(See Complainant's Post-Hearing Findings of Fact and Conclusions of Law, p. 33), that he was excluded from key meetings (Id . at pp. 37-38) and that his security clearance was improperly revoked (Id . at p. 87).
a. Comparable Position/Meaningful Work
On April 3, 1998, Judge Kennington issued a Recommended Decision and Order which ordered TVA to reinstate Overall to his former position of Power Plant Maintenance Specialist (SD-4) at Watts Bar or, if that position was no longer available, to a substantially equivalent position (FoF ¶ 43).
Overall asserts that upon his return to Watts Bar, he "was told that Mr. Smith would be his supervisor, but there was no discussion about Mr. Overall returning to his former position, which was held by Mr. Jordan" (Complainant's Post-Hearing Brief, p. 34, ¶ 63).
As Watts Bar moved from construction to start up in 1995, Overall's original position was eliminated (FoF ¶ 20, 28). Overall was a Power Plant Maintenance Specialist (FoF ¶ 16), a position primarily related with the planning and start up of Watts Bar (FoF ¶ 16). Jordan transferred to Watts Bar as a Systems Engineer (FoF ¶ 31), an ongoing operational position with different responsibilities. Thus, Jordan did not occupy Overall's former position.
Second, by letter dated May 20, 1998, Higginbotham informed Overall that he would be "reinstated to your former position of Power Plant Maintenance Specialist, SD-4," (FoF ¶ 69), and attached to that letter was the SD-4 job description for Overall's position prior to his termination from Watts Bar (FoF ¶ 69). Overall was told, therefore, that he was to be returned to his previous position at Watts Bar.
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Upon return to work, Overall argues that he "received only a few make-work assignments while at Watts Bar in August and September 1998" (Complainant's Post-Hearing Brief, p. 37). Janice Overall stated that Overall "wasn't being given the responsibilities that he had had before, to be able to use his skills and expertise…." (Id . at p. 39).
Overall returned to work on August 5, 1998 (FoF ¶ 72), and left work again less than one month later on September 4, 1998 (FoF ¶ 79). During this period, Overall took administrative or annual leave on at least eight occasions (FoF ¶ 79). Overall was actually on-site working for only approximately twelve days during this thirty-day period (FoF ¶ 79).
During their first meeting, Smith told Overall that "there is going to be some training that [Overall] had to go through to get up to speed on procedure changes and [to] be able to do the work" (FoF ¶ 76). Part of that training included upgrading Overall's skills to obtain a qualification card which would allow him to work on PERs unsupervised (Id .). A qualification card is earned by familiarizing oneself with all the procedures necessary to complete a given task and by taking a practical factors examination (Id .). Given that Overall had been gone from Watts Bar for nearly three years, he lacked a current qualification card (Id .). Smith, therefore, could not assign Overall any unsupervised tasks on open PERs until he completed the necessary, updated training (Id .). Overall did not complete this training during his one-month reinstatement (FoF ¶ 76).
From August 5 through August 12, Overall was engaged in General Employment Training and Nuclear RAD worker training (FoF ¶ 74). Overall's actual "meaningful" work time, therefore, was effectively constrained to the days that he did not take leave during the period of August 13 through September 4, 1998.
During this period of approximately three weeks, both Smith and Jordan were away from Watts Bar for different periods of time. Jordan and Overall were on-site together at Watts Bar for only three days during Overall's reinstatement (FoF ¶ 75). Smith, Overall's first level supervisor, told Overall that he was "to work with Gary Jordan and get up to speed on the ice condenser system" (FoF ¶ 73). Jordan subsequently assigned Overall responsibility for writing several purchase requisitions, and Overall accompanied Jordan into the ice condenser system to take several required readings (FoF ¶ 78).
TVA is not required to change pre-existing assignments to accommodate Overall's work preferences. The law recognizes that it is the employer, not the employee, who "decides which of several qualified employees will work on a particular assignment." Mungin v. Katten Muchin & Zavis , 116 F.3d 1549, 1556 (D.C. Cir. 1997). The fact remains that upon his return to Watts Bar, Overall was not yet qualified to do several independent projects, such as unsupervised work on PERs. Further, as a "new" employee, Overall's assignments would necessarily be limited by projects that had already been assigned to other employees and by the gap in training and procedural changes produced by his three-year absence.
Overall was returned to his previous position and he was assigned work during his brief return to work. Overall's failure to complete the necessary training required for unsupervised work on PERs, coupled with Smith's and Jordan's absences from Watts Bar during those three weeks, prohibited TVA from assigning any more complicated work to Overall. TVA assigned the types of unsupervised work that could be delegated to Overall given his current training level. I find that Overall was given work appropriate to his position and current level of training.
b. Exclusion from Key Meetings and Communications
"Ostracism by one's co-workers and behavior designed to make a worker feel unwelcome can reach the level where it constitutes adverse action." Agosto v. Consolidated Edison Co. of N.Y. Inc., ALJ Case No. 96-ERA-2, at 17 (ALJ Oct. 14, 1997). Overall asserts that "Jordan, Smith, and others in his work group had frequent conversations and meetings about the ice condenser system, but they never asked Mr. Overall to participate" (Complainant's Post-Hearing Brief, p. 37).
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On August 26, 1998, Jordan told Smith that Overall expressed concerns that he was being excluded from meetings (FoF ¶ 156). Smith called Higginbotham and stated that he was concerned that Overall was having issues with the ice condenser and not talking to Smith about them (Id .). Smith reported to Higginbotham that he had received a fax from Jordan regarding an Ann Harris speech, wherein Harris was discussing problems that Overall had with the ice condenser system (Id .). On September 1, 1998, Overall informed Higginbotham that he was concerned because he was not asked to attend meetings about the ice condenser (FoF ¶ 161). Overall told Higginbotham that he had already spoken to Wiggall and Smith about his concerns (Id .).
During Higginbotham's subsequent discussion with Wiggall, Wiggall told Higginbotham that Overall "wasn't going to be involved in every issue associated with the ice condenser" (FoF ¶ 160), and he then later told Overall directly "that we weren't trying to exclude him from issues…." (Id .).
As Overall was on-site working for only approximately 12 days, he could only have missed meetings during those days. Overall spent from August 5th through August 12th in new employee training (FoF ¶ 74), and he presumably would not have been available for meetings during that re-orientation period. Smith and Jordan were also off-site for several days during Overall's brief reinstatement, further limiting the possible days that Overall could have been invited to or excluded from a meeting. As Overall had not completed the training required to work on PERs without supervision (FoF ¶ 76), and as most open PERs were already assigned to other departments or employees (FoF ¶ 77), Overall would not likely have been prepared to meaningfully participate in those discussions.
Overall was invited by Smith to attend an ice condenser symposium from August 18-20, 1998, in Chattanooga, Tennessee, but he chose not to attend on the advice of his attorney (FoF ¶ 159).
Overall cites by example an August 1998 discussion that Jordan had at his work station with Smith, Wiggall, and back-up engineer Paul Law, in which Jordan showed photographs of debris found in the ice condenser unit system at D.C. Cook (FoF ¶ 157). Jordan also allegedly discussed his recent trip to D.C. Cook where he studied their problems in order to address them at Watts Bar (Id .). While Overall was not involved in this discussion, Jordan, in a later discussion, showed Overall the photographs at issue, and the photographs in question were always available to any employee via a posting on the common drive of the company's computer system (Id .).
Jordan and Smith both testified that they did not convene meetings with everyone in the NSSS group to discuss specific issues, nor did Jordan even invite his back-up engineer to every meeting (FoF ¶ 163). Smith normally would discuss any topic needing to be addressed with Jordan, and if Jordan felt that someone else's presence was necessary to work on that topic, Jordan would request their input or presence to discuss the issue (Id .). Jordan testified that whoever attends a particular meeting depends on "what the meeting's about, [and] who it needs to involve" to address the topic at issue (Id .).
The one meeting that Overall was specifically invited to, the ice condenser symposium, he chose not to attend. Given Overall's limited time on-site, his failure to complete the training required to update his qualification card (which would have allowed Overall access to more problems and issues associated with open PERS), and given the fact that Smith and Jordan were off-site during much of the time that Overall was reinstated, I find no evidence that Overall was excluded from meetings appropriate to his current level of training and re-orientation to Watts Bar.
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Overall asserts that he was excluded from at least one telephone conference with the NRC resident inspector (Complainant's Post-Hearing Brief, p. 38). Overall fails, however, to state the date of this conference, the topics discussed, other attendees, or the appropriateness of his participation in this alleged conference. As such, I afford this complaint little probative weight.
Overall alleges that e-mails concerning ice condenser issues were forwarded to other employees, but that he was not on the distribution list (Complainant's Post-Hearing Brief, p. 38). Specifically, Overall was concerned that he was not being included in information provided from the ice condenser utility group, the group that he had helped start (FoF ¶ 158). Smith and Jordan were current members of the owner's group, but lower level employees, such as the back-up engineer and Overall, were not members (Id .). Smith routinely forwarded relevant e-mail messages to Jordan for further inquiry, and Jordan would then forward the e-mail to an appropriate person who could help address the topic at issue (Id .). Overall was not on the electronic distribution list, so he also did not receive the more general messages that sometimes were distributed to the entire group (Id .). When Overall discussed his communication frustrations with Higginbotham, he was told that the NSSS was a longstanding group to which Overall was a recent addition, and that with time, Overall would become more involved in the organization (Id .).
I find no adverse activity on the part of TVA. Given Overall's recent reinstatement to TVA, it was unreasonable for him to assume that he would immediately be reinstated to a group that even the back-up engineer was not a part of. As Overall had been reinstated for less than 30 days, I find it reasonable that the general electronic e-mail distribution list had not yet been updated to include his name and email address. As Overall had not yet completed the qualification card training required to work independently on PERs, I find it reasonable that Smith and Jordan would not send issue-specific e-mails to Overall regarding areas that he was not yet certified to work in. When Overall discussed his concerns with Higginbotham, he was assured that with time, Overall would become more involved in the organization. Overall did not stay at work long enough to see if Higginbotham would make good on his assurance.
c. Security Clearance
Overall alleges that his security clearance was improperly revoked in retaliation for his participation in protected activities (Complainant's Post-Hearing Brief, p. 87). Specifically, Overall received a September 30, 1998 letter from Ron Casey, Manager of TVA Corporate Nuclear Security, which temporarily suspended his security clearance (FoF ¶ 164). Overall argues that only after he filed a third DOL complaint (FoF ¶¶ 59-61) did TVA relent and reinstate his security clearance.
Unlike the previous arguments regarding appropriate work assignments and departmental communications, the revocation of Overall's security clearance by TVA caused a legitimate job detriment by changing the conditions of Overall's employment. Such a change in conditions establishes a prima facie case of discrimination demonstrated through adverse employment action. See DeFord, supra . Once the complainant establishes a prima facie case of discrimination, the burden then shifts to the respondent to articulate a legitimate nondiscriminatory reason for its actions against the complainant. See Burdine, supra .
TVA has proffered a nondiscriminatory reason for revoking Overall's security clearance. TVA received two letters from Overall's psychologist, Dr. G. Gary Leigh, discussing Overall's ability to return to work (FoF ¶ 164). Dr. Leigh discussed psychological problems that Overall was experiencing, including occasional suicidal ideation and other stress-related symptoms (Id .). Dr. Leigh advised that it would be clinically unwise for Overall to return to work at Watts Bar or any other TVA site due to the debilitating effects on his psychological state of mind (Id .). Dr. Leigh further stated that given Overall's emotional state, he doubted that Overall could pass a fitness for duty evaluation to return to work (Id ).
This opinion was reviewed by Dr. Lavin, TVA's psychologist, who recommended suspension of Overall's security clearance based on the opinion of Dr. Leigh (FoF ¶ 164). Given Overall's unstable emotional state and his occasional suicidal ideations, it was logical for TVA to restrict Overall, who (through his engineering knowledge and through his position as a Maintenance Specialist) could do harm not only to himself, but also potentially to other employees and to the public at large through emotionally induced carelessness or possibly even sabotage at a nuclear power plant. I find that such a restriction and revocation of unescorted security clearance is based on personal, employee, and public safety concerns, and not upon retaliation for protected activity. TVA has met its burden.
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The complainant must then demonstrate, by a preponderance of the evidence, that the articulated nondiscriminatory reason was merely a pretext for discrimination. See Burdine, supra . Here, Overall's argument fails. Overall argues that TVA's security clearance revocation was part of an ongoing scheme of harassment and that "only after [filing a third DOL] complaint did TVA reinstate ... Overall's unescorted security clearance…." (Complainant's Post-Hearing Brief, p. 87). The facts do not support such an argument.
