92-CAA-2 (Sec'y Jan. 26, 1996)(reissued with
non-substantive changes on Feb. 5, 1996)
DATE: January 26, 1996
CASE NOS. 92-CAA-2
92-CAA-5
93-CAA-1
IN THE MATTER OF
C. D. VARNADORE,
COMPLAINANT,
v.
OAK RIDGE NATIONAL LABORATORY
AND LOCKHEED MARTIN ENERGY
SYSTEMS, INC.,[1]
RESPONDENTS.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER TABLE OF CONTENTS
INTRODUCTION AND SUMMARY...............................................2
BACKGROUND ...............................................................................5
I. Facts................................................................................................5
A. Oak Ridge, 1974-1985
B. Fiscal Year 1986
1. The TRU and 2026
2. TRU and Radiochemistry and Activation Analysis Group
3. FY-86 Evaluation and Varnadore's Response
C. Fiscal Year 1987
1. Special Projects Group
2. Organic Analysis Group[PAGE 2]
3. FY-87 Evaluation
D. Fiscal Year 1988
1. Organic Analysis Group, Continued
2. The PIP Committee and the Grubb Incident
3. FY-88 Evaluation
E. Fiscal Years 1989 and 1990
1. Changes in OAG
2. Varnadore's Surgery
3. Varnadore's Return and His FY-89 Evaluation
4. MOPs for FY-90
5. The David Jenkins Incident
6. Varnadore's Move to Room E-163, Loan to
Special Projects Group, and Loan to Darrell Wright
7. FY-90 Evaluation
F. Fiscal Year 1991
1. Work Assignments
2. MOPs
3. Assignment to R-151
4. Assignment to E-259
G. FY-1991 Performance Evaluation
H. The Murphy Incident
I. August 1992
II. The Recommended Decision and Order..................................34 DISCUSSION..................................................................................36
I. Whether Varnadore s Complaints were Timely Filed.................36
A. The November 20, 1991 Complaint
B. Post-November 20, 1991 Actions
II. Temporal Proximity and Allocation of Burdens of Proof..........43
III. Whether Energy Systems Retaliated Against Varnadore................45
for the Filing of his November 20, 1991 Complaint
A. The FY-91 Performance Evaluation
B. The Murphy Incident and the Posting of the SmithMemorandumCONCLUSION................................................................................52
INTRODUCTION AND SUMMARY
Beginning on November 20, 1991, Complainant C. D. Varnadore
(Varnadore) filed several complaints alleging that Oak Ridge
National Laboratory (ORNL)[2] and Martin Marietta Energy
Systems, Inc.[3] had retaliated against him for engaging in
activity protected by the employee protection provisions of the
Clean Air Act (CAA), 42 U.S.C. § 7622 (1988); the Toxic
Substances Control
[PAGE 3]
Act (TSCA), 15 U.S.C. § 2622 (1988); the Safe Drinking Water
Act (SDWA), 42 U.S.C. § 300j-9(I) (1988); the Water
Pollution Control Act (WPCA), 33 U.S.C. § 1367 (1988); and
the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), 42 U.S.C. § 9610 (1988) (sometimes
collectively referred to as the environmental whistleblower provisions).[4]
Following extensive discovery and a trial lasting approximately three
weeks, the Administrative Law Judge (ALJ) issued an 84-page
single spaced Recommended Decision and Order (R. D. and O.),
finding that Varnadore had been retaliated against, and granting
relief. In an order dated September 22, 1994, the ALJ
recommended an award of attorneys fees and costs.[5]
The facts relevant to this case span the period 1985 through
1992. The transcript is over 3,000 pages in length, and over two
hundred exhibits were introduced. Of necessity, therefore, both
the R. D. and O. and this Final Decision and Order are lengthy.
The sheer bulk of the case should not obscure the fundamental
facts and my conclusions, however.
In September 1985 C. D. Varnadore, a technician with
significant mechanical, but no chemistry, background at Energy
Systems' K-25 facility in Oak Ridge, Tennessee,[6] was to be
laid off as a result of the termination of the project on which
he worked. Days before the layoff was to become effective, ACD
offered him a position, and Varnadore was assigned to work as a
technician in ACD's Transuranic Analytical Laboratory (TRU),
located in the Transuranic Facility. The work of a technician in
the TRU required, among other things, the manipulation of small
samples of highly radioactive substances in a "hot cell" using
mechanical hands. Varnadore was blind in one eye, and shortly
after he first tried to use the mechanical hands he reported to
his supervisors that he could not use them without creating
spills because of his depth perception problem. Because
Varnadore lacked chemistry experience, his supervisors found it
difficult to place him in a different position in ACD. They also
failed in attempts to find him a position within any of the other
Divisions of ORNL. However, no one ever asked Varnadore to use
the mechanical hands after his announcement that he could not
successfully use them. In December 1985 Varnadore was
transferred temporally to another Section within ACD.
After a brief return to the TRU, Varnadore was again
transferred to another group within ACD. Varnadore's supervisors
over the period December 1985 through December 1986 were not
happy with his performance, and in December 1986 Varnadore was
informed by Section Leader Stokely and ACD Director Shults that
he would be assigned to a position in the Special Projects Group,
which was to be his "last assignment" in ACD unless he could
perform the assignment satisfactorily.
[PAGE 4]
However, in spite of lackluster performance in Special
Projects, Varnadore was not terminated. Instead, in June 1987
Varnadore was transferred again, this time to the Organic
Analysis Group, where he prepared samples for analysis.
Varnadore's supervisor, John Caton, thought that he performed satisfactorily in that position during the period June 1987
through June 1989.
In June 1989 Caton was removed as Leader of the Organic
Analysis Group, and Michael Maskarinec took his place. In early
July 1989 Varnadore was diagnosed with colon cancer and underwent
emergency surgery. Varnadore returned on an "as able" basis in
November 1989.[7] From November 1989 through June 1990
Varnadore worked 12 full days and portions of 39 days. In June
1990 Varnadore seriously broke an ankle. Between July and the
end of October 1990, Varnadore worked two full days and no
partial days. Pursuant to normal Energy Systems procedures
Varnadore was paid his full salary during the entire period July
1989 through October 1990. During that 16 month period Varnadore
worked a total of 14 full days and 39 partial days.
Shortly after Varnadore returned to the Organic Analysis
Group on an "as able" basis, he complained to several people
about the sample preparation technique used by a relatively new
employee, David Jenkins. In late January or early February 1990
Varnadore was moved out of the sample preparation laboratory,
where he had been located when he was able to work, and into
space belonging to the Special Projects Group. Thereafter, until
he returned to work full time in late October 1990, Varnadore was
assigned work by the Special Projects Group Leader. Beginning in
late October 1990 Varnadore was assigned work by the
Administrative Assistant to the Division Director, and in March
1991 he was officially assigned to work for the Administrative
Assistant.
Varnadore attempted to prove that beginning in 1985, shortly
after he transferred to ACD, he had engaged in four acts
protected by the environmental whistleblower provisions: 1) in
1985 he told his supervisors that he could not use the mechanical
hands in the TRU; 2) in 1988 he complained about the safety of a
procedure by which radioactive samples were transported from one
building to another on the front seat of an ORNL truck (the Grubb
incident); 3) in 1989 he criticized David Jenkins' sample
preparation technique; and 4) in 1991 he participated in a
nationally broadcast news story which dealt with a study of
cancer rates among Oak Ridge facilities employees.
Varnadore sought to prove that these protected activities
led to a series of retaliatory acts, which continued even after
the initial hearing in this case. The alleged acts of
retaliation are not typical of most retaliation cases; Varnadore
[PAGE 5]
was not reprimanded, he was not suspended, he was not dismissed.
Rather, Varnadore attempted to prove that Energy Systems gave him
inappropriately negative performance evaluations, assigned him to
work in "indoor toxic waste dumps," isolated him from his fellow
employees, and assigned him work that was not commensurate with
his abilities.
As I discuss below, Varnadore s November 1991 complaint was
not timely filed. Therefore, those portions of his case that
relate to pre-November 1991 retaliation should be dismissed.
Further, Varnadore has failed to prove that his performance
evaluation for Fiscal Year 1991 was retaliatory. Finally, I will
retain jurisdiction of this case in order to evaluate, in
conjunction with Varnadore II, the two acts of alleged
retaliation that occurred after Varnadore filed his November 20,
1991 complaint.
BACKGROUND
The R. D. and O. contains an extensive summary of the
evidence. R. D. and O. at 3-54. I agree with these findings of
fact and note that the ALJ did an excellent job trying this
difficult and contentious case. Yet, my thorough review of the
record causes me to reject many of the inferences drawn by the
ALJ from these facts and two of the ALJ s legal conclusions.
Therefore, I will relate the facts in some detail.
I. Facts.
A. Oak Ridge, 1974-1985.
In 1974 Varnadore, who held a high school diploma, was
hired as a laboratory technician at the K-25 plant in Oak Ridge,
Tennessee. R. D. and O. at 5. Over the years he developed
experience as a technician with mechanical skills. He worked
with engineers assembling, and performing other work related to,
mechanical equipment. Id.His title in 1985 was
"Engineering Technologist." Id. at 6. He was employed at
K-25 until 1985, when the project on which he was working was
discontinued. Varnadore was notified on August 15, 1985, that he
would be terminated on September 18, 1985, due to a reduction in
force (RIF). Id.
Energy Systems attempted to place Varnadore and other
workers slated for RIF in open positions at the Oak Ridge
facilities. Id. Varnadore was offered opportunities to
interview at Y-12 and ORNL. Stip. at 7. He interviewed with the
ORNL Fusion Division but was not offered a position. Id.
He also interviewed with the ORNL Analytical Chemistry
Division (ACD).[8] Id. Although ACD had few
opportunities for a technician with mechanical, as opposed to
chemical, experience (Stip. at 8), managers in at least two
sections in ACD were sufficiently interested in Varnadore to
interview him. During his interviews Varnadore did not mention
to any of the ACD managers that he was
[PAGE 6]
blind in one eye (T. 1280 (Shults); T. 1738 (Botts); T. 1798
(Laing)), and none of the ACD managers who interviewed him asked
Varnadore about his vision.[9] T. 64 (Varnadore).
ACD Director W. D. Shults and Section Head William Laing[10]
decided to hire Varnadore and place him in the Transuranic
Analytical Laboratory in the Radioactive Materials Analysis
Section under Laing.[11] Varnadore was selected to work in the
TRU because he had an excellent rating in his previous position,
and the TRU was in need of technicians.[12] R. D. and O. at 6-
7.
Although Varnadore had been interviewed for other positions
in ACD, no manager other than Group Leader James Botts in TRU
expressed an interest in him. T. 1276-1277 (Shults). Varnadore
was notified by the K-25 Human Resources Division that he had
been offered employment as a Senior Laboratory Technician in ACD
with no change in pay. Stip. at 8. Varnadore was not told which
section he would be working in until he reported to work on
September 23, 1985, and was assigned to the TRU. R. D. and O. at
6.
B. Fiscal Year 1986.
1. The TRU and 2026.
The work of the TRU involved preparing and analyzing samples
of transuranic materials that were undergoing the transuranic
isotope production process.[13] T. 1741 (Botts). The work was
performed using chemical hoods, glove boxes, and "hot cells"[14]
designed to protect workers from exposure to radioactive or toxic
materials. R. D. and O. 7; Stip. at 8-9. All technicians in the
TRU were required to work with glove boxes and hot cells. R. D.
and O. at 10. "Like other technicians, Mr. Varnadore was given
on-the-job training in the use of the mechanical hands, and other
aspects of a technician's work" at TRU. Stip. at 11.
Starting in mid- or late November, Varnadore made his first
attempts to manipulate the mechanical hands and caused some
spills of liquid samples within the hot cell.[15] Varnadore
concluded that he was unable to use the mechanical hands because
of his lack of depth perception. He discussed this problem with
Malcolm Peters, who was training him, and then with Group Leader
Botts. R. D. and O. at 10; Stip. at 11. Varnadore did not
refuse to use the hands, but told Botts that he "had a major
depth perception problem." T. 302, 368 (Varnadore). Botts did
not order Varnadore to use the mechanical hands; instead he
arranged for Varnadore to discuss his problem with Section Head
Laing. T. 303-305 (Varnadore). Although Laing believed that
Varnadore could develop skill in operating the mechanical hands
through practice,[16] he did not order Varnadore to use the
hands. T. 304-305 (Varnadore). Laing recommended that Varnadore
discuss the issue with Director Shults. Id.
Varnadore met with Shults and told him that he was unable to
[PAGE 7]
use the mechanical hands because of depth perception problems
caused by his partial blindness. R. D. and O. at 10. Shults
expressed displeasure that Varnadore could not do the job
Varnadore had been hired to do. T. 75 (Varnadore)(Shults "voiced
the same concern that I was not able to fulfill the job as a TRU
Facility technician by not being able to operate the mechanical
hands. . . . He was somewhat upset with me not being able to do
the job."). However, Shults did not require Varnadore to make
further attempts to use the mechanical hands.[17]
Varnadore did not testify that he expressed to any of his
supervisors a concern that his use of the mechanical hands
created an environmental hazard. T. 73-75 (Varnadore); Ex. 551
(Varnadore Dep.) at 91, 100.[18] Botts, Laing, and
Shults all testified that Varnadore never raised an environmental
concern regarding his use of the mechanical hands. T. 1752-1753
(Botts); T. 1804-1805 (Laing); T.1283, 1588(Shults). In addition, Botts, Laing, and Shults all
testified that they did not think that spills in the hot cell
created any risk of environmental harm. T. 1743-1745, 1778-1779
(Botts); T. 1803, 1820-1824 (Laing); T. 1590-1596 (Shults).
Varnadore presented no evidence to support his theory that spills
in the ACD-operated hot cell could cause environmental
contamination, and did not claim that the procedure used to
handle spills in the hot cell was faulty.
