Doyle v. Westinghouse Electric Co., LLC, ARB Nos. 01-073 and 01-074, ALJ No. 2001-ERA-13 (ARB June 30, 2003)

May 8, 2009

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Doyle v. Westinghouse Electric Co., LLC, ARB Nos. 01-073 and 01-074, ALJ No. 2001-ERA-13 (ARB June 30, 2003)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210 DOL Seal

ARB CASE NOS. 01-073 01-074
ALJ CASE NO. 2001-ERA-13
DATE: June 30, 2003

In the Matter of:

SHANNON DOYLE,
COMPLAINANT,

WESTINGHOUSE ELECTRIC CO. LLC,
HOPE COMISKY, ESQ.,
PEPPER HAMILTON LLP,
RESPONDENTS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
Shannon T. Doyle, pro se, Dothan, Alabama

For Respondent Westinghouse Electric Company LLC:
Thomas A. Schmutz, Esq., David R. Lipson, Esq., Morgan, Lewis & Bockius LLP, Washington, D.C.

For Respondents Hope Comisky, Esq. and Pepper Hamilton LLP:
Barbara W. Mather, Esq., Michael H. Rosenthal, Esq., Pepper Hamilton LLP, Philadelphia, Pennsylvania

FINAL DECISION AND ORDER

These cases arise under the employee protection provision of the Energy Reorganization Act (ERA), 42 U.S.C. § 5851 (2000)¹ and United States Department of Labor implementing regulations, 29 C.F.R. Part 24 (2002). Complainant Shannon Doyle alleges that Respondents Westinghouse Electric Co., Hope Comisky, Esq., and Pepper Hamilton, LLP violated the ERA by creating and distributing documents indicating that Doyle engaged in activity protected by the ERA. The Administrative Law Judge (ALJ) recommended that the motions for summary decision that Hope Comisky, Esq. and Pepper Hamilton LLP, and Westinghouse filed be granted. (Recommended Orders) Doyle now appeals the ALJ's rulings to the Board. We AFFIRM.

BACKGROUND AND CASE HISTORY

In 1988 Doyle applied for a position at Hydro Nuclear Services which then was a division of Westinghouse. Hydro required Doyle to complete both a training program and an employment application. The application included an "Authorization for Release of Information and Records." Doyle signed the authorization after crossing out the following sentence:

Further, I hereby release and discharge Hydro Nuclear Services, their representatives, and their clients for whom the investigation is being performed and any organization listed above furnishing [sic] or receiving any information pertaining to me from any and all liability or claim as results [sic] of furnishing or receiving such information pursuant to this authorization.

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Doyle filed a complaint with the Secretary of Labor alleging that Hydro's refusal to hire him violated the ERA. On July 17, 1989, an ALJ issued a Recommended Decision and Order (R. D. & O.) recommending that Doyle's complaint be dismissed. On March 30, 1994, the Secretary of Labor issued a Final Decision and Order in Doyle's favor and on May 26, 1994, Hydro petitioned the United States Court of Appeals for the Third Circuit for review of that Order. On July 27, 1994, the parties moved jointly to have the case remanded to the Department of Labor for proceedings regarding damages, and the case was remanded on August 24, 1994. On September 7, 1994, the Secretary of Labor issued an order remanding the case to an ALJ for further proceedings. On July 16, 1996, the ALJ issued the final R. D. & O.

On May 17, 2000, the Board issued a Final Decision and Order on Damages & Denial of Stay Pending Judicial Review, ordering Hydro to "send a notice to Equifax Corporation correcting [Hydro's] earlier notice that it had denied [Doyle] unescorted access to a nuclear plant" and "provide neutral employment references." Doyle v. Hydro Nuclear Servs., ARB Nos. 99-041, 99-042, and 00-012, ALJ No. 89-ERA-22, slip op. at 27, (ARB May 17, 2000). Hydro appealed the Board's decision to the United States Courts of Appeals for the Third and Sixth Circuits; those appeals were consolidated in the Third Circuit.³

On May 25, 2000, pursuant to the Board's order, Westinghouse sent a letter to Choice Point, the successor corporation of Equifax, stating that:

On November 22, 1988, Hydro Nuclear Services provided information to your employee, Chris, that Shannon Doyle was disqualified from his position at D.C. Cook nuclear power plant. The reason for the disqualification was the cancellation of the full background investigation. A copy of the Unescorted Access Authorization Log Sheet is attached hereto for your information. By a final decision and order dated May 18, 2000, the Administrative Review Board of the Department of Labor directed Hydro Nuclear Services to notify Equifax Corporation that this disqualification was improper. Although Hydro Nuclear Services is appealing the decision of the Administrative Review Board, it is complying with the directive in the May 18, 2000 order by sending you this notification. Please correct your records.