Overall met with TVAN psychologist Dr. Patrick Lavin in May 1999 to re-evaluate Overall's condition (FoF ¶ 165). Dr. Lavin contacted Dr. Leigh and requested a current diagnosis, prognosis, opinion, and recommendation concerning Overall (Id .). On May 27, 1999, Dr. Leigh responded that Overall suffered from depression and opined that:
He has recently achieved a re-stabilization of his symptoms, but I would anticipate that if he returns to his previous work site that he would re-experience the primary symptoms of anxiety, hypervigilance, moodiness, probably anxiety attacks and possible panic attacks, sleep disturbance and re-emergence of somatic correlates of anxiety. I initially thought that if he was placed in a job site remote from his previous one that he might be able to perform duties in an emotionally stable manner, but now I am not sure and I cannot provide you with any assurance that he can. His emotional stability and behavioral reliability is now unpredictable and vulnerable to disruption (Id .).
Kevin R. Ferguson, M.D., Overall's psychiatrist, defined hypervigilance as "being like overly cautious or aware of your situation, looking around, being on guard and not being able to relax because of the need to keep your awareness up" (FoF ¶ 166).
Three months later, on August 30, 1999, Dr. Lavin sent a follow-up letter requesting an updated diagnosis and opinion from Dr. Leigh and Dr. Ferguson (FoF ¶ 167). On August 31, Dr. Ferguson responded and opined that "if Mr. Overall were to return to work at TVA at this time, his feelings of depression and paranoia will intensify significantly, and he will not be able to function on the job-site in an emotionally stable manner" (Id .).
On October 12, 1999, Ron Casey informed Overall that his unescorted security clearance had been denied (FoF ¶ 168). This decision was based on Dr. Lavin's opinion that Overall showed "psychological characteristics that could adversely impact emotional stability and impact behavioral reliability in the workplace" (Id .). Dr. Leigh and Dr. Ferguson stated their opinions that Overall "will not be able to function on the job site in an emotionally stable manner" (Id .).
In response to this denial, Overall filed his third DOL complaint (FoF ¶ 59). On October 12, 1999, Overall's counsel asked Dr. Leigh to clarify his opinion (FoF ¶ 169). Dr. Leigh clarified his opinion, stating that Overall did not pose a danger to others, only potentially to himself (Id .). Based on the clarified opinion of Dr. Leigh that Overall was no longer a threat to others (which was not available at the time of the October 12, 1999 denial), Casey informed Overall via a December 6, 1999 letter that his security clearance was being reinstated (FoF ¶ 170).
Contrary to Overall's argument, TVA reinstated his security clearance not due to Overall's filing of his third DOL complaint, but rather upon confirmation that he was no longer a threat to safety at the nuclear plant (FoF ¶ 170). Overall has failed to demonstrate by a preponderance of the evidence that TVA's revocation, based upon work place and public safety concerns and in light of Dr. Leigh's assessment of Overall's emotional instability, was a pretext for discrimination.
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While Overall argues that his unstable emotional state was caused in fact by TVA's ongoing retaliation and harassment, the proper question at this stage is whether the security clearance suspension itself was in retaliation for Overall's engagement in protected activities. Overall's emotional instability is relevant at this stage only in providing TVA with a legitimate nondiscriminatory reason for suspending his clearance. Overall's emotional state of mind will be relevant when discussing whether TVA subjected Overall to a hostile work environment.
Overall has failed to prove discrimination through harassment or retaliation evidenced by an adverse employment action or a tangible job detriment.
2. Hostile Work Environment
In addition to the alleged direct adverse employment actions taken by TVA, Overall alleges that discrimination against him took the form of a hostile work environment perpetuated by TVA's failure to prevent harassment outside of the work place and by TVA's failure to adequately investigate alleged incidents of harassment which occurred following Judge Kennington's Decision and Overall's return to Watts Bar Nuclear Facility.
The whistleblower protections of the ERA not only prohibit retaliatory personnel actions, but they also prohibit retaliatory harassment, including a hostile work environment. See, e.g., English v. Whitfield , 858, F.2d 957, 964 (4th Cir. 1988); Varnadore v. Oak Ridge Nat'l Lab ., No. 92, CAA-2, at 49-50 (Sec'y Jan. 26, 1996). The concept of a hostile work environment, which was first developed in the context of race and sex-based employment discrimination, applies to whistleblower cases. Berkman v. U.S. Coast Guard Academy , slip op. at 16, citing Varnadore v. Oak Ridge National Laboratory, Case Nos. 92-CAA-2, et al., ARB Final Consolidated Dec. and Ord., June 14, 1996, slip op. at 71 (Varnadore II), aff'd Varnadore, 141 F.3d at 625. Under the ERA, discrimination may take the form of harassment that is "sufficiently severe or pervasive as to alter the conditions of employment and create an abusive or hostile work environment." Smith v. Esicorp, Inc., Case No. 93-ERA-16, Sec'y Dec. and Ord. of Rem., Mar. 13, 1996, slip op. at 23-24.
An employer may be held liable for a hostile work environment in two situations: (1) vicariously because of the actions of a supervisor directed against an employee; or, (2) directly for the employer's failing to take prompt and reasonable corrective actions to remedy the harassment. See Faragher v. City of Boca Raton , 524 U.S. 775, 807 (1998) ("[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.").
"The employer's liability in cases of co-worker harassment is direct, not derivative; the employer is being held directly responsible for its own acts or omissions …." Blankenship v. Parke Care Ctr., Inc ., 123 F.3d 868, 873 (6th Cir. 1997). "The act of discrimination by the employer in such a case is not the harassment, but rather the inappropriate response to the charges of harassment." (Id .). A Court must judge the appropriateness of a response by the frequency and severity of the alleged harassment. See Eribia v. Chrysler Plastic Prods. Corp., 772 F.2d 1250, 1252-1253 (6th Cir. 1985). Generally, a response is adequate if it is reasonably calculated to end the harassment. Jackson v. Quanex Corp ., 191 F.3d 647, 663 (6th Cir. 1999).
a. Vicarious Liability
To establish a prima facie case of vicarious employer liability through hostile work environment, the complainant must demonstrate:
i. The employee engaged in protected activity and suffered intentional retaliation as a result;
ii. The retaliation was pervasive and regular;
iii. The retaliation detrimentally affected the employee;
iv. The retaliation would have detrimentally affected other reasonable whistleblowers in that position; and,
v. The existence of respondeat superior liability.
Varnadore v. Oak Ridge Nat'l Lab., No. 92-CAA-2, at 49 (Sec'y Jan. 26, 1996), citing West v. Philadelphia Elec. Co. , 45 F.3d 744 (3d Cir. 1995).
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In Jackson v. Quanex Corp., 191 F.3d 647, 659 (6th Cir. 1999), the Sixth Circuit held that the "totality of the circumstances" should be considered in a hostile work environment claim, and that the issue to be considered is whether, taken together, the reported incidents of harassment make out such a claim. Jackson, 191 F.3d at 659. The factfinder should not examine each incident of harassment in a vacuum, because what may appear to be a legitimate justification for a single incident may look pretextual when viewed in the context of several other related incidents. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3rd Cir. 1990). Utilizing the standard set forth in Jackson , I review the totality of the circumstances for each element of the prima facie case.
i. Protected Activity and Intentional Retaliation
As discussed in detail above, Overall engaged in protected activity (FoF ¶¶ 34-61). The question remaining in the first element is whether Overall suffered intentional retaliation as a result of engaging in protected activity.
1. Incidents that are neither Retaliation nor Harassment
There are several off-site incidents near Overall's home which have not been proven to be retaliation or harassment in any form. Specifically, these events include:
a. The May 28, 1998 Incident Involving the Gray BMW or Mercedes
On May 28, 1998, Overall's wife, Janice Overall, observed a "gray BMW or Mercedes" driving slowly through the Overall neighborhood (FoF ¶ 84). She testified that she viewed this to be an incident of harassment because they "just don't have that kind of car driving through [the Overall] neighborhood with that kind of a person in the car" (Id. ).
There is no evidence indicating that the car in question was driven through the Overall neighborhood in an attempt to harass or retaliate against Overall because he filed a whistleblower complaint or engaged in any other protected activity. There is no indication that this event was ever repeated, and the Overall's did not obtain a license plate number of the vehicle which could have allowed further investigation of the vehicle or its driver (FoF ¶ 85).
b. The May 29, 1998 Suspicious Car
On May 29, 1998, at approximately two o'clock in the morning, Overall heard dogs barking outside, and he saw a car with its headlights turned off, driving away from his home (FoF ¶ 86).
There is no evidence that the car was ever actually at, or parked in front of, the Overall residence or that the driver drove away from the Overall residence as a form of retaliation to Overall's protected activity. There was no damage done to Overall's residence or vehicles, and there were no "notes" left on the Overall's car or front door as happened in later incidents.
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c. The June 1, 1998 Gas Cap Incident
On the evening of June 1, 1998, Overall's son, Joseph, discovered that the gas tank door on Overall's truck was open, and the gas cap had been removed (FoF ¶ 91). There is no evidence linking this incident to any of Overall's protected activities. There was nothing added to Overall's gas tank nor was any damage done to the vehicle. The lack of damage coupled with the lack of connection to Overall's protected activities or a retaliatory motive makes any correlation of this event to a hostile work environment too tenuous to maintain.
d. The June 13, 1998 Popping Noise/Motion Detector Activated
On the evening of June 13, 1998, Janice Overall heard a "popping" noise outside the Overall home (FoF ¶ 96). Overall went outside to investigate, and he noticed that the gas tank door on his truck was open (Id.) . Overall saw someone crouching under a tree in his neighbor's front yard, who then ran away (Id.) .
The record of this incident shows an open gas tank door with no damage done to the truck, no foreign substance added to the gas tank, no identifiable person responsible, and no connection between the open gas door and Overall's protected activities.
e. The June 16, 1998 Laughing/Breathing Telephone Call
Overall's daughter, Amanda, answered a telephone call at the Overall residence on June 16, 1998, which consisted of "perverted laughing and heavy breathing" (FoF ¶ 98).
There is no evidence that this phone call was anything other than a "prank" phone call. Subsequent investigation traced the source of the phone call to a pay telephone near the Overall's residence (FoF ¶ 99). There is no evidence suggesting retaliatory intent, nor is there evidence linking this incident to Overall's whistleblowing activities.
f. The June 17, 1998 ‘Harassing' Buick Riviera
On June 17, 1998, Overall and his daughter were driving through the Overall neighborhood when they passed a driver in a Buick Riviera or Regal driving down the opposite side of the street (FoF ¶ 100). Overall and the other driver each motioned for the other to pull ahead, and the other driver "gave [Overall] a real good stare and kind of grinned, silly at us" (Id. ).
Subsequent investigation identified the owner of the vehicle as a Tennessee State Trooper who owned rental property near the Overall's neighborhood (FoF ¶ 102). His drive through the neighborhood had no retaliatory overtones, and the Trooper did not remember the incident (Id .). This incident has not been proven to be in retaliation nor has the incident been linked to Overall's protected activities.
g. The August 5, 1998 Ninja Motorcycle
On the evening of August 5, 1998, as Overall drove home from work, he was followed by someone riding a Ninja motorcycle, who passed him "[a]ggressively, and then went on" (FoF ¶ 105). Overall did not provide the license plate number of the motorcycle to allow further investigation (Id .). There is no evidence suggesting that this event was retaliatory in nature, nor is there evidence linking this event to Overall's whistleblowing activities.
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h. The August 25, 1998 Blue Pick-Up Truck
As he drove home from work on the evening of August 25, 1998, Overall was followed by a driver in a blue pick-up truck, who flashed its lights and blew its horn (FoF ¶ 106). The truck repeatedly followed Overall's vehicle extremely closely and then backed off (Id .). Overall was concerned that the truck was going to run him off the road (Id .). When Overall turned off onto his road, the driver continued going straight and blew its horn (Id .).
While the alleged behavior cited by Overall could be considered harassing and potentially threatening, there is no evidence connecting the pick-up and/or its driver's behavior to Overall's protected activity. While Overall reported the incident to Smith and Higginbotham at TVA (FoF ¶ 107), he did not obtain a license plate number which would have allowed further investigation, nor did he file a police report concerning the incident (Id .). As such, while the incident was potentially threatening, I do not find that it was intended as retaliation or harassment in response to Overall's protected activities.
i. The September 2, 1998 Telephone Call
On the evening of September 2, 1998, Overall's daughter, Amanda, answered a telephone call at the Overall residence, in which the caller asked for Overall, but then refused to identify himself and hung up (FoF ¶ 109). While other "harassing" phone calls were traced via the Overall's caller-ID system, there is no record that this number was forwarded to Overall's attorney or to TVA OIG. There is no evidence suggesting that the phone call was retaliatory in nature, nor is there evidence linking the call to Overall's whistleblowing activities.
j. The September 9, 1998 S-10 Truck
While waiting for the police to arrive at the Office Max store to investigate the "fake bomb" (FoF ¶¶ 112-125), Janice Overall and Overall's daughter, Amanda, drove to the Office Max store to be with Overall (FoF ¶ 127). As Janice and Amanda Overall left the Overall residence, a person driving an S-10 pick-up truck drove slowly past the Overall home and stared at Overall's daughter, Amanda (Id .). As Amanda returned home with her older brother, she again saw the suspicious white truck being driven in the neighborhood (FoF ¶ 128). Amanda recorded the license number of the truck and wrote down a brief description of the driver (Id .).
