and Mr. Olinger testified that no incident to their knowledge has ever been concealed from the Army or DSHW. TR. 1364, 1380-81, 1868-69. Ms. Elkington testified as well that she was not aware of any failures of EG&G managers to report incidents internally. TR. 1491. Ms. Elkington opined that TOCDF's environmental compliance was very good, based on other facilities' regulatory history, TOCDF's self-audit program, and feedback from regulators who are very complimentary of TOCDF's process. TR. 1408.
Ms. Elkington testified that as an Environmental Inspector and as a Chief Inspector, she trained employees concerning the reporting of environmental issues. TR. 1386. Ms. Elkington testified that no employee has ever told her that he/she suffered a negative consequence because of reporting a concern. TR. 1386. Ms. Elkington testified that it is part of her job to ensure compliance with the RCRA provision against retaliation. TR. 1414. However, Ms. Elkington personally has not done any investigation to ensure that retaliation is not taking place in the workplace. TR. 1414. Ms. Elkington testified that she did not question Steve Jones, Trina Allen, Andy Harris, Brenda Mugleston, or Jeff Utley to determine whether they felt they were being retaliated against. TR. 1414-16. Ms. Elkington testified that there are no formal procedures in the Environmental office that are used routinely to determine whether or not retaliation is taking place in the workplace. TR. 1416.
Debbie Sweeting testified that EG&G informs its employees that they should report safety and environmental concerns or unfair treatment immediately to their supervisor or manager. TR. 1210-11. If the employee feels uncomfortable doing so, then the employee may report the concern or unfair treatment to the next level of management or directly to HR. TR. 1210-11. Ms. Sweeting testified that EG&G also encourages employees to contact the General Manager, the Corporate HR Department, or the Corporate General Counsel. TR. 1210. Ms. Sweeting testified that EG&G also has a hotline to its corporate offices that is anonymous and managed by EG&G's Corporate General Counsel. TR. 1211. Despite Ms. Sweeting's testimony however, Steve Land and Jeff Utley testified that they had no knowledge of any such hotline. TR. 1947, 1962.
With respect to safety and environmental concerns, Steve Wallace testified that it is essential to have employees who raise safety and environmental issues. TR. 1630. Mr. Wallace testified that he expected all employees to bring forth safety and environmental deficiencies so that the plant would operate better and accidents could be prevented. TR. 1630. Mr. Wallace testified that it is important that Ms. Mugleston raised her safety and environmental issues. TR. 1630-31. EG&G Safety Representatives Ryan Taylor and Bruce Anderson testified that employees raise environmental and safety concerns at TOCDF freely. TR. 371, 1028-30. Mr. Taylor testified that safety or environmental concerns are raised to him at least once a week. TR. 1029-30.
A report issued by the Department of Defense, Office of the Inspector General regarding the causes and effects of the July 15, 2002 chemical agent exposure incident at TOCDF indicated that TOCDF did not have a healthy safety culture, defined as a set of attitudes and attributes reflected in workers, supervisors, and managers that safety is the fundamental priority and prerequisite for doing work. CX-44, p. 8. The report found that, based on interviews by the IG's office with EG&G employees, communication between employees and supervisors was ineffective and that some employees were not comfortable raising concerns to their direct supervisors. CX-44, p. 9. A survey of 212 EG&G employees conducted as part of the IG's investigation revealed that 93% of the respondents were aware of the hazard-reporting processes at TOCDF while 7% were not; 78% of respondents did not feel that others will dismiss their concerns if they reported a safety issue or hazard while 19% did; 44% of respondents had raised a safety or hazard concern using the formal reporting system while 56% had not; 39% of respondents felt that management had adequately responded to safety or hazard concerns they raised while 17% did not; 24% of respondents indicated they would be more willing to voice concerns if they could report them to an authority outside EG&G while 71% indicated an outside authority would not make a difference; 77% of respondents indicated that management followed published hazard reporting procedures while 15% felt management did not; 88% of respondents believed that management encouraged the reporting of health and safety issues while 9% did not; 82% of respondents felt comfortable raising safety or hazard concerns to their supervisor while 17% did not; 16% of respondents indicated that they had been told in the past to fix a problem and not report it while 82% indicated that they had not; 52% of the respondents believed EG&G placed production over safety while 42% did not; and 94% of the respondents did not know of any worker being exposed to chemical agent without reporting the incident while 4% indicated they did. CX-44, p. 8.
D. Complainant's Damages
Ms. Mugleston testified that the treatment that she has received from EG&G since her 1998 settlement has greatly impacted her life in a negative way. TR. 180. Ms. Mugleston testified that EG&G laid her off from work, which caused her to make a hardship withdrawal from her 401(k) account in order to retain her home and pay medical bills. TR. 180, 266-67. Ms. Mugleston also testified that she has suffered much stress due to negative sentiments from co-workers who feel that she is going to shut down the plant and cost everybody their jobs. TR. 180-81. Ms. Mugleston testified that she has lost a large majority of her friends, both while at work and after work. TR. 181. She testified that her treatment from management has affected her stress levels greatly, causing her on several occasions to go to the emergency room due to anxiety attacks and acid reflux from the stress. TR. 181.
Ms. Mugleston testified that she was experiencing a rather stressful time in her life. TR. 211. Ms. Mugleston testified that while things had become better for her for about a year after her settlement, she began to encounter more and more workplace hardship in late 2000 and mid-2001. TR. 275. Ms. Mugleston testified that after she formulated her Ocotber 2001 memo, the hardship became even worse for her. TR. 277. Ms. Mugleston testified that she has been a bubbly person all her life, with the exception of the recent difficult years at EG&G. TR. 2017.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The following findings of fact and conclusions of law are based upon the Court's observation of the appearance and demeanor of the witnesses at the hearing and upon an analysis of the entire record, applicable regulations, statutes, case law, and arguments of the parties. Frady v. Tennessee Valley Authority , 92-ERA-19 (Sec'y, October 23, 1995) (Slip Op. at 4.). As the trier of fact, the Court may accept of reject all or any part of the evidence and rely on its own judgment to resolve factual disputes or conflicts in the evidence. Indiana Metal Products v. NLRB , 442 F.2d 46, 51 (7th Cir. 1971). To the extent that credibility determinations must be made, the Court bases its credibility findings on a review of the entire testimonial record and exhibits, with due regard for the logic of probability and the demeanor of the witnesses.
LEGAL ANALYSIS OF WHISTLEBLOWER CLAIM
The employee protection provisions of the environmental acts prohibit an employer from taking adverse employment action against an employee because the employee has engaged in protected activity. Jenkins v. United States Environmental Protection Agency , ARB No. 98-146 at 14, 1988-SWD-00002 (ARB Feb. 28, 2003). To prevail on a complaint of unlawful discrimination under these environmental retaliation statutes, a complainant first must establish a prima facie case, thus raising an inference of unlawful discrimination. Id. at 15. A complainant meets this burden by showing that (1) the employer is subject to the applicable retaliation statues, (2) that the complainant engaged in activity protected under the statutes of which the employer was aware, (3) that she suffered adverse employment action, and (4) that a nexus existed between the protected activity and the adverse action. Id.
The burden then shifts to the employer to produce evidence that it took adverse action for a legitimate, nondiscriminatory reason. Id. In the event that the employer meets this burden of production, the inference of discrimination disappears, leaving the single issue of discrimination vel non . Id. The complainant then must prove by a preponderance of the evidence that the employer intentionally discriminated. Id. The ultimate burden of persuasion rests always with the complainant. Id. To meet this burden, a complainant may prove that the legitimate reasons proffered by the employer were not the true reasons for its action, but rather were a pretext for discrimination, i.e., are unworthy of credence. Id. An adjudicator's rejection of an employer's proffered legitimate explanation for adverse action permits, rather than compels, a finding of intentional discrimination. Id. That is, it is not enough to disbelieve the employer; the factfinder must believe the complainant's explanation of intentional discrimination. Id.
I. Complainant's Protected Activity
There is no dispute that Ms. Mugleston has raised safety and environmental concerns at TOCDF, both verbally and in writing, of which EG&G management was aware. TR. 67-69, 149, 277-79, 357-58, 371-73, 542-43, 1217-19, 1270-71, 1642-43, 1718-19, 1782-83, 1839; RX-1; RX-37. Specifically, Ms. Mugleston has raised concerns about the number of workers in the MPF Cool Down area, respiratory issues in the MPF cool down area, the failure of emergency generators at the plant, contaminated tap gear, HDC waste and HDC bin change outs, SCBA backpacks, munitions unloading, ACAMS monitoring, chemical agent sampling in the airlocks, brine tank operations, constant changes to workplace procedures, LSS airhoses, the failure to follow procedures during entries, inadequate responses to waste feed cutoffs, inadequate incident reporting, inadequate waste and munitions tracking, and operations in the Cyclone area. TR. 40-51-82, 138-39, 277-297, 321-22, 342, 606-17, 676-78, 697-98, 713-14, 785-87, 846-60, 886-87, 941, 1077-88, 1380-89, 1424, 1825-26, 1840-41, 1876, 2005; RX-1; RX-37.
II. Applicability of Environmental Statutes
Both parties agree that the employee protection provisions of the Solid Waste Disposal Act, 42 U.S.C. §§ 6901 et seq. , also known as the Resource Conservation and Recovery Act (RCRA), apply in this case. The RCRA regulates the disposal of hazardous waste through a permit program run by the Environmental Protection Agency (EPA), but subject to displacement by an adequate state counterpart. U.S. Dept. of Energy v. Ohio , 503 U.S. 607, 611, 112 S.Ct 1627, 1631, 118 L.Ed. 2d 255 (1992). TOCDF has an RCRA permit from the State of Utah which regulates several items about which Ms. Mugleston has raised concerns, including chemical warfare agent releases, noncompliance reporting, ACAMS functioning, inspections of the HDC bin, testing of LSS air hoses, and automatic waste feed cutoffs. TR. 1358, 1378-79, 1400, 1406, 1427, 1432-33, 1437-38, 1441, 1490, 1498. Therefore, the Court finds that Ms. Mugleston's safety and environmental concerns do implicate the RCRA and that and her case is properly before the Court pursuant to the retaliation provisions under the RCRA.
The Court finds that the retaliation provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq. , also apply to this case. CERCLA is a broad remedial statute designed to enhance the authority of the EPA to respond effectively and promptly to toxic pollutant spills that threaten the environment and human health. B.F. Goodrich Co. v. Murtha , 958 F.2d 1192, 1197 (2nd Cir. 1992). Reporting is generally required under CERCLA of releases, other than a federally permitted release, of a "hazardous substance" from a "facility," as those terms are defined under CERCLA. 42 U.S.C. § 9603. CERCLA defines "hazardous substance" as any substance so designated by the EPA pursuant to § 9602 of CERCLA or any substance designated as hazardous in referenced sections of the Clean Air Act, Clean Water Act, RCRA, and Toxic Substances Control Act. See 42 U.S.C. §§ 9601 and 9602; B.F. Goodrich , 958 F.2d at 1199-1200. Mercury is a hazardous substance under CERCLA. See 40 C.F.R. § 302.4. In addition, EG&G is the operator of TOCDF, and TOCDF a "facility" within the meaning of CERCLA because mercury is located at TOCDF. See 42 U.S.C. §§ 9601 and 9607; TR. 55, 1403-05. Ms. Mugleston has raised concerns about the tracking of mercury at the plant and releases of mercury into the environment. TR. 56-57. Therefore, the Court finds that EG&G is subject to the employee protection provisions of CERCLA and that Ms. Mugleston has engaged in protected activity pursuant to CERCLA.
The Court finds that the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq. , also known as the Clean Water Act (CWA), does not apply in this case. The CWA prohibits discharge of any chemical warfare agent into navigable waters. 33 U.S.C. § 1311(f); Chemical Weapons Working Group, Inc. v. U.S. Dept. of the Army , 111 F.3d 1485, 1490 (10th Cir. 1997). Ms. Mugleston contends that the CWA applies in this case based on her disclosures about agent releases into the atmosphere. Specifically, Ms. Mugleston asserts that the agent releases at TOCDF into the open environment would eventually settle onto the ground, at which time rain may cause the agent contamination to run off into protected waters. The path of agent releases into the open environment suggested by Ms. Mugleston is not supported by any facts in the record and is purely speculative. Ms. Mugleston's broad construction of the phrase "discharge…into the navigable waters" under § 1311(f) would necessarily result in regulation under § 1311(f) of any air emission that might possibly result in atmospheric deposition into navigable waters. See Chemical Weapons , 111 F.3d at 1490. Such a broad applicability of the CWA was not the intent of Congress. See id. Therefore, the Court finds that Ms. Mugleston is not protected by the retaliation provisions of the CWA.
Likewise, the Court finds that the retaliation provisions of the Safe Drinking Water Act (SDWA), 42 U.S.C. §§ 300f et seq. , do not apply in this case. The SDWA was enacted to ensure that public water supply systems meet minimum national standards for the protection of public health. National Wildlife Federation v. U.S. E.P.A. , 980 F.2d 765, 768 (D.C. Cir. 1992). Although Ms. Mugleston raised concerns about chemical agent releases into the environment, there has been no evidence indicating that these releases involve the contamination of a public water system. Ms. Mugleston contends that the SDWA is implicated because agent releases at TOCDF would eventually settle onto the ground, be transported into surface and ground waters via rain runoff routes, and ultimately impact drinking water supplies. This proposition is merely conjecture and demands too board an interpretation of the reach of the SDWA. See Chemical Weapons , 111 F.3d at 1490. Therefore, the Court finds that the SDWA does not apply in this case.
