Staskelunas v. Dominion Nuclear Connecticut, Inc., 2002-ERA-36 (ALJ Mar. 19, 2003)

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Staskelunas v. Dominion Nuclear Connecticut, Inc., 2002-ERA-36 (ALJ Mar. 19, 2003)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Issue Date: 19 March 2003
Case No. 2002-ERA-00036

___________________________________
Ronald Staskelunas
Complainant,

Dominion Nuclear Connecticut, Inc.
Respondent.

________________________________

Before: Stuart A. Levin
Administrative Law judge

Counsel for Complainant:
William B. McCoy, Esq.

Counsel for Dominion Nuclear Connecticut, Inc.:
Charles C. Thebaud, Jr., Esq.

SUMMARY DECISION

On May 28, 2002, Ronald Staskelunas, a former employee of Northeast Nuclear Energy Company's (NNECO) Millstone Power Station, filed a complaint alleging that NNECO's successor, Dominion Resources Connecticut, Inc. (DNC) engaged in discriminatory acts of retaliation against him in violation of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851, et. seq., when it denied his application for re-employment at the Millstone Power Station. DNC rejects these assertions and disputes the allegations. Citing a March 14, 2002, email responding to his application, DNC contends it denied him re-employment because he had previously accepted a substantial severance package and agreed not to seek re-employment. Its actions on his applications, it contends, were predicated on the Release agreement implementing the severance, not the alleged past protected activity which may have involved its predecessor, NNECO.

In due course, Staskelunas brought his charges before OSHA which considered them and advised, by letter dated August 2, 2002, that it declined to investigate his complaint. In OSHA's judgment, Staskelunas had "failed to make a prima facie showing that protected activity was the contributing factor in the unfavorable action."

Upon receipt of OSHA's decision, Complainant, on August 7, 2002, timely appealed, and pursuant to Notice issued September 10, 2002, a hearing on the merits was scheduled to convene on October 16, 2002. Shortly thereafter, the parties jointly requested and, by order dated October 3, 2002, were granted a postponement of the hearing. Employer subsequently filed a Motion for Summary Decision on October 10, 2002, and filed conforming copies of its Motion on October 11, 2002. Curiously failing to reply, Staskelunas has neither opposed the Employer's motion nor communicated any intent to respond.¹ Accordingly, on the record before me, Summary Decision will be entered as set forth below.

[Page 2]

Initially, it must be noted that when a party moves for summary decision, with or without supporting affidavits, the party opposing the motion is required under Federal Rule 56 and 29 C.F.R. Part 18.40 to respond by demonstrating the existence of a genuine issue of material fact for hearing. Pickett v. Tennessee Valley Authority, 2000 CAA 0009, (August 9, 2000). Since DNC's motion is supported by affidavits and other documents, Complainant must adduce evidence "showing that there is a genuine issue of fact for the hearing." 29 C.F.R. §§ 18.40(c). See, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Indeed, Section 29 C.F.R. §18.40 (c) is fairly specific on this point and provides in pertinent part as follows: "When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rely upon mere allegations or denials of such pleadings. Such response must set forth specific facts showing that there is a genuine issue of fact for the hearing." Evidence submitted by a party opposing summary decision must then be considered in light of its content or substance rather than the form of its submission. Winskunas v. Birnbaum, 23 F.3d 1264 (7th Cir. 1994); Pickett v. Tennessee Valley Authority, 2000 CAA 0009, (August 9, 2000).

Now, the opportunity to oppose a motion for summary decision provides creative counsel with wide latitude in framing a persuasive defense; but simply ignoring a motion for summary decision is not one of more viable options contemplated by the applicable rules. Yet, Staskelunas has not only failed to respond, the Employer is otherwise entitled to the relief which it seeks.

II.

The uncontested evidence adduced by the Employer shows that Staskelunas, while working at the Millstone Power Station, accepted a severance package on August 2, 2000, and signed a General Release and Covenant Not to Sue ("Release").² The Release provided that his employment would terminate on August 4, 2000, and that he would not seek re-employment with Northeast Utilities (NU), Northeast Nuclear Energy Company (NNECO), their affiliates, or with any future company to whom these companies assigned the Release. The record further shows that during the same time period Staskelunas and NNECO were crafting the Release, NNECO was attempting to divest the Millstone Power Station in accordance with the Connecticut Public Utilities Act 98-28; and its efforts were well publicized in the media and circulated to its workforce.