There is no evidence linking this incident to retaliation or to Overall's activities as a whistleblower. Subsequent investigation by TVA showed that the truck was registered to a Peter Langdon, who has no known ties to TVA (FoF ¶ 130). Langdon testified that he was in Overall's neighborhood making a service call to a customer of the alarm company for which he was employed (FoF ¶ 138).
k. The September 17, 1998 Note
On September 17, 1998, Overall discovered an anonymous note on a fence close to his home which read, "Curtis watch your backside you are being set up. Be carefull [sic]. Here are more screw [sic] found last outage. Your friend" (FoF ¶ 132). The note was written on TVA Daily Journal stationery, and ice condenser screws were attached to the note (Id .).
Based on the language of the note, it appears that the author is a "friend" and is trying to aid Overall. Although the note was written on TVA stationery and addressed Overall by his first name (Curtis), there is no evidence that this note was left in retaliation or was intended as harassment in response to Overall's protected activity. As such, it does not support a prima facie case of hostile work environment.
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These eleven incidents 1) were anonymous in nature; 2) have not been connected to any of Overall's protected activity; and 3) have not been proven to have been harassing events directed at Overall and/or his family in retaliation for his protected activity. The record establishes only that these random events occurred in the same relevant time period as other alleged harassing events in the Overall's lives. As such, they carry no probative value towards establishment of a hostile work environment, and I will not consider them further.
2. Off-site Incidents of Possible Harassment and/or Retaliation
There were several events that occurred away from the Watts Bar work site that require further scrutiny. The anonymous nature of many of these incidents is not relevant at this point. "The totality of the circumstances … includes all incidents of alleged harassment; as such, … courts must not conduct separate analyses based on the identity of the harasser unless and until considering employer liability." Williams v. General Motors Corporation , 187 F.3d 553, 562-563 (6th Cir. 1999). Incidents of harassment that occur at the employee's home as opposed to the work place may be considered in the totality of the circumstances. See, e.g., Ward v. City of Streetsboro, 1996 WL 346812 *1 (6th Cir. 1996) (holding that a dead rat found in the employee's residential mail box and numerous harassing calls made to the employee's home telephone number were appropriately considered in establishing a prima facie case of hostile work environment).
a. The May 25, 1998 Telephone Call
Subsequent to Judge Kennington's Decision and while Overall awaited his return to Watts Bar, he accepted an invitation to speak about his whistleblowing activities at a press conference to be held on May 26, 1998 at the National Press Club in Washington, D.C. (FoF ¶ 47).
On May 23, 1998, The Atlanta Constitution published an article discussing Overall's whistleblowing activities and announcing that he would be speaking at the press conference (FoF ¶ 48). On the evening of May 25, 1998, the night before the press conference, Overall received a phone call that consisted of a caller repeatedly blowing a whistle (FoF ¶ 80).
Both the timing of this phone call (on the eve of the National press conference) and the nature of the call (continuous whistling) suggest an intentional harassment of Overall for his engagement in protected activities.
b. The May 29, 1998 "SILKWOOD" Note
On the morning of May 29, 1998, Janice Overall discovered a note under the passenger side wiper blade of Overall's pickup truck, which read "Silkwood" (FoF ¶ 87). Overall stated that he felt the note was "a warning" and "a threat note" or "a death threat," because he interpreted the note as referring to Karen Silkwood, a whistleblower who died under mysterious circumstances (FoF ¶ 88).
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It can be inferred that this note was left in retaliation for Overall's protected activity, as both he and Karen Silkwood were whistleblowers. As Silkwood died in unusual circumstances, it can be inferred that the note suggested what could happen to Overall if he continued his protected activities. I find that the "SILKWOOD" note demonstrates an intentional act of retaliation against Overall and harassment of Overall for engaging in protected activities.
c. The June 9, 1998 "BOO" Note
On the morning of June 9, 1998, Janice Overall discovered a hand-printed note which read "BOO!" taped to the front door of the Overall residence (FoF ¶ 92).
The "BOO" note, which followed a more potentially sinister "SILKWOOD" note, can be construed to have been left to further frighten Overall in retaliation for his engagement in protected activities. Given the placement of the note (on Overall's front door) and the timing of the note (only 11 days after the "SILKWOOD" note), I find that this note was intentional, retaliatory in nature, and in response to Overall's engagement in protected activities.
d. The June 11, 1998 "STOP IT NOW" Note
On June 11, 1998, Overall returned to his truck after shopping at a local Wal-Mart and found a note which read "STOP IT NOW" on the windshield of his truck (FoF ¶ 94).
Given the timing of the note (just two days after the "BOO" note), the placement of the note (again on the windshield of Overall's vehicle), the location of Overall's truck at the time the note was delivered (at a local store, suggesting that someone knew where Overall was going), and the actual statement made, I find that this note was intended to harass Overall for his engagement in protected activities.
e. The June 26, 1998 Whistle Telephone Call
On June 26, 1998, Amanda Overall answered a telephone call at the Overall residence which consisted of a whistle being repeatedly blown (FoF ¶ 103). Subsequent investigation showed that this phone call was placed from a local pay phone near the Overall's residence (FoF ¶ 104).
Unlike the nonspecific intent of the laughing and breathing telephone call of June 16, 1998 (FoF ¶ 98-99), this continuous whistle call can be inferred to be in direct response to Overall's status as a whistleblower. As such, I find that this telephone call was intended as retaliation for Overall's engagement in protected activities.
f. The September 6, 1998 Note
On September 6, 1998, Overall discovered a note under the driver's side windshield wiper of the Overall family car which was parked outside the Overall residence (FoF ¶ 110). The note read, "Did you get the message yet?" (Id .).
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Given the proximity in time to the prior notes and telephone calls and the placement of the note on the Overall's windshield (now the third time a harassing note had been placed there), it is inferred that "did you get the message yet?" referred to the prior notes and telephone calls and was intended as a continuing form of retaliation and harassment for Overall's engagement in protected activities.
g. The September 9, 1998 Fake Bomb
On September 9, 1998, Overall went to an Office Max store to make copies (FoF ¶ 112). Upon returning to his truck, he discovered a "black object about a foot long" in the back of his truck (Id .). Overall thought that the object "looked like an explosive device" (Id .).
The object was subsequently discovered not to be an explosive device (FoF ¶ 125), but it was genuine enough in appearance to invoke a sizable police response along with the bomb squad (FoF ¶ 114). The object was later given to the Bureau of Alcohol, Tobacco, and Firearms for investigation (FoF ¶ 125).
Given the prior history of harassing notes and telephone calls discussed above, the fact that this was the second alleged retaliatory act to occur away from the Overall residence (again suggesting that someone could have been following Overall's movements (see also , the June 11, 1998 "stop it now" note, FoF ¶ 94)) and the appearance of the "fake bomb" (genuine enough to invoke summoning the bomb squad), I find that the device placed in Overall's truck was in retaliation for Overall's engagement in protected activities as a whistleblower.
h. The December 21, 2000 Note
On December 21, 2000, Janice Overall opened an envelope mailed to the Overall residence which contained a note that read, "[y]ou need to go" along with a photocopy of Overall's former Watts Bar identification badge (FoF ¶ 133).
The note can be at least superficially linked to Watts Bar through the incorporation of a photocopy of Overall's Watts Bar identification badge. This old Watts Bar identification badge was allegedly mailed back to TVA in February 2000, ten months before it was used in this note (FoF ¶ 134).
Given the nature of the message and the connection to Watts Bar, I infer that the sender of this message intended it as harassment in retaliation to Overall's engagement in protected activities.
3. Watts Bar Incidents of Alleged Harassment
In addition to off-site events, there are several incidents that occurred at the TVA Watts Bar facility.
a. The August 5, 1998 Wiggall Comment
Overall returned to work at Watts Bar on August 5, 1998 (FoF ¶ 72). When he spoke with Wiggall, his second-level supervisor, Wiggall told Overall, "[w]e're here as engineers not to make up problems, but [to] find them and correct them" (FoF ¶ 137). Wiggall then apologized to Overall, and said that he meant to say, "[w]e're here as systems engineers to find problems and fix them" (Id .).
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Taking note of both Wiggall's original statement and his quick apology (apparently realizing the possible impropriety of his statement), I find that Wiggall's original statement was made in response to Overall's engagement in protected activities.
b. The August, 1998 Dennis Tumlin Comment
While at work, Overall encountered Dennis Tumlin in the boiler-maker shop, who greeted Overall with the phrase, "[t]here's that whistleblower" (FoF ¶ 138). Overall testified that there were approximately 15 people present in the boiler-maker shop when Tumlin made this comment. Tumlin later invited Overall into the boiler-maker shop and said that he was "just kidding" (Id .).
Tumlin's reference to Overall as "that whistleblower" clearly refers to Overall's protected activity. Whether the comment was intended as harassment or as a poor attempt at humor makes little difference in this instance. Simple teasing, offhand comments and isolated incidents do not rise to the level of discriminatory changes in the terms of employment. Faragher v. City of Boca Raton , 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed. 2d 633 (1998); Morris v. Oldham County Fiscal Court , 201 F.3d 784, 793 (6th Cir 2000); Akers v. Alvey , 338 F.3d 491, 499 (6th Cir. 2003). Tumlin's comment was mild in nature and was either an isolated incident or teasing. As such, I find Dennis Tumlin's comment was not harassment in response to Overall's protected activity.
c. The August 25, 1998 Adair Response to PER 823 Questions
On August 24, 1998, Smith informed Overall that broken stubs of screws were found in the ice condenser unit at the last inspection (FoF ¶ 140). After learning that Jordan wrote a PER concerning the broken screws, Overall questioned Jordan about the PER on August 24, 1998 (FoF ¶ 141). Jordan referred Overall to Adair (Id .). On August 25, 1998, when Overall questioned Adair about the PER, Overall alleges that Adair "responded forcefully and in a hostile manner, wanting to know why [Overall] needed to know [about the PER]" (FoF ¶ 142). As Overall's department had no action items or duties concerning PER 823 (FoF ¶ 139), there was no apparent reason for Overall to request information on this particular item. Smith testified that Adair was only questioning whether Overall "was asking for documents that weren't specifically related to the tasks that [Overall] was assigned to do" (FoF ¶ 142).
Given Smith's explanation and the fact that NSSS had no duties or action items regarding PER 823, I find that Adair's comments were reasonable under the circumstances and that they were not made to harass or retaliate against Overall for his participation in protected activities.
d. The August 27, 1998 Typewritten Note
On August 27, 1998, while at his desk at Watts Bar, Overall received a typewritten note in a TVA interoffice mailer which read, "[l]eave Watts Bar, there is no room for whistleblowers here or else" (FoF ¶ 143).
Given the language of the note and the fact that it was sent via TVA interoffice mail directly to Overall's work area, I find that this note was intended to harass Overall for his past protected activities.
e. The Doug Williams Incident
As Overall left work at Watts Bar on August 27, 1998, he was approached by Doug Williams (FoF ¶ 146). Overall testified that Williams asked to speak with him, at which time he stated that he "had a problem with his name being mentioned in ALJ Kennington's case," where it was noted that Williams did not have a degree and was allowed to remain at Watts Bar, doing the same work that Overall was qualified to perform (Id .). Overall advised Williams to speak with Overall's attorney (Id .).
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Williams' comment directly concerned Overall's prior lawsuit against TVA. William's comments, however, state a "problem" with being named in the earlier decision and do not on their face show an intent to harass or retaliate against Overall. Overall advised Williams to speak with Overall's attorney and the conversation ended there. There was no subsequent inquiry or challenge made by Williams, nor did Williams continue the August 27th conversation beyond the brief exchange made as Overall left the building. I find the nature of the conversation, the words allegedly spoken, and the lack of continuation and/or follow-up by Williams show that this was an inquiry (albeit an unhappy one) and that the exchange was not intended as harassment or retaliation against Overall for his protected activities.
f. The August 29, 1998 Voice Mail
On Sunday, August 30, 1998, while at his home, Overall telephoned his voice mail system at Watts Bar to retrieve any messages that had been left for him (FoF ¶ 148). Overall received a message which consisted of a repeated whistle-blowing sound (Id. ). The time and date stamp on the voice mail show that it was left at 1:47 p.m. on August 29, 1998 (Id .).