The Court also finds that Ms. Mugleston is not protected by the retaliation provisions of the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601 et seq. With respect to EG&G, the TSCA is implicated through the handling of polychlorinated biphenyls (PCBs) at TOCDF. TR. 343, 609, 703, 1381, 1786, 1868; 15 U.S.C. § 2605; 40 C.F.R. Part 761. One of the munitions destroyed at TOCDF is M55 rockets. TR. 1381. These rockets are stored in shipping and firing tubes that contain PCBs. TR. 343, 609, 703, 1381, 1786, 1868. The tubes are burned in the deactivation furnace, with the waste from the deactivation furnace eventually being deposited in the HDC bin. TR. 609-10, 703-04, 1382, 1417, 1868. Ms. Mugleston raised concerns regarding findings of chemical agent in the HDC bin waste and releases of agent into the environment from the HDC bin. Ms. Mugleston asserts that the TSCA is implicated in her case because her concern that chemical agent was not adequately being destroyed in the deactivation furnace effectively disclosed to EG&G management that the deactivation furnace was also not adequately destroying PCBs as required under the TSCA.
Coverage for Ms. Mugleston's activities that otherwise qualify for protection under the TSCA is contingent on proof that (1) those activities were based on Ms. Mugleston's actual belief that EG&G was acting in violation of the TSCA and (2) that such belief was reasonable. See Melendez v. Exxon Chemicals Americas , ARB No. 96-051 at 18-19, 93-ERA-00006 (ARB July 14, 2000); see also Minard v. Nerco Delamar Co. , Case No. 92-SWD-1, pp. 7-16 (Sec'y Jan. 25, 1994). That is, Ms. Mugleston's belief that EG&G was acting in violation of the TSCA must be scrutinized under both subjective and objective standards: she must have actually believed that EG&G was not properly destroying PCBs or otherwise acting in violation of the TSCA and her belief must be reasonable for an individual in Ms. Mugleston's circumstances having her training and experience. See Melendez at 20.
After reviewing the evidence, the Court finds that Ms. Mugleston did not have a subjective belief that EG&G was acting in violation of the TSCA. The fact that PCBs and chemical warfare agent are destroyed in the same furnace, the waste from which ends up in the same bin, establishes only that Ms. Mugleston's belief would have been reasonable. Such circumstances do not establish that she had the belief in the first place. Nothing in the record indicates that Ms. Mugleston's concerns regarding the HDC bin waste or anything else involved PCBs or the TSCA. Neither her memorandums to management nor her testimony, regarding her disclosures to EG&G or otherwise, mention PCBs or the TSCA. The evidence in this case weighs in favor of finding that Ms. Mugleston's HDC bin waste concerns were related only to chemical warfare agent. The mere possibility that PCBs could also be an issue with the HDC bin waste does not legitimize an after-the-fact revision of the makeup of Ms. Mugleston's HDC bin concerns.
The Court points out that an employee's lack of knowledge of the specific requirements of the TSCA will not preclude a finding that the employee reasonably perceived that her employer was acting in violation of the TSCA. See id. However, that is not the case here. The evidence does not support a finding that Ms. Mugleston was mistaken about the TSCA or the substances regulated thereunder. Instead, the evidence supports a finding that Ms. Mugleston's concerns in connection with the HDC bin dealt only with the presence of agent and releases of agent, and did not involve and were not brought about based on PCBs or the TSCA at all. Therefore, the Court finds that Ms. Mugleston is not entitled to protection under the TSCA in this case.
III. Adverse Employment Actions and Hostile Work Environment
No employer subject to the provisions of the RCRA or CERCLA may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee's request, engaged in an activity protected under the RCRA or CERCLA. 29 C.F.R. §§ 24.1 and 24.2. An employer is deemed to have violated the RCRA or CERCLA if the employer intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against an employee because the employee has engaged in protected activity. 29 C.F.R. § 24.2.
Not every action taken by an employer that renders an employee unhappy constitutes an adverse employment action. Jenkins at 19. To be actionable, an action must constitute a "tangible employment action," for example, "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Id. ; Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 761 (1998). Obviously material adverse actions such as discharge, demotion, or loss of benefits and compensation are actionable. Jenkins at 19. Less obvious actions likewise are actionable, such as stripping an employee of job duties or altering the quality of an employee's duties, if such actions have tangible effects. Jenkins at 19.
In addition to tangible employment actions, Ms. Mugleston has alleged that she suffers from a hostile work environment as a result of her protected activities. Under a hostile work environment theory of recovery, a complainant is not required to have had economic or tangible job detriment such as that resulting from discharge, failure to hire, or demotion. Jenkins at 42. A complainant instead is required to prove: 1) she engaged in protected activity; 2) she suffered intentional harassment related to that activity; 3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive work environment; and 4) the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant. Id. Circumstances germane to gauging a work environment 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. Id. A respondent is liable for the harassing conduct of a complainant's co-workers if the employer knew, or in the exercise of reasonable care should have known of the harassment and failed to take prompt remedial action. Id.
A. Timeliness
The RCRA and CERCLA require that a complainant file a whistleblower complaint within 30 days of a discrete adverse employment action. 42 U.S.C. § 6971; 42 U.S.C. § 9610; 29 C.F.R. § 24.3; Jenkins at 12. The 30-day limitations period begins to run on the date that a complainant receives final, definitive, and unequivocal notice of an adverse employment action. Jenkins at 12. The date that an employer communicates its decision to implement such an action, rather than the date the consequences are felt, marks the occurrence of the violation. Id. A complaint alleging a hostile work environment is not time-barred if all the acts comprising the claim are part of the same practice and at least one act comes within the 30-day filing period. Id. The 30-day limitations period is not jurisdictional and is subject to modification, such as through waiver, estoppel, or equitable tolling, when fairness requires, e.g. , when a complainant receives inadequate notice of adverse action or affirmative misconduct on the part of a respondent lulls the complainant into inaction. Id.
In this case, the Court finds that Ms. Mugleston's complaint was timely filed with respect to ten alleged adverse employment matters: 1) the submission by EG&G of PDI to Ms. Mugleston's CPRP Certifying Official, 2) the April 8, 2002 reprimand given to Ms. Mugleston in connection with the hard hat incident, 3) the December 2002 or January 2003 refusal to remove the hard hat reprimand from Ms. Mugleston's personnel file, 4) the April 2002 refusal of a letter of recommendation for Ms. Mugleston, 5) Ms. Mugleston's June 2002 suspension from the keyholding list as a result of the Door 255 incident, 6) the August 2002 cancellation of Ms. Mugleston's Utilities cross-training, 7) the failure during the weeks prior to the hearing to compensate Ms. Mugleston for missed work time while she testified in an Oregon proceeding, 8) the change in Ms. Mugleston's BRA RHA duties after March 2002 when Scott Vonhatten became her lead, 9) the denial of shift turnover information after Scott Vonhatten became her lead, and 10) the ongoing statements and acts comprising Ms. Mugleston's hostile work environment claim.
Ms. Mugleston filed her retaliation complaint on March 28, 2002. TR. 116-17. EG&G provided Ms. Mugleston a copy of her personnel file on February 26, 2002, at which time Ms. Mugleston discovered that EG&G had submitted several items of PDI about her. Because Ms. Mugleston filed her retaliation complaint thirty days after February 26, 2002, her complaint is timely with respect to the issue of PDI. Likewise, Ms. Mugleston filed her complaint three days after the hard hat incident occurred and well before April 8, 2002, the date she received the hard hat reprimand. Therefore, her complaint is timely with regard to the hard hat reprimand. In addition, Ms. Mugleston's complaint was filed before EG&G's December 2002 or January 2003 refusal to remove the hard hat reprimand from her personnel file. TR. 142, 167, 1250. Therefore, the Court will evaluate her claim also on that basis.
The April 2002 refusal to write Ms. Mugleston a letter of recommendation, the June 2002 suspension of Ms. Mugleston from the keyholding list, the August 2002 cancellation of her Utilities training, the failure to compensate Ms. Mugleston for her Oregon testimony shortly before the hearing, the change in Ms. Mugleston's BRA RHA duties after March 2002, and the denial of shift turnover information after March 2002 all also occurred after or within 30 days of the filing of Ms. Mugleston's complaint. TR. 93-97, 110-11, 115, 628-29, 166, 413-15, 724, 744, 1254, 1677-79. As such, the Court will consider these incidents in evaluating Ms. Mugleston's claim. Ms. Mugleston also alleged that she was subject to a hostile work environment based on a continual sentiment at TOCDF by managers and employees that she was causing problems because she raised safety and environmental concerns. These allegedly discriminatory statements and actions continued through the time Ms. Mugleston filed her complaint, and therefore the Court also finds that Ms. Mugleston's complaint is timely with respect to her hostile work environment claim.
Ms. Mugleston asserts that her complaint is timely also with respect to a merit pay increase that she was not given upon being rehired as a BRA RHA operator after her layoff. TR. 99-100. The Court does not agree. Ms. Mugleston was re-hired as a BRA RHA Operator on October 8, 1999. TR. 257-58, 442-43; RX-33. Therefore, the original act of not giving Ms. Mugleston the merit increase took place over two years prior to the filing of her complaint. In October 2001, Ms. Mugleston raised the issue of this merit increase with EG&G, particularly Debbie Sweetie, by requesting that she be given the increase with back pay. TR. 100, 551-52, 1212-13. Ms. Sweetie informed Ms. Mugleston that EG&G was denying her request for a retroactive merit increase during a meeting on November 27, 2001. TR. 1220. Ms. Mugleston's March 28, 2002 complaint was filed about four months after this November 27, 2001 denial, and therefore her complaint is not timely with respect to the November 27, 2001 denial.
Ms. Mugleston asserts that her complaint is timely in relation to the merit increase because EG&G granted another employee, Scott Monsen, a retroactive pay raise in November 2002, well after Ms. Mugleston had filed her complaint. Ms. Mugleston asserts that Scott Monsen's retroactive raise constitutes ongoing adverse employment action toward her with respect to the merit increase. The Court finds no merit in her assertion. First, Ms. Mugleston's merit increase and Scott Monsen's merit increase are separate, unrelated actions. There is no evidence that one raise was exclusive to the other; the fact that Scott Monsen received a retroactive merit raise did not prohibit or prevent Ms. Mugleston from also receiving her merit increase, and vice versa. In addition, there is no evidence indicating that Ms. Mugleston's merit increase issue was even still under consideration by EG&G when EG&G decided to grant Scott Monsen his retroactive pay raise, so that in some way EG&G's award of the merit raise to Scott Monsen might reflect a renewal of its decision to reject Ms. Mugleston's raise. The fact that EG&G granted another employee a retroactive merit increase does not change that Ms. Mugleston was denied her request over 30 days before she filed her March 28, 2002 complaint. The fact that EG&G granted another employee a retroactive merit raise is not itself adverse to Ms. Mugleston's employment status.
B. PDI
The Court finds that EG&G's submission of PDI regarding Ms. Mugleston does not constitute an adverse employment action. Robert Rothenberg, the Army's Certifying Official for Ms. Mugleston in connection to the CPRP, explained that the Army maintains a Chemical Surety Program, whose purpose is to ensure that people who work in positions that have access to chemical materials or weapons meet high standards of reliability. TR. 1094. PDI is information sent by an employer to notify the Certifying Official of any information that might reflect on an employee's reliability or ability to perform his/her duties in relation to the CPRP. TR. 1094-95. PDI is not necessarily negative information, but is any information reflecting on a change in a person's status. TR. 1095. The most common information comprising PDI is medical information, such as injuries, illnesses, or medication. TR. 1095.
The Certifying Official—and not EG&G—makes the decision if the PDI that is sent is disqualifying information. TR. 1096. Robert Rothenberg explained that he evaluates the PDI and puts the PDI in the shredder if the PDI has no bearing. TR. 1096-97. If PDI surfaces that the Certifying Official believes makes the employee's reliability questionable, then the employee is temporarily disqualified from the CPRP program. TR. 1101. The incident giving rise to the PDI is then investigated by the Certifying Official. TR. 1102. Based on the results of the investigation, the Certifying Official makes a determination either to remove the temporary disqualification and return the employee to the CPRP, or to permanently disqualify the individual. TR. 1102.
If the individual is permanently disqualified, then EG&G management and the individual are notified. TR. 1102. The individual is then given five days to respond to the charges for the permanent disqualification. TR. 1102-03. Based on this appeal, the Certifying Official may then elect to remove the disqualification and put the individual back in the program, or to continue with the permanent disqualification action. TR. 1103. If the permanent disqualification is upheld, then all the information related to that disqualification goes to the reviewing official, who will then either sustain or overturn the Certifying Official's decision. TR. 1103. EG&G is shut out of the decision-making process regarding an employee's CPRP status, except by submitting PDI. TR. 1124.
The transmission of PDI to a Certifying Official is not an unusual occurrence. Mr. Rothenberg oversees about 135 to 140 employees as a Certifying Official. TR. 160, 1094. Mr. Rothenberg explained that his general guidance for PDI is if there is uncertainty as to whether the information is PDI, then the sender should err on the side of disclosure and send the information as PDI to the Certifying Official. TR. 1096-97, 1126. With his 135 to 140 employees, Mr. Rothenberg receives about two items of PDI daily. TR. 1095. Mr. Rothenberg testified that he sometimes receives stacks of PDI, especially during the period of performance appraisals. TR. 1096.
Given the foregoing, the submission of PDI in and of itself does not affect Ms. Mugleston's employment status. In fact, PDI is commonly disclosed and is not even negative information necessarily, but also includes medical and familial information. Without an affirmative decision by the Certifying Official to act on the PDI, the PDI ends up in the shredder. Because the Certifying Official is the decision maker regarding any employment action based on PDI, and because the Certifying Official is an employee of the U.S. Army rather than EG&G, the Court finds that EG&G is not taking adverse employment action against Ms. Mugleston when it submits PDI about her. EG&G simply does not have the power to affect Ms. Mugleston's employment status through PDI—that power belongs to the Certifying Official and other non-EG&G officials. EG&G's submission of PDI is merely an act of disclosure. Therefore, the Court finds that EG&G's submission of PDI regarding Ms. Mugleston is not adverse employment action.