Accordingly, when Staskelunas signed the Release, he knew or should have known that a sale of Millstone was likely in the foreseeable future, and he knew that NNECO was free to assign the Release to a future owner.³ These terms, however, were acceptable Complainant who, in return, received a substantial severance payment and a lump sum retirement benefit.⁴ Thus, five days after Staskelunas closed his severance deal, NNECO and Dominion Resources, Inc. (Dominion), on August 7, 2000, announced their Purchase and Sale Agreement (PSA) for the Millstone Power Plant.⁵

[Page 3]

While DNC expended considerable resources in its Motion establishing the lineage of its authority to invoke the terms of the Staskelunas Release, thereby suggesting that the issue may have been contested at some point, I note that Staskelunas does not dispute DNC's analysis in this proceeding. Indeed, no argument before me suggests that DNC lacked authority to invoke the terms of the Release.⁶ It is not here disputed, for example, that Dominion's acquisition of Millstone from NNECO under the PSA included all of NNECO?s rights to the Millstone assets and encompassed workforce records which incorporated rights specifically assignable to NNECO's successors, and Staskelunas's Release clearly contemplated such an assignment. Further, DNC contends without contradiction by Complainant that an "Assignment and Assumption Agreement" of March 30, 2001, between Dominion and its corporate affiliate, assigned the Release to DNC which invoked it to reject Staskelunas's applications.⁷ Certainly, nothing provided for my consideration in this proceeding would suggest that DNC's reliance upon Complainant's Release was improper.

III.

The uncontested evidence establishes that DNC denied the employment applications in accordance with the Release which Staskelunas voluntarily accepted, and which DNC had a right to invoke as the assignee of Dominion and NNECO. Moreover, Complainant failed to adduce any evidence whatsoever, by affidavit or otherwise, in response to the Employer's Motion which would tend to indicate, directly or circumstantially, that DNC had knowledge of his protected activity, that protected activity was a motivating factor in DNC's decision not to hire him, or that his Release was merely a pretext for the adverse action taken by DNC. Since Complainant failed to identify any genuine issue of material fact that would warrant a hearing, I conclude that DNC is entitled to summary decision. 29 C.F.R. § 18.40(d). See, Gillilan v. Tennessee Valley Authority, 91-ERA-31, at 3 (Sec'y, Aug. 28, 1995); Flor v. United States Dept. of Energy, 93-TSC-1, at 5 (Sec'y, Dec. 9, 1994); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Held v. Held, 137 F.3d 998, 999 (7th Cir. 1998). Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 Sup. Ct. 486 (1962); Rogers v. Peabody Coal Co., 342 F.2d 749 (6th Cir. 1965). Accordingly:

ORDER

IT IS ORDERED that the Employer's Motion for Summary Decision be, and it hereby is granted, and that the complaint be, and it hereby is, dismissed.

Stuart A. Levin
Administrative Law Judge

[ENDNOTES]

¹ Complainant has even failed to provide for this record a description his alleged protected activity while employed by NNECO. I have, nevertheless assumed for purposes of addressing the Employer's motion that he did indeed engage in protected activity while employed by NNECO.

² The Release is covered by a Protective Order, dated October 10, 2002, which governs it production and use pre-trial.

³ While it appears that complainant was not represented by counsel when he signed the Release, the employer did advise him to consult with an attorney before signing it, and Staskelunas proffers no argument here that he misunderstood the content, language or significance of the Release. DNC contends that he entered into the agreement with a reasonable appreciation of the meaning of the Release knowing that a new owner would soon be in control of Millstone, and Staskelunas does not contend otherwise.

⁴ I have carefully reviewed the record before me for any evidence that the Release may have, in effect, been a settlement agreement disposing of a then-pending ERA whistleblower complaint. Such an agreement could have required the approval of the Department of Labor. Yet, there is no evidence in this record that a complaint was pending, that this Release was an ERA or other whistleblower settlement, or that it was anything other than a voluntary severance package.

⁵ Pursuant to Section 4 of the Release, Staskelunas unilaterally could have revoked the Release within seven days after he signed it. Consequently, when NNECO and Dominion entered into the PSA and publicly announced that Dominion was the successful bidder, issued a Special Edition of its employee newsletter announcing the sale of the plant to Dominion, and identified Dominion as the successful bidder for Millstone, Stakelunas still had time to revoke the Release. The next day, August 8, 2000, with a day left on the seven-day revocation period, the news media reported the sale of the Millstone to Dominion. Had Staskelunas chosen to do so, he could have revoked his agreement at that time. He chose instead to accept its terms, allow the Release to become effective, and take the sizeable severance payments provided under the Release.

⁶ Complainant, in the past, apparently challenged DNC's right to possess a copy of the Release. No such response to the Motion for Summary Decision was, however, interposed in this proceeding. In any event, the Release provides that Staskelunas will keep it confidential, but Complainant has failed to cite to any provision which imposes a similar obligation on NNECO or DNC. See also, Section 2.1(g) of the PSA( Re: right to possess all NNECO documents relating to operation of Millstone.).

⁷ Thus, Staskelunas voluntarily agreed not to seek re-employment at Millstone, and further agreed in an expressly assignable contract that the owner of Millstone was "not obligated to accept, process, or otherwise consider any future applications [he] may file for employment or job assignments with the Company.... [and that he] would not have any claim or cause of action against the Company or any present or future parent, subsidiary, or affiliated company thereof, based upon their or its failure or refusal to consider any application by [him]."