Although TVA's telephone system uses a central trunk line which prohibits tracing of the voice mail, the message itself, repeated whistle-blowing, is enough to establish that the caller intended the voice mail to be harassment and retaliation in response to Overall's protected activities.
g. September 3, 1998: Adair Enters Meeting
On September 3, 1998, while Overall was meeting with NRC inspectors, Adair allegedly entered the meeting room unannounced, said "[e]xcuse me," and stood inside the meeting room prompting Overall to end the meeting (FoF ¶ 151). Adair was aware that the NRC inspectors were using that particular room, but he had no recollection of interrupting the meeting (FoF ¶ 152).
Given the innocuous nature of the intrusion and Adair's alleged comments, there is no evidence that if Adair actually entered the room, he did so with a retaliatory purpose. I find that the entrance by Adair was not intended as harassment or retaliation in response to Overall's protected activity of meeting with the NRC.
h. The September 4, 1998 Message on the Bathroom Wall
On September 4, 1998, an employee discovered the message "[g]o home all whistleblowers now" written on a bathroom stall at Watts Bar (FoF ¶ 153). The restroom where the writing was discovered was located on the same floor where Overall worked, but on a different side of the building (FoF ¶ 154). Overall did not personally see the writing on the bathroom wall, but he overheard other employees speaking about the incident (Id .).
The message "go home all whistleblowers" could be a sign that it was meant for anyone considering filing a whistleblower complaint, and not just Overall. Given that the message was written on the same floor as Overall worked, I find that the note was intended as harassment and retaliation against Overall in response to his engagement in protected activities.
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Having found protected activity above, I find that the following individual events constitute harassment intended to retaliate against Overall for engaging in protected activities:
1. The May 25, 1998 Telephone Call;
2. The May 29, 1998 "SILKWOOD" Note;
3. The June 9, 1998 "BOO" Note;
4. The June 11, 1998 "STOP IT NOW" Note;
5. The June 26, 1998 Whistle Telephone Call;
6. The August 5, 1998 Wiggall Comment;
7. The August 27, 1998 Typewritten Note;
8. The August 29, 1998 Voice Mail Message;
9. The September 4, 1998 Message on the Bathroom Wall;
10. The September 6, 1998 Note;
11. The September 9, 1998 "Fake Bomb;" and,
12. The December 21, 2000 Note.
In reviewing the totality of the alleged harassing events, I find that Overall has established the first element of a hostile work environment prima facie case.
ii. Pervasive and Regular Retaliation
To satisfy the second element of a prima facie case of hostile work environment, that the retaliation was pervasive and regular, an objective and a subjective test must be met. Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993). The objective test requires that the conduct be severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive. Id . The subjective test requires that the victim regard that environment as abusive. Id .
When objectively determining whether the alleged harassment is sufficiently severe or pervasive to constitute a hostile work environment, the totality of the circumstances must be considered. Williams, 187 F.3d at 562.
In Varnadore v. Oak Ridge National Laboratory , the Administrative Review Board wrote that a workplace constitutes a hostile work environment when it is permeated with "discriminatory intimidation, ridicule, and insult" that is "sufficiently severe or pervasive" to alter the conditions of employment and create an abusive working environment. Varnadore v. Oak Ridge National Laboratory, Case Nos. 92-CAA-2, et al., ARB Final Consolidated Dec. and Ord. (June 14, 1996), slip op. at 42 (Varnadore II ). According to the ARB, the mere utterance of an epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment so as to implicate Title VII. Id., citing Batts v. NLT Corp., 844 F.2d 331 (6th Cir. 1988). Additionally, simple teasing, offhand comments, and isolated incidents (unless extremely serious) do not amount to discriminatory changes in the terms and conditions of employment. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 790 (6th Cir. 2000). Factors to consider when determining whether conduct is sufficiently severe or pervasive to create a hostile work environment include:
(1) the frequency of the discriminatory conduct;
(2) the severity of the discriminatory conduct;
(3) whether the discriminatory conduct is physically threatening or humiliating, or a mere offensive utterance; and,
(4) whether the discriminatory conduct unreasonably interferes with an employee's work performance.
Harris v. Forklift Systems, Inc., 510 U.S. 17 at 23.
1. Frequency of the Alleged Harassment
Eleven of the above twelve incidents of alleged harassment and/or retaliation occurred between May 25, 1998 and September 9, 1998. The remaining incident occurred on December 21, 2000. As 11 of the 12 incidents occurred within a period of just 3½ months, I find that they are sufficiently frequent to satisfy this factor.
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2. Severity of the Alleged Harassment
The above-listed twelve incidents of alleged harassment involve primarily off-hand comments by co-workers or anonymous notes. The telephone calls of May 25th (FoF ¶ 80) and June 26th (FoF ¶ 103) and the voice mail message of August 29th (FoF ¶ 148) consist of someone blowing a whistle continuously. The anonymous notes of June 9th (FoF ¶ 92), June 11th (FoF ¶ 99), August 27th (FoF ¶ 143), September 4th (FoF ¶ 153), September 6th (FoF ¶ 110), and December 21st (FoF ¶ 133) consist of a few simple words commenting on Overall's status as a whistleblower or expressing desire for Overall to stop his protected activities. The off-hand comment by Wiggall (FoF ¶ 137) was quickly recognized by Wiggall as inappropriate, and he immediately apologized. Of the twelve incidents listed above, the "SILKWOOD" message (FoF ¶ 87), referencing a dead whistleblower, and the fake bomb incident (FoF ¶ 112), suggest severe harassment beyond a simple desire to have Overall stop participating in protected activity. In review of the totality of the circumstances, I find that the two more serious incidents coupled with ten less intimidating incidents leans this factor in favor of severe harassment.
3. Threat of Physical Harm or Humiliation vs. Mere Offensive Utterance
The "SILKWOOD" note and the "Fake Bomb" incident discussed above were sufficiently severe enough to be considered a credible threat of physical harm. Silkwood was a former whistleblower who died under peculiar circumstances, suggesting that the author of the "SILKWOOD" note may have been making a comparison of Silkwood to Overall. It can also be inferred that the fake bomb was intended as a threat of physical harm; if not immediate, then a warning of what could happen in the future with a real explosive device. I find these two incidents together constitute a threat of physical harm sufficient to sway this factor in Overall's favor.
4. Whether the Incidents of Alleged Harassment Unreasonably Interfered with the Complainant's Work Performance
Overall returned to work at Watts Bar on August 5, 1998 (FoF ¶ 72). He was involved in training from August 5 through August 12 (FoF ¶ 74). From August 12 through September 4, 1998, Overall took some form of leave or was otherwise not working in his department on at least eight occasions in reaction to the various incidents occurring around him (FoF ¶ 79)11 . Over the course of approximately 24 work days, Overall was absent approximately one-third of the time. I find that the incidents of harassment unreasonably interfered with Overall's work performance by forcing him to take leave to deal with the emotional issues brought on by the ongoing harassing events.
Based upon a review of the four foregoing factors, I find that the incidents of alleged harassment discussed above were severe and pervasive as contemplated by Varnadore and Harris . Overall has satisfied this element of a hostile work environment claim.
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iii. Retaliation Detrimentally Affected the Employee
The third element, whether the retaliation detrimentally affected the employee, requires examination of the Complainant's emotional condition and the relationship of that condition to the alleged acts of retaliation. See Varnadore, 92-CAA-2 at 50.
Of the twelve events that are considered to be harassing or retaliatory in nature, Overall had various emotional reactions to each incident.
1. The May 25, 1998 Phone Call
Overall testified that he interpreted the May 25, 1998 phone call as a "kind of warning" that "put me on alert" with regard to participating in the Washington D.C. press conference (FoF ¶ 80).
2. The May 29, 1998 "SILKWOOD" Note
Overall testified that he and his wife cried and were very upset, angry, and "very emotional" (FoF ¶ 88). Overall stated that he felt the note was "a warning" and "a threat note" or "a death threat," because he interpreted the note as referring to Karen Silkwood, a whistleblower who died in mysterious circumstances (Id .).
3. The June 9, 1998 "BOO!" Note
Overall testified that he was "very disturbed … angry … [and] just couldn't believe everything was just mounting up the way it was doing" (FoF ¶ 92). He stated that he had "never had any problems … in the past … [and] didn't have any disgruntled neighbors … [so] "it had to have been from TVA …." (Id .).
4. The June 11, 1998 "Stop It Now" Note
Overall testified that the note made him "real nervous, real shaky," and that he was "frightful of – if the person could be around the truck watching me or something" (FoF ¶ 94).
5. The June 26, 1998 Whistle Telephone Call
Overall gave no testimony as to whether this incident detrimentally affected him.
6. The August 5, 1998 Wiggall Comment
Wiggall told Overall, "[w]e're here as engineers not to make up problems, but [to] find them and correct them" (FoF ¶ 137). Overall testified that, as a whistleblower, he interpreted Wiggall's comment to be retaliatory, and a warning, "like don't – don't do anything wrong while you're here" (Id .).
7. The August 27, 1998 Typewritten Note
Overall testified that the note made him "very upset" and that he "hollered over to my cubicle mate next to me" and "[threw] the note to the floor in disgust and anger" (FoF ¶ 143). Overall testified that he started to cry and that he was upset because the note was a direct threat indicating that if he did not leave Watts Bar, some other retaliatory action would take place (Id .).
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8. The August 29, 1998 Voice Mail
Overall testified that the voice mail message "struck me bad and really hard mentally" in light of the notes and other incidents that had occurred (FoF ¶ 148).
9. The September 4, 1998: Message on Bathroom Wall
Overall testified that the bathroom stall writing did not affect him "very strong," because he "hadn't seen the note or whatever was written on the wall" (FoF ¶ 154).
10. The September 6, 1998 "Did you get the message yet?" Note
Overall testified that he felt that the note "was threatening in nature," and "based on the past messages I had received, this was escalating up to a point of – of someone was going to probably do something to me, harm me, kill me or whatever" (FoF ¶ 110).
11. The September 9, 1998 Fake Bomb
Overall was taken directly to the hospital because he was experiencing chest pain (FoF ¶ 116). Overall testified that he was "real anxious and worried" and "scared with what was going on" (Id .). Following the incident and his hospitalization, Overall allegedly attempted suicide (FoF ¶ 118), and sought psychological treatment for stress and depression (FoF ¶ 119).
12. The December 21, 2000 "you need to go" Note
Overall testified that he was "shocked" when he saw a photocopy of the note, and was "concerned," because he thought the note "related back to the other notes trying to remove me from TVA altogether" (FoF ¶ 133).
Taken as a whole, there are numerous examples which show that Overall was personally, emotionally affected by the ongoing, frequent, and sometimes severe nature of the harassment and retaliation being leveled against him. I find that the third element is satisfied.
iv. The retaliation would have detrimentally affected other reasonable whistleblowers in that position
The fourth element, whether the retaliation would have detrimentally affected other persons in the same position, is to be reviewed from the perspective of a reasonable whistleblower, not that of a bystander. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998); Smith v. Esicorp., Inc. , Case No. 93-ERA-16, at 13 (Sec'y Mar. 13, 1996).
Given the twelve incidents of alleged harassment that occurred over a 3½-month period, and given that two of the incidents (the "SILKWOOD" note and the "fake bomb") can be inferred to be physically threatening in nature, I find that the proximity and nature of the incidents in question would have detrimentally affected a reasonable person in Overall's position. The fourth element establishing prima facie hostile work environment is satisfied.
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v. Respondeat superior liability
Regarding the fifth element, respondeat superior liability, the Supreme Court has held that "[a]n employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher v. City of Boca Raton , 524 U.S. 775, 777 (1998). "It makes sense to hold an employer vicariously liable … for some tortuous conduct of a supervisor made possible by use of his supervisory authority …. In a sense a supervisor is always assisted in his conduct by the supervisory relationship." Id .
"None of the reasons for holding the employer vicariously liable is extant [however], when the harassment is conducted anonymously." Webb v. Federal Express Corp., No. 97-2687 MI/V (W.D. Tenn. August 9, 1999), aff'd on other grounds, Newman v. Fed. Express Corp. , 266 F.3d 401 (6th Cir. 2001). "With respect to anonymous communications, there is no indication of an abuse of supervisory authority which could merit the imposition of vicarious liability on the employer." Id .; see also, Hixson v. County of Alameda Sheriff's Dept., et al., 1999 WL 305513 *11 (N.D.Cal. May 12, 1999) (holding that there is no remedy for "anonymous incidents" such as threatening phone calls and car vandalism, "since there is no evidence that these incidents were tangible employment actions attributable to the [employer]"); Gibson v. American Library Ass'n, 846 F.Supp. 1330, 1341 (N.D.Ill. 1993) (dismissing a constructive discharge claim because the complainant did not know who left an alleged harassing voice mail); Ward v. City of Streetsboro, 89 F.3d 837, 1996 WL 346812 **3 (6th Cir. 1996) (noting that "the person or persons responsible for the [harassing] incidents were, and still are, completely unknown." As such, there was no vicarious liability to be determined.).