In response to Varnadore's statements that he could not
operate the mechanical hands, Shults and Laing arranged for
Varnadore to be transferred temporarily to 2026 under Group
Leader Dante Costanzo. R. D. and O. at 10; T. 1283, 1287
(Shults); Stip. at 3, 9.[19] Shults also wrote a memorandum to
ORNL's personnel division requesting assistance in placing
Varnadore elsewhere in ORNL. That memorandum stated in part:
C. D. Varnadore transferred from [K-25] to ORNL
Analytical Chemistry Division on September 23, 1985.
In doing so he was reclassified from Level 9 to Level 8
(Senior Laboratory Technician) because he had very
little relevant experience with chemical lab work.
Since he had performed well at [K-25], we thought he
could be trained on the job for an assignment at our
Transuranium Analytical Laboratory. It was a chance to
save his job with [Energy Systems]. The assignment was
to be rotating shift work involving glove box and hot
cell operations.
It now appears that Varnadore cannot perform laboratory
operations that require depth perception. He has
extremely poor vision in one eye. I understand that he
has tried to adapt to hot cell and glove box
operations, but simply cannot judge distance well
[PAGE 8]
enough to perform satisfactorily or safely.
This is a formal request for assistance in finding a
suitable job for C. D. Varnadore in another Division.
On the basis of his [K-25] experience and very limited
work with us, I believe he could perform satisfactorily
as a mechanical, environmental, health physics or
engineering technician.
There is an urgency to this problem.
Ex. 18-H.
Varnadore testified that when he transferred to 2026 on
December 1, 1985, Costanzo held a group meeting and told the
employees that Varnadore would be there only a short time, and
they did not have to train him. R. D. and O. at 11. Varnadore
testified that he was assigned menial work.[20] T. 93, 306-307
(Varnadore). Varnadore worked in 2026 from December 1, 1985,
until February 1986.
2. The TRU and Radiochemistry and Activation Analysis
Group.
In February 1986 Varnadore was transferred temporarily to
the TRU to help out during a "campaign."[21] He was not
assigned to use the mechanical hands, however. In June 1986
Varnadore was transferred to the Radiochemistry and Activation
Analysis Group under Juel Emery and James Eldridge in the Organic
Chemistry Section under James Stokely. Stip. at 9. The main
work Varnadore performed in this assignment was preparing for and
monitoring the deer hunt which took place on the Oak Ridge
reservation.[22] Stokely testified that Eldridge, who died
prior to the commencement of this case, repeatedly complained
about Varnadore's performance. Stokely initially encouraged
Eldridge to continue to work with Varnadore. Eventually,
however, Stokely agreed to talk with Shults about reassigning
Varnadore. Stokely and Shults decided to transfer Varnadore to
the Special Projects Group under Group Leader Roger Jenkins. T.
1862-1863 (Stokely).
3. FY-86 Evaluation and Varnadore's Response.
On December 2, 1986, Director Shults and Section Leader
Stokely[23] met with Varnadore to discuss his performance for
FY-86.[24] Shults' contemporaneous memorandum describing the
interview was very critical of Varnadore's performance:
2. Varnadore has worked in three different
assignments since he transferred to the Oak
Ridge National Laboratory from [K-25]: at
TRU, at 2026, and with Eldridge at 4500N. He
was unable to do the assignment for which he
was hired (TRU) because poor depth perception
[PAGE 9]
hindered his working in the hot cells. He was treated as a
"temporary assignee" in 2026 because he has little or no
experience with chemistry/radioactivity, hence did not become
productive there. With Eldridge, he has learned to operate a
gamma spectrometer and to carry out some of the operations in
Eldridge's laboratory. Progress has been slow, partly because of
lack of relevant training or experience.
3. Varnadore has developed the reputation of a
problem employee. He is not able to function
as a Senior Laboratory Technician. His
performance level is commensurate with that
of a Laboratory Aide or at best a Laboratory
Technician. This is due in part to lack of
training or experience in chemistry, but it
is also due to a lack of commitment to the
job in ACD. He projects the image of one who
thinks that ACD or the Company will take care
of him whether he is fully productive or not.
He shows little interest in the job and
little enthusiasm for improving or learning
on the job. He carries out instructions. He
requires extensive instruction and close
supervision.
4. Varnadore has interviewed for numerous jobs
in other divisions and at other sites,
without success. ACD rated his performance
for 1986 as "Acceptable" in order to help him
win another job but the rating of "Needs
Improvement" would be more accurate.[[25] ]
5. ACD has one assignment left for Varnadore.
It is in [Roger] Jenkins's group in the
Organic Chemistry Section and involves more
gadgeteering and mechanical duties than
chemistry. It is possible that Varnadore can
be effective in this assignment if he tries
and works hard. He will have supportive
supervision, but will be expected to carry a
fair share of the workload. This assignment
will be effective January 1, 1987.
6. Varnadore is encouraged to continue to seek a
position in MMES that is a better fit for his
training and ability. However it is time for
him to accept and commit to the job that he
[PAGE 10]
has now, to learn to do it, and to do it well. If he cannot
perform this last assignment satisfactorily, he will have to
leave the ACD payroll.
7. His performance will be monitored closely
over the next six months.
Ex. 18-A at 14-15.
On January 28, 1987, Varnadore submitted a lengthy
memorandum in response to Shults' memorandum. He emphasized his
lack of relevant experience:
During my work history at [K-25] from 1974-1985, as
well as during my employment as a senior laboratory
Technician . . . from 1962-1972, I never had experience
that would qualify me to perform as a Senior Laboratory
Technician in the Analytical Chemistry Division (my
educational background does not include any Chemistry
courses and my previous work assignments include no
chemistry related assignments).[[26] ]
Ex. 18-A at 11. Varnadore described the mechanical hands
incident:
I was given some work assignments with "mechanical
hands" in the hot cells after I had been at TRU for
about a month. At that time, a severe depth perception
problem caused by a childhood eye injury prevented my
operation of the mechanical hands.
Following the discovery of my depth perception
problem, I requested an interview with you to find out
about my future in ACD. Since it appeared that my
inability to perform manipulator work would prevent me
from becoming an effective ACD technician, you agreed
to write a letter to B. Ashdown requesting assistance
in helping identify other work assignments within ORNL
where my expertise could be applied.
Ex. 18-A, at 10-11.
Varnadore described the assignments he was subsequently
given:
From the first of December until the end of February,
I worked at Building 2026 under the supervision of Dr.
Costanzo. . . . During this period, I was given no
instructions or training concerning any laboratory
procedures. My work assignments involved clean-up of
the attic, emptying garbage, etc. Upon my inquiries
concerning training or instruction in performing
[PAGE 11]
laboratory procedures, I was told by several individuals in 2026
that the group was not to spend any time with me since I was just
there on a "temporary assignment."
Following the three month assignment at Building
2026, I was sent back to Mr. Bott's [sic] group at
building 7920 (TRU). My assignments at TRU during this
second period involved keeping the lab cleaned and
stocked with supplies, running "cold samples," counting
samples, etc. My work assignments were minimal at best
and were of such a nature as to allow the other
technicians to have more productive time in hot work as
well as freeing Mr. C. Foust to provide detailed
instructions to Mr. Mayton. When it was discovered
that Mayton had a medical problem that prevented his
work in the hot areas at TRU, I was no longer needed to
assist Foust.
In June, 1986, I was told to report to Mr. Eldridge
in Building 4500N where I would be filling a job in a
Special Projects laboratory. . . . Eldridge told me "up
front" that the work involved a considerable variety of
work involving both chemical and instrumental
techniques. He told me that my lack of experience as a
chemical technician and lack of nuclear and
radiochemistry knowledge would be a hindrance in my
work assignments. He informed me that we would attempt
to "make the best" of the situation even though he felt
that under the circumstances that I was "untrainable"
for the majority of tasks required in a radiochemical
research and development operation. . . .
As far as having a "negative attitude," I feel that I
have attempted to perform all my duties in the way that
I have always done -- as thoroughly as possible with a
minimum of supervision. This has been impossible in
ACD because of the lack of direction and/or instruction
from my immediate supervision [sic]. I have found none
of my co-workers in ACD who will state that I have not
worked hard and carried my load within my assignments.
I have only asked for a definitive work assignment
along with the instructions or training to complete
those assignments. I had not had such assignments or
instructions or training to complete those assignments.
I had not had such assignments or instructions until I
was assigned to Eldridge's lab.
[PAGE 12]
Ex. 18-A at 11-13. In the three page memorandum Varnadore never
stated expressly, or even implied, that his request not to work
with the mechanical hands related to environmental concerns he
might have had.
C. Fiscal Year 1987.
1. Special Projects Group.
After a brief stint back in the TRU for another campaign
from January 5, 1987, to February 17, 1987, Varnadore reported to
Roger Jenkins, Group Leader of the Special Projects Group in the
Organic Chemistry Section headed by Michael Guerin. While in the
Special Projects Group "Varnadore was given a number of
miscellaneous mechanically related tasks such as getting smoking
machines ready for use, calibrating pumping systems for air
sampling projects, and some general laboratory straightening up."
R. D. and O. at 13. Jenkins kept Guerin informed of Varnadore's
"progress or sort of lack thereof . . . ." T. 2459 (R. Jenkins).
Jenkins soon requested that Varnadore be transferred. A major
factor was Varnadore's performance:
Well, basically, it was a situation that [Varnadore]
wasn't being as productive as we felt that he could be,
and it was clear that if he were going to be productive
at all in this kind of a work situation, it was our
estimation he would need a very highly structured kind
of environment in which to do his work, and because of
the development nature of a lot of the projects that we
were doing, . . . he just wasn't performing very well
in that kind of situation.
T. 2459 (R. Jenkins). See also T. 1315-1317 (Shults).
The fact that Jenkins' group was very small and funding was quite
limited also contributed to the decision to transfer Varnadore.
R. D. and O. at 13.
2. Organic Analysis Group.
Shults decided to transfer Varnadore to the Organic Analysis
Group (OAG) in the Organic Chemistry Section effective June 1987.
R. D. and O. at 13. The Group Leader at the time was John Caton.
When Varnadore joined OAG it was overloaded with work, had
experienced turnover, and needed people. Caton was willing to
take Varnadore and train him in sample preparation, which was one
of the functions performed in OAG. Id.
The business of OAG was to receive, prepare, and analyze
samples collected from soil, water, and fish, to check for
environmental contaminants.[27] From September 1986 until
November 1989 ORNL was one of several laboratories throughout the
United States which contracted to analyze environmental samples
for a Department of Energy (DOE) project called the Environmental
Site Survey. Stip. at 12. The purpose of the Site Survey was to
[PAGE 13]
evaluate where there might be environmental contamination at
several DOE sites around the country. R. D. and O. at 13-14; T.
1324 (Shults). OAG was the entity within ORNL charged with
processing the Site Survey samples allocated to ORNL for
analysis. ORNL, like other laboratories participating in the
Environmental Site Survey, was inundated with samples. R. D. and
O. at 12; T. 1324-1325 (Shults); Stip. at 12. As a consequence
OAG was swamped with work and its staff pushed to the limit. R.
D. and O. at 14-15.
By June 1987 DOE required that Environmental Site Survey
samples be handled according to stringent specifications
established by the Environmental Protection Agency. T.
1325 (Shults).This greatly complicated OAG's work, and
OAG became so overloaded with samples that problems developed
with sample preparation and analysis. T. 647-650 (Caton).
Varnadore was transferred into OAG and trained to do sample
preparation.
3. FY-87 Evaluation.
Varnadore's FY-87 performance appraisal was written by Roger
Jenkins because Varnadore had spent much of the year in Jenkins'
group. Jenkins gave Varnadore a generally positive evaluation.
Under "Significant Accomplishments" Jenkins noted:
While still in a "learning mode" in this Section, he
has made a number of contributions to several important
areas.
Considerable input into the in-house sampling of
nicotine in ETS.
* * * *
Has expedited a number of materials handling/shipping
problems.
Has been very helpful with re-organizing two
laboratories, and has provided considerable input in
the mechanical aspects of a number of areas in sampling
and analysis.
Ex. 18-G at 1.
However, Jenkins alluded to a problem that was to become an
issue of great importance later. Jenkins noted that Varnadore
"[g]ets along well with many people - sometimes too well," and
that Jenkins suspected "that with more efficient utilization of
time, [Varnadore] could be more productive." Ex. 18-G at 2.
Under "Employee Development," Jenkins stated: "Easily distracted
from tasks at hand by a large number of personal contacts. . .
[PAGE 14]
."[28] Id. at 3. Varnadore was given a CM rating.
Id. at 4. Because Varnadore had worked part of the year
for Caton, Caton also commented on Varnadore's work. He noted
that Varnadore "is presently making excellent contribution to
Organic analysis effort." R. D. and O. at 14; Ex. 18-G. D. Fiscal Year 1988.1. Organic Analysis Group, Continued.
OAG's heavy workload due to the Environmental Site Survey
continued throughout FY-88. Caton continued to be pleased with
Varnadore's work during that period. T. 593 (Caton).
2. The PIP Committee and the Grubb Incident.
In April 1988 Shults established a Performance and
Improvement Program (PIP) Committee. T. 1334 (Shults). The
purpose of the committee was to identify problems in ACD and to
suggest solutions. R. D. and O. at 42. Shults selected
Eldridge as chairman of the committee, and the two of them
decided to ask Varnadore as well as other employees and managers
to serve on the committee. Shults testified regarding the
reasons he and Eldridge decided to ask Varnadore to serve on the
PIP Committee:
Well, we tried to have a mix of people on that
committee, some of whom like to identify problems that
we have in the division and some of whom didn't. We
thought that it would make an effective Committee make-
up to have some complainers on there and so that's one
of the reasons why Mr. Varnadore was selected.
T. 1335 (Shults). Varnadore served on the PIP committee
from 1988 until 1990. R. D. and O. at 42.