Brief of Respondent Westinghouse Electric Company LLC in Support of Recommended Decision and Order Granting Respondent's Motion for Summary Decision, Exhibit F. Westinghouse also placed in its files the aforementioned "neutral employment reference," which states that:

Shannon Doyle was in training to work as a Decontamination Technician for Hydro Nuclear Services from November 4, 1988 to November 22, 1988. His rate of pay was $6.50 per hour. Although Mr. Doyle did not work as a Decontamination Technician, his performance in the training was satisfactory.

Id., Exhibit G. On June 1, 2000, Comisky, an attorney with Pepper Hamilton (representing Hydro/Westinghouse), forwarded to Doyle's attorney copies of the Choice Point letter and employment reference, along with a cover letter stating:

As you know, the Administrative Review Board issued its Final Decision and Order on Damages on May 17, 2000. Hydro Nuclear Services has now complied with the portions of that Order directing it to take certain actions. Enclosed you will find: 1. a copy of the letter sent to Choice Point (formerly Equifax) stating that Mr. Doyle's disqualification was improper; and 2. a letter of reference for Mr. Doyle. There is no derogatory or negative information in Mr. Doyle's personnel records related to the failure to hire him, except for the report to Equifax which has now been "corrected", as required by the May 17, 2000 Order.

Brief of Hope Comisky, Esq. and Pepper Hamilton LLP, Exhibit 1.

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On April 24, 2001, Doyle filed a second complaint alleging that the letters to Choice Point and his own counsel violated the ERA because they identified him as having engaged in protected activity. The ALJ granted summary decision for the three Respondents in two separate orders. See Doyle v. Westinghouse Co., ALJ No. 2001-ERA-13, Order Granting Motion By Respondents Hope Comisky, Esq. and Pepper Hamilton LLP For Summary Decision (ALJ June 27, 2001) and Order Granting Motion by Respondent Westinghouse Electric Co. For Summary Decision (ALJ June 27, 2001).

JURISDICTION AND STANDARD OF REVIEW

The Board has jurisdiction to decide these appeals pursuant to 29 C.F.R. § 24.8 (2002). See also Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002) (delegating to the ARB the Secretary of Labor's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a), which includes the ERA).

We review a grant of summary decision de novo, i.e., under the same standard employed by ALJs. Set forth at 29 C.F.R. § 18.40(d) and derived from Rule 56 of the Federal Rules of Civil Procedure, that standard permits an ALJ to "enter summary judgment for either party [if] there is no genuine issue as to any material fact and [the] party is entitled to summary decision." "[I]n ruling on a motion for summary decision, we . . . do not weigh the evidence or determine the truth of the matters asserted . . . ." Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 99-STA-21, slip op. at 6-7 (ARB Nov. 30, 1999). Viewing the evidence in the light most favorable to, and drawing all inferences in favor of, the non-moving party, we must determine the existence of any genuine issues of material fact. We also must determine whether the ALJ applied the relevant law correctly. Cf. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith, 475 U.S. 574 (1986); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099 (9th Cir. 2000) (summary judgment under Rule 56, Fed. R. Civ. P.).

CONCLUSION

We have thoroughly reviewed the record and concur with the ALJ's finding that there are no genuine issues of material fact in dispute. We also conclude that the ALJ's well-reasoned Orders Granting Summary Decision for Respondents Hope Comisky, Esq. and Pepper Hamilton and for Respondent Westinghouse Electric Co., which we attach and incorporate, correctly apply established legal precedent. Accordingly, we AFFIRM the ALJ's denial of Doyle's complaint.

SO ORDERED.

M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge

OLIVER M. TRANSUE
Administrative Appeals Judge

[ENDNOTES]

¹ The statute provides, in pertinent part, that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . [notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq.(2000)), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA]."

² At the time Doyle was denied unescorted access, Equifax was a credit reporting agency that maintained and sold, among other products, employment reports to prospective employers.

³ On March 27, 2002, the United States Court of Appeals for the Third Circuit held that Doyle's refusal to sign the waiver did not constitute protected activity under the ERA. See Doyle v. United States Sec'y of Labor, 285 F.3d 243 (3d Cir. 2002), cert. denied, Doyle v. Hydro Nuclear Servs., 123 S.Ct. 620 (2002).