The Court's finding does not mean that EG&G is free to submit PDI regarding Ms. Mugleston without discretion. As with all employment dealings, EG&G still must not submit PDI in a discrimatory manner. EG&G is not allowed to single out Ms. Mugleston or otherwise treat Ms. Mugleston unfairly with respect to the submission of PDI. Therefore, the Court will evaluate EG&G's submission of PDI regarding Ms. Mugleston on the basis of whether the process has been discriminatory compared to EG&G's submission of PDI regarding other employees.
C. Other "Tangible" Adverse Employment Actions
The Court finds that the hard hat reprimand issued to Ms. Mugleston on April 8, 2002 does constitute an adverse employment action. The reprimand was placed for one year into Ms. Mugleston'a main personnel file, which was viewable by managers, and prevented Ms. Mugleston from being considered for one year for position openings at EG&G. TR. 1248-49, 1255-56, 1325, 1329-30. Likewise, EG&G's December 2002 or January 2003 denial of Ms. Mugleston's request for removal of the hard hat reprimand constituted an adverse employment action because it maintained Ms. Mugleston's prohibition from consideration for new jobs. EG&G's April 2002 refusal of a letter of recommendation for Ms. Mugleston also harmed her chances of being hired for a new job at EG&G. The Court therefore finds that the letter of recommendation incident is another item of adverse employment action.
In June 2002, Ms. Mugleston was suspended from the keyholding list as a result of the Door 255 incident. Because this action stripped Ms. Mugleston of a job duty, the Court finds that it was an adverse employment action. The August 2002 cancellation of Ms. Mugleston's Utilities cross-training was also an adverse employment action because it was detrimental to Ms. Mugleston's advancement as an EG&G employee and to her chances of being hired in a new position. In addition, the failure during the weeks prior to the hearing to compensate Ms. Mugleston for work time missed while she testified in an Oregon proceeding was also an adverse employment action because it negatively affected Ms. Mugleston's compensation. The changes in Ms. Mugleston's BRA RHA duties and the denial to her of shift turnover information after March 2002 when Scott Vonhatten became her lead, were adverse employment actions because they diminished the quality and value of her position.
IV. Prima Facie Causal Connection Between Protected Activity and Adverse Actions
For the purposes of establishing a prima facie case of retaliation, the Court will assume Ms. Mugleston has established the requisite preliminary causal connection between her protected activity and the adverse actions taken against her. Because the Court finds that EG&G has submitted evidence sufficient to establish that the adverse actions taken against Ms. Mugleston were done for legitimate, nondiscriminatory reasons, and because the Court finds that Ms. Mugleston has not succeeded in demonstrating that these legitimate nondiscriminatory reasons were merely pretexts for retaliation, the issue of whether Ms. Mugleston has established the requisite causal connection is not critical to the analysis.
V. EG&G's Legitimate, Nondiscriminatory Explanations for the Adverse Actions Taken Against Ms. Mugleston
A. The Hard Hat Reprimand
With respect to Ms. Mugleston's April 8, 2002 hard hat reprimand, EG&G contends that Ms. Mugleston was given the reprimand because she in fact did not put on her hard hat after being reminded to do so, in violation of EG&G's safety procedures and policies. Ryan Taylor and Bruce Anderson, the two EG&G Safety Representatives involved, as well as Jason Wright, who also received a reprimand due to the hard hat incident, all testified that Ms. Mugleston was reminded by Ryan Taylor to put on her hard hat and that she refused to do so, stating she had a meeting to attend that night and did not want to mess up her hair. TR. 351-53, 367-68, 374, 399-400, 405, 923-24, 1021-22.
The testimony of Ryan Taylor, Bruce Anderson, and Jason Wright were generally consistent as to what took place in the hard hat incident. Mr. Anderson and Mr. Taylor testified that they were leaving TOCDF to go home when they encountered several people who were coming into the facility. TR. 363, 366-67, 378, 380-81, 1019-20. Mr. Anderson and Mr. Taylor testified that they told these people that they needed to wear their hard hats. TR. 378-79, 1019-20. As Mr. Anderson and Mr. Taylor proceeded onward to the exit of the facility, they encountered Jason Wright. TR. 363, 366-67, 380-81, 1021. Mr. Anderson, Mr. Taylor, and Mr. Wright testified that Mr. Wright was not wearing his hard hat and that Ryan Taylor told Mr. Wright to put on his hard hat. TR. 363-64, 366-67, 922-23, 1021. Mr. Wright indicated that he would put his hard hat after passing the entry gate, but ultimately did not do so. TR. 367, 922.
Mr. Anderson, Mr. Taylor, and Mr. Wright testified that after the encounter with Mr. Wright, Mr. Anderson and Mr. Taylor encountered Ms. Mugleston and Jeff Utley, who were also leaving the facility and who had walked up behind them. TR. 367, 380-81, 399-400, 923-24, 1021. Mr. Anderson testified that Ms. Mugleston was in the area where she was supposed to wear a hard hat. TR. 405, 929. Mr. Anderson, Mr. Taylor, and Mr. Wright testified that Ms. Mugleston was not wearing her hard hat and that Ryan Taylor told her that she needed to wear her hard hat too. TR. 352-53, 367, 399-400, 923, 1021-22. Mr. Anderson, Mr. Taylor, and Mr. Wright testified that Ms. Mugleston responded that she would not put on her hard hat because she had a meeting to attend and did not want to mess her hair up. TR. 352-53, 368, 405, 924, 1021-22. Mr. Anderson and Mr. Taylor testified that Ms. Mugleston then commented that she thought the hard hat requirement was going to be lifted. TR. 368, 1022. Ms. Mugleston did not put on her hard hat. TR. 1022. Given the foregoing account of the hard hat incident, the Court finds that EG&G has produced evidence that it issued the hard hat reprimand to Ms. Mugleston for a legitimate nondiscriminatory reason: Ms. Mugleston violated safety procedures when she refused to put on her hard hat after being reminded to do so.
B. Late 2002/Early 2003 Refusal to Remove the Hard Hat Reprimand
Debbie Sweeting testified that she denied Ms. Mugleston's late 2002 or early 2003 request to have her hard hat reprimand removed from her file because it was EG&G's practice to maintain a disciplinary action in an employee's main personnel file for one year, during which time the employee was barred from consideration for open positions at EG&G. TR. 1250-51, 1255-56, 1329-30. With respect to Ms. Mugleston's assertion that Dennis Cook was granted an exception to this rule, Ms. Sweeting acknowledged that Dennis Cook was transferred from BRA RHA operator to PAS operator in 2002 despite having a disciplinary action in his main file. TR. 1249. Ms. Sweeting explained that at the time of the PAS operator opening, EG&G was attempting to fulfill an Army directive, resulting from budget negotiations in September 2002, to lay off 12 BRA RHA employees. TR. 1239-41, 1249, 1982. Ms. Sweeting testified that EG&G sought to place the 12 employees in other positions rather than laying them off. TR. 1249, 1982. Ms. Sweeting testified that Dennis Cook was found to be a certified PAS operator, and his transfer was approved by James Colburn, the General Manager at the time, based on the business need of preventing the layoff of BRA RHA operators. TR. 1249-50. Ms. Sweeting testified that Dennis Cook's discipline was still valid until its one year was up, despite Mr. Cook's position transfer. TR. 1250. The Court finds that Ms. Sweeting's explanation is evidence sufficient to establish that EG&G denied Ms. Mugleston's reprimand request for legitimate, nondiscriminatory reasons.
B. Refusal to Write Letter of Recommendation
Ms. Mugleston testified that in April 2002, she sought a letter of recommendation from Cliff Shaw, who was the senior control room operator at the time. TR. 100, 162. According to Ms. Mugleston, Mr. Shaw indicated that she had done an excellent job and that he would have no problem writing a letter of recommendation for her. TR. 100. Ms. Mugleston testified that Debbie Sweeting thereafter advised Mr. Shaw not to write the letter of recommendation and that Mr. Shaw consequently did not write the letter. TR. 101.
With respect to the letter of recommendation issue, Ms. Sweeting provided a credible account of EG&G's standard practice regarding writing letters of recommendation. If a reference letter is for internal purposes and is based on a specific incident, in which the employee went above and beyond his/her duties, then it is encouraged by EG&G that managers submit such reference letters to the personnel file. TR. 564-65. However, if the reference letter is internal but is based only on general good work, then a reference letter is not encouraged. TR. 564-65. If the reference letter is for non-EG&G employees, then it is company policy for those instances to be referred to the HR department. TR. 564-65. Given that EG&G's standard practice was to discourage internal letters of recommendation, except if the letter was about a specific incident, Debbie Sweeting's testimony establishes that Ms. Mugleston's request for a letter of recommendation was refused for legitimate, nondiscriminatory reasons.
B. Suspension from Keyholding List After Door 255 Incident
Ms. Mugleston testified that she and Jeff Utley were carrying keys the night of the Door 255 incident. TR. 94. They were called to unlock Door 255 for an entry. TR. 94. After turning over the door to the entrants, Ms. Mugleston and Mr. Utley left to go unlock another door that they had been called to at the time. TR. 96. Ms. Mugleston testified that the entrants thereafter proceeded into the toxic area without waiting for the entrants' door guards. TR. 96. As a result, there was nobody guarding the door during the time of the entry to prevent any unauthorized access into the toxic area. TR. 96. This discrepancy was noticed by Steve Bracken, of the Environmental Department. TR. 96-97. An investigation was thereafter performed, during which time Ms. Mugleston was restricted from keyholding duties. TR. 97.
Tim Kutz outlined legitimate, nondiscriminatory reasons for Ms. Mugleston's suspension from the keyholding list. Mr. Kutz testified that after being informed of the Door 255 incident, Mr. Kutz in turn removed the key users, namely Ms. Mugleston and Mr. Utley, from the key list until the investigation was completed. TR. 408-09. Mr. Kutz testified that in order to sort out the Door 255 incident, Mr. Kutz had discussions with several keyholders to ensure that they were clear about the proper procedure for turning doors over to door guards. Mr. Kutz recalled that Ms. Mugleston and Mr. Utley were reinstated on the key list the next time a new key list was formulated. TR. 415. The Court finds that Ms. Mugleston and Mr. Utley's removal from the keyholding list while the Door 255 incident was being settled was a reasonable, legitimate course of action on the part of EG&G. Mr. Kutz's testimony that Ms. Mugleston and Mr. Utley were suspended from keyholding duties because they were part of an investigation into the Door 255 incident is evidence sufficient to establish that their suspension took place for legitimate, nondiscriminatory reasons.
B. Cancellation of Utilities Cross-Training
The Court finds that EG&G has produced evidence that Ms. Mugleston's Utilities cross-training was cancelled for legitimate, nondiscriminatory reasons. Scott Vonhatten testified that after becoming the BRA RHA lead in March 2002, he arranged with management the approval for BRA RHA operators to cross-train in the PAS. TR. 1672. Mr. Vonhatten arranged this training through Tim Olinger, who approved the PAS cross-training on the condition that it did not affect the BRA RHA operation and would not entail overtime. TR. 1676-77, 1712-13. Mr. Vonhatten testified that there was also some discussion about Utilities training, but that such training would occur only after the PAS training and certification were completed. TR. 1673. Mr. Vonhatten testified that Ms. Mugleston participated in the PAS cross-training but did not complete the training to certification. TR. 1675-76.
Mr. Vonhatten learned in mid-August 2002, that Ms. Mugleston had signed herself up for Utilities cross-training. TR. 1677-79. Mr. Vonhatten testified that in a heated discussion, he told Ms. Mugleston she was not to sign herself up for the Utilities training and admonished her that they had discussed that PAS certifications would be completed prior to even looking into doing Utilities training. TR. 1680, 1709-11. Tim Olinger testified that Ms. Mugleston's cross-training in Utilities was cancelled because she had signed up for the training on her own before completing the certification process for the PAS system. TR. 1831. Tim Olinger testified that when he came to TOCDF in 2001 as Operations Manager, there were many workers who scheduled their own training, including trips to the east coast to the central demilitarization facility. TR. 1830. Mr. Olinger testified that in order to gain control of when and where workers would go for cross-training, he indicated to the Training Department that he would approve and control all cross-training. TR. 1830. Mr. Olinger testified that he encouraged cross-training, but wanted certifications to show for it. The Court finds that the testimony of Scott Vonhatten and Tim Olinger establishes that EG&G had legitimate, nondiscriminatory reasons for cancelling Ms. Mugleston's Utilities cross-training, namely that Ms. Mugleston's Utilities training conflicted with the PAS training that had been arranged and with EG&G's overtime policy regarding cross-training.
B. Compensation for Oregon Testimony
Ms. Mugleston also asserted that she was not compensated by EG&G correctly for a day of missed work in response to a subpoena for testimony in Oregon. TR. 127-29. Debbie Sweeting testified that there was some hesitation in arranging for Ms. Mugleston to be paid for the Oregon testimony because Ms. Mugleston had not followed company policy in requesting the leave. TR. 1254-55. Specifically, Ms. Mugleston failed to submit the leave request and subpoena in advance of missing the work time and failed to receive approval for the missed work time in advance from her supervisor. TR. 1254-55. Ms. Sweeting testified that Ms. Sweeting nonetheless has arranged for Ms. Mugleston to be paid. TR. 1255. Based on Ms. Sweeting's testimony that Ms. Mugleston's leave request was improper, the Court finds that EG&G has produced evidence indicating that the delay in compensating Ms. Mugleston for the Oregon trip occurred for legitimate, nondiscriminatory reasons.