In 1988, during the period Varnadore served on the PIP
Committee,Debbie Grubb, an ACD secretary, raised a
concern with Varnadore and Eldridge regarding the fact that she
was transporting radioactive samples from one building to another
on the front seat of an ORNL truck. Id.; T. 3248 (Grubb
Stipulation). The samples were enclosed in a small cylindrical
lead container. R. D. and O. at 42. Varnadore testified that he
raised the Grubb issue with the PIP Committee because he felt
there was a danger of radioactive contamination. R. D. and O. at
43. The PIP Committee discussed the matter at a meeting with
Shults, in which Varnadore testified he participated.[29]
Within five or six weeks of the Grubb issue first being raised, a
box was built and placed in the bed of the pickup truck, and a
procedure developed for technicians to place samples in the box
and to remove them at their destination. R. D. and O. at 43;
T. 396 (Varnadore); T. 3248 (Grubb Stip.). No one other than
Grubb and Varnadore associated Varnadore with the Grubb incident.
T. 756-758 (Costanzo); T. 1340 (Shults); T. 1872 (Stokely).
[PAGE 15]
3. FY-88 Evaluation.
Caton prepared Varnadore's FY-88 performance appraisal and
recommended a CM rating. It was the most positive evaluation
Varnadore had received in ORNL. Ex. 18-A. Caton noted that
Varnadore "[l]earned many aspects of sample preparation even
though previous experience as a chemical technician was minimal."
Moreover, Varnadore "willingly work[ed] overtime to keep things
on schedule," including starting procedures on Sunday "in order
to make holding times." Caton noted that Varnadore "[h]as made
great progress during this Review Period. With more experience,
he will develop a more 'intuitive understanding' of his work."
Ex. 18-A at 5.
Caton's proposed CM rating was reduced to a CM-minus at the
Section level by Michael Guerin.[30] R. D. and O. at 23 n.13;
T. 2252, 2293-2297 (Guerin). In response to that change Caton
noted on Varnadore's appraisal that the minus rating was "hard to
justify given the description of Varnadore's performance" on the
appraisal. Id.; Ex. 18-A at 7.
E. Fiscal Years 1989 and 1990.
1. Changes in OAG.
During FY-89, several significant events occurred. In early
June 1989 Michael Maskarinec replaced Caton as Group Leader of
OAG. R. D. and O. at 15. By this time OAG, ACD, and ORNL were
under scrutiny for the way in which the Environmental Site Survey
sample preparation and analysis was being handled by OAG.[31]
Guerin believed that although Caton was an excellent scientist
and teacher, Maskarinec would be better at deadlines and
communication. R. D. and O. at 15.
Also in June 1989 David Jenkins[32] was hired as a
technician in OAG to do sample preparation work. During June he
was trained to prepare various types of samples.
2. Varnadore's Surgery.
Barely a month after Maskarinec took over as Group Leader,
Varnadore was diagnosed with colon cancer. He underwent
emergency surgery on July 8, 1989, and was then placed on a
course of chemotherapy that was to last from August 1989 until
August 1990. Ex. 126.
3. Varnadore's Return and His FY-89 Evaluation.
Varnadore was released by his doctor to return to work on an
"as able" basis and returned to work on November 13, 1989.[33]
Ex. 219. He initially used his old desk in the OAG laboratory as
his "home base."[34] R. D. and O. at 8. However, he was not
assigned to his previous work preparing samples.[35] Instead
Maskarinec assigned Varnadore "to look into some rather difficult
problems of stuff that needed to be acquired, checking material
that we needed in for different projects." T. 154 (Varnadore);
See also T. 328 (Varnadore). During the month of November
Varnadore was
[PAGE 16]
on sick leave 105.5 hours; he worked no full days, and parts of
nine days. Ex. 219. Varnadore did not work any full days in
December.[36] Ex. 219.
Varnadore's FY-89 appraisal, which was written by
Maskarinec, was prepared before Varnadore's return on November
13, and therefore before Varnadore could have made any complaints
about David Jenkins.[37] See pp. 33-35 below. Under
"significant accomplishments" the appraisal stated:
Bud [Varnadore] is a Senior Laboratory Technician who
spent the majority of his career as an engineering
technician at K-25. He was only beginning to
understand the job requirements of a chemical
technician at the time of his illness. He has been
assigned to the sample preparation lab for the last 18
months. He has been responsible for the preparation of
soil samples for analysis. He also provided support in
terms of locating surplus equipment for the group. He
was meeting FY 89 MOPs[[38] ] at the time of his
illness.
Ex. 18-D at 2. Under "Job Knowledge" Maskarinec wrote: "Not up
to the level of a senior lab technician. Weak in Chemistry."
The appraisal noted that "[p]lans [related to Varnadore's future
assignments] will depend on medical limitations upon return."
Ex. 18-D. The appraisal also stated in several places that
Varnadore had been on extended absence.[39] Maskarinec
recommended that Varnadore be given a "CM-minus" rating (the same
as the rating Varnadore received the previous year).[40] R. D.
and O. at 24. However, Shults reduced that rating to an "NI"
because of Varnadore's extended absence related to his cancer
surgery and chemotherapy. R. D. and O. at 24.
This was Varnadore's first experience with a practice in ACD
that an employee's evaluation was downgraded for extended
absences, even if the absence was for entirely legitimate
reasons.[41] Shults felt very strongly about this practice.
See, e.g., T. 1477-1486, 1514-1515 (Shults). He testified
that the average absence in ACD is about six days a year, and
that if an employee is absent for a period which is more than
four times the average for the Division, "then we consider that a
. . . reasonable reason to reduce the rating." R. D. and O. at
23; T. 1333 (Shults). This practice was consistently applied to
all absences, including excused absences for illness. T. 1332-
1334 (Shults). The practice had been in force at least since
Shults became Division Director in 1976. T. 1332 (Shults); R. D.
and O. at 23. Although not all Divisions of ORNL followed this
practice, some divisions in addition to ACD did. R. D. and O. at
23; T. 1332 (Shults).[42]
4. MOPs for FY-90.[PAGE 17]
The FY-89 appraisal was given to Varnadore on November 30,
1989, together with his MOPs for FY-90. The MOPs, which were
hand written, memorialized the assignments that Varnadore had
been given on his return on November 13:
1) [W]ill be responsible for ordering supplies group
wide (effective immediately)
2) Learn to use [unintelligible] system, make
improvements as needed (12/31/89 and continuing).
3) Keep records on accuracy of orders received &
provide information to [Group Leader] on monthly basis.
4) Open coolers shipped from outside, provide
documentation & distribute. (Effective immediately).
Ex. 18-D.
There were two reasons given at the hearing for not
returning Varnadore to sample preparation work. Maskarinec and
two other employees in the OAG testified that they felt that it
might be harmful for Varnadore to work with methylene chloride, a
possible carcinogen that was used extensively in sample
preparation. T. 2069 (Maskarinec); T. 2621-22 (Harmon); T.
2575-76 (Scott). Methylene chloride is only to be used under an
exhaust hood, and while an employee wears protective gloves and
clothing. T. 2576 (Scott); T. 2769 (Staats). If it is
handled properly, the risk of exposure is remote. R. D. and O.
at 19. Even so, Scott testified that she feared that Varnadore
might be exposed to methylene chloride fumes if there were a
spill, or that he might experience dermal exposure because in the
past he had sometimes failed to wear protective gloves. T. 2563-
2564 (Scott).
Maskarinec's supervisor, Michael Guerin, had a different
reason for thinking that Varnadore should not return to sample
preparation. He testified that sample preparation was unsuitable
work for someone who might not be able to work a full shift.
R. D. and O. at 19. Once a technician begins the sample
preparation procedure, it is necessary to carry it through to
completion, which may take several hours. Id.
Guerin thought -- and Varnadore's subsequent attendance record
confirmed his concern -- that because Varnadore was undergoing
chemotherapy his attendance might be spotty.
Even though Varnadore was not doing sample preparation work
after he returned from cancer surgery, his home base initially
remained in the sample preparation laboratory.
5. The David Jenkins Incident.
Varnadore testified that sometime late in 1989 he became
concerned that David Jenkins was not preparing soil samples
correctly.[43] T. 162-163 (Varnadore). He stated that he
complained to David Jenkins; then to his colleagues Don Pair and
[PAGE 18]
Gary Henderson; and to Lise Wachter, whose work brought her to
Varnadore's laboratory on a regular basis. T. 169-170
(Varnadore). Varnadore also testified that he complained about
David Jenkins' sampling technique to Maskarinec.[44] R. D. and
O. at 15-16. In response "Mr. Maskarinec was very quick to
inform me that Mr. Jenkins was his employee and, therefore, his
problem, and he had no problem with Mr. Jenkins. . . . And I
distinctly was given the impression that I best leave the
conversation alone."[45] T. 173 (Varnadore).
Finally, Varnadore testified that after he was moved out of
the sample preparation laboratory and into Room E-163,[46] he
complained about David Jenkins to Pamela Howell, a member of
ORNL's quality assurance operation. R. D. and O. at 16.
There is little dispute about the events that immediately
followed Varnadore's complaint to Howell. Howell went to Laing,
who by then was Section Head of the Operations Section, and
reported the concerns that Varnadore had raised about David
Jenkins' technique. R. D. and O. at 16. Laing and Howell
decided that a surveillance should be conducted to evaluate David
Jenkins' sample preparation procedures.[47] Id. Laing
then informed Maskarinec of the proposed surveillance of David
Jenkins. Id. Laing did not tell Maskarinec who raised a
concern about David Jenkins. Id.; T. 1810 (Laing).
The surveillance of David Jenkins took place on February 27,
1990. Ex. 227. Howell's surveillance report did not indicate
that David Jenkins was doing anything significantly wrong. R. D.
and O. at 16; Ex. 227.
6. Varnadore's Move to Room E-163, Loan to Special
Projects Group, and Loan to Darrell Wright.
In January or February 1990, before Varnadore complained to
Howell about David Jenkins, Varnadore's home base was moved to E-
163, an office that was in Roger Jenkins' Special Projects Group
space. R. D. and O. at 19. He shared that laboratory with Jack
Moneyhun.[48] R. D. and O. at 29.E-163 was centrally
located, had a desk and a telephone, and was suitable in all
other respects. While Varnadore was assigned to home base in E-
163 he spent no more than a hour or two in that office daily. R.
D. and O. at 19.
At about the same time Varnadore was transferred to E-163,
Varnadore was loaned to Special Projects Group, and Group Leader
Roger Jenkins gave him assignments between February and June
1990.[49] R. D. and O. at 20. Varnadore remained officially
assigned to OAG. R. D. and O. at 20; Stip. at 9.
During the first six months of 1990, Varnadore's attendance
continued to be sporadic. In January he took 132 hours of sick
leave; in February, 98 hours; March, 130 hours; April, 139.5
[PAGE 19]
hours; May, 112.5 hours; June, 152 hours. From January until the
end of May Varnadore worked only twelve full days.[50] Ex. 219.
During that period he continued to work on loan for Roger
Jenkins.[51]
In June 1990, in a home accident, Varnadore seriously broke
his ankle and required reduction surgery. Stip. at 13. He was
on sick leave continuously from June 29 until October 30, 1990.
Ex. 219. During that time Guerin "campaigned" to have Varnadore
placed on Division overhead. T. 1387 (Shults).[52] When
Varnadore returned on November 1, 1990, he was assigned to work
under Darrell Wright, Shults' Administrative Assistant. R. D.
and O. at 20; Stip. at 9. During this time Varnadore's home base
remained in E-163. He was paid out of Division overhead.[53]
7. FY-90 Evaluation.
On February 6, 1991, Shults gave Varnadore his performance
review for October 1989 through September 1990.[54] The written
evaluation had been prepared by Maskarinec because Varnadore had
been formally assigned to OAG for the entire rating period.
Although Maskarinec had recommended that Varnadore receive an NI
rating (the same rating Varnadore had received the preceding
year), that was lowered to a UA by Shults.
The evaluation dealt almost entirely with Varnadore's
absence. Among other things, the evaluation stated that
Varnadore had "missed the entire period on disability leave,"
that Varnadore "[d]id not work all year," and that Varnadore was
"[a]bsent all year."[55] While the evaluation stated that
Varnadore had strengths in "planning, organizing and overseeing
job completion," it also stated that Varnadore was "not
productive," and that ACD needed "to find an assignment which
takes advantage of organizational skills without requiring much
individual energy." Id. at 4.
In his February 5, 1991 meeting with Shults to discuss the
evaluation, Varnadore protested to Shults that Maskarinec's
repeated criticism that Varnadore was absent for the entire
appraisal period was inaccurate. Shults said that he would
append a copy of Varnadore's attendance record to document
Varnadore's attendance. Ex. 18-C. Shults wrote in his summary
of the meeting that:
2. M. P. Maskarinec states that your
productivity is low when you are at work. I
pointed out that all other supervisors in
Analytical Chemistry Division (ACD) for whom
you have worked have rated your performance
very low.[[56] ] You have a succession of
"Needs Improvement" ratings in ACD extending
over several years, except for one year in
which you received a "Consistently Meets
[PAGE 20]
Expectations, Minus" rating.[[57] ]
3. You have been given numerous assignments and
worked in several groups since you came to
ACD in 1985. There are few, if any,
assignments left in ACD which can be
considered a full job. . . .
4. You suggested that perhaps a suitable
assignment could be found in another
division. I said your attendance problem and
consistently poor performance ratings make it
very unlikely that another division would
want you.
5. I stated that it was not fair to Maskarinec
or his staff to leave you in their group.
You will be placed under the supervision of
S. D. Wright and assigned odd jobs. We will
try to identify at least one simple
analytical procedure for you to learn and
perform.
6. We are hesitant about the latter because such
work requires care and reliability. Your
reputation is such that group leaders are
afraid to trust you with important work.
Also, you have a reputation of distracting
those who are trying to work, effectively
causing them to lose productivity.[[58] ]
7. I said that I understand and accept that you have
had a serious illness. I am told that you can now
work without restriction. In view of the fact
that ACD saved your job in 1985 and has supported
your extensive absenteeism during your
illness,[[59] ] I do not understand your continued
poor performance.
8. Poor performance and/or poor attendance
cannot continue indefinitely. This is a full
time job and other workers are supporting you
when you do not contribute your fair share.
9. You will be given a set of performance
objectives and your performance against them
will be reviewed several times throughout the
year.
