Turpin v. Lockheed Martin Corp., 2001-ERA-37 (ALJ Mar. 8, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue date: 08Mar2002

CASE NO. 2001-ERA-37

In the Matter of:

HUGH TURPIN
    Complainant

    v

LOCKHEED MARTIN CORPORATION,
LOCKHEED MARTIN ENERGY SYSTEMS, INC., and
BWXT Y-12, LLC
    Respondents

   This proceeding arises under the whistleblower protection provisions of the Energy Reorganization Act of 1974 (ERA), § 210(a) as amended, 42 U.S.C. § 5851. A hearing is scheduled before the undersigned in Knoxville, Tennessee on March 19-21, 2002. On February 14, 2002, Respondents filed a Motion for Summary Decision pursuant to 29 C.F.R. § 18.40. At counsel's request, Complainant was given until March 6, 2002 to reply. Complainant filed a timely response to the Motion for Summary Decision and a Cross Motion for Summary Judgement on March 6.

   A motion for summary decision in an ERA whistleblower case is governed by 29 C.F.R. §§ 18.40 and 18.41. A party opposing a motion for summary decision "must set forth specific facts showing there is a genuine issue of material fact for the hearing." 29 C.F.R. § 18.40 (c). Under the analogous Federal Rule of Civil Procedure 56 (e), the non-moving party "may not rest upon mere allegations or denials of his pleading, but instead must set forth specific facts showing that there is a genuine issue for trial . . . Instead, the party opposing summary judgement must present affirmative evidence in order to defeat a properly supported motion for summary judgement." Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986). The determination of whether a genuine issue of material fact exists must be made in the light most favorable to the non-moving party. Gillilan v. Tennessee Valley Authority, 91-ERA-31 and 34, (Sec'y Aug. 28, 1995.)

   Respondents contend that Complainant can not establish an essential element of his case because he has no admissible evidence that his claimed protected activity was a contributing factor in the alleged adverse employment actions. Respondents assume that the first three elements of a prima facie case could be established. ¹

   To establish a prima facie case, the complainant need only produce enough evidence to raise the inference that the motivation for the adverse employment action was the protected activity, but he need not establish motivation. Pillow v. Bechtel Construction, Inc., 87-ERA-35 (Sec'y, July 19, 1993). The inference can be raised by the temporal proximity of the protected conduct and the adverse employment action. Couty v. Dole, 886 F. 2d, 147 (8th Cir. 1989). It is error for the administrative law judge to consider the respondent's proffered reasons for the adverse employment action in determining whether a prima facie case has been established. The reason for the adverse action goes not to whether a prima facie case has been established but to the ultimate question of whether the respondent retaliated against the complainant because of his protected activity. Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y August 4, 1995)

   Respondents maintain that Complainant used radiation detection equipment with an expired calibration date and that as a result was subject to a one day "decision making leave" (DML) where he was off one day with pay followed by a twelve month probation. After returning to work, Respondents allege that Complainant made a number of careless mistakes, mostly involving the failure to properly fill out radiological paperwork, and that he also failed to return a "source" to the calibration laboratory. Respondents further contend that as a result of these errors, Complainant was evaluated by the staff psychologist who recommended neurological testing and restricted Complainant from further working in the highly secured area of the plant. Complainant was then referred to a psychologist in private practice who, after conducting a series of neurological tests on Complainant, concluded that he suffered from brain dysfunction. After reviewing the findings of this psychologist, Respondent LMES placed Complainant on short-term disability leave for six months. The short term disability leave ended on April 23, 2001, but as Complainant had not received psychotherapy during his disability leave, he was not reinstated to his previous position and was placed on Long-Term Disability benefits.

   Respondents refer to two instances of Complainant's protected activity: his requesting of information on radiation detection equipment that had expired calibration stickers and his submission of radiological awareness reports. (RAR). They maintain that Dr. Barker, the Director of the facility's Radiation Control Organization, was unaware that Complainant had prepared any RARs prior to his being placed on short term or long term disability leave. Respondents assert that there is no evidence that any decision maker harbored any animus toward Complainant and that he was disciplined for using the radiation detection equipment with an expired calibration date as well as for other errors. They state that Complainant has presented no evidence that placing him on short term or long term disability leave or referring him for a psychological evaluation was pretextual.

¹ To establish a prima facie case, the complainant must show that he engaged in protected activity, that he suffered an adverse employment action, that his employer was aware of the protected activity, and he must present evidence sufficient to raise an inference that protected activity was the likely reason for the adverse employment action. Larry v. Detroit Edison, 86-ERA-32 (Sec'y June 28, 1991).