Department of Labor Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
Date: February 23, 1999
Case No.: 1998-CAA-16
In the Matter of
Walter Moore
Complainant
v.
U. S. Department of Energy
Respondent
RECOMMENDED DECISION AND ORDER
GRANTING SUMMARY JUDGMENT
Background
By Motion filed January 22, 1999, the Department of Energy (DOE) seeks a
summary judgment based on the contents of the videotapes upon which Complainant bases his Clean
Air Act (CAA) complaint. Earlier DOE had sought and was granted, by Order dated December 24,
1998, a dismissal of Complainant's complaint under the Surface Transportation Amendments Act
(STAA) upon jurisdictional grounds; however, at that time DOE's Motion to Dismiss Complainant's
complaint under the CAA was denied.
For purposes of its latest motion, DOE maintains that based upon the
undisputed facts a viewing of the videotapes upon which Complainant bases his complaint
establishes that the speaker, Mr. Gordon Moe, did not issue a "gag order" and that
Complainant suffered no discriminatory or adverse action under the CAA upon which a complaint
could be successfully based.
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The facts which DOE urge are undisputed are as follows: (1) that Complainant
is a nuclear materials courier employed by the Transportation Safeguards Division (TSD); (2) that
Complainant has been on Leave Without Pay (LWOP) since April 20, 1998, receiving workers'
compensation from the DOL; (3) the meeting about which the videotapes were made was held on
June 9, 1998, at Kirkland Air Force Base (KAFB) in Albuquerque, New Mexico; (4) the meeting
was conducted by an Agency consultant under contract, Gordon Moe; (5) Complainant was neither
present, expected, nor required to be at the meeting; (6) Complainant resides in the Amarillo, TX
area; and (7) on his own initiative, Complainant requested and received a copy of the videotapes and
viewed the videotapes at home on July 2, 1998, approximately 23 days after the meeting was
videotaped.
Complainant responded to DOE's Motion for Summary Judgment on February
9, 1999, stating the Motion should be summarily denied because: (1) Complainant's sworn
complaint and former Secretary O'Leary's deposition present disputed issues for trial; (2) summary
judgments are disfavored where there are genuine issues of material facts which cannot be dealt with
absent a hearing; (3) that whistleblower cases involving pretext, hostile working environment and
dual motives cannot be summarily dealt with; (4) Complainant has been denied access to information
by means of discovery; (5) the two videotapes in question are not accompanied by transcripts; and
(6) all inferences should be made in favor of the non-moving party.
Findings of Fact and Conclusions of Law
Based upon the allegations of Complainant's complaint, the deposition of
former Secretary Hazel R. O'Leary, the affidavit of Deborah Miller, the two videotapes and the legal
reasons hereinafter provided, I find no genuine issues of facts which merit a trial in this matter. I
grant DOE's Motion for Summary Judgment.
While I well agree with Complainant that summary decisions are not favored
and retaliatory motives must often be proven by inference through circumstantial evidence, in this
instance Complainant's sworn complaint is undeniably based upon the videotapes. Therefore, the
basis of the complaint is specifically defined and lends itself to a summary review.
In his sworn complaint, Complainant states he has been a ten year employee
of DOE as a special agent charged with transporting and guarding nuclear weapons and materials.
During this time, Complainant alleges that he raised environmental, safety and health issues, and as
a result of his and others concerns a meeting was held in Albuquerque, New Mexico, "where
workers were threatened if they ever mocked or criticized or questioned their DOE managers in DOE
meetings, with the statement made that this was inappropriate in a paramilitary' organization and
would be halted in the future."
Complainant acknowledges he was not present at the Albuquerque meeting
because he was on leave. Rather, Complainant states that he viewed the meeting by means of
videotapes on July 2, 1998, and his "free speech rights have been chilled by the statements on
the videotape." In paragraph 12 of his complaint, Complainant specifically states:
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The DOE gag order was recorded on a DOE videotape and amounts to an illegal gag
order designed to have a chilling effect that would prohibit DOE couriers from
raising concerns protected by the Clean Air Act and Surface Transportation
Amendments Act (STAA).
As a result, Complainant seeks various damages and remedies under the CAA.
In addition to his sworn complaint, Complainant offers former Secretary Hazel
O'Leary's deposition taken in an unrelated matter on May 14, 1998. Ms. O'Leary testified she
served as Secretary of Energy from January 22, 1993, to January 21, 1996, and that shortly after her
arrival she met with groups of whistleblowers to discuss their concerns. She learned of many
incidents of retaliatory actions against employees who reported alleged violations of various federal
statutes. Ms. O'Leary began restructuring the department in an attempt to deal more effectively with
whistleblower claims. She sought to improve the Agency's image by establishing a "zero
tolerance for reprisal" policy as well as publicly accepting responsibility for the effect of
various controversial agency decisions made in the past.
She testified she was aware of an atmosphere of intolerance within the agency
as a whole and during her tenure worked hard to eliminate the problem by restructuring the
Department of Energy. When she departed the department in 1996, Ms. O'Leary believed there was
a system in place to better deal with the valid concerns of DOE employees and to protect them from
reprisal.