[PAGE 21]
10. Correction of your performance problems is
mandatory. Failure to correct them and to
meet the full requirements of your job will
result in disciplinary action. Positive
Discipline is a real possibility and can lead
to termination of your employment.
Ex. 18-B.
F. Fiscal Year 1991.
1. Work Assignments.
Varnadore's first assignment with Wright in November 1990
was to inventory idle equipment belonging to ACD which was being
stored in the attic of building 4500 South.[60] When he
completed that job in mid-November 1990, Varnadore was assigned
to prepare a list of reagent grade chemicals which were being
collected in Lab E-259.[61] Varnadore finished the process of
inventorying the chemicals and replacing any cracked caps by the
first week in December. R. D. and O. at 21.
Wright then assigned Varnadore to make a computerized
inventory of the chemicals in all of the ACD laboratories in
preparation for the effective date of an Occupational Safety and
Health Administration regulation on laboratories. R. D. and O.
at 21. Wright gave Varnadore a laptop computer which had been
loaded with a software program designed for the entry of the
chemical inventory and showed Varnadore how to use it. R. D. and
O. at 22. Varnadore had limited experience with computers and
had great difficulty with the laptop. It would lose the data
Varnadore stored in it overnight. Varnadore mentioned this
problem to Wright, but Wright could not replicate the problem
simply by entering data, saving it, and turning the computer off
for a few minutes.[62] R. D. and O. at 22.
Because Varnadore continued to have problems with saving
data he made little or no progress on this project. After a few
days, however, a co-worker properly diagnosed the problem, and
Varnadore was able to proceed. R. D. and O. at 22. Wright did
not fully understand the source or magnitude of the computer
problem, and Wright and Shults erroneously thought that Varnadore
was doing something wrong to cause the data to be lost. On
December 18 or 19, 1990, Wright took Varnadore off the chemical
inventory project and assigned others to work on it. R. D. and
O. at 22. Varnadore went on vacation on December 21, 1990, and
did not return until January 8, 1991. R. D. and O. at 22; Ex.
219.
In January or February 1991, Wright assigned Varnadore to
assist in waste disposal for ACD, including generating the
necessary paperwork. R. D. and O. at 22. Among other things,
[PAGE 22]
Wright assigned Varnadore to determine why two fifty-five gallon
drums containing low level radioactive waste which were located
in R-151 had been rejected by waste operations and to arrange for
their disposal. T. 234, 246 (Varnadore); T. 3001-3002 (Wright).
In June, Varnadore was assigned to prepare waste disposal
forms for the chemicals in E-259, and to arrange for the removal
of the chemicals from that laboratory.[63] T. 3012-3013
(Wright). By September 3, 1991, the chemicals had been disposed
of, and E-259 was no longer designated as a less than 90-day hazardous waste
accumulation site. During this period Varnadore also was assigned to arrange for the
disposal of wastes in several other laboratories. T. 3020 (Wright).
When Varnadore was assigned to work on the chemicals in
E-259 in the spring of 1991, he was assigned to straighten up the room (T. 405
(Varnadore)) and was also assigned to organize the containers of mercury:
I was instructed -- at the time I went up there, the mercury
was separated in different areas in the room, some being in the
California hood where the [mercury reclamation] operation had taken
place, where the equipment to do the reclamation work was, and some
being in a hood directly across from that particular California hood.
And at that time, that was one of the orders I was given was
to localize the mercury, clean the hood out, and move it to the
California hood. And at that time to inspect as I moved those items.
T. 403-404 (Varnadore).
2. MOPs
On March 6, 1991, Wright discussed Varnadore's MOPs for
FY-91 with him. The MOPs, some of which memorialized assignments
that Varnadore had been working on since his return on November
1, 1990, provided:
1. Complete Hazardous and Mixed Waste Generator
training required to become qualified to operate
satellite accumulation areas. (March 1991)
2. Under direction of S. D. Wright (and with guidance
from H. Hall), take personal responsibility for waste
packaging and disposal in ACD laboratories in 4500S and
4500N when requested by ACD Group Leaders. (April 1991
and continuing thereafter) . . . .
3. Under direction of S. D. Wright, assemble and
package surplus chemicals for distribution to
Historically Black Colleges and Universities. Include
relevant MSDSs with each grouping of surplus chemicals.
All chemicals remaining after shipment to HBCU's should
be processed for hazardous waste disposal within 30
days. (May 1990)
[PAGE 23]
4. Under direction of S. D. Wright, clean out assigned
ACD laboratories in 4500S in preparation for
construction and/or reconfiguration of space. (March
1991 and continuing thereafter)
5. Relocate "home base" to area assigned by S. D.
Wright and use it when not working on assignments in
laboratories. The intent of this MOP is to minimize
interruption of or interference with others who are
working. (Continuing)
Ex. 18-B at 7. Pursuant to item 5 in Varnadore's MOPs, on March
6, 1991, his home base was moved from E-163 to R-151.[64]
3. Assignment to R-151.
The assignment of Laboratory R-151 as Varnadore's "home
base" and the conditions of that laboratory were the subject of
extensive testimony as well as photographic and videographic
evidence. See Ex. 44, 156, 191, 209. At the time of
Varnadore's placement in R-151, no other employee was assigned a
home base there,[65] although technicians periodically used equipment in
the lab. T. 2988-89 (Wright). Guerin had wanted Varnadore moved
out of E-163 because his Section needed the space,[66] Varnadore
was no longer assigned to his Section, and Guerin thought
Varnadore should be located nearer the Division head offices.
Guerin also had been receiving complaints that Varnadore's
telephone conversations and visitors were disturbing his fellow
workers. R. D. and O. at 30.
Among other things, R-151 was being used temporarily to
accumulate waste from other laboratories. R. D. and O. at 31.
The waste that had been accumulated in R-151 consisted of:
* Two fifty-five gallon stainless steel drums
containing low level radioactive waste. The
drums were located approximately three feet
from Varnadore's desk.[67]
* Bags of low level radioactive waste.
* Some waste chemicals.
* Some bags of asbestos waste.
* Some low level radioactive asbestos
countertops.[68]
R. D. and O. at 31. About half of the usable floor space was
taken up by the drums and the bags of waste. R. D. and O. at 31.
After his transfer to R-151, Varnadore wrote the following note
[PAGE 24]
in his diary:
Once more, I don't understand management. I was told
to move my desk out of chemical lab for health reasons,
and now I am told to locate in a lab with chemical and
radioactive [sic].
Ex. 118 at 31.[69]
During the time Varnadore was assigned to use R-151 as his
home base (March 6, 1991, through August 31, 1991) he spent a
great deal of his time in other laboratories in ACD. This was
because most of the work he was assigned to do was located
elsewhere.[70] Thus, for example, Varnadore spent much of his
time during this period inventorying and preparing chemicals for
disposal in E-259. See Ex. 118 (Varnadore diary).
Varnadore also spent time preparing documentation on waste
chemicals in labs E-219, R-143, D-163, and C-163. Id.
In late August 1991, Brenda Shelton, an ORNL health
physics technician,[71] noticed that Varnadore was sitting at a
desk in R-151. R. D. and O. at 32. She had not realized that
anyone was assigned to R-151, and decided that she should survey
the drums. Id. On August 22 she took readings on the
radiation being emitted by the drums. She found the radiation
levels to be approximately 1.06 millirem[72] per hour (mr/hr) at
the drum and 0.0875 mr/hr at Varnadore's desk. "The reading at
the desk represented the approximate level Mr. Varnadore was
exposed to while sitting at his desk in R-151."[73] Stip. at
15; R. D. and O. at 32; Ex. 95. Shelton reported her findings to
Shar Hollis, another health physics technician.[74] R. D. and
O. at 32. Hollis then called Wright and "made the suggestion
that the drums should be moved or to get the lab occupant out to
a lower background if he had extra office space." T. 2915
(Hollis). Hollis based her recommendation upon an approach to
radiation protection applied at ORNL called "As Low As Reasonably
Achievable" (ALARA):
As Low as Reasonably Achievable (ALARA) is an
approach to radiation protection designed to keep
individual and collective exposures as low as social,
technical, economic, practical, and public policy
considerations permit. ALARA is not a dose limit but a
process with the objective of keeping dose levels as
far below specified limits as reasonably achievable.
In recent years, ORNL and [Energy Systems] have begun
applying the ALARA philosophy to other types of
exposures such as chemical exposures and physical
stresses.
Stip. at 10. Hollis testified, however that even given the
presence of low level radiation in R-151 that, I would sit in
[PAGE 25]
[R-151] now with the drums and not be concerned. T. 2929
(Hollis).
There was overwhelming evidence in the record that the
radiation dose level found in R-151 was not hazardous.
See T. 3210-3215 (Linz); Metler Dep. at 19. The ALJ
concurred. R. D. and O. at 80; see p. 51 n.79 below.
Mettler testified that the levels of radiation Varnadore was
exposed to were not high enough to make me start thinking about
the ALARA principle. Mettler Dep. at 35. Thus, cleanup of R-
151 was not necessary for medical reasons.
Wright told Hollis that Varnadore would be moved. R. D. and
O. at 32. At the time of Hollis' telephone call, Varnadore was
on vacation. When Varnadore returned to work on September 3,
1991, he was informed that his home base was being moved to
laboratory E-259. T. 3032-3033 (Wright).
4. Assignment to E-259.
On September 3, 1991, Varnadore made his new home base in E-
259. R. D. and O. at 34. E-259 had been used as a mercury
reclamation laboratory. Id. It had not been used as a
home base in three or four years. Id. The laboratory
contained a large walk-in hood (California hood) in which mercury
had been reclaimed. T. 3034 (Wright). Many containers of
mercury were stored in the hood. Id.
E-259 was also the laboratory in which the chemicals
originally destined for historically black colleges and
universities had been stored. By the time that Varnadore made E-
259 his home base, however most of the chemicals had been
disposed of and E-259 was no longer classified as a less than 90-
day accumulation area. T. 3034-3035 (Wright).
Although E-259 had undergone extensive mercury cleanup in
1990 (T. 3036 (Wright)), a small amount of loose mercury
remained.[75] On September 30, 1991, in response to a request
by Howard Hubbard,[76] Industrial Hygiene[77] conducted a
mercury survey of E-259. The IH technician's journal entry
stated:
Went with MTF to Building 4500S as requested by Howard
Hubbard to conduct a mercury survey in Room E-259 the
room is considered a RCRA Satellite Accumulation Area -
- Bud Varnadore was moved to the area a while back
after being moved from a Radiation Zone -- the lab is
being used as an office -- his work is unrelated to the
work conducted within the lab -- MTF and I noted loose
mercury around the lab -- we used a Bachrach Mercury
Sniffer Instrument Number 248 -- The readings noted
were as follows: 1. Center lab bench in and around the
white tray .06-.12 mg/m3. 2. Bkgd on north side of lab
.03 mg/m3. 3. Bkgd in California hood .05 mg/m3. 4.
Bkgd noted in general work area .005 mg/m3. 5.
Employee's desk .005 mg/m3. 6. North sink drain .4
mg/m3. Employee voiced concern about his working
conditions -- he stated that he has been cut on for
cancer and has been through chemotherapy and is
concerned about the lab/office condition in which he
works -- he voiced that the reason for his present work
office is that he is disliked . . . .
R. D. and O. at 34; Ex. 155 at 001.
Theresa Presley, another IH technician, conducted a second
survey on October 2 with another, more accurate, type of sampler.
T. 2707-2708 (Staats). She then wrote a memorandum dated October
28, 1991, to Wright outlining her results and recommendations.
R. D. and O. at 35; Ex 155 at 0003. The six samples Presley took
on October 2 all showed concentrations of mercury of 0.0004 mg/m3
of air or less. Presley noted:
Comparing the above concentration(s) to the appropriate
TLV/PEL(s) shows levels well below the action level for
the eight-hour TLV/PEL(s). For the area sampled, based
on the above data, there does not, appear to be levels
of airborne contaminants in concentrations sufficient
to produce adverse health effects in most healthy
individuals. However, due to the presence of visible
mercury in this room, Industrial Hygiene recommends
that this area not be utilized as office space.
R. D. and O. at 35; Ex. 155 at 003.
The permissible exposure limit (PEL) for mercury is 0.05
mg/m3 of air.[78] Expert testimony revealed that adverse health
effects from mercury exposures have been measured only at levels
at or above 0.2 mg/m3 of air. T. 2703 (Staats). Thus, although
[PAGE 32]
it would have been sound housekeeping practice to clean up the
relatively small quantity of visible mercury droplets in E-259
(T. 1233 (Schmitt)), there was no evidence that Varnadore was
exposed to a hazardous dose of mercury in E-259.[79]
Wright felt there was no urgency in moving Varnadore from E-
259. R. D. and O. at 36; T. 3120-3121 (Wright). In November,
Wright discussed with Varnadore the possibility of moving him
back to R-151 because the drums of low level radioactive waste
had been removed from the laboratory. T. 3048 (Wright).
However, Varnadore was not moved there; rather, on December 9,
1991, after Varnadore's complaint had been filed, Varnadore was
moved to office G-12. R. D. and O. at 37. G-12 was the office
of a Ph.D. scientist who was temporarily away from Oak Ridge on
assignment. T. 3049 (Wright).
G. FY-1991 Performance Evaluation.
On February 5, 1992, Wright and Shults gave Varnadore his
performance evaluation for FY-91. Ex. 4; T. 1450 (Shults); T.
3059 (Wright). The evaluation was given to Varnadore well after
the first complaint was filed in this case, but had been written
by Wright in October 1991, before Varnadore filed his complaint.
T. 1449 (Shults); T. 3057-3058 (Wright). Although the evaluation
was more positive than the previous year's (Varnadore was given
an NI, one step higher than a UA), the text of the evaluation was
critical in two respects. First, the evaluation criticized
Varnadore's attitude toward his job. Thus, it stated that
Varnadore "[s]hows little initiative to perform above what is
specifically asked . . . . Will do what is asked and not much
more . . . Has a negative attitude about management and
policies." Ex. 4 at 5. The narrative summary stated:
Needs to cooperate more with Division management and
show more interest and initiative in his job
assignments . . . . Has attempted to accomplish what
was specifically asked of him. Jobs were completed but
not necessarily in a timely fashion. Needs to change
attitude toward overall picture of his employment.