In the instant case, there are twelve incidents held to be harassing behavior. The August 5, 1998, comment by Wiggall is discussed below. Of the remaining eleven events, eight took the form of anonymous notes (FoF ¶¶ 87, 92, 94, 110, 133, 143, 153), two were anonymous telephone calls with continuous whistle sounds (FoF ¶¶ 80, 103, 148), and one was the anonymous "fake bomb" incident (FoF ¶ 112). While I previously found that these incidents were in response to Overall's engagement in protected activity, Overall has offered no evidence that any of these incidents were perpetrated by or for TVA supervisors. As such, these incidents are insufficient to support a respondeat superior liability claim.
Overall asserts that Smith, and thus TVA, "was continuing to monitor [Overall's] activities, even though Mr. Overall was on leave" in an attempt to prohibit Overall from attending and speaking at the D.C. Cook rally (Complainant's Post-Hearing Brief, p. 85).
In August 1999, while on paid administrative leave, Overall was invited to attend a rally to discuss complaints and problems at the D.C. Cook plant (FoF ¶ 181). Smith's secretary received a call from an acquaintance at the D.C. Cook plant, who informed her that there was going to be an "ice condenser protest" at the D.C. Cook plant and that Overall was to be participating (FoF ¶ 182). Smith's secretary passed this information on to Smith (FoF ¶ 182).
Smith was concerned that Overall might be involved in the protest while receiving paid administrative leave from Watts Bar (FoF ¶ 183). He asked his counterpart at the D.C. Cook plant to contact him if he knew anything about the participants in the protest (FoF ¶ 183). In response to his request for information, Smith received an e-mail in August 1999 from "somebody in public relations at the D.C. Cook plant," which stated that a TVA whistleblower was scheduled to attend a protest.
The e-mail also included the website address of the protest (FoF ¶ 183). Suspecting that Overall was the TVA whistleblower involved in the protest, Smith viewed the protest website. Overall had declined to participate in the rally; however, it was erroneously announced on the internet website that Overall was scheduled to participate in the rally (FoF ¶ 181). Smith copied the information from the protest website, and he forwarded it to James Maddox, the Manager of Nuclear Engineering, and to Higginbotham (FoF ¶ 183).
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Incidents of harassment "must be repeated and continuous; isolated acts or occasional episodes will not merit relief." Carrero v. New York City Housing Authority , 890 F.2d 569, 577 (2nd Cir. 1989) citing Lopez v. S.B. Thomas, Inc. , 831 F.2d 1184, 1189 (2nd Cir. 1987). Here, Overall has produced evidence of only one incident of allegedly improper monitoring. Such an isolated incident does not meet the threshold for establishment of a hostile work environment. There is no showing that Smith was actually monitoring Overall's whereabouts. Smith inquired about the D.C. Cook rally and Overall's alleged participation only after being directly informed that there may be a conflict of interest between Overall's activity and being on paid administrative leave. There was no evidence presented that Smith was routinely, repeatedly, or continuously watching Overall's movements.
Second, Overall has failed to show how this incident produced a tangible job detriment or a change in Overall's compensation, terms, conditions, or privileges of employment. See Berkman, supra . There is no evidence presented that TVA attempted to impact or alter Overall's alleged plans to participate in protected activity. Smith reviewed a public rally internet website, and he then forwarded this information to his manager and to Higginbotham. TVA neither took nor contemplated taking action regarding Overall's possible participation at the D.C. Cook rally.
Although Smith was a supervisor, as contemplated by Faragher , his actions do not constitute harassment or retaliation, nor did Smith's actions change the conditions of Overall's employment with TVA.
This leaves only the August 5, 1998 comment by Wiggall (FoF ¶ 137). "Foul language in the work place, although not condoned by the Court and though certainly well beyond the boundaries of polite behavior, does not satisfy the [severe and pervasive] test enunciated in Harris . Williams v. General Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999). Further, "mean behavior, without more, does not equate to a … hostile work environment." Id . Wiggall was Overall's second-level supervisor (FoF ¶ 73), thus satisfying Faragher's requirement of an immediate or higher level supervisor. Faragher , 524 U.S. at 777. Upon Overall's return to Watts Bar, Wiggall stated to Overall, "we're here as engineers to not make up problems but [to] find them and correct them" (FoF ¶ 137). While this statement could be related to Overall's protected activities, it is mild in nature and it does not even reach the level of foul language or mean behavior cited above which Courts find do not constitute severe or pervasive behavior incident to a hostile work environment.
When reviewing the totality of the anonymous and employee incidents with the actions taken by Smith and the Wiggall comment (both of which can be tied to a TVA supervisor), I find that Overall has failed to establish TVA's respondeat superior liability. As such, Overall has failed to establish a prima facie case of hostile work environment based upon vicarious liability.
3. Did TVA Properly Investigate Overall's Allegations of Harassment?
Where a complainant fails to link the harassment to a manager or supervisor, the Court may only invoke the lower standard of showing that the employer will be liable for its own negligence in dealing with claims of harassment. Varnadore v. Oak Ridge Nat'l Lab ., ARB No. 99-121, 1992-CAA-2 and 5, 1993-CAA-1, 1994-CAA-2 and 3, 1995-CAA-1, at 8 (ARB July 14, 2000). The plaintiff must show that the employer "knew or should have known of the … harassment and failed to implement prompt and appropriate corrective action." Hafford v. Seidner , 183 F.3d 506, 513 (6th Cir. 1999).
Overall admits that TVA conducted an investigation, conducted various stand down meetings, and issued various bulletins regarding harassment, but argues that all of this activity had no effect in stopping the harassment. (Complainant's Post-Hearing Brief, p. 71). Such a result is not, however, required by the law. Generally, a response to harassment is adequate if it is reasonably calculated to end the harassment. Jackson , 191 F.3d at 663 (emphasis added). The question, therefore, is not whether TVA was able to stop the harassment, but rather whether TVA took prompt and appropriate corrective action that was reasonably calculated to end the harassment.
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a. TVA Actions Prior to Overall's Return
TVA took extensive steps prior to Overall's return to Watts Bar that were reasonably calculated to prevent new harassment, including: (1) issuing an April 16, 1998 site bulletin titled, "Bulletin from Watts Bar Nuclear Plant" to reinforce TVA's zero-tolerance policy on intimidation and harassment, and to encourage individuals to identify and raise concerns (FoF ¶ 45); (2) Purcell conducted a meeting with his direct subordinates where he reinforced TVA's "zero tolerance for intimidation or harassment" (FoF ¶ 71); (3) TVA management's preparation of the "Plan for Returning Overall to WBN," consisting of a memorandum detailing important concerns and issues involving Overall's return to work at Watts Bar (FoF ¶ 67); (4) the issuing of Scalice's memorandum for managers detailing the important concerns and issues regarding Overall's return to work (FoF ¶ 70); (5) Higginbotham's meeting with Adair, McCollum, and McCormick, wherein Higginbotham implored them to treat Overall with respect, and to realize that he may be sensitive to some issues (FoF ¶ 68); (6) Scalice's meeting with the Human Resources staff, wherein he emphasized that Overall was not to be subjected to retaliation or harassment (FoF ¶ 63); (7) Purcell's issuance of a memorandum which emphasized that retaliation against Overall would not be tolerated (FoF ¶ 64); and, (8) Wiggall's meeting with the Systems Engineering group, where he emphasized the zero-tolerance policy on harassment (FoF ¶ 66).
b. TVA Response to Anonymous Off-site Harassment
On June 3, 1998, TVA Nuclear formally requested that TVA OIG initiate an investigation into Overall's allegations of harassment (FoF ¶ 171). This investigation was assigned to Agent Holloway who had extensive training and has been with TVA OIG since its inception in 1986 (FoF ¶ 172). Holloway prepared an initial investigation plan that included installation of a night vision camera near the Overall residence and the installation of telephone recording equipment, but she later revised that plan when installation of the camera proved impractical and Overall's caller-ID system recorded all incoming telephone numbers (FoF ¶ 173).
TVA responded to every off-site alleged incident of harassment in a reasonable way given the information provided by Overall. In many instances, there was no information provided by Overall which could have allowed further investigation by TVA (See FoF ¶¶ 85, 86, 96, 105, 107, 109).
Overall argues that Holloway's reliance on the caller-ID system was inappropriate because the caller-ID gave incoming telephone numbers only and did not allow voice recordation of the call itself (Complainant's Post-Hearing Brief, pp. 101-102). This argument is weak in that two of the calls consisted only of whistles being blown continuously, thereby offering no voices to be analyzed (FoF ¶¶ 80, 103). The perverted laughing/breathing call (FoF ¶ 98), also was without spoken words. The September 2, 1998 phone call (FoF ¶ 109), appears to have included a spoken conversation between Amanda Overall and the caller, but Overall did not raise this issue in his complaint. There is nothing in this call suggestive of harassment or retaliation, and there is no indication that this number was ever forwarded to TVA for further investigation.
Concerning the three harassing telephone calls made to Overall's house from nearby pay phones (FoF ¶¶ 80, 98, 103), TVA subpoenaed telephone records for the numbers provided and followed up by reviewing other calls made from that pay phone or by investigating nearby businesses for leads (FoF ¶¶ 82, 99, 104).
The anonymous handwritten notes (FoF ¶¶ 87, 92, 94, 106, 133), were reviewed by TVA OIG and in many cases by the Cleveland Police Department and the FBI (FoF ¶¶ 87, 93, 95, 98, 110, 132, 136, 174). Both sides have spent considerable time and expense having those notes extensively reviewed by handwriting experts. Despite investigation by TVA, local law enforcement, the FBI, and several handwriting experts, no author has been identified in any of these notes.
[Page 59]
Investigation of the "harassing" Buick Riviera (FoF ¶ 100), revealed that the driver was a Tennessee State Trooper who owned rental property in the area (FoF ¶ 102). Investigation of the S-10 Pick-up Truck (FoF ¶ 127), revealed an alarm company employee driving through the neighborhood on the way to a service call nearby (FoF ¶ 131).
Finally, the "fake bomb" investigation involved TVA OIG, the FBI, the Bureau of Alcohol, Tobacco, and Firearms, the Cleveland Police Department, and the Chattanooga Bomb Squad (FoF ¶¶ 114, 120, 125).
The investigation of all these events by TVA, along with parallel investigations being performed by the Cleveland Police Department, the FBI, and the Bureau of Alcohol, Tobacco, and Firearms, provided no indication of who was behind these incidents and provided no leads on how to stop the perpetrator(s). Subsequent review of the notes by handwriting experts did not provide assistance in identifying the author. I find that TVA engaged in prompt and appropriate action in dealing with the off-site incidents of harassment against Overall.
4. TVA's Response to Harassment at Watts Bar
Of the twelve harassing incidents discussed above, only four occurred at the Watts Bar facility. Each was handled by TVA in a prompt and appropriate manner.
a. The August 5, 1998 Wiggall Comment
As discussed above, Wiggall's comment (FoF ¶ 137), does not rise to the level of harassment in the eyes of the law. See Williams, supra . Even so, Wiggall had the foresight to see the potential mistake in his choice of words, and he offered a quick apology during the same conversation (Id .).
b. The August 27, 1998 Typewritten Note
Overall cites Allen v. Michigan Department of Corrections , 165 F.3d 405 (6th Cir. 1999) in support of his assertion that anonymous notes on departmental forms can be attributed to the employer (Complainant's Post-Hearing Brief, p. 187). In Allen , the plaintiff was being actively harassed by at least two of his supervisors through the use of abusive counseling memorandums and direct racial insults. Id . at 408, 410, 411. During this period of racial harassment, Allen received an anonymous harassing note on departmental forms signed by the "KKK." Id . at 411. The Court held that "although the [note on the departmental form] could not be directly attributed to Allen's supervisors, there is at least an inference that the supervisors condoned the action …. Moreover, the supervisors themselves could not be ruled out as the perpetrators given their racially motivated insults directed at Allen." Id . Given the direct, abusive behavior by Allen's supervisors, the case was remanded to determine if the employer, by not acting on the supervisor's behavior, tolerated or condoned the harassing behavior. Id . at 412.