The affidavit of Deborah C. Miller attached to DOE's Motion for Summary
Judgment establishes the following: (1) that Ms. Miller is the Director of the Transportation
Safeguards Division (TSD) of DOE and has been with the agency since 1975; (2) that a review panel
consisting of private consultants, headed by Mr. Gordon Moe, was hired and commissioned to
review concerns regarding TSD operations; (3) the panel consisted of no DOE or United States
government employees; (4) that a presentation of the panels preliminary findings was made on June
9, 1998, in Albuquerque, New Mexico, to employees of TSD; and (5) that Complainant was not
present at the meeting because he was and has been on leave without pay from DOE since April 20,
1998, receiving workers' compensation benefits.
Two videotapes were taken of the June 9, 1998, meeting. I have viewed both
at length. The first runs over an hour and primarily contains the remarks of Gordon Moe, the private
consultant hired to head the independent study panel, followed by brief remarks from the Assistant
Secretary of Defense and Director of the Albuquerque office. Both of whom concurred with Mr.
Moe's remarks and suggestions. The second videotape is under an hour and is a question and answer
session with audience participation ending with a few brief remarks.
On the first tape, Gordon Moe released his findings and recommendations in
the meeting attended by both management and employees. The review had been initiated because
of environmental health and safety concerns as well as communication and public health concerns.
In Mr. Moe's analysis, although the mission of the transportation system was determined to be
functioning well, he described a fundamental lack of trust and respect between special agents and
TSD management.
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Mr. Moe indicated this lack of trust was a symptom of other problems, such
as too little leadership and problems in the support system, as well as litigation and adverse media
attention. Mr. Moe determined that management was tilted toward self-promotion and that the
clashing subcultures existing within the agency were detrimental to the department. His proposed
solutions and recommendations were therefore designed to improve both the public's image of the
agency as well as the internal interaction of management and employees.
Mr. Moe indicated that in a "paramilitary" organization, such as
he considered the special agent branch of the agency to be, openly ridiculing or condemning
management in public or at meetings was "inappropriate." Mr. Moe understood the
agents' frustration, but did not find this form of communication effective. His recommendations
included an improved structure to deal with communication problems including the use of an
ombudsman. Additionally, he made recommendations regarding a twenty-year retirement plan,
uniforms for the special agents, physical fitness tests and improved pay structures. Mr. Moe's
comment about not publicly criticizing management occurred about mid-way in his presentation,
was his opinion and referenced only briefly as one of many observations he was making as a result
of the independent study.
The majority of questions raised during the question and answer session dealt
with the details of the twenty year retirement plan, the possibility and type of uniforms, as well the
recommendation of a possible name change. Although hostility was noted in a few of the questions
posed by employees, management and the majority of employees seemed satisfied with the
recommendations and willing to attempt to improve the work environment. A show of hands
indicated all concerns had been mentioned, and in conclusion the employees were thanked for their
bluntness and urged to be forthright.
Mr. Moe's remarks taken in context of his overall mission and the manner in
which he delivered his message presented no attempt to "gag" DOE employees or
prevent them from raising safety concerns. To the contrary, the questions asked by employees in
the subsequent session demonstrated quite well that there had been no chilling effect on anyone's
freedom to speak.
In order to establish a prima facie case a Complainant must show: (1) that he
engaged in protected activity; (2) that the Respondent knew of the protected activity; (3) that the
Respondent took adverse action against him; and (4) that the protected activity was the likely reason
for the adverse action. For the reasons set forth below, I find that the Complainant has failed to
establish a prima facie case that DOE took some adverse actions against him. Thus this inquiry need
go no further.
For me to find a prima facie case, there must be evidence that DOE in some
way took an action that was adverse to the Complainant. While the Secretary has been broad in his
definitions of the concepts of adverse action and has extended it to many things including a hostile
work environment, the words of Mr. Moe, a private consultant, cannot be interpreted to be adverse
to Complainant who himself was on leave and not in attendance at the talk given. In other words,
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there were no remarks made, when considered in the context of the overall presentation, that a
hypothetical "reasonable person" could have found to be hostile, threatening, chilling,
gagging or adverse.
Complainant had been on leave receiving workers' compensation benefits for
two months prior to Mr. Moe's comments. The study had been initiated by a review panel convened
as early as December, 1997. That the speech was somehow designed for Complainant cannot be
inferred. In fact in his complaint, Complainant notes DOE sought return of the videotapes when they
learned he had copies.
The theme of Mr. Moe's presentation is of an organization trying to work
through internal problems between management and employees, not of an employer attempting to
chill employees freedom of speech. It was not a disciplinary procedure, but rather an effort to reduce
conflicts between management and workers by implementing new approaches, including enhanced
communication. The videotapes certainly reveal no attempt to cause any diminution in the terms and
conditions of employment. To the contrary, employee benefits were recommended. Having
employees listen to suggestions by an independent consultant such as was done here surely cannot
be regarded as adverse action.1
1 Complainant having failed to establish
a prima facie case issues such as pretext and dual motive do not arise.
2 There has been some discovery in
this case, though Complainant protests adequate responses have not been provided. To date I have
not been furnished DOE's responses, so I have been unable to pass upon Complainant's Motion to
Compel; however, for the reasons stated in this Decision and specifically because Complainant's
complaint is founded solely upon the videotapes, I find the state of the record sufficient upon which
to base this decision.