Id. at 7. The evaluation also noted that "[h]ealth
problems continue to cause absence from work." Id. at
5.[80]
H. The Murphy Incident.
Betty Freels, a technician in an ORNL division other than
ACD, testified that in February 1992 her supervisor, John Murphy,
held a staff meeting at which he told members of his staff not to
speak to Varnadore. "[W]e should not stand in the hall and be
seen talking to him." T. 944 (Freels). Freels also testified
that Murphy specifically singled out an employee who had known
Varnadore for many years and told him that "somebody could think
you were talking about other things. You don't need to do that."
[PAGE 33]
T. 945 (Freels). Murphy denied making these comments, and
testified that he specifically told his employees that their
friendships were their own business. T. 2675-2677(Murphy).
I. August 1992.
On the closing day of the July 1992 portion of the hearing
in this case, an ORNL employee named George E. Smith sent Energy
Systems General Counsel Wilson Horde a memorandum discussing a
controversial theory that postulates that exposure to low level
radiation is actually beneficial (the "hormesis theory"). R. D.
and O. at 44-45; Ex. 258. Smith thought it would be helpful to
Energy Systems' case if the hormesis theory were presented to the
ALJ. "The radiation phobia in the United States is just that
. . . a phobia brought about by an over-zealous health physics
establishment. It's time to illuminate this unreality at the
expense of Mr. Varnadore." Ex. 258. Horde thanked Smith
for his memorandum and requested a copy of the book referred to
in it. Ex. 266. A colleague of Smith's gave a copy of Smith's
memorandum to an ACD employee who, in turn, faxed it to James
Botts, Group Leader in the Radiochemical Analysis Group of ACD,
because Botts had testified at the Varnadore hearing. R. D. and
O. at 46. In early August 1992, Botts posted the Smith
memorandum on a bulletin board outside his office. Id.
Varnadore discovered the posted memorandum on August 12,
1992. R. D. and O. at 46. Varnadore testified that he was upset
by the posted memorandum because it "felt like it was a very
personal shot at myself." Id. Varnadore copied it and
supplied a copy to his attorneys. Id. Within a day,
Varnadore was interviewed by the Oak Ridger for an article
about the Smith memorandum. R. D. and O. at 47. The article was
published on August 14. R. D. and O. at 47; Ex. 263. Thereafter
Botts removed the memorandum from the bulletin board. R. D. and
O. at 47.
When Shults learned of the posting by reading about it in
the Oak Ridger, he had a meeting with Botts and told him
that posting the memorandum had been a bad idea. T. 3364, 3367
(Shults). Thereafter Shults sent Botts a memorandum on the
subject:
After reading the Smith letter and reviewing the
sequence of events with you, I can see how the letter
found its way to a bulletin board in Bldg. 2026. It
could be of interest to new employees who may have some
uncertainty about radiation effects. On the other
hand, since the letter mentions Mr. Varnadore
specifically, it should not have been posted. Rightly
or wrongly, an argument can be made that posting that
letter results in a hostile working environment for
him. We want to avoid even the perception of a hostile
[PAGE 34]
working environment for him and for all other ACD people.
Please be extra cautious in the future and avoid
episodes like this. The slightest event can turn into
a major issue.
R. D. and O. at 47; Ex. 261. The ALJ found that Botts superiors
did not approve the posting before Botts put the memorandum on
the bulletin board, and they disavowed it after the matter became
public. R. D. and O. At 74.
II. The Recommended Decision and Order.
The ALJ recommended that I find that Varnadore engaged in
protected activity, first in 1985 (the mechanical hands incident)
and then in 1989 (the David Jenkins incident). The ALJ rejected
many of Varnadore s other contentions, including the allegation
that Varnadore engaged in protected activity when he appeared on
the evening news in March 1991.[81]
The ALJ also found that Varnadore had been retaliated
against:
Such retaliation is comprised of [Varnadore s] transfer
out of the Organic Analysis Group to Division Overhead
with resultant indefinite relegation to miscellaneous
job assignments not consistent with his job
classification and experience, assignment to clearly
inappropriate office space, the policy of isolation
from his fellow employees, as well as retaliatory
personnel appraisals. Together these actions evolved
into a hostile work environment.
R. D. and O. at 77. The ALJ found that the David Jenkins
incident was the source of Maskarinec s animus, and accounted in
part for the retaliation that occurred after 1989:
In short, it is found on the basis of this record that
Complainant raised the issue of David Jenkins' soil
sampling procedures to Michael Maskarinec precipitating
his transfer out of the soil sample laboratory. This
transfer led to the chain of events resulting in his
removal from OAG, his detachment from Guerin's section,
his assignments to Rooms R-151 and E-259 as home bases
and a hostile work environment such as isolation from
his fellow employees.[[82] ]
* * * *
[T]he real reason for transferring Varnadore out of the
soil sample preparation lab and away from the Organic
Analysis Group was the concern raised by Complainant
[PAGE 35]
about David Jenkins. This is the only inference which can be
drawn from Maskarinec's use of the term "troublemaker" with
reference to Varnadore after Complainant had been moved into Room
163 in February 1990. . . .
* * * *
. . . Complainant's transfer from the soil preparation
laboratory to Room E-163 in February 1990 was not
simply a move from one space to another. It was,
rather, the first step in Complainant's separation from
OAG, the unit of the Analytical Chemistry Division
where he enjoyed the most success.
* * * *
[T]he Respondent corporation is responsible for the
chain of events beginning with Maskarinec's
retaliation, which led inexorably to the hostile work
environment under consideration here.
R. D. and O. at 62-65.[83]
However, the ALJ rested his conclusion regarding Shults
retaliatory animus in 1989-1991 on events that occurred in 1985:
The record . . . supports the inference that these
unfavorable [performance evaluations] were motivated by
animus arising out of the David Jenkins concern raised
to Maskarinec and the animus arising out of Varnadore s
concern raised with respect to his employment in TRU in
1985. Shults hostility to Complainant clearly had not
slackened since that time. Under the circumstances of
this case, the interval between Varnadore s protected
activity in TRU and his adverse treatment does not
establish the absence of a causal link between the two.
With regard to the Grubb incident, the ALJ evidently assumed
that Varnadore engaged in some protected activity, but concluded
that there was insufficient evidence to prove a causal nexus
between that activity and any adverse action:
There is simply insufficient information in the record
as to Varnadore's participation in this group
discussion to permit an informed decision as to whether
or not this matter played a role in triggering the
actions he complains of primarily in the period
1990-1991.
R. D. and O. at 56 n.32. Finally, the ALJ recommended that I
conclude that the posting of the Smith memorandum on an ACD
[PAGE 36]
bulletin board was also retaliatory. R. D. and O. at 77.
The ALJ recommended extensive remedies, including that
Energy Systems:
* Offer Varnadore a position at his present grade,
consistent with his qualifications and experience
outside the ORNL at one of its other facilities in Oak
Ridge.
* Expunge from Varnadore's records the personnel
appraisals for FY-89 and succeeding years.
* Pay to Varnadore $10,000 in compensatory damages.
* Pay to Varnadore $20,000 in exemplary damages.
* Reimburse Varnadore for his past and present
psychiatric treatment for work related stress until the
treating physician certifies that the impairment
arising out of the hostile work environment has abated.
* Post a copy of the final decision and order in this
case on all ORNL bulletin boards.
* Notify all witnesses in this case that retaliation
for their testimony is illegal, and the procedures that
can be followed to file a complaint with the Secretary
of Labor should they be retaliated against.
R. D. and O. at 83-84.
DISCUSSION
Energy Systems challenges the R. D. and O. on two principal
grounds: that the complaints regarding all actions which
occurred prior to October 20, 1991, were not timely filed; and
that Energy Systems did not retaliate against Varnadore for
engaging in activity protected by the environmental whistleblower
provisions.[84]
For reasons I detail below, I conclude that Varnadore's
November 20, 1991 complaint was not timely filed. Varnadore's
complaints about his FY-1991 performance evaluation and the
posting of the Smith memorandum were timely filed, however. I
therefore discuss the merits of these allegations. For the
reasons I discuss in part III below, I will retain jurisdiction
over this case until I have had an opportunity to rule on
Varnadore v. Oak Ridge National Laboratories and Martin
Marietta Energy Systems, Inc., 94-CAA-2, 94-CAA-3
(Varnadore II) and to determine its effect on this case,
if any.
I. Whether Varnadore's Complaints were Timely Filed.
The environmental whistleblower provisions under which
[PAGE 37]
Varnadore filed his complaints each contain a 30 day statute of
limitations.[85] Energy Systems argued before the ALJ that the
allegations of retaliation contained in Varnadore's November 20,
1991 complaint, as well as some of the allegations contained in
his supplemental complaints, were barred by these statutes of
limitations. The ALJ disagreed:
The [continuing violation] doctrine is applicable in
this case. Here, Respondent has discriminated against
Complainant by fostering a hostile work environment
from at least February 1990 into the post-trial period
of this proceeding. For example, in this case
Varnadore evidently did not realize in February 1990
that his transfer from the soil preparation laboratory
was the first step in separating him from the Organic
Analysis Group thus leading to an indefinite period of
miscellaneous job assignments not compatible with his
[qualifications] and aptitudes. The hostile work
environment to which he was subjected also included
assignment to inappropriate office space, utilized as
depositories for waste, and a deliberate policy of
isolating him from his fellow workers. Also
contributing to the hostile work environment in this
proceeding were a number of adverse performance
appraisals influenced by the hostility arising out of
his protected activity. The hostile work environment
culminated in August 1992 with the posting of the Smith
memorandum attacking and ridiculing Varnadore for
pursuit of a remedy in this proceeding.
A hostile work environment arising out of a related
series of incidents, is not a discrete, consummated,
immediate violation. Rather a hostile work environment
persists into the future. Here the various acts
creating the hostile work environment to which
Varnadore was subjected, were connected rather than
isolated. Measure of Performance 5 expressly stated
the policy of isolating Complainant was to continue.
The continuing nature of that discrimination is
confirmed by two incidents in which MMES managers
warned other employees not to talk to Complainant.
Moreover, the inappropriate work assignments clearly
persisted. At the time that Varnadore found the Smith
memorandum in August 1992, he was inventorying door
locks. Under these circumstances, the application of
the continuing violation exception to a hostile work
environment extending over a period of years is
appropriate. In this case, the ongoing violation
[PAGE 38]
extended to the statutory period of September 4, 1992[,]
when the last complaint was filed. In determining remedy,
discriminatory acts going back to at least February of 1990
may be taken into consideration.
R. D. and O. at 78-79. In sum, the ALJ held that Energy Systems
had subjected Varnadore to a hostile work environment, and that
"environment" continued past the date Varnadore filed his first
complaint, indeed past the date of the first hearing in the case.
Thus, Energy Systems had committed a "continuing violation" of
the environmental whistleblower statutes, and that continuing
violation tolled the running of the statute of limitations. In
so ruling the ALJ erred.
A. The November 20, 1991 Complaint.
In order for an environmental whistleblower complaint to be
timely filed under a continuing violation theory the complainant
must show a course of related discriminatory conduct, and the
charge must be filed within 30 days of the last discriminatory
act. Garn v. Benchmark Technologies, Case No. 88-ERA-21,
Dec. and Order of Remand, Sept. 25, 1990, slip op. at 6;
Egenrieder v. Metropolitan Edison Co./G.P.U., Case No. 85-
ERA-23, Order of Remand, Apr. 20, 1987, slip op. at 4. The ALJ ignored the second part of this two part test. He
failed to determine whether an alleged retaliatory act occurred
within the thirty day period prior to the filing of Varnadore's
first complaint. If it did not, then the complaint is time
barred.
The ALJ concluded that between 1985 and November 1991
Varnadore was retaliated against in the following ways:[86]
o In November 1989 and February 1991, Varnadore was
given adverse performance evaluations for FY-89 and FY-
90, respectively. R. D. and O. at 66-67, 76-77.
o In February 1990, Varnadore was transferred out of
the Organic Analysis Group. Id. at 64-65, 76.
o In late October 1990, Varnadore was assigned to work
for Division Administrative Assistant Darrell Wright
doing a series of miscellaneous tasks. Id. at
65, 76.
o In March 1991 Varnadore was told to relocate his
home base, and the intent of this directive was "to
minimize interruption of or interference with others
who are working." Id. at 67, 76-77.
o Pursuant to that instruction, in March 1991
Varnadore was assigned to a home base in R-151. Id.
at 67-68.
[PAGE 39]
o Sometime in the summer of 1991, one supervisor
suggested to one of Varnadore's colleagues that he
should not be seen talking to Varnadore in the halls.
Id. at 65, 70.
o On September 3, 1991, Varnadore was assigned to a
home base in E-259. Id. at 68-69, 76-77.
Thus, the last alleged retaliatory act prior to the filing of the
first complaint occurred on September 3, 1991, more than 30 days
prior to the filing of the November 20, 1991 complaint.
Varnadore relies upon two slightly different theories in
arguing that events related to his assignment to home base in E-
259 carried over into the limitations period. First, Varnadore
argues that Energy Systems took other retaliatory acts regarding
Varnadore's home base assignment within the 30 day limitations
period. Thus, Varnadore argues that in early November, after
Industrial Hygiene recommended that E-259 not be used as a home
base because of the presence of a low concentration of vaporized
mercury, Varnadore's supervisor, Darrell Wright, threatened to
move Varnadore back to R-151. Varnadore argues that Wright's
threat constituted a separate retaliatory act, which occurred
within the 30 day limitations period. Comp. Reply Brief at 11-
12. I disagree.
It is uncontested that in early November Wright discussed
with Varnadore the possibility of moving his home base back to R-
151. However, Wright did so because the drums containing
radioactive waste had been removed from R-151, and he therefore
believed that the problem with R-151 had been resolved. T. 3046-
3048 (Wright). Moreover, Wright did not transfer Varnadore's
home base to that room. At the time Varnadore filed his
complaint on November 20 his home base continued to be in E-259.