B: Change in BRA RHA Duties
Testimony from Ms. Mugleston, Jeff Utley, and Steve Land indicate that Scott Vonhatten did not assign Ms. Mugleston the same duties as other members of her BRA RHA crew. TR. 115, 594-95, 724. According to these witnesses, Ms. Mugleston has been given fewer assignments for keyholding and DPE backup entries and more assignments for escorting. TR. 115, 628-29, 724, 1949, 1955.
The Court finds that EG&G has produced evidence of legitimate, nondiscriminatory reasons for any changes to Ms. Mugleston's duties as a BRA RHA operator. While the BRA RHA crew usually performs the keyholding duties, keyholding is also part of the duties of the PAS, Utilities, CHB, Unpack, and anyone else in the CPRP program. TR. 423, 1682, 1720. Ms. Mugleston performed keyholding duties about every other day for the first few months after Scott Vonhatten became the BRA RHA lead. TR. 1682. Mr. Vonhatten testified that the CHB thereafter volunteered to perform the keyholding duties, as TOCDF was not processing munitions and work was slow for the CHB. TR. 424-26, 1682-83. Mr. Vonhatten testified that during agent processing, the CHB would probably revert to its own duties and the BRA RHA would once again carry the keys. TR. 1720. Mr. Vonhatten testified that Ms. Mugleston was still performing keyholding duties and that nothing prohibits Ms. Mugleston and Mr. Utley from carrying keys together. TR. 1723.
With respect to DPE emergency backup entries, these entries are usually performed by the DSA. TR. 1684. Mr. Vonhatten testified that he simply does not receive many calls for backup entries in Ms. Mugleston's work area. TR. 1683-84. He has received only 5 to 10 calls for backup entries involving the PAS or BRA RHA since he became the BRA RHA lead in March 2002. TR. 1683-84. Mr. Vonhatten testified that when he does get a call, he seeks to fill the request with someone with a good understanding of the entry involved. TR. 1684. Therefore, BRA RHA operators generally would not be called for DPE backup entries, unless the entry in question pertained to the BRA RHA.
With respect to escorting, Mr. Vonhatten testified that Ms. Mugleston is one of many workers he uses for escort duties. TR. 1702. Mr. Vonhatten acknowledged that during TOCDF's operations changeover, Mr. Vonhatten used BRA RHA operators for escorting duties more than PAS or Utilities operators. TR. 1703, 1724. Mr. Vonhatten explained that BRA RHA operators had fewer tasks during the changeover period while the workload of PAS and Utilities operators generally is the same whether or not TOCDF is conducting agent operations. TR. 1703, 1724. Among the BRA RHA crew, Mr. Vonhatten tries to rotate the escorting duties. TR. 1703. Mr. Vonhatten testified that Ms. Mugleston and Mr. Utley were assigned more escorting duties during the time other BRA RHA operators underwent PAS cross-training. TR. 1703. Mr. Vonhatten testified that other BRA RHA operators likewise performed more escorting during the times Ms. Mugleston and Mr. Utley were cross-training for the PAS. TR. 1703. Mr. Vonhatten believed that overall, he has used Ms. Mugleston for escorting duties about the same as other BRA RHA operators. TR. 1703. Based on Scott Vonhatten's explanation of the changes in Ms. Mugleston's BRA RHA duties, the Court finds that EG&G has produced evidence that Ms. Mugleston's duties changed for legitimate, nondiscriminatory reasons.
B: Shift Turnover
Ms. Mugleston also asserted that Scott Vonhatten treated her unfairly because he failed on several occasions to give her shift turnover information. TR. 110. Mr. Vonhatten explained that a worker may occasionally miss shift turn over information if the worker is not present due to off-facility escorting duties. TR. 1670. In these cases, the worker will be informed of any information pertinent to the worker. TR. 1670. Based on the foregoing, the Court finds that EG&G has produced evidence indicating that Ms. Mugleston missed shift turnover on occasion due to legitimate, nondiscriminatory reasons.
VI. Ms. Mugleston's Rebuttal Evidence Regarding Adverse Actions and the Court's Final Assessment Regarding Intentional Discrimination
In the event an employer meets its burden of producing legitimate nondiscriminatory reasons for its adverse actions, the complainant must prove by a preponderance of the evidence that the employer intentionally discriminated. Jenkins at 15. To meet this burden, a complainant may prove that the legitimate reasons proffered by the employer were not the true reasons for its actions but instead were only pretexts for discrimination. Jenkins at 15. With respect to the issue of rebutting EG&G's proffered legitimate explanations, the Court will consider the entire record, including Ms. Mugleston's version of each specific adverse employment action and Ms. Mugleston's asserted reasons about why those actions occurred. The Court will also consider evidence regarding EG&G's attitude toward safety and environmental concerns as well as the statements and actions comprising Ms. Mugleston's hostile work environment claim as discussed below in Part VII. After considering all the evidence of discrimination in this case, the Court finds that the adverse employment actions related to Ms. Mugleston did not involve retaliation on the part of EG&G.
A. EG&G's Attitude Toward Safety and Environmental Concerns
Ms. Mugleston asserts that EG&G has a retaliatory attitude toward the raising of safety and environmental concerns. First, Ms. Mugleston points to evidence regarding EG&G's responses to her safety and environmental memorandums and to EG&G's conduct toward other employees who have raised concerns in the past. Second, Ms. Mugleston contends that EG&G during the months leading up to the Salt Lake City Olympics stressed production over safety, in pursuit of a bonus offered by the Army.
Ms. Mugleston testified that she received a very negative response to her safety and environmental memos to management. TR. 77. The Court disagrees. Ms. Mugleston testified that while EG&G management indicated her ideas and issues were very good, EG&G management felt that the procedures at issue were open to interpretation and that her safety and environmental concerns were not valid. TR. 77. Contrary to Ms. Mugleston's opinion, the Court finds that EG&G has responded satisfactorily to Ms. Mugleston's safety and environmental concerns, many of which had been disclosed and investigated before Ms. Mugleston raised her concerns. For example, EG&G ordered Industrial Hygiene testing in response to Ms. Mugleston's respiratory concerns in the MPF cool down area, and respirators are being used in that area while the testing and analysis are completed. TR. 1876-79. With respect to emergency generators, EG&G has added an additional generator and implemented a preventive maintenance plan to ensure that the generators will start up. TR. 1516, 1805-06. In addition, an ACAMS has been installed in the HDC bin enclosure to prevent agent releases, testing of LSS air hoses has been conducted more frequently, purge valves have been added to the LSS system to allow any agent contamination to bleed out of the system, Ms. Mugleston's concerns about tap gear and SCBA back packs have been largely corrected, and corrections to procedures have been made regarding many of Ms. Mugleston's other concerns. TR. TR. 44-45, 293-94, 296, 298, 616-17, 697-98, 787, 859, 1388-89, 1401, 1814, 1827-28, 1846-48.
Although EG&G's safety culture is far from perfect, as indicated in the Army IG report regarding the July 15, 2002 agent exposure incident, CX-44, the Court finds that EG&G's safety culture is also far from retaliatory. The Court finds that EG&G has been responsible in encouraging employees to report safety and environmental issues. Despite testimony from Pat Vario, Von Taylor, Andy Harris, Larry Allen, and Steve Land indicating that EG&G at one time or another has not been receptive to their concerns, the Court finds that EG&G overall has a satisfactory attitude toward safety and environmental concerns. TR. 660-62, 900-02, 831-38, 849-50, 853-58, 1824, 1890-99. A survey of 212 EG&G employees conducted by the Department of Defense, Office of Inspector General in connection with the July 15, 2002 incident, indicated that 93% of the respondents were aware of EG&G's safety reporting procedures, 82% felt comfortable raising a safety concern to their supervisor, and 88% believed EG&G management encouraged the reporting of safety and health-related issues. CX-44, pp. 8-9. While the IG's report revealed that there were communication problems between EG&G management and employees and that some employees were dissatisfied with how EG&G responded to their safety and hazard concerns, the Court finds that EG&G faired well regarding the issues most critical to evaluating EG&G retaliatory motivations: most of the employees surveyed felt comfortable reporting safety and hazard concerns and most believed that EG&G encouraged the reporting of safety and hazard concerns. CX-44, pp. 8-9.
Evidence in the record establishes that EG&G informs its employees that they should report safety and environmental concerns or unfair treatment immediately to a safety representative or their supervisor. TR. 371, 1028-30, 1210-11. If the employee feels uncomfortable doing so, then the employee may report the concern or unfair treatment to the next level of management, to the Human Resources department, or to EG&G's Corporate officials. TR. 371, 1210-11.
EG&G has a central day shift core safety committee and safety committees for each of the shifts. TR. 1752. The safety committees on each crew have about 8 to 10 members, while the central day shift core crew has more. TR. 1752. The safety committee engages in weekly meetings to discuss the status of issues that have been raised by employees, and the committee maintains a database to keep track of the progress on those safety issues. TR. 1752-53. EG&G also has recently implemented an additional safety measure, the Safety Concern and Improvement Program. TR. 1750. In order to promote specific solutions rather than general suggestions, the Safety Concern and Improvement Program seeks to have employees document concerns, work with their supervisors on a proposed corrective action, actually implement that corrective action if it is approved, and bring the issue to closure. TR. 1750-52. If the concern is brought to closure, the employee is entered into a drawing for incentives. TR. 1751.
With respect to ensuring environmental compliance, EG&G employs ten individuals in the Environmental Compliance Division of its Environmental Department, with one Environmental Shift Inspector per shift with the authority to stop operations if there is a noncompliance. TR. 1355. The Environmental Department roams the plant, performs environmental inspections, and audits TOCDF's operating record. TR. 1354. EG&G's Environmental Department performs on site self-inspections of TOCDF's various work areas and inspections of waste, scrutinizes inspections conducted by Operations, and inspects paperwork and recordkeeping at TOCDF. TR. 1356. These inspections are performed on a daily, weekly, monthly, quarterly, semi-annual, and annual basis. TR. 1356-57.
Even beyond EG&G, TOCDF has other layers of oversight for safety and environmental compliance. TOCDF is overseen by the Army's CMA, the successor to PMCD. TR. 1748. CMA personnel are always on-site at TOCDF and available to speak with EG&G employees. TR. 1363, 1748-50. There are also about 50 full-time Army employees working in the immediate vicinity of TOCDF. TR. 1748-49. Officials from the State of Utah, DSHW, another regulatory body with oversight over EG&G's operations at TOCDF, also maintain a presence at TOCDF. TR. 1357-62. There are about 10 employees from DSHW who have unrestricted inspection authority at TOCDF and are typically around the plant and available to speak with EG&G employees. TR. 1362. In addition to the presence of these Army and DSHW officials, EG&G is required to report to the Army and DSHW any safety or environmental mishaps or any otherwise unusual occurrences at TOCDF. TR. 1361-64. There is no evidence suggesting that EG&G has ever failed to report any such incidents or that EG&G has concealed any such incidents in any way. TR. 1364, 1380-81, 1491, 1868-69.
A. Production Versus Safety Prior to the Salt Lake City Olympics
Ms. Mugleston also took issue with the attitude of EG&G's management regarding safety versus production during the months leading up to the 2002 Salt Lake City Olympic Games. Ms. Mugleston and other workers, including Steve Land, Pat Vario, and Andy Harris, opined that EG&G management was pushing production over safety in order to finish its munitions processing before the Olympics, in pursuit of a bonus offered by the Army. TR. 65, 599, 664, 844-45.
EG&G, pursuant to an objective of the Army to reduce the risks of terrorism subsequent to September 11, 2001, did indeed seek to complete processing of its GB stockpiles before the Olympics. TR. 1384, 1771-72. A bonus of $750 per employee, regardless of position, was offered by the Army if the GB campaign was completed before the Olympics. TR. 1772. However, contrary to Ms. Mugleston's assertion that EG&G overlooked safety in pursuit of this bonus, the terms of this bonus entailed not only completing the GB agent processing, but also having a reportable injury rate of less than 3.5, no injuries causing lost time, no confirmed agent exposure to individuals, and no confirmed agent releases to the atmosphere. TR. 1385, 1772-73. In order to prevent workers from hiding injuries that would jeopardize the bonus, anyone who was identified as not reporting an injury during that period would be ineligible for the bonus. TR. 1772-73. Ultimately, the GB processing was not completed prior to the Olympics, but the employees nevertheless received this bonus. TR. 1385.
A second award incentive, in addition to EG&G's base contract compensation, offered to EG&G every six months by the Army likewise is tied to safety and environmental compliance. TR. 1852-54. This award fee is based on the following formula: 35% related to safety, 30% related to environmental compliance, 20% related to technical performance, and 15% related to cost to performance. TR. 1852-53. Given that these incentives are contingent on safety and environmental compliance, the Court finds that the incentives do not support a finding that EG&G has a retaliatory attitude toward employees who raise safety and environmental issues.
A. The Hard Hat Incident
Ms. Mugleston and Mr. Utley's account of what occurred during the hard hat incident is decidedly different from EG&G's version of events. Based on inconsistencies in the testimony of Ms. Mugleston and Mr. Utley, the Court finds that the evidence weighs in favor of finding that Ms. Mugleston indeed did fail to put on her hard hat after being reminded to do so by Ryan Taylor. Ms. Mugleston and Mr. Utley testified that they were leaving the facility when they heard Ryan Taylor and Bruce Anderson ask a group of individuals to put on their hard hats. TR. 89, 672. According to Mr. Utley, neither Ryan Taylor nor Bruce Anderson spoke to him or Ms. Mugleston during the incident. TR. 673. Contrary to Mr. Utley's testimony however, Ms. Mugleston testified that she had a conversation exchange with both Ryan Taylor and Bruce Anderson.