Allen is easily distinguished from the instant case. Other than Wiggall's comment when Overall return to Watts Bar (FoF ¶ 137), Overall has not produced evidence that any TVA supervisor directly harassed him through abusive insults or through direct actions, such as the counseling memos in Allen .
Unlike the employer in Allen , TVA responded immediately to the inter-office note. Purcell responded to the August 27, 1998 "LEAVE WATTS BAR, THERE IS NO ROOM FOR WHISTLEBLOWERS HERE OR ELSE" note (FoF ¶ 143), by meeting with the entire Human Resources staff the next day, August 28, 1998, to discuss the issue of harassment and specifically, Overall's situation (FoF ¶ 144). Purcell restated TVA's policy of zero-tolerance for any harassment, and he published TVA's harassment policy down through the work force via a memorandum (Id .). Purcell notified the NRC of the actions taken (Id .). TVA OIG loaned the note to the NRC Office of Investigations for further review (FoF ¶ 145). The NRC, in its investigation, conducted interviews of twelve individuals and then returned the document with a forensic report (Id .).
[Page 60]
TVA responded promptly and appropriately to the August 27, 1998 typewritten note delivered via inter-office mail.
c. The August 29, 1998 Voice Mail Message
Overall cites Hafford v. Seidner , 183 F.3d 506 (6th Cir. 1999) to support its position that anonymous harassing phone calls made on workplace telephones are the responsibility of the employer (Complainant's Post-Hearing Brief, p. 187). In Hafford , the employee received harassing and threatening phone calls over the company's internal phone system. Id . at 509. In response to receiving these calls, Hafford alerted supervisors that, through his own investigation, he suspected certain employees of being responsible for the phone calls in question. Id . at 510. The employer did not question the employees named, nor did it take any investigative action. Id . The Court held that summary judgment for the employer was, therefore, inappropriate because a fact finder could find that the employer failed to take prompt and appropriate corrective action. Id . at 514.
Unlike the employee in Hafford , Overall did not receive harassing and threatening phone calls over the company's internal phone system which would have allowed investigation by TVA. TVA OIG promptly investigated the harassing message left on Overall's voice mail (FoF ¶ 148), but as TVA's phone system uses a central telephone trunk line and there was no voice to review (only a whistle being blown), TVA could not trace the phone call to a source (FoF ¶ 149).
Unlike the employer in Hafford , TVA responded promptly and appropriately to the August 29, 1998 voice mail message. The nature of the call (whistle being blown) and the technical lay-out of the TVA phone system prevented further meaningful action from being taken by TVA.
d. The September 4, 1998 Message on the Bathroom Wall
Overall cites Moore v. KUKA Welding Sys. & Robot Corp ., 171 F.3d 1073 (6th Cir. 1999) in support of his proposition that TVA is responsible for anonymous notes written on bathroom stalls (Complainant's Post-Hearing Brief, p. 187). Moore was the only African American worker in a shop of 15-20 employees. Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073 1077 (6th Cir. 1999). During a period of racially harassing incidents, someone wrote "kill all niggers" on the shop's bathroom wall. Id . An employee found the slur and wiped the wall clean. Id . Upon reporting the slur to a supervisor, the supervisor responded that the plaintiff had probably written the note himself, even though the supervisor knew that Moore was not even at work on the day in question. Id . The Court held that Moore had established a hostile work environment, not upon the existence of the bathroom wall slur, but rather on the employer's tolerance of a work place where "racial slurs and offensive jokes were part of the every day banter on the shop floor." Id . at 1079. The Court pointed out that the employer "knew about the jokes and racial slurs and did little to correct this problem and in some cases took part in or implicitly condoned the conduct." Id . The Court then cited the supervisor's fabricated and obviously factually incorrect response to the bathroom wall slur as an example of the employer condoning such activities. Id .
Unlike the employer in Moore , TVA responded immediately to the bathroom note. Upon discovery of the "GO HOME ALL WHISTLEBLOWERS NOW" note scrawled on a bathroom stall (FoF ¶ 153), a supervisor posted an "out of order" sign on the stall to prevent further spread of the harassing message throughout the building (Id .). Pictures were then taken of the writing, and then the wall was immediately painted to remove the harassing message from the restroom (Id .).
[Page 61]
Unlike the employer in Moore , Overall has not presented evidence that TVA supervisors condoned harassing whistleblower statements as "part of every day banter," nor has evidence been presented that TVA officials "took part in or implicitly condoned" such conduct.
The incident was turned over to Holloway and TVA OIG for further investigation. Holloway did not inspect the wall for fingerprints because the restroom was in a public area and was used daily by so many employees (FoF ¶ 155). Further, as the incident was found around 9:30 a.m., Holloway determined that review of sign-in records would have been a time consuming and fruitless task, as almost every employee was in the building by 9:30 a.m. each morning (Id .).
TVA responded to the September 4, 1998 bathroom note in a prompt and appropriate manner given the timing, location, and nature of the harassing message.
e. The August 1998 Dennis Tumlin Comment
Like the August 5, 1998 Wiggall comment, the August 1998 Dennis Tumlin comment (FoF ¶ 138), "there's that whistleblower" did not rise to the level of harassment. See Williams, supra ("mean behavior, without more, does not equate to a … hostile work environment."). Nevertheless, Higginbotham took the "whistleblower" statement made by Tumlin seriously, and he counseled both Tumlin's manager and Tumlin himself regarding how the joke was inappropriate and how such language could be misinterpreted (Id .).
As discussed above, I have determined that TVA responded appropriately in preparing for Overall's return to Watts Bar and in investigating the off-site incidents of harassment against Overall. While stating again that Wiggall's comments did not rise to the level of harassment, I find it relevant that TVA's on-site incidents of harassment were limited in time from August 27, 1998 through September 4, 1998, Overall's last day at Watts Bar. During this nine day period, TVA responded to each on-site incident in a timely and appropriate manner. Further, after Overall's off-site September 9, 1998 "fake bomb" incident, and while Overall was still on administrative leave, Purcell conducted a September 15, 1998 stand-down meeting with all Watts Bar employees, which included a slide presentation about the threats that had been made against Overall (FoF ¶ 126).
I find that TVA responded promptly and appropriately with actions that were reasonably calculated to end the incidents of harassment that occurred at Watts Bar. Therefore, Overall has failed to show that TVA acted negligently in responding to incidents of harassment or retaliation against him.
VI. CONCLUSION
Based upon the foregoing, Curtis C. Overall has failed to prove discrimination through harassment or retaliation evidenced by an adverse employment action or tangible job detriment, and he has failed to prove that TVA subjected him to a hostile work environment. Therefore, his claim must fail without further review.
VII. RECOMMENDED ORDER
IT is recommended that the complaint filed by Curtis C. Overall be DISMISSED.
Robert L. Hillyard
Administrative Law Judge
NOTICE : This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 20 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, N.W., Washington, D.C. 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 and 24.8.
[ENDNOTES]
1 In this Decision and Order, "ALJX" refers to administrative file exhibits, "CX" refers to the Complainant's Exhibits, "RX" refers to the Respondent's Exhibits, "RDO" refers to Judge Kennington's April 1, 1998 Recommended Decision and Order, "FoF" refers to the Findings of Fact contained in this Recommended Decision and Order; "DC Tr." refers to the transcript of the hearing held from April 17, 2001 through April 19, 2001 in Washington, D.C., consisting of pages 1-500; and, "TN Tr." refers to the transcript of the hearing held between April 23 through May 24, 2001, in Knoxville, Tennessee, consisting of pages 1-3025. Where a name precedes the transcript designation (e.g. – "Overall, D.C. Tr. at 455"), the listed name cites to the direct testimony of the person listed. Where the name listed is "Overall," the testimony is from Curtis Overall, Complainant. Where other Overall family members' testimony is utilized, a first name will be given.
2 On March 11, 2003, the Complainant filed a Notice of New Authority, which included a copy of the Sixth Circuit Court of Appeals decision in Tennessee Valley Authority v. United States Dept. of Labor, No. 01-3724 (Mar. 6, 2003). I take notice of this final decision while noting the Respondent's argument that incidents occurring in 1995 do not require a finding that further discrimination must have occurred in 1998-2000 (See Respondent Tennessee Valley Authority's Response to Complainant's Notice of New Authority, March 28, 2003).
3 On December 6, 1999, Overall filed a related complaint with OSHA, alleging that TVA discriminated against him by suspending and denying his security clearance. Following the reinstatement of his security clearance, Overall withdrew the complaint (ALJX 11).
4 TVA concedes that Overall engaged in protected activity by filing his 1997 complaint, by speaking at the 1998 press conference, and by speaking with the NRC inspectors during the September 1998 inspection at Watts Bar (Respondent's Post-Hearing Brief, p. 130, fn. 43).
5 This tribunal recognized Mr. Lochbaum "as an expert in analyzing safety concerns for nuclear plants" (DC Tr. at 27-28).
6 The paragraph headings and event titles of the alleged incidents of harassment are taken from the headings used by both the Complainant and the Respondent in their post-hearing briefs.
7 TVA filed a Motion for Admission of New Evidence on February 19, 2002, seeking to admit the Tennessee Bureau of Investigation report as RX 253 pursuant to 29 C.F.R. § 18.54(c). Under § 18.54(c), "Once the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record." As the Tennessee Bureau of Investigation report was not produced or available until January 17, 2002, and as Complainant's counsel has referenced the lack of production of this report in its reply brief (See Overall reply brief at 18-19), I find that this evidence was not available prior to the close of the record and that it is new and material evidence pursuant to § 18.54(c). I admit the Tennessee Bureau of Investigation report into evidence as RX 253.
8 TVA filed a Motion for Admission of New Evidence on July 25, 2002, seeking to admit the NRC investigative report as RX 254 pursuant to 29 C.F.R. § 18.54(c). Under § 18.54(c), "Once the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record." The NRC investigative report was not produced or available until July 2, 2002, and as the Complainant has referenced missing fingerprint cards in its argument (See Complainant's Post-Hearing Findings of Fact and Conclusions of Law at 110; Holloway, TN Tr. at 1515-1517), I find that this evidence was not available prior to the close of record and that it is new and material evidence pursuant to § 18.54(c). I admit the NRC investigative report into evidence as RX 254.
9 This "five-level system" was validated by TVA expert Gerald Richards who testified that a majority of Forensic Document Examiners use a graduated scale of five to nine levels to reflect their conclusions (see RX 168).
1 Holloway was assigned to the Overall case on June 5, 1998, and removed from the case on September 21, 1998, when Hudson took over the investigation (Holloway, TN Tr. at 1653). Hudson left the investigator's office on December 14, 1999, at which time Holloway was reassigned to the case (Id. ).
10 See Judge Kennington's Order, RDO at 36; CX 17 at CCO 00036.
11 The days absent from the department include: 1) Aug. 24, 1998, 8 hrs. annual leave; Aug. 26, 1998, 2 hours annual leave; Aug. 27, 1998, 8 hrs. administrative leave; Aug. 28, 1998, 8 hrs. administrative leave; Aug. 31, 1998, administrative leave, Sept. 1-4, 1998, accompanied NRC Inspectors (Smith, TN Tr. at 2757-2762).
APPENDIX A
Curtis C. Overall v. Tennessee Valley Authority
Case No.: 99-ERA-25
Admitted Exhibits
At the commencement of the hearing, the Complainant and the Respondent presented numerous exhibits to the Court. The Complainant presented 496 exhibits identified as CX 1 through CX 496. The Respondent presented 255 exhibits identified as RX 1 through RX 255. The admissibility of individual exhibits was considered and ruled on during the hearing as each exhibit was offered into evidence. Many of the exhibits presented by the parties at the commencement of the hearing were not offered into evidence. This is a complete listing of the exhibits offered and admitted into evidence.
COMPLAINANT'S ADMITTED EXHIBITS
Exhibit No. Description
1.
C. Overall, WB PER 950246 (Adverse Conditions Report) (10144-10145).
4.
TVA Central Laboratories Service Technical Report No. 95-1021, "Ice Condenser Basket Screws" (Pace Dep. Exh. 10).
5.
Memorandum from R. Scrabis, Westinghouse, re: "Watts Bar Ice Condenser – Minimum No. Ice Basket Screws" (CCO 00823-00824).
6.
Memorandum from F. Koontz to L. McCormick, "Ice Condenser Basket Screws" (11466).
7.
Roster of attendees at ice condenser meeting (Smith Dep. Exh. 18).
8.
TVA Central Laboratories Services Technical Report No. 95-1021 (10165-10186).
14.
C. Overall notebook entries (CCO 00079-00091 & CCO 00102-00123 & CCO 00560-00582).
17.
ALJ Kennington, Recommended Decision and Order, Overall v.TVA , Case No. 97-ERA-53 (CCO 00001-00040).
24.