Wright's discussion with Varnadore of the possibility of moving
him back to R-151 cannot be considered adverse action.
Second, Varnadore has also asserted that although his
assignment to E-259 occurred outside the limitations period, he
continued to feel the effects of that assignment -- isolation
from his fellow employees, and exposure to mercury vapor -- as
long as he was assigned there, and he was still in E-259 when he
filed his complaint.[87] Comp. Br. Before ALJ at 145-146. The
courts and the Secretary have made it clear that the fact that a
complainant continues to suffer the effects of a
retaliatory act which took place outside the limitations period
is not sufficient to render a claim timely. In United Air
Lines v. Evans, 431 U.S. 553 (1977), the Supreme Court ruled
that the mere fact that the effects of a discriminatory act
continue into the limitations period does not provide a basis for
concluding that a cause of
[PAGE 40]
action was timely filed:[88]
A discriminatory act which is not made the basis for a
timely charge is the legal equivalent of a
discriminatory act which occurred before the statute
was passed. It may constitute relevant background
evidence in a proceeding in which the status of a
current practice is at issue, but separately
considered, it is merely an unfortunate event in
history which has no present legal consequences.
* * * *
[Evans] emphasizes the fact that she has alleged a
continuing violation. . . . But the emphasis should not
be placed on mere continuity; the critical question is
whether any present violation exists.
United Air Lines v. Evans, 431 U.S. at 558.
Thus, the continuing violation doctrine may be applied only
where it is established that a violative act occurred
within the statutory time limit. Here, although Varnadore
claimed that he continued to suffer the adverse consequences of
his assignment to home base in E-259 (isolation from his fellow
employees and assignment to an unpleasant room), the act
of assigning him to that room occurred only once, on September 3.
In this respect assignment to E-259 is similar to many other
types of personnel actions, such as demotions, transfers to a new
position, and negative performance ratings. It is true that in
all of these situations the effects of the adverse act linger.
However, the courts and the Secretary have repeatedly refused to
grant relief in those circumstances.
In English the Secretary noted:
When an employee is demoted, involuntarily transferred,
or indeed fired on the spot, the effect is not limited
to loss of the previous job. Any employee who has been
demoted or involuntarily transferred to an undesirable
job is required to perform work of lower skill and
prestige and suffers the humiliation associated with
that adverse action. As the court of appeals said, the
notice of adverse action is "a consummated, immediate
violation [and] may not be treated as merely an episode
in a 'continuing violation' because its effects
necessarily carry over on a 'continuing' basis. So
to hold would of course effectively scuttle all
timeliness requirements with respect to any discrete
violation having lasting effects--as presumably all do
to some extent."[PAGE 41]
English v. General Electric Co., Case No. 85-ERA-2, Sec.
Dec. and Ord., Feb. 13, 1992, slip op. at 5, citing English v.
Whitfield, 858 F.2d 957, 962-63 (4th Cir. 1988). Because
Varnadore has not shown that Energy Systems committed an act of
retaliation against him within thirty days prior to the filing of
the November 20, 1991 complaint, the continuing violation
doctrine does not apply.
The ALJ concluded that, "[a] hostile work environment
arising out of a related series of incidents, is not a discrete,
consummated, immediate violation. Rather a hostile work
environment persists into the future . . . . Under these
circumstances, the application of the continuing violation
exception to a hostile work environment extending over a period
of years is appropriate." R. D. and O. at 79. The ALJ is
correct in finding a nexus between the "hostile work environment"
theory and the "continuing violation doctrine. As the Third
Circuit has noted:
Hostile work environment and continuing violation
claims have similar requirements of frequency or
pervasiveness. There is a natural affinity between the
two theories. A number of courts, in fact, have
remarked upon the correlation between the two:
In the arena of sexual [or racial]
harassment, particularly that which is based
on the existence of a hostile environment, it
is reasonable to expect that violations are
continuing in nature: a hostile environment
results from acts of sexual [or racial]
harassment which are pervasive and continue
over time, whereas isolated or single
incidents of harassment are insufficient to
constitute a hostile environment.
Accordingly, claims based on hostile
environment sexual [or racial] harassment
often straddle both sides of an artificial
statutory cut-off date.
Jenson v. Eveleth Taconite Co., 824 F. Supp.
847, 877 (D. Minn. 1993). See also Waltman v.
International Paper Co., 875 F.2d 468, 476 (5th
Cir. 1989) ("The Meritor Savings Bank decision
is relevant to the continuing violation theory because
a hostile environment claim usually involves a
continuing violation."). . . . Moreover, this view is
implicit in the many cases which, without discussing
the issue of
[PAGE 42]
timeliness or admissibility, rely upon evidence of events,
occurring long before the relevant filing periods, to establish a
hostile work environment. See, e.g., Harris [v.
Forklift Systems, Inc., 114 S.Ct. 367 (1993)] (considering
acts of harassment spanning two and one-half year period);
Meritor, 477 U.S. 57 . . . (considering acts of harassment
spanning four year period).
West v. Philadelphia Electric Co., 45 F.3d 744, 755
(1995).
Even though there is a nexus between the hostile work
environment theory and the continuing violation doctrine, the ALJ
was incorrect in finding that a showing of hostile work
environment alone provided sufficient basis upon which to
conclude that the continuing violation doctrine applied. The
second part of the continuing violation doctrine still must be
met in order for a complaint to be considered timely filed
pursuant to that doctrine.
The Third Circuit's holding in West drives this point
home. In that hostile work environment case the district court
permitted evidence regarding events which occurred within the 300
day statute of limitations period, but prohibited plaintiff from
presenting evidence of other hostile events which occurred prior
to the 300 day limitations period. The court of appeals rejected
the district court's limitation on the proof presented:
Once the plaintiff has alleged sufficient facts to
support use of the continuing violation theory,
however, the 300-day filing period becomes irrelevant
-- as long as at least one violation has occurred
within that 300 days.
West v. Philadelphia Electric Co., 45 F.3d at 755
(emphasis supplied).
Here, as I have pointed out above, the last alleged
retaliatory act occurred on September 3, 1991, outside the
limitations period. I am therefore constrained to conclude that
Varnadore's November 20, 1991 complaint was untimely filed. That
portion of Varnadore's case relating to actions which occurred
prior to the limitations period preceding November 20, 1991, is
dismissed.[89]
B. Post-November 20, 1991 Actions.
Three events which occurred after the filing of the
November 20, 1991 complaint were found by the ALJ to be
retaliatory: Varnadore s FY-91 performance appraisal; the Murphy
incident; and the posting of the Smith memorandum on an ACD
bulletin board. Varnadore filed a supplemental complaint
regarding the performance appraisal on February 29, 1992 (Doc.
No. 92-CAA-5), and a supplemental complaint regarding the posting
of the Smith
[PAGE 43]
memorandum on September 4, 1992 (Doc. No. 93-CAA-1). Energy
Systems concedes(Brief of Respondent Martin Marietta
Energy Systems, Inc. Before the ALJ at 294 n.229), and I
conclude, that the supplemental complaints were timely filed with
regard to these two events. The Murphy incident was not the
subject of a complaint. However, it occurred within a time frame
which was covered by the February 29, 1992 supplemental
complaint. In any event, as I explain below, the Murphy incident
would be relevant to a consideration whether Varnadore was
retaliated against for filing his November 20, 1991 complaint.
II. Temporal Proximity and Allocation of Burdens of
Proof.
I have concluded above that all acts of retaliation which
were alleged to have occurred outside of the 30 day limitations
period prior to November 20, 1991, are time barred. Even
assuming that were not the case, however, the ALJ erred in
another significant respect. The ALJ found that Shults
retaliatory animus resulted from Varnadore s objections in 1985
to operating the mechanical hands in the TRU hot cell. The ALJ
also found that Shults first acted on that retaliatory animus in
the fall of 1989, when he lowered Varnadore s performance
appraisal rating from Needs Improvement to Unsatisfactory.
Referring to both the FY-89 and FY-90 evaluations, the ALJ
ruled:[90]
The record . . . supports the inference that these
unfavorable [performance evaluations] were motivated by
animus arising out of the David Jenkins concern raised
to Maskarinec and the animus arising out of Varnadore s
concern raised with respect to his employment in TRU in
1985. Shults hostility to Complainant clearly had not
slackened since that time. Under the circumstances of
this case, the interval between Varnadore s protected
activity in TRU and his adverse treatment does not
establish the absence of a causal link between the two.
R. D. And O. at 66-67 (footnote omitted). The ALJ s analysis of
the causal connection between Varnadore s alleged protected
activity in 1985 and the retaliation which allegedly began in
1989 is erroneous in two respects. The ALJ incorrectly placed
the burden upon Energy Systems to establish the absence of a
causal link; and, in any event, the passage of four years
between a protected act and an act of retaliation is far too long
to support a conclusion that a causal link exists.
The Secretary has repeatedly articulated the legal framework
within which parties litigate environmental whistleblower cases.
Under the burdens of production and persuasion in whistleblower
proceedings, the complainant first must present a prima
facie case by showing that: (1) the complainant engaged in
protected
[PAGE 44]
conduct; (2) the employer was aware of that conduct; and (3) the
employer took some adverse action against him. Dean Dartey v.
Zack Company of Chicago, Case No. 82-ERA-2, Sec. Dec., Apr.
25, 1983, slip op. at 7-8. The complainant also must present
evidence sufficient to raise the inference that the protected
activity was the likely reason for the adverse action. Id.
See also McCuistion v. TVA, Case No. 89-ERA-6, Sec. Dec.,
Nov. 13, 1991, slip op at 5-6; Mackowiak v. University Nuclear
Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984).
The respondent may rebut the complainant's prima
facie showing by producing evidence that the adverse action
was motivated by legitimate, nondiscriminatory reasons.
Complainant may counter respondent's evidence by proving that the
legitimate reason proffered by the respondent is a pretext.
In any event the complainant bears the ultimate burden of
proving by a preponderance of the evidence that he or she was
retaliated against in violation of the law. St. Mary's Honor
Center v. Hicks, 113 S.Ct. 2742 (1993); Dartey at 5-9
(citing Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981)); Carroll v. Bechtel Power Corp., Case
No. 91-ERA-0046, Sec. Dec. and Ord., Feb. 15, 1995, slip op. at
10.
The ALJ failed to follow binding precedent when he held that
Energy Systems had not proven the absence of a causal link
between Varnadore s actions in 1985 and Shults actions regarding
Varnadore s performance appraisal in 1989. In a case such as
this, the burden of persuasion is never placed upon the
respondent.[91]
Correct allocation of the burden of proof on the issue of
causation leads me to the conclusion that Varnadore did not prove
that his inability to operate the mechanical hands in the hot
cell in 1985 was causally linked to Shults negative performance
evaluation of him in 1989, and Shults subsequent alleged acts of
retaliation. Temporal proximity may be sufficient to establish
the causation element in an environmental whistleblower case.
Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). The
Secretary has repeatedly ruled that periods of up to several
months between an incident of protected activity and adverse
action were short enough to give rise to an inference that the
protected activity was the likely cause of the adverse action.
See, Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046,
Final Dec. and Ord., Feb. 15, 1995, slip op. at 14-15 (period of
a month or two is temporally proximate); Willy v. The
Coastal Corp. and Coastal States Mfg. Corp., Case No. 85-CAA-
01, Dec. and Ord., June 1, 1994 (six months sufficient);
Goldstein v. Ebasco Constructers, Inc., Case No. 86-ERA-
36, Apr. 7, 1992, slip op. at 11-12 (seven or eight months
sufficient), rev d on other grounds sub nom Ebasco
Constructors v. Martin, No. 92-4576 (4th Cir. Feb. 19,
[PAGE 45]
1993); Thomas v. Arizona Public Service Co., Case No. 89-
ERA-19, Final Dec. and Ord., Sept. 17, 1993, slip op. at 19
(twelve months sufficient).
However, almost four years elapsed between Varnadore s
objections to using the mechanical hands and his 1989 performance
evaluation. Such an extended period cannot be held to be
temporally proximate. See Dillard v. TVA, Case No. 90-
ERA-31, Dec. And Ord., July 21, 1994, slip op. at 3 (passage of a
year and a half between the last protected activities and the
adverse action militates against a finding that temporal
proximity alone raised the inference of causation); Burrus v.
United Tel. Co., 683 F.2d 339, 343 (10th Cir. 1982) cert.
denied, 459 U.S. 1071 (1982)(three year gap between protected
activity and adverse action too long to raise inference of
retaliatory animus). Common sense underlies the line-drawing
here. The purpose of all of the elements of a prima facie
case in a retaliation case is to permit, under specified
circumstances, a finding of retaliation, even in the absence of
direct evidence. A finding that adverse action closely followed
protected activity gives rise to a reasonable presumption that
the protected activity caused the adverse action.
However, if the adverse action is distant in time from the
protected activity, doubt arises as to whether the alleged
retaliator could have still been acting out of retaliatory
motives. See Oliver v. Digital Equip. Corp., 846 F.2d
103, 110-111 (1st Cir. 1988) (while a showing of employment
discharge soon after protected activity may be strongly
suggestive of a causal connection, a longer period of time does
not lend itself to such an inference).
Applying these principles to this case, it is simply
implausible that Shults could have developed retaliatory animus
in 1985, failed to act on that retaliatory animus for four years,
but then acted upon it in 1989 and thereafter. I conclude that
Shults did not act out of retaliatory animus arising in 1985 when
he took adverse action against Varnadore in 1989 and later.
III. Whether Energy Systems Retaliated Against Varnadore
for the Filing of his November 20, 1991
Complaint.
The ALJ found that three post complaint incidents -- the
February 1992 performance evaluation, the Murphy incident, and
the posting of the Smith memorandum constituted retaliatory
action. My dismissal of the pre-complaint allegations does not
resolve these three contentions, because whatever the merits of
Varnadore's original environmental whistleblower case, he had the
right to pursue his case without retaliation for bringing it.