Ms. Mugleston testified that when she and Mr. Utley were approached by Ryan Taylor, she asked Ryan Taylor whether the hard hat policy was going to be changed. TR. 89-90. Ms. Mugleston testified that Ryan Taylor indicated the procedure was not going to be changed. TR. 91. Ms. Mugleston testified that she then jokingly asked Bruce Anderson whether he was going to have the procedure changed. TR. 91. According to Ms. Mugleston, Bruce Anderson indicated he was not pursuing the issue. TR. 91. Based on the foregoing, Ms. Mugleston and Mr. Utley's testimony was inconsistent regarding the most relevant part of the hard hat incident: the conversation or lack thereof between Ms. Mugleston and the safety representatives.
Even looking past this inconsistency, the Court finds Ryan Taylor, Bruce Anderson, and Jason Wright's version of events more believable. Ms. Mugleston testified that just prior to encountering Ryan Taylor and Bruce Anderson, the safety representatives had warned other individuals to wear their hard hats. Ms. Mugleston testified also that she thereafter engaged in a conversation with the safety representatives about the requirement to wear hard hats while she herself was not wearing her hard hat. Given that the safety representatives had just warned others about wearing hard hats, the Court finds it much more believable that one of the safety representatives, while conversing with Ms. Mugleston about the hard hat policy, would have at least pointed out to Ms. Mugleston that she also was not wearing her hard hat.
In addition, Ms. Mugleston's testimony was internally inconsistent. Ms. Mugleston testified before the Court that on March 25, 2002, she did not understand that not wearing a hard hat inside the double fence after being reminded to do so was a safety violation. TR. 2018-19. The Court finds this testimony irreconcilable with Ms. Mugleston's testimony that she asked Ryan Taylor and Bruce Anderson whether the hard hat policy was going to be changed, so that workers would not be required to wear dirty hard hats on their way out of TOCDF after showering. TR. 89-91. In addition, during her deposition, Ms. Mugleston testified that she was aware that the policy two weeks before the hard hat incident was to wear a hard hat in all places inside the double fence and that not wearing a hard hat inside the double fence after being reminded to do so is a safety violation. TR. 2019-21. Clearly, Ms. Mugleston was aware of the hard hat policy at the time of the incident, and her explicit testimony otherwise causes the Court to doubt the veracity of her version of the hard hat incident altogether.
The Court also finds that there were no pretexts or illegitimate actions involved in issuing the reprimand to Ms. Mugleston. Ms. Mugleston asserts that she was subject to disparate treatment regarding the reprimand because in many instances employees and managers are found not wearing a hard hat on the job site and are not reprimanded or even questioned. TR. 142. Jeff Utley, Pat Vario, Cliff Lee, Von Taylor, Jason Wright, Bruce Anderson, and Ryan Taylor all likewise acknowledge that it is not unusual for employees or managers to forget to wear their hard hats or safety glasses. TR. 359, 370-71, 659, 675, 883-84, 897-98, 926, 1027. However, there is no evidence that such individuals were not disciplined if they did not put on their hard hat after being reminded to do so. Indeed, Jason Wright was issued a reprimand in connection to the hard hat incident for failing to wear his hard hat after being reminded to do so. TR. 922-23. The evidence establishes that when a worker forgets to wear an article of safety gear, it is customary to remind the individual to put on his/her gear. TR. 371, 932, 1027-28. If the individual puts on the gear after being reminded, then the individual will not get in trouble. TR. 370. The instances in which an employee simply forgets to wear safety gear is distinguishable from Ms. Mugleston's ciscumstances because Ms. Mugleston failed to wear her safety gear, even after being reminded to do so.
Ms. Mugleston also contended that there was a conspiracy involved in the issuance of her hard hat reprimand. Ms. Mugleston testified that she spoke to Bruce Anderson in EG&G's water bottle room in April 2002 after unsuccessfully trying to call Mr. Anderson at home. TR. 120, 166. According to Ms. Mugleston, she and Mr. Anderson spoke in the water bottle room privately because Mr. Anderson had indicated he did not want to speak to Ms. Mugleston in front of the other workers. TR. 120. Ms. Mugleston testified that Mr. Anderson revealed to her that Mr. Anderson never heard Ryan Taylor tell Ms. Mugleston to put on her hard hat. TR. 121. Ms. Mugleston testified that Mr. Anderson told her that EG&G management had been trying to get him to call her at home and tape record the conversations. TR. 121. According to Ms. Mugleston, Mr. Anderson indicated that he declined participating in that way because he did not want to pick sides and did not want to get involved in the hard hat situation. TR. 121-22. Ms. Mugleston testified that Mr. Anderson indicated he wanted to warn Ms. Mugleston that management was out to get her and wanted to nail her to the cross. TR. 122. Ms. Mugleston testified that Mr. Anderson told her that EG&G management personnel had been directed to request that Ms. Mugleston record her concerns in memorandum form so that her concerns could be documented and held against her. TR. 122.
Mr. Anderson's testimony about the water bottle room conversation, on the other hand, revealed no illegitimate conduct on the part of EG&G regarding the hard hat affair. Mr. Anderson testified that the water bottle room conversation took place after Ms. Mugleston had called his house several times, causing his wife to be concerned. TR. 353, 355. Mr. Anderson denied wanting to talk to Ms. Mugleston outside the view of management or being concerned that management would see him talking to Ms. Mugleston. TR. 355-56. Mr. Anderson explained that he and Ms. Mugleston spoke in the water bottle room because Ms. Mugleston preferred to have a different setting and the water bottle room seemed like a neutral place. TR. 355-56. Mr. Anderson testified that in the conversation Ms. Mugleston sought to assure him that she did not have anything personal against him and that her dispute over the hard hat incident was not about him. TR. 353-54. Mr. Anderson testified that he told Ms. Mugleston that he wrote a statement for the human resources department about the incident that was probably very damaging to her. TR. 354. Mr. Anderson testified that he and Ms. Mugleston were interrupted by another employee and that he did not recall much more of the meeting. TR. 354.
Mr. Anderson testified that he did not say anything to Ms. Mugleston regarding his desire, or lack thereof, to talk to her in the future. TR. 354-55. Mr. Anderson also testified that management has never asked him to call Ms. Mugleston or to tape record conversations with Ms. Mugleston. TR. 355. Mr. Anderson testified that he never told Ms. Mugleston or anyone else that management was after Ms. Mugleston, trying to nail her to the cross or otherwise. TR. 357, 374. Mr. Anderson testified that he did not know what EG&G management's intent was regarding Ms. Mugleston. TR. 357, 374. The Court finds Mr. Anderson to be a credible witness. Mr. Anderson's testimony about his statements during the water bottle room conversation directly contradicts Ms. Mugleston's testimony about what Mr. Anderson said. In the Court's judgment, Mr. Anderson's testimony is more credible than Ms. Mugleston's self-interested testimony.
Bobbie Earp testified that she heard Barry Williams say he was asked by EG&G to conspire against Ms. Mugleston. TR. 766. The Court finds that Ms. Earp's testimony is unfounded. Ms. Earp testified that Barry Williams told her that he had received a phone call at home asking him if he would change his story about the reason he was not wearing a hard hat. TR. 766. However, Barry Williams himself testified that no EG&G manager asked him to alter his version of the hard hat incident in any way. TR. 813, 817-18. Mr. Williams testified that he never told anyone he was asked to change his story or statement. TR. 818. Mr. Williams explained that Tim Olinger, due to a mix-up, believed that Mr. Williams had also failed to wear his hard hat during the incident. TR. 812-15. According to Mr. Williams, the mix-up was cleared up after an in-person meeting. TR. 812-15, 821-22. The Court finds that the record does not support a finding that EG&G conspired against Ms. Mugleston regarding the hard hat incident.
In addition, the details of the investigation of the hard hat incident provided by Debbie Sweeting, Bruce Anderson, Ryan Taylor, Tim Olinger, Barry Williams, and Jason Wright satisfy the Court that the hard hat investigation was undertaken in a regular and fair manner. Ryan Taylor reported in a managers meeting the morning after the hard hat incident that he had witnessed several individuals not wearing their hard hats and that managers and supervisors should be more conscientious about the issue. TR. 1023-24. After doing so, Tim Olinger wanted to know the names of the individuals involved. TR. 1024. An investigation was thereafter conducted by Debbie Sweeting and Tim Olinger. TR. 1277, 1914. Bruce Anderson, Ryan Taylor, Jason Wright, Jeff Utley, and Ms. Mugleston all were asked to meet with Ms. Sweeting and Mr. Olinger and to provide written statements. TR. 362, 397-98, 1026, 1048-49, 1281-86, 1289, 1914. Because Jeff Utley and Ms. Mugleston had a different version of what happened compared to the other individuals, Ryan Taylor and Bruce Anderson were interviewed a second time. TR. 1290. After discussing the matter with Ryan Taylor and Bruce Anderson a second time and being reassured that Ms. Mugleston had in fact failed to put on her hard hat after being reminded to do so, Debbie Sweeting, Tim Olinger, and Jimmy Clark agreed that Ms. Mugleston should be issued a reprimand. TR. 1225-26, 1290-94. The Court accepts that the hard hat investigation occurred in this manner, and the Court finds that the hard hat reprimand was not issued on illegitimate grounds.
A. Late 2002/Early 2003 Refusal to Remove the Hard Hat Reprimand
In Ms. Mugleston's late 2002 or early 2003 request for her hard hat reprimand to be removed from her personnel file, Ms. Mugleston cited Dennis Cook being allowed to apply for a PAS opening despite having two reprimands in his personnel file at the time. TR. 142, 167. Ms. Mugleston asserts that EG&G's refusal to remove the hard hat reprimand from her file constituted disparate treatment.
The Court finds that EG&G's denial of Ms. Mugleston's request to remove the hard hat reprimand from her file did not involve pretexts and was not done on a discriminatory basis. Keeping Ms. Mugleston's reprimand active for one full year and barring her from consideration for new positions at EG&G was consistent with EG&G procedures. TR. 1255-56, 1329-30. Although Dennis Cook was granted an exception regarding his transfer from the BRA RHA to the PAS, Mr. Cook's transfer was carried out to fulfill a business need, so that EG&G could avoid lay offs of BRA RHA workers. TR. 1249-50. Therefore, Mr. Cook's situation is distinguishable from Ms. Mugleston's situation. In addition, Mr. Cook's disciplinary action remained active for the full year, as was done in Ms. Mugleston's case.
A. Refusal to Write Letter of Recommendation
Ms. Mugleston also asserted that EG&G's April 2002 refusal to allow a letter of recommendation to be written for Ms. Mugleston constituted discriminatory treatment. TR. 100-01. The Court finds that there was no discriminatory treatment of Ms. Mugleston with respect to the letter of recommendation incident. Debbie Sweeting testified that Cliff Shaw called her and asked her about the company policy regarding writing reference letters. TR. 564. Ms. Sweeting testified that she gave Mr. Shaw the standard answer she gives to everyone. TR. 564-65. There is no evidence indicating that Cliff Shaw's decision not to write the letter of recommendation for Ms. Mugleston was based on anything other than EG&G's standard policy. Therefore, the Court finds that Ms. Mugleston has failed to establish that she suffered discrimination in relation to the letter of recommendation issue.
A. Suspension from Keyholding List After Door 255 Incident
Ms. Mugleston and Mr. Utley testified that in June 2002, after the Door 255 incident, Tim Kutz told them that management was trying to pin the incident on them, despite the fact that they did nothing wrong in the incident. TR. 123-24, 708-09. Mr. Kutz, on the other hand, testified that he did not know what the approach of management was in regard to Ms. Mugleston and Mr. Utley and the Door 255 incident. TR. 414. Mr. Kutz testified that he never mentioned to Ms. Mugleston or Mr. Utley that management was after them or had a vendetta against them. TR. 414-16. Mr. Kutz also testified that he did not tell Ms. Mugleston that management was trying to pin the Door 255 incident on her. TR. 415. Mr. Kutz testified that he told Ms. Mugleston and Mr. Utley only that if they were worried about management seeking them out, then they would be fine if they simply adhered to the procedures because EG&G is a compliance driven company. TR. 414-16. Mr. Kutz testified that he told Ms. Mugleston that if the keyholding procedures were not working, then the procedures could be changed to more accurately reflect how things were actually done. TR. 414-15. Mr. Kutz testified that he made these comments during the same type of conversation he had with other workers about understanding the keyholding procedure. TR. 417. Neither Tim Kutz, Tim Olinger, nor Steve Wallace opined that Ms. Mugleston and Mr. Utley would be disciplined for the Door 255 incident, aside from the temporary removal of their keyholding duties that occurred while the Door 255 was being investigated. TR. 413, 420, 1648-49, 1929-30.
First, the Court finds that removing Ms. Mugleston and Mr. Utley from the keyholding list while the Door 255 incident was being investigated was a legitimate course of action and reasonable given that keyholding is a surety concern. Ms. Mugleston and Mr. Utley were reinstated after the matter was cleared up, and the Court finds that EG&G did not act in a disparate manner with respect to the Door 255 incident. Second, with respect to the conversations between Tim Kutz and Ms. Mugleston, the Court finds Mr. Kutz's testimony credible. The testimony of Ms. Mugleston, on the other hand, is self-serving, and the significance that her testimony is supported by the testimony of her fiancé is of limited value, when their testimony contradicts credible testimony and is otherwise unsupported in the record. Notwithstanding the Court's observation of the witnesses, the Court finds very telling the fact that EG&G has not and does not intend to discipline Ms. Mugleston and Mr. Utley or anyone else for the Door 255 incident. Aside from the testimony of Ms. Mugleston and Mr. Utley, there is no evidence EG&G ever intended to do so. The reality of the situation is consistent with Tim Kutz's testimony and not with Ms. Mugleston's assertion that EG&G sought to discipline her and Mr. Utley for the Door 255 incident. Therefore, the Court is satisfied that there was no discrimination involved in the Door 255 incident.