Letter from NRC Region III to C. Overall re: ice condenser problems at D.C. Cook, dated May 1, 1998 (CCO 00595-00596).
25.
TVA, "Plan for returning Overall to WBN" (006101).
26.
J. Dean, "TVA whistle-blower wins back his job" (Knoxville News-Sentinel)(002190).
28.
J. Harmon, "Mistakes Aside, TVA ranks high in its field" (Atlanta Constitution)(002497-002200).
29.
TVA, "Atlanta Journal/Constitution Questions about TVA Nuclear Program" (talking points)(008212-008216).
30.
Letter from R. Higginbotham (WBN HR) to C. Overall, re: return to work, dated May 20, 1998 (006401).
33.
J. Harmon, "Activists try to stop TVA nuclear plant construction" (Atlanta Constitution) (002192).
34.
Press Release, "Ralph Nader and Whistleblowers Call on Congress to Halt Further Funding of Tritium Production at TVA's Nuclear Power Plants…" (CCO 00886-00887).
36.
National Press Club press conference, "Opposition to Federal Funding for Tritium" (002271 & 005331).
40.
Statement of Curtis Overall (CCO 00892).
41.
R. Powelson, "Nader opposes TVA's tritium plan" (Knoxville News-Sentinel)(002191).
42.
TVA "Manager Talking Points – Overall" (005813-005814).
46.
"Silkwood" note (CCO 00048).
47.
Cleveland Police Department, Uniform Offense Report, Complaint No. 98-19423 ("Silkwood" note)(CCO 00044-00048).
50.
"2 TVA Whistleblowers Receive Death Threats" (Chattanooga Free Press)(002193).
56.
"BOO" harassing note (CCO 00057).
57.
Cleveland Police Department, Uniform Offense Report, Complaint No. 65-21008 ("BOO" harassing note)(CCO 00053-00057).
59.
"STOP IT NOW" harassing note (CCO 00062).
60.
Cleveland Police Department, Uniform Offense Report, Complaint No. 98-21474 ("Stop It Now" harassing note)(CCO 00058-00062).
63.
Cleveland Police Department, Uniform Offense Report, Complaint No. 98-22370 (harassing phone call)(004693-004966).
66.
Letter from NRC Region II to J. Scalice, re: escalated enforcement, dated June 18, 1998 (002372-002373).
81.
A. Harris presentation to NRC (C. Overall and ice condenser issues)(Pace Dep. Exh. 8; Smith Dep. Exh. 15).
84.
R. Higginbotham notes (P. Smith concerns with C. Overall issues)(005807).
85.
C. Overall notebook entry (harassing truck incident)(002343).
88.
"Leave Watts Bar, There Is No Room for Whistleblowers Here or Else!!!!" harassing note (CCO 00075).
89.
TVA Witness Statements (E. Gray; P. Smith & C. Overall)(002334 & 004508-004511).
96.
R. Higginbotham notebook entry (discussion with R. Wiggall)(005810).
99.
C. Overall, "NRC Questions/Statements; Comments to NRC" (CCO 00713-00716).
103.
"Did You Get the Message Yet!!" harassing note (CCO 00071).
106.
Letter from D. Lochbaum to S. Jackson (Chair, NRC), re: Overall and Watts Bar, dated Sept. 8, 1998 (008142).
108.
Cleveland Police Department, Uniform Offense Report, Complaint No. 98-35049 (bomb in truck)(CCO 00063-00066).
111.
Union of Concerned Scientists, "Nuclear Whistleblower Receives Death Threats on the Job, Scare Tactics Escalate with Bomb on Truck; NRC Fails to Protect Whistleblower" (CCO 00100-00101 & 002275-002277).
113.
Letter from D. Lochbaum to S. Jackson (Chair, NRC), re: Overall and Watts Bar, dated Sept. 10, 1998 (Lochbaum Dep. Exh. 2).
129.
"Curtis watch your backside…" note on WBN "Daily Journal" record sheet left for C. Overall and bag of screws (004848).
132.
A. Overall, composite drawing and questionnaire (004641-004647).
136.
R. Casey to C. Overall, (suspension of unescorted access)(001461).
138.
Letter from NRC Region II to C. Overall re: ice condenser problems, dated Oct. 7, 1998 (CCO 00601-00602).
142.
"Tiny screws cause woes for TVA whistleblower" (Nashville Tennessean)(002272-002274).
143.
D. Mansfield, "Broken Screws Turned TVA Worker Into Whistleblower" (Associated Press)(004633-004636).
146.
Letter from G. Hickman to C. Van Beke, re: request for polygraph and compelled handwriting exemplars, dated Jan. 6, 1999 (004630).
149.
D. Mansfield, "TVA targets whistle-blower; wants man to take lie-detector test" (Nashville Tennessean)(002269).
152.
TVA, "Declaration of G. Donald Hickman" (002560-002577).
158.
C. Overall, Department of Labor complaint under Section 211, ERA (02295-002323).
159.
C. Overall receipt for typewriter purchase (Overall Dep. Exh. 7).
160.
Letter from R. Purcell to NRC re: "Watts Bar Licensee Event Report," ice condenser inlet doors, dated Mar. 26, 1999 (Pace Dep. Exh. 6).
167.
Letter from D. Lochbaum to S. Jackson (Chair, NRC), re: Watts Bar, dated April 28, 1999 (Lochbaum Dep. Exh. 3).
168.
Letter from D. Lochbaum to S. Jackson
(Chair, NRC), re: Watts Bar, dated April 30, 1999 (Lochbaum Dep. Exh. 4).
174.
D.C. Cook email to TVA and Duke, "Additional Screw Failures Found at Cook" (007927-007929).
196.
NRC Region II to C. Overall, "Two Issues Involving the Watts Bar Ice Condenser (IC) ice basket screws in the ice melt tank and IC screws on hold 1995 and 1999" (CCO 00641-00644).
199.
Letter from R. Casey to C. Overall re: denial of unescorted access security clearance, date Oct. 12, 1999 (001546-001547).
207.
Letter from R. Casey to C. Overall re: reinstatement of security clearance, dated Dec. 6, 1999 (009563-009564).
222.
Letter from NRC to David Lochbaum, re: "Resolution of Ice Condenser Concerns Raised in the Jan. 12, 1998 Petition Addendum (Allegation NRR-1998-A-0111)," dated Mar. 23, 2000 (CCO 00697-00712).
223.
P. Pace email to M. Burzynski, "Discuss new screw issue with NRC?" (11821).
225.
P. Pace email to NRC, "New Ice Screw Information" (11820 & 11604-11605).
231.
P. Smith email to P. Pace, "Cook Info on Screws" (11879).
232.
M. Burzynski email to P. Pace, "Ice Basket Screws – Presentation" (11974-12013).
233.
TVA, draft presentation to the NRC (009425-009430).
236.
NRC predecisional conference notice (CCO 00676).
240.
"'This dog don't hunt.' That's what an ice condenser expert thought when he heard Cook Nuclear Plant was prepared for restart" (South Bend Tribune) (CCO 00724-00730).
245.
Closure of Watts Bar PER 00-005494-0 (11884-11907).
246.
Letter from NRC Region II to Scalice re: "Notice of Violation," dated July 17, 2000 (11647-11656).
248.
A. Harris, presentation to NRC Office of Enforcement (CCO 00809-00816).
249.
Letter from NRC Region II to J. Scalice, re: NRC Inspection Report (Watts Bar), dated Oct. 16, 2000 (12053-12079).
250.
Report by D. Lochbaum on the Ice Condenser Safety Concerns Raised by Mr. Curtis Overall (with attachments 1-20).
250-A
Lochbaum, resume.
251.
Harassing note, "You need to go," mailed to C. Overall residence (CCO 00819-00820).
254.
David P. Grimes, "Scientific Examination, Document Analysis Report" and resume (CCO 00842-00853).
254-A
David Grimes, resume.
256.
Letter from J. Scalice to G. Prosser, re: "Request for Investigations of two allegations of threats received by two open DOL Complainants," dated June 3, 1998 (002618-002619 & 005555).
258.
N. Holloway, "Investigative Plan" (004446).
269.
TVA subpoena to Bell South (pay phone) (004541-004544).
270.
TVA subpoena to Bell South (A. Harris phone number)(009897-009903).
276.
N. Holloway, Investigative Insert (Bell South subpoena)(004521-004522 & 005126-005202).
279.
R. Hudson, Record of Interview (P. Smith)(004516-004517 & 004888 & 004891-004893)
280.
R. Hudson, Record of Interview (R. Gray)(004518-004519 & 004888-004890).
281-A.
photocopy of Q-6, TVA Envelope
295.
Photographs of bathroom graffiti (009431-009440).
299.
N. Holloway, Record of Interview (D. Tumlin)(004451-004452 & 04970 & 04974-04980).
302.
N. Holloway, Record of Interview (D. McCraw) (004716-004717 & 005084-005086).
323.
N. Holloway memo, Ann Harris investigation (009884).
325.
R. Hudson, Investigative Alert (A. Bohanan handwriting analysis)(004670-004671).
327.
Handwriting samples submitted to A. Bohanan, Oct. 13, 1998 (004015-004052).
335.
Letter from R. Taylor to G. Sperry, re: handwriting analysis, dated Dec. 23, 1998 (002642-002644).
336.
Letter from G. Sperry to R. Hudson, re: "Forensic Laboratory Report" dated Dec. 28, 1998 (004324-004331).
340.
R. Hudson, Investigative Insert (background check of P. Langdon)(002617 & 003938-003945).
342.
R. Hudson, Record of Interview (P. Langdon) (004621-004622).
345.
R. Hudson, Investigative Insert (Bell South telephone records)(005204-005330).
348.
Bell South Telephone Records (A. Harris home number)(009954-009969).
353.
R. Hudson Investigative Alert (Bell South Subpoena Center) (004854).
363.
R. Hudson Investigative Alert (BATF analysis)(004744-004746).
372.
R. Hudson Investigative Alert (GBI report) (009244-009248).
374.
Letter from B. Marquand to L. Miller, re: handwriting analysis, dated Sept. 24, 1999 (006384-006396).
379.
N. Holloway, Significant Case Summary (009338-009340).
387.
N. Holloway, Significant Case Summary (009441-009442).
388.
N. Holloway email to R. Casey (request for fingerprint cards)(010001-010003).
391.
N. Holloway, Investigative Alert (fingerprint cards) (010001-010003).
397.
Transcript of Deposition of Dr. Kevin R. Ferguson.
398.
Ferguson Dep. Exh 1 (resume).
399.
Ferguson Dep. Exh. 2 (medical records for 9/24/98 to 10/11/99).
400.
Ferguson Dep. Exh. 3 (K. Ferguson to P. Lavin, 6/8/99).
401.
Ferguson Dep. Exh. 4 (K. Ferguson to P. Lavin, 9/17/99).
402.
Ferguson Dep. Exh. 5 (K. Ferguson report to A. Kabat, 9/00).
404.
Transcript of Deposition of Dr. Gary Leigh.
405.
Leigh Dep. Exh. 1 (resume).
406.
Leigh Dep. Exh. 2 (medical records for 8/30/95 to 8/24/00).
407.
Leigh Dep. Exh. 3(MMPI-2 extended score report, 8/5/98).
408.
Leigh Dep. Exh. 4 (MMPI-2 extended score report, 8/23/99).
409.
Leigh Dep. Exh. 5 (G. Leigh to P. Lavin, 9/17/99).
410.
Leigh Dep. Exh. 6 (G. Leigh to A. Kabat, 10/19/99).
411.
Leigh Dep. Exh. 7 (G Leigh to A. Kabat, 10/21/99).
412.
Leigh Dep. Exh. 8 (G. Leigh to L. Bernabei, 1/18/00).
413.
Leigh Dep. Exh. 9 (G. Leigh Report to L. Bernabei, 9/00).
414.
Transcript of Deposition of Dr. Gary Leigh.
415.
Leigh Dep. Exh. 10 (medical records for 9/13/00 to 1/9/01).
416.
Leigh Dep. Exh. 11 (medical records for 2/12/01).
432.
WBN PER 950246, Corrective Action Document Closure Package (12387-12469A).
434.
WBN PER 980018, Corrective Action Document Closure Package (12470-12480).
436.
WBN PER 980597, Corrective Action Document Closure Package (12533-12561).
437.
WBN PER 980639, Corrective Action Document Closure Package (12562-12666).
438.
WBN PER 980742, Corrective Action Document Closure Package (12684-12798).
439.
WBN PER 980787, Corrective Action Document Closure Package (12837-12854).
440.
WBN PER 980784, Corrective Action Document Closure Package (12891-12894).
441.
WBN PER 980792, Corrective Action Document Closure Package (12667-12683).
442.