A. The FY-91 Performance Evaluation.
With regard to the FY-1991 performance evaluation the ALJ
concluded:
[PAGE 46]
The needs improvement rating for the period October
1, 1990 to September 30, 1991 was influenced by the
illegal animus resulting in the prior unfavorable
ratings. The record compels the inference that the
unfavorable comments on the February 5, 1992 annual
performance review for that period were influenced by
the same hostility and due to the timing were also in
retaliation for the complaint filed the previous
November.
R. D. and O. at 67.
The timing of the FY-91 performance evaluation presents
analytical problems. Although the FY-91 performance evaluation,
which was more favorable to Varnadore than either of the two
preceding evaluations, was actually given to Varnadore on
February 5, 1992, well after Varnadore's complaint was filed, it
was drafted well before Varnadore filed his November 20, 1991
complaint. Therefore, it cannot have been written in retaliation
for the filing of the November 20, 1991 complaint, and the ALJ s
finding to the contrary must be rejected. Hasan v. Reich,
unpublished (5th Cir. May 4, 1993)(fact that employer s decision
to terminate employee was made before it learned of employee s
protected activity doom[s] complaint); Batts v. NLT
Corp., 844 F.2d 331, 334 (6th Cir. 1988)(alleged retaliatory
remark could not have been made in retaliation for events which
had not yet occurred). Thus, it must be determined whether the
FY-91 performance evaluation was adverse action in retaliation
for pre-complaint protected activity. Because I determine that
the two people responsible for the FY-91 evaluation -- Wright and
Shults -- lacked retaliatory animus, I conclude that the FY-91
performance evaluation was not retaliatory adverse action.
As I have held above, the ALJ erred in concluding that
Shults acted in 1989 and thereafter out of retaliatory animus
arising out of the 1985 mechanical hands incident. That holding
applies to the FY-91 evaluation as well. Thus, unless Shults
developed retaliatory animus as a result of the only other
incident of protected activity -- the David Jenkins incident --
he cannot be held to have retaliated in giving the FY-91
performance appraisal. Shults testified that he had no knowledge
of the David Jenkins incident prior to the filing of Varnadore s
complaint in November 1991. T. 1343 (Shults). There is no
evidence in the record to dispute that testimony.[92] Therefore
I conclude that Shults could not have acted out of retaliatory
animus in giving Varnadore a negative performance evaluation for
FY-91.
Wright was in a similar position; he also testified that he
had no knowledge of the David Jenkins incident prior to the
filing of Varnadore s November 1991 complaint. T. 2952 (Wright).
That testimony also was uncontradicted. Therefore Wright, who
had worked in ACD only since 1988, could not have acted out of
retaliatory animus in drafting the FY-91 performance evaluation.
As these two supervisors are the only persons who were
responsible for that evaluation, I must conclude that it was not
retaliatory adverse action.
B. The Murphy Incident and the Posting of the SmithMemorandum.
The ALJ found that two separate incidents which occurred
after the filing of his November 20, 1991 complaint contributed
to the creation of a hostile work environment: the Murphy
incident, and the posting of the Smith memorandum. The question
to be addressed is whether these two incidents constituted
unlawful retaliation for Varnadore's protected activity in
bringing this cause of action.
The ALJ concluded that Botts' posting of the Smith
memorandum on an ACD bulletin board was retaliatory. R. D. and
O. at 74. The ALJ held:
Two sentences in that memorandum, "[t]he radiation
phobia in the United States is just that . . . a phobia
brought about by an over-zealous health physics
[PAGE 47]
establishment. It's time to illuminate this unreality at
the expense of Mr. Varnadore" is on its face ridicule of
Complainant for pursuing this proceeding. The action of
Botts in posting the memorandum on a company bulletin board
is clearly retaliatory.
Id. The ALJ found that Botts' superiors "did not approve
the posting before Botts put the memorandum on the bulletin
board, and they disavowed it after the matter became public." R.
D. and O. at 74. However, the ALJ believed that ACD managers
fostered an environment that was so inhospitable to the raising
of environmental concerns that the posting of the Smith
memorandum was "almost inevitable." Id. at 75.
With regard to the Murphy incident, the ALJ found that in
February 1992 Murphy held a meeting with members of his staff and
advised them not to be seen talking in the halls with Varnadore.
Id. at 70. The ALJ, quoting Freels, found that Murphy
told a group of his employees . . . not to speak to Bud
Varnadore, that it didn t look good in his opinion, that it could
be mistaken for talking about other things, and we should not
stand in the hall and be seen talking to him. Id.
Moreover, the ALJ credited Freels testimony that Murphy
specifically warned a longtime friend of Varnadore s not to talk
to Varnadore in the hallway: Well, somebody would think you
were talking about other things. You don t need to do that.
Id.
Neither the posting incident nor the Murphy incident were
acts which involved "tangible job detriment." Rather, they were
acts that related to the "environment" in which Varnadore worked.
That does not mean that these incidents are not actionable,
however. If these two incidents created a hostile work
environment for Varnadore, and they occurred in retaliation for
Varnadore s protected activity, they are remediable under the
hostile work environment theory of discrimination.[93]
The concept of a hostile work environment was first
developed in employment discrimination cases arising under Title
VII. The Supreme Court, in the landmark case, Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986), held that sexual
harassment which created a hostile work environment adversely
affected an employee's "terms, conditions or privileges of
employment," and thus was actionable under Title VII. Of course,
not every offensive act of harassment rises to the level of
creating a hostile work environment. For sexual harassment to
be actionable it must be sufficiently severe or pervasive to
alter the conditions of [the victim's] employment and create an
abusive working environment. Meritor Savings and Loan v.
Vinson, 477 U.S. at 67, quoting Henson v. City of
Dundee, 682 F.2d at 904.
The Supreme Court reaffirmed Meritor, and its limits,
in Harris v. Forklift Systems, Inc., 114 S.Ct. 367, 370
(1993):
[PAGE 48]
Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work
environment -- an environment that a reasonable person
would find hostile or abusive -- is beyond Title VII's
purview. . . . But Title VII comes into play before the
harassing conduct leads to a nervous breakdown. A
discriminatorily abusive work environment, even one
that does not seriously affect employees' psychological
well-being, can and often will detract from employees'
job performance, discourage employees from remaining on
the job, or keep them from advancing in their careers.
The Court acknowledged that it was not articulating "a
mathematically precise test:"
But we can say that whether an environment is "hostile"
or "abusive" can be determined only by looking at all
the circumstances. These may include the frequency of
the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably
interferes with an employee's work performance. The
effect on the employee's psychological well-being is,
or course, relevant to determining whether the
plaintiff actually found the environment abusive. But
while psychological harm, like any other relevant
factor, may be taken into account, no single factor is
required.
Harris v. Forklift Systems, Inc., 114 S.Ct. at 371.
These principles are equally applicable to environmental
whistleblower cases. The Fourth Circuit has explicitly so held
in a case brought under the Energy Reorganization Act of 1974, 42
U.S.C. § 5851(b)(1) (1988) (ERA). In English v. General
Electric Company, 858 F.2d 957 (1988), the court of appeals
relied upon Meritor in concluding that the hostile work
environment theory applied to ERA whistleblower cases:
There the Court found in Title VII's prohibition of
race- or gender-based discrimination in any "terms,
conditions, or privileges of employment," a prohibition
against race- or sex-based harassment sufficiently
onerous to create a "hostile work environment" for the
targets of the harassment. We think that the same must
be found in the [ERA]'s prohibition . . . of any
retaliatory "discriminat[ion] against any employee with
respect to his . . . terms, conditions, or privileges
of employment."
[PAGE 49]
English v. General Electric Company, 858 F.2d at 964
(footnote omitted). See also Marien v. Northeast Nuclear
Energy Co., Case Nos. 93-ERA-49 and 93-ERA-50, Sec. Final
Dec. and Ord., Sept. 18, 1995, slip op. at 7.The
rationale of English applies with equal force with regard
to the environmental whistleblower provisions at issue here.
The Third Circuit (citing Harris) has articulated the
necessary elements of proof in a hostile work environment case:
(1) the plaintiff suffered intentional discrimination
because of his or her membership in the
protected class;
(2) the discrimination was pervasive and regular;
(3) the discrimination detrimentally affected the
plaintiff;
(4) the discrimination would have detrimentally affected a
reasonable person of the same protected class in that
position; and,
(5) the existence of respondeat superior liability.
West v. Philadelphia Electric Co., 45 F.3d 744 (3d Cir.
1995). I believe that these elements can be tailored to a
whistleblower retaliation claim alleging a hostile work
environment.
With regard to the first factor, the relevant question is
whether Varnadore engaged in protected activity and whether he
suffered intentional retaliation as a result. It is undisputable
that Varnadore engaged in protected activity when he brought his
whistleblower retaliation complaint in November 1991.
I also conclude that Murphy engaged in a retaliatory act
when he warned his employees not to be seen talking with
Varnadore. Similarly, I conclude that the true reason that
Botts posted the Smith memorandum was to retaliate against
Varnadore for filing his whistleblower complaint. Thus, I
conclude that Varnadore has established the first West
element.
With regard to the third element, there is no doubt that it
was thoughtless and cruel of Botts to post a memorandum which
made a comment on this litigation and named Varnadore. It is
understandable that Varnadore would have found the posting of the
memorandum upsetting. Varnadore testified:
Q. Okay. When you saw this memo, how did it make you
feel?
A. Like I say, it upset me considerably, because they
were wanting me to prove a theory at my expense, and I
would think that anybody saw a particular item that was
a theory that someone was wanting to prove at their
expense, I felt like I had had about all proved at my
expense that I needed proved. I had suffered enough
[PAGE 50]
for all of that I went through with the chemotherapy and the
cancer surgery, plus a year of my wife and I both -- it has been
a year-and-a-half I guess now. My wife and I both standing in a
strain over this litigation.
T. 3299 (Varnadore). The posting was a senseless, obnoxious,
offensive act of an ACD middle manager.
Moreover, there was ample evidence presented regarding
Varnadore s emotional condition, and the relationship of that
condition to the alleged acts of retaliation. See, R. D.
and O. at 50-52. However, that evidence was focused almost
entirely upon the effects on Varnadore of the events that
occurred between 1985 and 1991; not upon the effects on Varnadore
related to the posting of the Smith memorandum and the Murphy
incident. In any event, for reasons I elaborate upon below, I am
reserving judgment on this issue.
The second element, whether the retaliation against
Varnadore for filing his complaint was pervasive and regular,
requires a discussion of the case law on this issue. The Supreme
Court in Harris v. Forklift Systems Inc., 114 S.Ct. 367
(1993), ruled that the frequency of discriminatory conduct and
its severity are two factors which may be weighed in determining
whether an employee has been subjected to a hostile work
environment. Harris, 114 S. Ct. at 371. The Court also
reaffirmed its prior holding in Meritor Savings Bank v.
Vinson, 477 U.S. at 65-67, that [w]hen the workplace is
permeated with discriminatory intimidation, ridicule, and
insult, . . . that is sufficiently severe or pervasive to alter
the conditions of the victim s employment and create an abusive
working environment Title VII is violated. See Harris,
114 S.Ct. at 370. The Harris Court also endorsed the
caution in Meritor that mere utterance of an . . .
epithet which engenders offensive feelings in an employee, . . .
does not sufficiently affect the conditions of employment to
implicate Title VII. Harris, 114 S.Ct. at 370. Other
courts have looked at such things as whether there was a
consistent pattern of derogatory comments, Dey v. Colt Constr.
& Dev. Co., 28 F.3d 1130, 1132 (7th Cir. 1994); and whether
there were multiple and varied combinations and frequencies of
offensive exposures, Rabidue v. Osceola Refining Co., 805
F.2d 611, 620 (6th Cir. 1986).
In this case I am confronted with the facts regarding two
incidents of retaliatory harassment against Varnadore: the
Murphy incident and the posting incident. It would be possible
to evaluate these two incidents in light of the history of this
case, apply the appropriate legal standards as articulated in
Meritor, Harris and subsequent cases, and reach a
legal conclusion as to whether these two incidents established
that
[PAGE 51]
Varnadore was subjected to a hostile work environment in
retaliation for the filing of his November 20, 1991 complaint.
However, in the unique circumstances of this case, I conclude
that it would be unwise to do so.
On June 9, 1993, Varnadore filed a complaint with the Wage
and Hour Division alleging four additional acts of retaliation by
Energy Systems.[94] On July 29, 1993 and August 3, 1993,
Varnadore filed an additional and amended complaint against
Energy Systems alleging another act of retaliation.[95] On
April 6, 1994, the ALJ granted partial summary judgment, and on
October 17, 1994, the ALJ issued his Recommended Decision and
Order in these consolidated cases (known as Varnadore II).
Varnadore II is now pending before me for review.[96] I
conclude that it would be inappropriate for me to rule on the
Murphy and posting incidents without also ruling on the
subsequent incidents of alleged retaliation contained in 94-CAA-2
and 94-CAA-3. As the Third Circuit cautioned in Andrews v.
City of Philadelphia, 895 F.2d 1469, 1485 (3d Cir. 1990):
A play cannot be understood on the basis of some of its
scenes but only on its entire performance, and
similarly, a discrimination analysis must concentrate
not on individual incidents, but on the overall
scenario. . . . The factfinder in this type of case
should not necessarily examine each alleged incident in
a vacuum. What may appear to be a legitimate
justification for a single incident of alleged
harassment may look pretextual when viewed in the
context of several other related incidents.
On similar grounds the Court of Appeals for the Federal Circuit
criticized the Merit Systems Protection Board for considering
each incident of discrimination separately:
[B]y viewing each incident in isolation, as if nothing
else had occurred, a realistic picture of the work
environment was not presented. The frequency of the
offensive conduct as well as its nature and its
pervasiveness are all factors to be weighed in
determining the abusiveness of the environment . . . .
It is the overall, composite effect on the terms,
conditions, and privileges of employment that is the
focus of the law, whose target is workplace
discrimination.
King v. Hillen, 21 F.3d 1572, 1581 (Fed. Cir. 1994).