A. Cancellation of Utilities Cross-Training
Ms. Mugleston and Mr. Utley testified that they had requested and received approval for Utilities cross-training from Coy Cole, the Training Manager, and Burke Leatham, the Plant Shift Superintendent at the time. TR. 92, 694-95. Ms. Mugleston testified that she requested the Utilities training prior to starting her PAS training. TR. 2002. Ms. Mugleston testified that her lead, Scott Vonhatten, thereafter found out she had scheduled the training. TR. 92-93. According to Ms. Mugleston and Mr. Utley, Scott Vonhatten cancelled their training and yelled at them, using foul language and saying that they were not allowed to schedule their own training without his prior approval. TR. 92-93, 694-95, 1996.
Even assuming that Ms. Mugleston had received approval from Coy Cole and/or Burke Leatham, EG&G's cancellation of her Utilities training was nevertheless based on legitimate grounds. EG&G's cancellation of the Utilities training was not based on whether or not Ms. Mugleston had received permission from Coy Cole and/or Burke Leatham. Instead the cancellation was made because the Utilities cross-training conflicted with Scott Vonhatten and Tim Olinger's arrangement for BRA RHA operators to fully complete PAS cross-training before beginning training in another area. TR. 1672-77, 1709-13, 1830-31. Only BRA RHA operators who have completed their PAS training were allowed to begin Utilities training. TR. 1681, 1716. The Court finds that the decision to fully complete one area of training before starting a new area is reasonable, both with respect to promoting certifications and controlling overtime and scheduling. In addition, the fact that Ms. Mugleston scheduled the Utilities training before the PAS training began is not significant. The issue of when exactly Ms. Mugleston signed up for Utilities training ultimately does not change the fact that the Utilities training conflicted with the training arrangement to complete PAS training before beginning Utilities training. There is no evidence suggesting that EG&G would have permitted any BRA RHA operator to begin Utilities training prior to completing PAS training, regardless of when the individual signed up for Utilities training. Ms. Mugleston still has the opportunity to complete the PAS cross-training any time she is available. TR. 1703-04. She may thereafter begin Utilities training. TR. 1703-04. The Court finds that there was no discriminatory treatment of Ms. Mugleston regarding this incident.
A. Compensation for Oregon Testimony
Ms. Mugleston testified that she submitted her time card and leave request for her subpoena to Oregon, but was told by her Plant Shift Manager, Scott Sorenson, that she was not going to be paid for the court leave. TR. 127-28. Ms. Mugleston testified that she insisted the leave should be covered according to the employee handbook. TR. 127-28. Ms. Mugleston testified that Debbie Sweeting thereafter indicated that Lois Baar had advised Ms. Sweeting that Ms. Mugleston should not be paid for the Oregon court time. TR. 128. The Court finds that this issue has been resolved, as EG&G has arranged for Ms. Mugleston to be compensated for the missed day of work. TR. 1255. The Court also accepts Debbie Sweeting's explanation that Ms. Mugleston's compensation was delayed because Ms. Mugleston did not follow company procedures in requesting the leave compensation. Ms. Mugleston has failed to refute Ms. Sweeting's explanation. Therefore, the Court finds that no discriminatory conduct took place regarding this issue.
A. Change in BRA RHA Duties
The Court finds that EG&G did not intentionally discriminate against Ms. Mugleston with respect to any changes in her BRA RHA duties. The Court accepts Scott Vonhatten's explanation that Ms. Mugleston's duties changed for a time due to legitimate company reasons. First, Ms. Mugleston was assigned less keyholding duties because the CHB volunteered to perform the task to supplement its low work load during TOCDF's changeover to VX operations. Second, Ms. Mugleston has not been assigned DPE backup entries because there simply have not been many backup entries related to the BRA RHA. Third, Ms. Mugleston was assigned for a time more escorting duties because other BRA RHA operators were undergoing PAS training, just as other BRA RHA operators would have to cover for Ms. Mugleston while she attended PAS training. Although Ms. Mugleston's duties may have changed, the changes happened for legitimate reasons, due to the PAS training and the larger changeover in operations taking place at TOCDF, which affected the duties of the entire BRA RHA crew as well as the duties of TOCDF's other work areas.
There is little evidence to refute Mr. Vonhatten's testimony that Ms. Mugleston's duties were changed only in a manner consistent with the other members of her crew. Steve Land testified that Ms. Mugleston performed escorting duties for a longer duration compared to other members of her crew, explaining that other BRA RHA operators were relieved every two hours during escort duties while Ms. Mugleston and Mr. Utley performed escorting duties without being relieved. TR. 1955. However, the Court finds that Steve Land as a PAS operator since late 2002, would not have been in a position to make a reliable assessment of Ms. Mugleston's duties as a BRA RHA operator. TR. 591. Mr. Land is not part of Ms. Mugleston's BRA RHA crew, much less in a position to certify to a meaningful degree Ms. Mugleston's comings and goings. After reviewing the evidence, the Court finds that the manner in which Scott Vonhatten assigned duties to BRA RHA operators was not discriminatory and that there is insufficient evidence to demonstrate that Ms. Mugleston's assignments were appreciably different than other workers on her crew.
A. Shift Turnover
Ms. Mugleston also asserted that she suffered disparate treatment because she was denied shift turnover information on several occasions. TR. 110. The Court finds that there is no evidence of discrimination regarding the lack of shift turnover. The Court accepts Scott Vonhatten's explanation that shift turnover will sometimes be missed by an employee who is performing escorting duties off-site. TR. 1670. His explanation is largely in line with Ms. Mugleston's own account of the situation. Ms. Mugleston testified that Mr. Vonhatten sometimes would provide shift turnover information to the other members of the BRA RHA crew, but would send Ms. Mugleston off-facility for escorting duties at Battelle. TR. 111. There is no evidence indicating that Ms. Mugleston missed shift turnover any more frequently than other members of her crew or that she missed shift turnover for a reason other than being off-site for escorting duties.
Ms. Mugleston also testified that she entered a restricted area on one occasion because she was not notified through shift turnover that an area had been downgraded from Category "C" to Category "B." TR. 111. The Court finds that Ms. Mugleston's self-interested testimony regarding the existence of this incident is not supported by the record. There is no corroborating evidence that such an incident took place. On the contrary, Scott Vonhatten testified that he did not recall Ms. Mugleston entering a Level "B" area that had been downgraded from a Level "C" area at any time after he became the BRA RHA lead. TR. 1670. Jeff Utley, Tonya Elkington, Scott Vonhatten, and Tim Olinger all testified that door guards are posted to control access to an area when the area is downgraded from Category "C" to Category "B." TR. 1409, 1670, 1835, 1974-75. Given that there is no evidence corroborating Ms. Mugleston's testimony about the existence of such an incident and that the security measures enacted when a Category "C" area is downgraded to Category "B" make such an occurrence unlikely, the Court finds that the evidence does not support a finding that such an incident took place.
Based on the foregoing analysis, and in consideration of the evidence below comprising Ms. Mugleston's hostile work environment claim, the Court finds that EG&G acted with legitimate reasons in taking adverse employment actions against Ms. Mugleston and that EG&G did not have retaliatory motivations for taking such actions.
VII. Hostile Work Environment Claim
Ms. Mugleston has introduced evidence of several statements and incidents related to her hostile work environment claim. The Court summarizes that evidence as follows: 1) Debbie Sweeting calling Ms. Mugleston a "whistleblower;" 2) management being advised not to speak to Ms. Mugleston about her safety and environmental concerns; 3) disregard by Tim Olinger of Ms. Mugleston's September 1998 settlement; 4) Ms. Mugleston's treatment in regard to her January 2002 meeting with management; 5) Steve Wallace's close surveillance of Ms. Mugleston; 6) Steve Wallace reacting onerously after Ms. Mugleston asked him about a procedure during a meeting; 7) Steve Wallace reacting angrily in connection with the XRF Room incident; 8) Scott Vonhatten reacting angrily in connection to the barricade tape incident; 9) the ethics training given by EG&G attorneys; 10) reclassification of the BRA RHA operator position under the Service Contract Act; and 11) negative comments and sentiments by various EG&G employees.
The negative comments and sentiments included: Steve Wallace commenting that Ms. Mugleston's safety and environmental concerns have hampered EG&G's operations; Steve Wallace questioning Ms. Mugleston about rumors that she had started a petition to shut down TOCDF; Steve Wallace commenting that Ms. Mugleston was a "celebrity" after her media appearance; comments by Marty Ahlstrom and Tom Duffield in area newspapers after Ms. Mugleston's media appearance; comments by Jerry Safrans and Sid Lawrence over TOCDF's radio system; comments on bathroom walls; comments by John Cafe; comments by Darren Hendrix; and rumors circulating TOCDF about Ms. Mugleston and Mr. Utley. Other remarks were reportedly made by Larry Allen, Darryl Drewery, Lynn Carlson, Herman Candelaria, Scott Vonhatten, Ray Bell, Sarah Muir, Sue Renzello, Erv Hillman, Mike Green, Steve Land, and Brett Pfeiffer. TR. 104, 340-41, 621-22, 776-79, 838-39, 877-79, 1626-29. In addition, the Court will take into account the evidence regarding Ms. Mugleston's tangible adverse employment actions, as discussed in above in Parts V and VI, when considering her hostile work environment claim. The Court will also consider two items which do not themselves qualify as timely adverse employment actions, but are nonetheless relevant to Ms. Mugleston's hostile work environment claim: EG&G's submission of PDI and the denial of Ms. Mugleston's merit increase.
After considering all the evidence of discrimination in this case, including the adverse employment actions taken against Ms. Mugleston in aggregate, the evidence regarding EG&G's attitude toward safety and environmental concerns, and all the evidence of hostility towards Ms. Mugleston, the Court finds that the antagonistic statements and actions relating to Ms. Mugleston in this case do not amount to a hostile work environment.
A. Ms. Mugleston Called a "Whistleblower" by Debbie Sweeting
The Court finds that Ms. Mugleston's allegation that she was called a "whistleblower" by Debbie Sweeting is not supported by the evidence and does not otherwise constitute intentional discrimination. According to Ms. Mugleston, Debbie Sweeting on one occasion indicated that Ms. Mugleston had to speak with the company attorney, because all "whistleblowers" who raised concerns needed to speak with the company attorney. TR. 85. Debbie Sweeting, on the other hand, testified that other than saying "whistleblower complaint," she did not recall using the term "whistleblower" in her conversations with Ms. Mugleston. TR. 547-48.
Although other witnesses testified regarding this incident, their testimony is unreliable and/or conflicting. Jeff Utley testified that David Palmer, after attending a meeting with Ms. Mugleston and Ms. Sweeting, told him that that Debbie Sweeting had called Ms. Mugleston a "whistleblower." TR. 739. According to Mr. Utley, David Palmer reported that Ms. Sweeting told Ms. Mugleston that all "whistleblowers" have to speak to the company attorneys. TR. 739-40. However, in contrast to Jeff Utley's testimony, David Palmer testified that he was told by Ms. Mugleston that Debbie Sweeting called Ms. Mugleston a "whistleblower," but Mr. Palmer himself did not hear such a remark. TR. 335-36. Given that Mr. Utley's testimony is contradicted by Mr. Palmer's testimony and that Mr. Palmer's testimony amounts only to corroboration that Ms. Mugleston herself believed Debbie Sweeting called her a "whistleblower," the Court finds that the testimony of Jeff Utley and David Palmer regarding this alleged incident is not helpful. Bobbie Earp also testified that she has heard Ms. Mugleston referred to as a "whistleblower," but Ms. Earp could not recall who said it. TR. 794. Ms. Earp's vague testimony does not help to establish that Ms. Sweeting did in fact call Ms. Mugleston a "whistleblower." Therefore the Court finds that Ms. Mugleston has failed to prove that Ms. Sweeting did call her a "whistleblower."31
B. Management Was Advised Not to Speak with Ms. Mugleston
Ms. Mugleston testified that during a meeting some time after November 27, 2001, Ms. Sweeting told Ms. Mugleston that Ms. Sweeting and Tim Olinger had been advised by EG&G's attorneys, Stuart Young and Lois Baar, to no longer speak with Ms. Mugleston regarding Ms. Mugleston's safety and environmental concerns. TR. 154-55. Ms. Sweeting acknowledged that at some point Ms. Sweeting was advised by Stuart Young not to make deals or talk about specifics issues with Ms. Mugleston. TR. 561. Ms. Sweeting was given this advice because Ms. Mugleston had gotten representation through an attorney, and Stuart Young indicated that Ms. Mugleston would have to communicate through her attorney to the company attorney. TR. 561. After about one month, Ms. Mugleston testified that she received a phone call from Ms. Sweeting indicating that Ms. Sweeting and Mr. Olinger could again speak with Ms. Mugleston, as EG&G's attorney had dotted all the "i's" and crossed all the "t's." TR. 155. The Court finds that there was a causal connection between Ms. Mugleston's protected activity and EG&G's temporary limits on speaking to Ms. Mugleston. However, the temporary limits were imposed not to threaten, harass, or humiliate Ms. Mugleston, but instead to ensure that Ms. Mugleston's legal rights were not infringed and that EG&G complied with its legal ethical obligations. The temporary limits also should not have interfered generally with Ms. Mugleston's daily duties as a BRA RHA operator, so that the temporary limits were not so intrusive as to create an abusive work environment.
C. Disregard for Complainant's Settlement by Tim Olinger
Ms. Mugleston testified that shortly after writing her safety and environmental memos, she spoke with Tim Olinger about her 1998 settlement. TR. 126. Ms. Mugleston testified that she told Mr. Olinger during that conversation that she felt retaliated against and unfairly treated in violation of her settlement. TR. 126. According to Ms. Mugleston, Mr. Olinger told her he did not care what her settlement set forth, that the settlement did not involve him, and that he did not want to hear about the settlement. TR. 126-27. Ms. Mugleston testified that Mr. Olinger's exact words were, "I don't give a sh--." TR. 127.