WBN PER 980823, Corrective Action Document Closure Package (12855-12890).
443.
WBN PER 980835, Corrective Action Document Closure Package (12799-12805).
444.
WBN PER 980885, Corrective Action Document Closure Package (12895-12913).
445.
WBN PER 980956, Corrective Action Document Closure Package (12806-12828).
446.
WBN PER 980973, Corrective Action Document Closure Package (12914-12916).
447.
WBN PER 980974, Corrective Action Document Closure Package (12829-12836).
448.
WBN PER 980977, Corrective Action Document Closure Package (12978-13009).
449.
WBN PER 980982, Corrective Action Document Closure Package (12917-12977).
450.
TVA's Examiners: Q-1, SILKWOOD.
451.
TVA's Examiners: Q-2, BOO!
452.
TVA's Examiners: Q-3, STOP IT NOW!
453.
TVA's Examiners: Q-4, DID YOU GET THE MESSAGE YET!
454.
TVA's Examiners: Q-5, GO HOME ALL WHISTLEBLOWERS….
455.
TVA's Examiners: Q-6, TVA envelope.
456.
TVA's Examiners: Q-7, LEAVE WATTS BAR (typed note).
457.
TVA's Examiners: Q-8, CURTIS WATCH YOUR BACKSIDE….
458.
TVA's Examiners: Common Authorship.
459.
Internet, "Free Typewriter fonts."
461.
"LEAVE WATTS BAR" in various fonts/ typewriters.
462.
Extortion note, in various fonts/typewriters.
463.
Curtis Overall, Bronze Star Award.
464.
Letter from D. Koehl to C. Overall.
465.
C. Overall Job Description.
466.
Letter from C. Van Beke to G. Hickman, dated Feb. 1, 1999.
467.
Organizational Chart: Watts Bar Nuclear Plant, Engineering and Support.
468.
Letter from A. Harris to H. Bell (NRC OIG), dated Jan. 26, 1998.
469.
Overall v. TVA, Final Decision and Order, Case No. 97-ERA-53 (ARB Apr. 30, 2001).
470.
Jocher v. TVA , Recommended Decision and Order, Case No. 94-ERA-24 (ALJ July 31, 1996).
471.
Klock v. TVA, Recommended Decision and Order, Case No. 95-ERA-20 (ALJ Sept. 29, 1995).
473.
TVA inside, "For the Record, Sequoyah Excels."
474.
NRC letter to J. Bynum & Order Prohibiting Involvement in NRC-Licensed Activities, dated Jan. 13, 1997.
475.
NRC Office of Public Affairs, "NRC Staff Proposes $100,000 Fine Against Tennessee Valley Authority."
476.
NRC Information Notice, "1997 Enforcement Sanctions for Deliberate Violations of NRC Employee Protection Requirements."
477.
TVA Annual Report for 2000: The Executive Committee.
478.
TVA Leadership: TVA Board of Directors & TVA Executive Committee.
479.
TVA Inside, "Bajestani new SVP in FPG; Purcell Heads Sequoyah."
480.
Transcript of Telephonic Deposition of William F. Jocher.
481.
Transcript of Deposition of Daryl Smith.
483.
Larry S. Miller, "Bias Among Forensic Document Examiners: A Need for Procedural Changes," 12 J. Police Science & Administration 407 (1984).
484.
Dorothy-Anne E. Held, "Handwriting, Typewriting, Shoeprints and Tire Treads: FBI Laboratory's Questioned Documents Unit," 3 Forensic Science Communications (April 2001).
485.
Larry S. Miller, "Forensic Examinations of Arthritic Impaired Writings," 15 J. Police Science & Administration 51 (1987).
487.
Larry S. Miller, "Human Evidence in Criminal Justice" (2d ed. 1985).
488.
Larry S. Miller, "Identification of Human Figure Drawings Through Questioned Document Examination Techniques," 72 Forensic Science Int'l 91 (1995).
490.
United States v. Sampson , 1992 WL 97159, no. ACM 28734 (U.S. Air Force Ct. Military Rev. Apr. 20, 1992).
496.
United States v. Starzecpyzel , 880 F. Supp. 1027 (S.D.N.Y. 1995).
497.
Nuclear Regulatory Commission, "Requirements for criminal history checks," 10 C.F.R. § 73.
57 (2001).
498.
Gary Jordan, System Engineering Time Log.
499.
Gary Jordan, photographs of ice condenser debris at D.C. Cook.
500.
Curtis C. Overall, out-of-pocket medical expenses.
RESPONDENT'S ADMITTED EXHIBITS
Exhibit No. Description
5.
Sequence of Events From Finding of Broken Ice Basket Screws to PER Closure in 1995 R.1 (Pace Dep. Exh. 2)(11722-11724).
6.
Adverse Condition Report WBPER950246(10144-10162).
8.
Chronology of Harassment (CCO 00041-00042).
10A.
Westinghouse Memo From Chuck Scrabis to C. Overall re: Watts Bar Ice Condenser-Minimum No. Ice Basket Screws. (12315-12317).
13.
WBN System Pre-Operability Checklist dated 6/95 (12088-12099).
14.
NRC OIG letter dated Feb. 28, 1997 to Robert A. Watkins re: Meeting with Allegers (CCO 01107-01108).
15.
July 7, 1997 letter from NRC to Oliver D. Kingsley re: NRC Integrated Inspection Report Nos. 50-390/97-04, 50-391/97-04 and Notice of Violation (10291-10319).
19.
Purcell Bulletin re: communicating concerns to supervision without fear of retaliation (002244).
20.
Manager Talking Points – Overall (Smith Dep. Exh. 9)(006099-006100).
23.
C. Overall journal notes.
25.
In and Out work times for ten employees from May through September, 1998 (100108-100132).
28.
C. Overall journal notes (005805-005812, 100107).
37.
June 3, 1998 Formal Request by Scalice for TVA OIG to Investigate Incidents of Harassment (005641-005642).
42.
June 10, 1998 Scalice Memo "Reinforcing TVA Nuclear's (TVAN's) Policy Against Intimidation and Harassment" (005440).
43.
TVA Record of Interview, C. Overall (004534-004537, 004894-004900).
45.
July 29, 1998 NRC letter to C. Overall re: Ice Condenser Issues and Chattanooga Free Press Article (CCO 00598-00599).
46.
Executive Summary of July 8, 1998 TVA Nuclear Monthly Business Meeting (005762-005766).
50.
Higginbotham Memo (006129).
51.
August 28, 1998 Purcell Memo re: Watts Bar Nuclear Plant (WBN) – Zero Tolerance of Intimidation in the Workplace (100095-100096, 005790).
55.
9/4/98 Fax from Higginbotham to Holloway re: note in bathroom stall (100098-100102, 100082, 002616, 002628).
58.
ADT Security Services Records.
61.
Peter Langdon notes explaining presence in Overall neighborhood (13100-13101).
62.
Sept. 4, 1998 NRC letter to Purcell re: Intimidation of Tennessee Valley Authority (TVA) Employee (005444).
67.
Investigative Insert re: Roane County Sheriff's Office report (09885-09887).
68.
Sept. 10, 1998 Purcell Bulletin (005741).
69.
Roster of Stand-Down Meeting on Intimidation and Harassment, Sept. 10, 1998 (005740).
71.
Announcement of Employee Information Sessions to be held by Purcell (005767-005768).
72.
Sept. 15, 1998 WBN Plant Meeting notes (002249-002254).
76.
Sept 17, 1998 Purcell letter to NRC re: Additional Information Regarding Intimidation of Tennessee Valley Authority (TVA) Employee (002556-002559).
77.
Oct. 9, 1998 NRC Letter to Scalice re: NRC Inspection Report No. 50-390/98-08 and 50-391/98-08 (10471, 10475, 10484-10485).
81.
Oct. 29, 1998 Report from Bohanan Forensic Inc. (002637-002638).
82.
Nov. 30, 1998 Report from Bohanan Forensic Inc. (002640-002641).
88.
Composite Sketches (004643-004647).
97.
TVA OIG Notice of $10,000 Reward (008200).
100.
Feb. 19, 1999 C. Overall Letter to Raymond Levitt, U.S. Dept. of Labor, with attachments.
101.
Mar. 26, 1999 Licensee Event Report.
103.
Mar. 25, 1999 Report from Forensic Document Examination Services, Inc. (002668-002669).
109.
NRC Certification (13020).
112.
June 3, 1999 NRC Letter to TVA re: NRC Special Inspection Report Nos. 50-390/99-06 and 50-391/99-06 and Notice of Violation (10928-10931).
113.
U.S. Dept. of Labor Occupational Safety and Health Administration Statement of C. Overall.
116.
June 25, 1999 NRC OIG Memo to George Mulley re: Ice Condenser Basket Screws at Watts Bar- Tennessee Valley Authority (CCO 01114-01116).
123.
Oct. 12, 1999 NRC Letter to Scalice re: NRC Integrated Inspection Report No. 50-390/99-08 and 50-391/99-08 (10952, 10956, 10961, 10969,10971-10977).
124.
Complainant Curtis Overall's Responses to Respondent Tennessee Valley Authority's First Set of Interrogatories.
127.
Jan. 7, 2000 letter from Lynne Bernabei to Brent Marquand, TVA OIG (13105-13106).
129.
Medical Records, C. Overall.
130.
Jan. 24, 2000 Letter from U.S. Dept. of Labor to TVA closing complaint No. TVA/ Overall/1170679 (13104).
131.
Jan. 31, 2000 Letter from NRC to Scalice re: Confirmation of Predecisional Enforcement Conference Arrangements (NRC Office of Investigations Report No. 2-98-023 and NRC Inspection Report Nos. 50-390, 391/99-06).
134.
Feb. 14, 2000 NRC Integrated Inspection Report No. 50-390/99-11 and 50-391/99-11 (11402, 11410-11411).
143.
Photocopy of Typewriter nameplate.
146.
TVA Employee Conduct and Disciplinary Guideline (006893-006904).
152.
Photocopy of website http://insidenet.tva.gov/emprel/policy/ prinprac/com05.htm, dated 9/29/99, entitled TVA Principles and Practices – Expressing Concerns and Differing Views (005713-005717).
153.
TVA Bulletin: Concerns Resolution.
154.
TVAN Standard Programs and Processes, Appendix D, Concerns Resolution.
159.
American Society For Testing and Materials, Standard Descriptions of Scope of Work Relating to Forensic Document Examiners (13013-13014).
160.
Standard Terminology for Expressing Conclusions of Forensic Document Examiners (13010-13012).
162A.
Professional Credentials of Grant R. Sperry (10075-10078).
162B.
Report of Grant R. Sperry (10072-10074).
163.
Supplemental Report of Grant R. Sperry (10080).
164.
Mar. 21, 2001 Report from Grant R. Sperry.
165.
Oct. 25, 2000 Report from Daniel R. Dunn, III regarding the Brother typewriter (10006).
167A.
Credentials of Larry S. Miller (10029-10036).
167B.
Report of Larry S. Miller (10007-10026).
168.
Apr. 13, 2001 Letter from Gerald B. Richards to TVA OIG (13090A-B).
168A.
Credentials of Gerald B. Richards.
169.
Work Records, C. Overall.
170.
Videotapes Documenting C. Overall Handwriting Exemplars.
190.
Curriculum Vitae, Michelle Marie Beckwith.
191.
Overall Written Work Assignments.
192.
Photocopy of U.S. Gov't Messenger Envelope.
193.
Standard Guide for the Examination of Handwritten Items.
194.
Monthly Calendar for August, 1998.
195.
Investigative Insert (004737-004739).
196.
Knoxville News-Sentinel "Nader joins fight to stop TVA plans for tritium."
197.
Sept. 16, 1998 Letter from Dr. Gary Leigh to Charles Van Beke (CCO 00456-00457).
198.
Sept. 25, 1998 Letter from Dr. Gary Leigh to Charles Van Beke (CCO 00463).
199.
May 27, 1999 Letter from Dr. Gary Leigh to Patrick F. Lavin (CCO 00499-00500).
203.
Sept. 17, 1999 Letter from Kevin Ferguson, M.D. to Patrick F. Lavin.
204.
Oct. 22, 1999 Letter from Lynne Bernabei to C.L. Kelly, Chairman, Screening Review Board, re: Overall security clearance (09575-09581).
205.
Telephone Records (007382-007383).
206.
Telephone Records (007387).
250.
Curriculum Vitae, Mark J. Mills.
251.
Oct. 26, 2000 Letter from Mark J. Mills, M.D. to Brent Marquand, Esquire.
252.
July 21, 2000 Letter from James Riccio to Lynne Bernabei (CCO 00796),
253.
Tennessee Bureau of Investigations Report.
254.
NRC Report re: destruction of fingerprint cards by TVA.