Tim Olinger acknowledged that he did indicate to Ms. Mugleston that her settlement did not matter to him. TR. 1833-34. Mr. Olinger explained that Ms. Mugleston's 1998 settlement was not of great importance to him because, irrespective of the settlement, Mr. Olinger does not expect anything different from Ms. Mugleston compared to any other employee and Mr. Olinger was not going to treat Ms. Mugleston any differently than he would any other employee. TR. 1834. Because Ms. Mugleston's previous settlement is related to safety and environmental concerns, the Court finds that a sufficient causal connection exists between Tim Olinger's remark and protected activity on the part of Ms. Mugleston. Although this remark may have had a negative tone, the remark was isolated and did not occur in the context of Ms. Mugleston's daily work routine so as to interfere with Ms. Mugleston's work performance. The Court finds that considering this remark along with all the evidence in this case suggesting discrimination, the sum effect does not amount to harassment sufficiently severe and pervasive so as to alter the conditions of Ms. Mugleston's employment and create an abusive work environment.
D. January 2002 Meeting with Management
Ms. Mugleston attended a meeting with Tim Olinger, Jimmy Clark, and Debbie Sweeting in January 2002 regarding Ms. Mugleston's safety and environmental concerns. TR. 82, 1221, 1829. After receiving a call from Debbie Sweeting requesting that Ms. Mugleston be notified of the meeting, Steve Wallace directed Erv Hillman to notify Ms. Mugleston that Ms. Mugleston was required at the meeting. TR. 1612-13, 1637-38. Ms. Mugleston indicated at that time that she did not want to go to the meeting because her lawyer had told her that she did not have to and because she was performing keyholding duties at the time. TR. 1613-14, 1633. Mr. Wallace testified that he told Erv Hillman that Ms. Mugleston did not have a choice about whether or not to attend the meeting and that Ms. Mugleston was required to turn in her keys. TR. 1615. Ms. Mugleston thereafter proceeded to the control room in response to Steve Wallace's directive. TR. 1615, 1634.
A heated conversation ensued between Ms. Mugleston and Mr. Wallace. TR. 1615-16, 1634-35. Ms. Mugleston informed Steve Wallace that she did not want to attend the meeting without representation. TR. 83-84, 134-35, 336. Mr. Wallace during the discussion used the term "insubordination" after Ms. Mugleston refused his specific directive to turn in her keys immediately. TR. 83, 1635. Mr. Wallace ultimately forcefully directed that Ms. Mugleston did not have a choice in the matter and that Ms. Mugleston would turn in the keys immediately. TR. 1616. Mr. Wallace explained that as Plant Shift Manager, he was responsible for controlling access to the keys, which are a surety matter. TR. 1615. Ms. Mugleston then turned in her keys and attended the meeting, but took along David Palmer as a witness. TR. 83, 1616, 1635-36.
The Court finds that the exchange between Ms. Mugleston and Steve Wallace regarding the January 2002 meeting did not constitute intentional harassment related to Ms. Mugleston's protected activity. Steve Wallace indicated that he was verbally forceful with Ms. Mugleston because Ms. Mugleston would not obey his directive regarding a surety concern, control of the keys. The Court finds that this surety concern was a legitimate basis for the heated disagreement between Steve Wallace and Ms. Mugleston. There is no evidence that Mr. Wallace treated Ms. Mugleston any differently in that situation than he would have if Ms. Mugleston had not engaged in protected activity. The Court likewise finds that there was no intentional harassment of Ms. Mugleston at the January 2002 meeting. On the contrary, the evidence indicates that the EG&G officials were sensitive to Ms. Mugleston's hesitation with attending the meeting, reassured Ms. Mugleston with the help of Stuart Young that the meeting was being held only to answer her October 2001 safety and environmental concerns, offered to reschedule the meeting to allow her to have representation present, allowed Ms. Mugleston to bring in a witness, and proceeded with the meeting only after everyone had consented to the meeting. TR. 83-84, 329, 543-44, 547-79, 1221, 1828-29. Therefore, the Court finds that the January 2002 meeting did not contribute to hostility in Ms. Mugleston's work environment.
E. Ms. Mugleston Closely Watched by Steve Wallace
Ms. Mugleston took issue with the fact that BRA RHA operators were moved from their office to the lunch room, where the BRA RHA operators were susceptible to closer surveillance. Ms. Mugleston testified that Steve Wallace on several occasions would come in to the lunch room and check on the BRA RHA operators. TR. 105. Ms. Mugleston testified that Steve Wallace would also sneak up on workers to make sure they were not sleeping or otherwise behaving improperly. TR. 105. Jeff Utley likewise testified that Steve Wallace used to sneak around following him and Ms. Mugleston, wanting to know where they were at all times. TR. 725-26. In addition, Ms. Mugleston testified that about six or eight months before the hearing, Mr. Wallace singled her out while giving a tour of TOCDF to EG&G officials. TR. 105-06. According to Ms. Mugleston, Mr. Wallace pointed out Ms. Mugleston while talking to the officials. TR. 105-06.
The Court finds that this alleged close surveillance of Ms. Mugleston did not constitute intentional harassment related to Ms. Mugleston's protected activities. The evidence supports a finding that the overall supervision at EG&G became more strict, and not that Ms. Mugleston herself was singled out for closer supervision. EG&G underwent an inspection and audit by the Army Inspector General (IG) in the last quarter of 2001. TR. 1235-36. As a result of the inspection, the IG's office recommended changes to the BRA RHA. TR. 1236-37. These changes included more supervision of the BRA RHA and closure of the BRA area, which was not in operation and had become a place where employees would hang out, read, or sleep. TR. 1237-39. The IG's recommendations were adopted by PMCD and subsequently led EG&G's General Manager to issue a directive for EG&G management to become more strict about ensuring that workers were staying busy and not hanging around, sleeping, or reading on the job. TR. 1241, 1312-13, 1317-18. The Court finds that this directive led to closer scrutiny of EG&G employees generally, and not just Ms. Mugleston in particular. The Court's finding is supported by the evidence that several disciplinary citations were issued as a result of the heightened scrutiny from supervisors, including suspensions of Phil Clements on June 13, 2002 and Calvin Cook on October 29, 2002 for sleeping on the job. TR. 1242-43; RX-13. In addition, Ms. Mugleston's belief that she was being singled out by Steve Wallace while he was giving a tour of TOCDF to outside officials is speculative and not supported by the record. Ms. Mugleston was not aware of what was being said, and even if Steve Wallace gestured in her direction, such a gesture is wide open to interpretation.
F. Steve Wallace Reacting Onerously When Asked About a Procedure
Ms. Mugleston testified that Steve Wallace spoke about a procedure during a meeting in the fall of 2002. TR. 150. Ms. Mugleston asked Mr. Wallace at the meeting what PRP the procedure was listed under, so that the workers could personally review the procedure themselves. TR. 150. Ms. Mugleston testified that Mr. Wallace reacted in an onerous way, calling her into his office after the meeting and informing her that he did not appreciate being put on the spot in front of the other employees. TR. 150. According to Ms. Mugleston, Mr. Wallace indicated that Ms. Mugleston should ask him questions about procedure, safety, or environmental issues in his office and not in front of everyone. TR. 150. The Court finds that there is insufficient evidence to establish a casual connection between Steve Wallace's reaction and Ms. Mugleston's protected activities. The Court notes that Ms. Mugleston did not question the safety or environmental elements of the procedure, but instead was asking merely for the identity of the procedure. Mr. Wallace's reaction was related to the fact that Ms. Mugleston put him on the spot in front of other employees. His reaction was independent of the fact that Ms. Mugleston had raised safety and environmental concerns. The evidence does not support a finding that Steve Wallace would have reacted any differently if Ms. Mugleston had not engaged in protected activity. Considering all the statements and actions in this case that constitute evidence of retaliatory motivations by EG&G, the Court finds that Mr. Wallace's onerous reaction under the circumstances occurred for nondiscriminatory reasons.
G. Steve Wallace Reacting Angrily After XRF Room Incident
In late 2001 or early 2002, an incident occurred involving a planned entry into the XRF room, an x-ray room where mercury ton containers are sampled and x-rayed. TR. 157, 681, 1617-18. Ms. Mugleston and Mr. Utley were door guarding for the entry at the time. TR. 682. According to Ms. Mugleston and Mr. Utley, the entrants were uncomfortable with performing the entry because they were not properly prepared. TR. 157, 682-84. Ms. Mugleston and Mr. Utley informed Steve Wallace about the situation, and Mr. Wallace came to the XRF room. TR. 157, 684-85. An argument ensued between Mr. Wallace and Ms. Mugleston and Mr. Utley. TR. 157-58, 686, 1617-20. According to Ms. Mugleston, Mr. Wallace became furious with her, began yelling at her, and told her that the entrants did not need counseling or clarification about the entry, but instead needed to just go in and do their job. TR. 157-58. Mr. Wallace indicated that an informal meeting with safety representatives had been held, and Mr. Wallace disagreed with Ms. Mugleston and Mr. Utley that there was a lack of preparation for the entry. TR. 1617. In the end, Mr. Wallace postponed the entry because Ms. Mugleston raised enough of an issue in his mind that he felt the entry should be delayed until more information could be gathered. TR. 158, 686-87, 1621. Mr. Wallace testified that he was frustrated with the incident. TR. 1622. Mr. Wallace explained that this frustration did not lie with Ms. Mugleston, but instead with the fact that all the preparation and resources put into the entry became wasted. TR. 1622.
The Court finds that while there is some connection between Steve Wallace's angry reaction and Ms. Mugleston's safety and environmental concerns about the XRF Room, Mr. Wallace's conduct did not have the character of intentional harassment or ridicule of Ms. Mugleston. Instead, Mr. Wallace reacted angrily because of reasons not related personally to Ms. Mugleston, namely company operations and resources. The incident was also specific to entry procedures for the XRF Room, and did not amount to an enduring interference with Ms. Mugleston's job duties. The Court finds that after considering this incident in aggregate with all the other evidence in this case suggesting discrimination, Ms. Mugleston has not demonstrated that she was subject to severe and pervasive harassment at EG&G such that a hostile work environment existed.
H. Scott Vonhatten Reacting Angrily After Barricade Tape Incident
Ms. Mugleston asserted that she was treated unfairly during an incident in August 2002 involving barricade tape. TR. 106, 167. At the time of the incident, Ms. Mugleston and Jeff Utley were loading brine into tankers. TR. 107, 691-92. They had corded off their work area with caution tape in compliance with procedures. TR. 107, 691-92. Thereafter, laborers from the Maintenance Department intentionally drove through the barricade tape as a joke. TR. 107, 691-92. Scott Vonhatten was informed that the barricade tape was down, and Mr. Vonhatten sent a messenger, Gary Boswell, to inform Ms. Mugleston and Mr. Utley to put the tape back up. TR. 1985-86, 1693-94. Mr. Vonhatten testified that he sent Mr. Boswell because Mr. Boswell was already on his way out. TR. 1694-95. It is unclear whether Ms. Mugleston and Mr. Utley were aware, prior to being notified by Mr. Boswell, that the tape had been broken and whether they were looking for more barricade tape to put back up.32 After they encountered Mr. Boswell, Ms. Mugleston and Mr. Utley put the tape back up. TR. 107-08, 1965-66.
According to Mr. Vonhatten, Mr. Boswell had reported back to him that Mr. Utley and Ms. Mugleston refused to put the tape back up and that Mr. Boswell himself had to replace the tape. TR. 1686, 1690. Ms. Mugleston and Mr. Utley contend that they did not refuse at any time to replace the tape. TR. 1965-66, 2009. After finishing with the brine, Ms. Mugleston and Mr. Utley were confronted by Mr. Vonhatten. TR. 108, 692-93, 1686. A heated discussion ensued. TR. 108, 692-93, 1687. According to Ms. Mugleston and Mr. Utley, Mr. Vonhatten was yelling at them and using foul language, stating that they had failed to follow procedures by not replacing the barricade tape. TR. 108, 692-93. Ms. Mugleston testified that Mr. Vonhatten did not let her explain what happened, but instead just talked down to her. TR. 108.
According to Mr. Vonhatten, he asked why Ms. Mugleston and Mr. Utley were not following barricade tape procedures and why they had not called him to report a problem at the site, in violation of another procedure. TR. 1687. Mr. Vonhatten testified that the argument escalated after Mr. Utley and Ms. Mugleston provided explanations he did not agree with. TR. 1692. Mr. Vonhatten used vulgar language during the argument, and Mr. Vonhatten believed that Mr. Utley and Ms. Mugleston both also used vulgar language, although it was difficult to be sure because everyone was speaking at the same time. TR. 1687-90. The episode ended when Mr. Vonhatten ultimately came to understand that the barricade tape was snapped intentionally by laborers. TR. 108-09, 1692. Mr. Vonhatten testified that he thereafter contacted the Maintenance Manager who verified that a maintenance worker drove through the barricade tape. TR. 1693. The barricade tape dispute did not arise again after that day. TR. 1687-88. Ms. Mugleston was not disciplined for the incident. TR. 109.
After considering the incident, the Court finds that Scott Vonhatten's hostile reaction to Ms. Mugleston during the barricade tape incident was not related to her engagement in protected activities. The incident arose in connection to the procedures regarding barricade tape and was not related to Ms. Mugleston's safety or environmental concerns. There is no evidence that Mr. Vonhatten would have reacted any less angrily under the same circumstances with a worker who had not raised safety and environmental concerns. Considering all the evidence in this case of retaliatory motive by EG&G, the Court finds that Ms. Mugleston has failed to establish that Mr. Vonhatten intentionally harassed her in relation to the barricade tape incident because of her protected activities.
I. Ethics training
Ethics training regarding workplace retaliation was conducted by EG&G in July 2002, as a result of Ms. Mugleston's March 2002 complaint with the Department of Labor. TR. 143-44, 166, 1163. Ms. Mugleston and several other witnesses opined that the ethics training alluded to Ms. Mugleston's own whistleblowing activities. TR. 145, 593-94, 741-42, 829. These witnesses opined that the training was used by EG&G as a vehicle to discourage the raising of safety and environmental concerns and to determine which employees would side with the company and which would side against the company in the event of whistleblowing. TR. 145, 593-94, 741-42, 829.
Debbie Sweeting and Lois Baar explained that the ethics training was conducted to ensure that employees understood that raising safety and environmental concerns was a legitimate thing to do and that EG&G encouraged such activity, that employees knew their rights in such situations and what channels were available to them, and that employees were aware they needed to be respectful when safety and environmental issues are raised or a formal complaint is filed. TR. 1159, 1163-64, 1252-53. The training sessions were conducted by EG&G attorneys Lois Baar and Jathan Janove. TR. 1156-57. Ms. Baar testified that she performs employment law training on a regular basis, covering such topics as sexual harassment training, performance appraisals, survey training for managers, and the Americans with Disabilities Act. TR. 1157.
Ms. Baar testified that interactive exercises were used in the training sessions. TR. 1162. Ms. Baar explained that she and her partner presented trainees in each session with a hypothetical. TR. 1162. The trainees were then divided into two groups and were directed to discuss the hypothetical and formulate an opinion. TR. 1162. Ms. Baar testified that the trainees were not being asked in the training session to take sides with management or employees. TR. 1164. Ms. Baar testified that although it was not the intent, the interactive exercises may have given employees the impression that EG&G was asking for their opinion about which party in each scenario was doing the proper thing. TR. 1164.
The Court accepts Ms. Baar's testimony. Although some employees had the impression that EG&G was using the ethics training to discourage whistleblowing, the Court finds that the ethics training was intended to communicate the dynamics of retaliation and to prevent the harassment of Ms. Mugleston in connection with her protected activities. After considering the evidence, including whether or not the ethics training was merely pretext for intentional harassment of Ms. Mugleston, the Court finds that the ethics training was not intended to be antagonistic towards Ms. Mugleston or to discourage whistleblowing. The training in fact had the opposite intent. Based on the foregoing, the Court finds that the ethics training, taken in consideration with all the other evidence in this case suggesting discrimination, did not contribute to creating a hostile work environment in satisfaction of Ms. Mugleston's claim.
J. Reclassification of the BRA RHA Position Under the Service Contract Act
Ms. Mugleston raised a concern in her October 2001 and February 2002 memos about the possible reclassification of the BRA RHA operator position under the Service Contract Act. TR. 237-38, 283-84, 1213; RX-1; RX-37. Ms. Mugleston was concerned that the BRA RHA position would be underrated for compensation purposes in terms of its classification. TR. 233-34, 241. The Court finds that there is no evidence indicating that the BRA RHA reclassification issue was related to Ms. Mugleston's protected activity. In addition, there have been no changes to the classification of BRA RHA operators as of yet. TR. 239, 1217, 1270. Therefore, the Court finds that the BRA RHA reclassification issue did not contribute to creating a hostile work environment in relation to Ms. Mugleston.
K. Negative Comments and Sentiments Regarding Ms. Mugleston
Based on the testimony of Andy Harris and Larry Allen, the Court finds that Steve Wallace during a management meeting in early 2003 made a comment to the effect that TOCDF would have fewer struggles in how it does business if it were not for Ms. Mugleston's safety and environmental concerns. TR. 825, 868-69. Steve Wallace also made a comment referring to Ms. Mugleston as a movie star or celebrity after Ms. Mugleston's media appearance in Utah or Alabama. TR. 117, 745-46, 1624-25, 2009. Mr. Wallace testified that he was surprised after seeing Ms. Mugleston in the media and made the comment, "Gosh, we have a celebrity." TR. 1624. Mr. Wallace testified that he did not intend the comment to be derogatory and that he was actually surprised and impressed with Ms. Mugleston's appearance in the media. TR. 1624. Mr. Wallace testified that there was a good deal of chatter at TOCDF about Ms. Mugleston's media appearance, as many people were curious about it. TR. 1628. Mr. Wallace characterized the chatter as inquisitive rather than mean-spirited. TR. 1628. Mr. Wallace also testified that he spoke to Ms. Mugleston about her intentions at TOCDF after rumors began that Ms. Mugleston had started a petition in the Tooele area to shut down TOCDF. TR. 117, 1649-50, 2007-09.
In addition, evidence was submitted that John Cafe has made negative remarks about Ms. Mugleston and has made Ms. Mugleston stand and wait to receive her keys for keyholding. TR. 133-34, 715-17. Evidence was also submitted that Jerry Safrans and Sid Lawrence made remarks about Ms. Mugleston over the plant radio system. TR. 129-32, 776. There was also evidence of comments about Ms. Mugleston on bathroom walls. TR. 625-26, 728. Pat Vario testified that Darren Hendrix made a negative remark about Ms. Mugleston. TR. 657-58. There were also rumors at TOCDF about Ms. Mugleston and Mr. Utley, as well as comments in Tooele area newspapers by Marty Ahlstrom and Tom Duffield. TR. 117-18, 313-15, 323-24, 732, 1232-33. Based on testimony from Ms. Mugleston, David Palmer, Steve Land, Dennis Cook, Bobbie Earp, Pat Vario, and Steve Wallace, other negative comments were reportedly made by Larry Allen, Darryl Drewery, Lynn Carlson, Herman Candelaria, Scott Vonhatten, Ray Bell, Sarah Muir, Sue Renzello, Erv Hillman, Mike Green, Steve Land, and Brett Pfeiffer. TR. 104, 340-41, 621-22, 776-79, 838-39, 877-79, 1626-29.
Although there is some general evidence that remarks about Ms. Mugleston were made at various times, the Court finds that such evidence is not sufficient to establish that a hostile work environment existed in relation to Ms. Mugleston such that the workplace for Ms. Mugleston was an abusive environment or was pervaded with hostility. First, much of the evidence regarding the comments and activity directed toward Ms. Mugleston is vague and patchy. For example, Steve Land's description of comments about Ms. Mugleston by Ray Bell, Sarah Muir, and others in the control room was only: "Some angry. Some worried that they'll have a job." TR. 621-22. David Palmer described negative activity against Ms. Mugleston by Darryl Drewery, Lynn Carlson, and Herman Candelaria only as: "They was [sic ] kind of ganging up against Brenda and mad about her and what she was doing with—with all the environmental and safety issues she was bringing up." TR. 341. Dennis Cook characterized statements he has heard from PAS and BRA RHA operators as: "Just some co-workers mentioning, you know, about making comments about trouble, causing trouble, morale, things like that." TR. 877. Bobbie Earp's testimony about Sue Renzello's comment regarding Ms. Mugleston consisted only of, "She's just very upset and very, very concerned and she feels like the only thing Brenda's trying to do is shut the job down. And we all need our jobs." TR. 778. Andy Harris' best recollection of "snide" comments about Ms. Mugleston that would arise during daily management meetings about once a month was: "Brenda's causing us a lot of trouble." TR. 825-28. Larry Allen testified that he heard Steve Wallace make remarks about Ms. Mugleston to Steve Lowry during daily shift meetings leading up to the Olympics relating to, "concerns that it was all about shutting the plant down, the whistleblower comment, that type of stuff." TR. 867. Because such evidence is vague, the meaning, severity, and intent of the remarks are difficult to decipher. Without more, the Court cannot give much weight to such evidence in evaluating Ms. Mugleston's hostile work environment claim.
The Court finds that the remaining comments in aggregate were sporadic and consistent with tensions that by and large occur at many workplaces. The Court finds that these comments, together with the other evidence of hostility in the workplace towards Ms. Mugleston, are not so severe and pervasive to cause a reasonable person distress. Furthermore, after considering all the events of alleged discriminatory action in this case in aggregate, the Court finds that Ms. Mugleston's work environment was not pervaded with hostility such that an abusive work environment was created and a reasonable person would have been detrimentally affected by the workplace.
L. PDI and Denial of Merit Raise
The Court also finds that EG&G's submission of PDI regarding Ms. Mugleston was not a degrading or humiliating event, so as to contribute to the merits of her hostile work environment claim. EG&G's submission of PDI merely fulfills its obligation of disclosure for the Army CPRP. While PDI submitted by EG&G on Ms. Mugleston did reference her settlement, safety and environmental memorandums, and DOL complaint, EG&G's role as a sender of PDI is to transmit information even if there is uncertainty about whether the information is PDI. TR. 1096-97, 1126. The Army Certifying Official screens the information and the information is shredded if it is not relevant. TR. 1096-97, 1112. Robert Rothenberg, the Army Certifying Official for Ms. Mugleston, testified that nothing has been sent in as PDI regarding Ms. Mugleston that has been inappropriate. TR. 1105-06. The Court agrees. While some PDI did reference activity that was protected under the RCRA and CERCLA, there is no evidence indicating that that such PDI would not be sent about someone else in similar circumstances or that Ms. Mugleston was treated any differently than someone else in similar circumstances.
The Court also finds that EG&G did not act improperly by not awarding Ms. Mugleston a merit raise upon her rehiring as a BRA RHA operator in October 1999. EG&G likewise did not act improperly by not awarding a retroactive merit increase to Ms. Mugleston's based on her October 2001 request. EG&G employees may receive merit increases on October 1st of any year. TR. 550. Based on EG&G's agreement with the United States government, no employee is allowed to receive a raise within six months of the October 1st raise. TR. 551. Therefore, employees who receive a raise between April 1st and October 1st are not eligible for the merit increase in October. TR. 551. However, EG&G allows an exception for employees hired between April and October; these employees are eligible to receive a prorated merit increase six months after their hiring date. TR. 551.
In deciding to reject Ms. Mugleston's request for a retroactive merit raise, Debbie Sweeting reviewed EG&G's handling of the other workers laid off at the same time as Ms. Mugleston. TR. 552, 1216. Twelve to fifteen other workers were rehired like Ms. Mugleston, and none of these workers were eligible for a merit increase until the following year. TR. 552, 1216. Therefore, the original denial of Ms. Mugleston's merit raise was consistent with the policy applied by EG&G to all the other workers rehired under the same circumstances as Ms. Mugleston. In addition, the rejection of Ms. Mugleston's October 2001 request for a retroactive merit increase upheld and preserved EG&G's policy toward those workers. TR. 552, 1216. The Court finds that Ms. Mugleston's request was thoroughly investigated and that the reasons for denying her request were reasonable and legitimate.
Although Ms. Mugleston cited Scott Monsen's receipt of a retroactive merit raise as evidence of disparate treatment, the Court finds that the circumstances surrounding Scott Monsen's merit raise are distinguishable from Ms. Mugleston's situation. First, Scott Monsen was hired at a different time as Ms. Mugleston. Scott Monsen was hired some time in 2001 while Ms. Mugleston was rehired in 1999. TR. 257-58, 442-43, 637; RX-33. EG&G could legitimately have used different pay strategies in different years. Second, Scott Monsen was a new hiring while Ms. Mugleston was being rehired after her lay off. Upon her rehiring, Ms. Mugleston retained the same wage that she was earning when she was laid off, which was already consistent with the high end of the range for the salary of a BRA RHA operator. TR. 1216. Based on EG&G's retention of Ms. Mugleston's former wage, the Court finds EG&G had a distinctive pay strategy for Ms. Mugleston's rehiring that made her rehiring different from the circumstances surrounding Scott Monsen. In addition, there was no impropriety surrounding Mr. Monsen's raises. Debbie Sweeting testified that the raises granted to Scott Monsen were granted at times that are allowed within EG&G's compensation management plan. TR. 550.
CONCLUSION AND RECOMMENDED ORDER
Ms. Mugleston proved that she engaged in protected activity under the RCRA and CERCLA. Ms. Mugleston also proved that adverse employment actions were taken against her. However, EG&G produced evidence that its adverse employment actions against Ms. Mugleston were motivated by legitimate, nondiscriminatory reasons. Ms. Mugleston has failed to prove that EG&G's proferred reasons were not the true reasons for the adverse employment actions. In addition, there is some evidence of workplace comments and negative activity directed toward Ms. Mugleston due to her protected activities. However, Ms. Mugleston has failed to show that such harassment was sufficiently severe or pervasive so as to alter the conditions of her employment and create an abusive work environment, which would have detrimentally affected a reasonable person. As such, Ms. Mugleston is not entitled to any remedy for her retaliation and hostile work environment claims.
Accordingly, the Court recommends that Complainant's claim be DISMISSED .
So ORDERED .
RICHARD D. MILLS
Administrative Law Judge
NOTICE : This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.
[ENDNOTES]
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In terms of hierarchy, EG&G's management structure begins with the General Manager, then the Plant Manager, then the Operations Manager, then the Plant Shift Manager, then the Operations Supervisors, and then the area leads. TR. 59, 1838-39. Area leads are supervising individuals in different work areas, such as the BRA RHA, the Pollution Abatement System (PAS), Utilities, the Container Handling Building (CHB) Unpack, the DSA, Hazardous Waste Management, and Maintenance. TR. 60-61.
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Ms. Sweeting testified that documents were filed in this manner as a result of a charge from the DOL and complaints by Ms. Mugleston's attorney regarding certain documents in Ms. Mugleston's files. TR. 449-54. Ms. Sweeting testified that this filing change has been done with all employees, in addition to Ms. Mugleston. TR. 455. Ms. Sweeting testified that EG&G also keeps X files, investigatory files which contain records for incidents and violations at TOCDF. TR. 489. Ms. Sweeting testified that there is one X file per incident. TR. 489. Ms. Sweeting testified that X file documents are not accessible to EG&G managers unless permission is given by the General Manager. TR. 498.
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