Because I conclude that fairness to the parties requires
evaluation of the Murphy and posting incidents in conjunction
with the retaliatory
[PAGE 52]
incidents alleged in Varnadore II, I will retain
jurisdiction of this case until such time as I rule in
Varnadore II.
CONCLUSION
I conclude that the Complaint filed by C. D. Varnadore on
November 20, 1991, was time barred and should be dismissed. In
the interests of fairness and adjudicatory economy I retain
jurisdiction of this case so that instances of retaliation which
occurred after Varnadore filed his November 20, 1991 complaint
can be considered in light of the history of this case and in
conjunction with the allegations contained in 94-CAA-2 and 94-
CAA-3, which are pending before me.[97]
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Effective May 19, 1995, the name of Respondent Martin Marietta
Energy Systems, Inc., was changed to Lockheed Martin Energy
Systems, Inc. The case caption has been changed accordingly.
[2]
ORNL is "one of the world's largest and most diverse centers
for basic and applied scientific research and technology
development and other scientific and technical services."
Stipulation (Stip.) at 2. It employs over5,000 people.
R. D. and O. at 54. ORNL has seven major organizations, with one
to ten divisions, major programs, or major functional offices
reporting to each major organization. Id. at 7. The
Analytical Chemistry Division (ACD), which is the subject of this
litigation, is one of seven divisions in the Physical Sciences
and Advanced Materials organization of ORNL. Id. ACD
employs 142 permanent staff. Id. at 5.
[3]
The ALJ referred to this Respondent as "MMES." In light of
Respondent's name change I will refer to it as "Energy Systems."
[4]
Varnadore filed additional complaints subsequent to the hearing
in this case. Those complaints are the subject of Varnadore
v. Oak Ridge National Laboratory and Martin Marietta Energy
Systems, Inc., Case Nos. 94-CAA-2 and 94-CAA-3 (Varnadore
II), and Varnadore v. Oak Ridge National Laboratory,
Case No. 95-ERA-1 (Varnadore III), which are awaiting
secretarial review.
[5]
That Recommended Order was supplemented by an Agreed
Recommended Order on Expenses, dated December 15, 1994.
[6]
The United States government owns three facilities in Oak
Ridge, Tennessee -- the K-25 Plant, the Y-12 Plant, and Oak Ridge
National Laboratory (sometimes collectively referred to as the
Oak Ridge facilities). R. D. and O. at 4-5. From the late
1940's until 1984, the Oak Ridge facilities were operated by
Union Carbide Corporation-Nuclear Division under contract with
the government. Id. at 5. Since 1984 Energy Systems has
retained the contract to operate the Oak Ridge facilities.
Id.
[7]
Varnadore did not attempt to prove, and there is no evidence to
support, that his colon cancer was work-related.
[8]
"ACD carries out fundamental research in analytical science,
performs applied research and development in analytical
technology, and provides chemical services in support of a wide
variety of programs." Stip. at 7. At the time of trial, ACD was
divided into four sections, Analytical Spectroscopy, Organic
Chemistry, Operations, and Inorganic and Radiochemistry. R. D.
and O. at 5. Each section was managed by a Section Head.
Id. There were groups within each section which were
each headed by a Group Leader. Id.
[9]
When Varnadore was first hired at K-25 he was given a physical
examination and his partial blindness was noted in his medical
record. R. D. and O. at 7. The medical record also contained a
permanent restriction: "Must wear safety glasses at all times
and not to work where safety depends on binocular vision.
Qualifies for incidental operator's license - daylight."
Id. ACD did not receive Varnadore's medical records until
December 1985, after he had been hired. T. 1757-1758 (Botts).
[10]
At the time, Laing was Section Head over, among other things,
the Transuranic Analytical Laboratory and the Radioactive
Materials Analytical Group (commonly referred to as "2026"). The
Transuranic Analytical Laboratory is just one part of the
Transuranic Facility. Other processes in that facility were
handled by other ORNL organizations. Throughout this case the
parties have referred to the Analytical Laboratory as the TRU,
and I will do the same.
[11]
The Radioactive Materials Analysis Section was subsequently
reorganized and TRU and 2026 were placed in the Organic Chemistry
Section under James Stokely. Stip. at 9 n.1.
[12]
Shults testified that:
[A]t that time we were having some considerable
turnover in that group. It's a group that works shift
work and that makes it unpopular. It's in a special
building that's distant from the lab and that made it a
little bit unpopular. And it also works with highly
radioactive materials and some people don't
particularly care for that either. So we were having
trouble finding and keeping staff there. That is
basically the reason we offered [Varnadore] the job.
T. 1282 (Shults).
[13]
Transuranic materials are made up of transuranic elements,
which are elements with atomic numbers greater than that of
uranium. R. D. and O. at 8.
[14]
Glove boxes are enclosures with built-in protective gloves and
are designed so that samples containing high levels of alpha
radiation can be safely manipulated by technicians.
R. D. and O. at 9; T. 1748 (Botts). Hot cells are designed to
protect technicians working with samples containing high levels
of alpha, beta, or gamma radiation. R. D. and O. at 9. Hot
cells are enclosures built from four feet thick high density
concrete walls, ceiling, and floor, with a shielding window in
the front. Mechanical hands penetrate the cells and are
manipulated from outside the cell to perform chemical work within
the cell. Id. at 8-9. Samples are placed in, and removed
from, the hot cell using shielded carriers and a remote transfer
mechanism. Id. at 9; Stip. at 9.
[15]
Varnadore had not been asked to use the hot cell until then.
Ex. 251 at 80 (Varnadore Deposition). It is not clear how many
times Varnadore actually used the mechanical hands. See
T. 69 (Varnadore) ("I made two or three pretty bad messes.");
T. 301-302 (Varnadore) ("it was on more than one occasion . . . .
It was on two different occasions."); T. 367 (Varnadore) ("I do
not recall the second attempt or any attempt after the first
attempt.").
[16]
Efficient use of mechanical hands requires a significant amount
of practice. Botts testified that it could take from six months
to a year to become proficient with the mechanical hands. T.
1750 (Botts). Laing thought it could be done in six months. T.
1803 (Laing).
[17]
Varnadore admitted that no one ever even asked him to use the
mechanical hands after he expressed his belief that he could not
use them. Ex. 251, at 92, 98-99, 106 (Varnadore Dep.).
[18]
Varnadore did testify that he mentioned to Botts his concern
that his fellow employees would have to clean up the spills he
made in the hot cells. Ex. 551 (Varnadore Dep.) at 100.
However, he expressed no environmental concern. See
Johnson v. Old Dominion Security, Case No. 86-CAA-3, et seq.,
Sec. Dec., May 29, 1991, slip op. at 13; Aurich v.
Consolidated Edison Co. of New York, Inc., Case No. 86-CAA-2,
Sec. Remand Ord., Apr. 23, 1987; Decresci v. Lukens Steel
Co., Case No.
87-ERA-113, Sec. Dec., Dec. 16, 1993, slip op. at 4.
[19]
It was stipulated that:
In December 1985, Mr. Varnadore was transferred to
. . . 2026 . . . after he told management that he could
not operate the mechanical hands at TRU because his
blindness in one eye eliminated his depth perception.
* * * *
Due to Mr. Varnadore's inability to operate the
mechanical hands, ACD managers reassigned him to other
duties not requiring the use of mechanical hands.
Stip. at 9-11.
[20]
Varnadore testified that he was assigned to cleanup work. T.
93 (Varnadore). Costanzo testified that prior to assigning
Varnadore to do that work, Costanzo had been doing it himself.
T. 770 (Costanzo). Costanzo also testified that Varnadore was
negative and uninterested in his work. R. D. and O. at 28.
[21]
TRU periodically engaged in "campaigns" to process transuranic
material. Once the processing started, it needed to proceed very
rapidly in order to recover as much of the transuranic material
as possible. It is a very intensive effort. T. 1754 (Botts).
[22]
Deer killed on the Oak Ridge reservation were checked for
radioactivity. A mobile laboratory was set up for this purpose,
and the equipment calibrated. During hunting season the
laboratory performed liver and bone scans on dead deer, and
confiscated about three percent of the deer. R. D. and O. at 12.
[23]
Stokely wrote the following on Varnadore's performance
appraisal:
Bud's' training and capabilities are not very useful in
the radiochemical and activation analysis group.
However, He performs his assignments in a very
satisfactory manner. He is a willing worker.
Ex. 18-G.
[24]
Employee appraisals at ORNL were based on a fiscal year, from
October 1 of one year until September 30 of the next.
[25]
At the time of the FY-86 evaluation ACD rated employees on a
seven-level adjectival scale. "Acceptable" was above Needs
Improvement and Unacceptable, and below four other ratings. It
would have been a C-minus if translated to an ABC scale. T. 1312
(Shults). Starting in FY-87, ACD used a five level scale: DS
(Distinguished), CX (Consistently Exceeds), CM (Consistently
Meets), NI (Needs Improvement), and UA (Unsatisfactory).
Id.
[26]
This lack of qualifications and experience in chemistry was to
continue to cause problems for Varnadore, and explains the types
of jobs he was assigned following his return to work in 1990.
[27]
Ninety to ninety-five percent of OAG's work was environmental
analysis. T. 2168 (Maskarinec); T. 1466 (Shults).
[28]
Jenkins "felt Varnadore was spending too much time in telephone
conversations and personal contacts which could have been more
productively spent." R. D. and O. at 13.
[29]
No one else remembered Varnadore participating in any committee
discussions of the issue. See T. 1340 (Shults); T. 1842-
1848 (Keller proffer); T. 3248-3249 (Keller Stip.). On the other
hand, Shults remembered that Eldridge discussed the Grubb issue
with him on several occasions. T. 1337-1340 (Shults).
[30]
Each Group Leader in ACD drafted performance appraisals and
made initial rating recommendations. At the Section level the
recommended ratings were reviewed for fairness and consistency.
R. D. and O. at 22. The ratings could be changed by the Section
Head. The proposed appraisal and rating was then forwarded to
Shults, who discussed all ACD ratings in a meeting with the
Section Heads. The ratings were again reviewed to ensure that
standards were being applied consistently throughout ACD. The
final rating -- that approved by Shults -- was then placed on the
appraisal and the appraisal was discussed with the employee. R.
D. and O. at 22-23; T. 1310-1311, 1412-1415 (Shults).
[31]
In June 1989 the DOE Inspector General began an audit of the
problems associated with the Site Survey at ORNL and other
laboratories. Ex. 106. This led to a recommendation that DOE
disallow over $600,000.00 in costs incurred by Energy Systems.
In October 1991 that position was reversed by DOE, which
concluded that the data delivered by ORNL were usable, and the
problems that existed with the samples were in part caused by
DOE's failure to provide formal policy guidance. Ex. 218.
[32]
David Jenkins is not related to Roger Jenkins, Group Leader in
Special Projects. To avoid confusion I will refer to David
Jenkins by both first and last names.
[33]
"Mr. Varnadore could work only sporadically and was not
released for full time work because of chemotherapy and a broken
ankle until November, 1990." Stip. at 13.
[34]
A "home base" is where ORNL technicians are assigned desk
space. R. D. and O. at 8. Generally, a technician uses his or
her home base for phone calls and completing paperwork. Stip. at
18.
[35]
By the time Varnadore returned to OAG, the Environmental Site
Survey had been completed. "The workload was nowhere near what
it was at the height of the run that we were in. Therefore, we
were running . . . a more normal type operation . . . ." T. 162
(Varnadore).
[36]
In December Varnadore was on sick leave nine full days, on
vacation four full days, had two holiday days, and was on sick
leave portions of three days.
[37]
The language of the appraisal establishes that it was written
while Varnadore was still on leave. Ex. 18-D at 1. Seealso T. 2074 (Maskarinec).
[38]
"MOPs" are measures of performance, which are established for
the coming year for each employee at the time of his or her
performance appraisal.
[39]
In fact, Varnadore had been absent virtually all of July and
all of August, September, and October 1989. Ex. 219.
[40]
Because Caton had supervised Varnadore's work prior to June,
1989, Maskarinec consulted him in preparing Varnadore's
evaluation. T. 2074 (Maskarinec).
[41]
It is not disputed by anyone that Varnadore's extended absences
in FY-89 and FY-90 were for legitimate and grave reasons.
[42]
Energy Systems had a written policy that an employee could be
fired for extended absences even if they were for legitimate
medical reasons. The employee handbook provided that "an
excessive number of absences[,] excused or unexcused[,] or
unexcused absence for five or more consecutive days is cause for
termination." T. 1386 (Shults); T. 2816 (Bryson). Thus,
consistent with Energy Systems policy ACD could have fired
Varnadore for his extended absences.
[43]
Varnadore testified that he "noticed that Mr. Jenkins was
somewhat lax in paying attention to the sample work that he was
doing. Not having chemical knowledge, therefore, like I had
stated once before, all I knew was the procedure that I was
taught to follow, and that procedure was not being followed." T.
162 (Varnadore).
[44]
Varnadore testified that "sometime between November 1989 and
June 1990" he complained to Maskarinec:
Actually, I had not gone in with that purpose
[complaining about David Jenkins' preparation
technique] in mind. I went in discussing some stuff
that I was trying to locate. While I was there, I felt
like it might be a good opportunity to bring this issue
up. I commented to Mr. Maskarinec that I had observed
Mr. Jenkins being somewhat lax and that I felt like
that it might reflect on the entire group if this
procedure was not being followed. I felt like that it
probably would affect the samples in some way.
Now, I would like to verify that I have no idea how
it would affect it other than I felt like that if I was
given a procedure there was a reason for me to be given
that procedure and it should have been followed."
T. 172-173 (Varnadore).
[45]
Maskarinec denied that Varnadore raised the issue of David
Jenkins' sample preparation with him. The ALJ credited
Varnadore's testimony on this point. R. D. and O. at 16.
[46]
The move occurred in late January or early February 1990.
See discussion below.
[47]
Laing testified that he met with Howell one or two weeks before
the surveillance. R. D. and O. at 16. A "surveillance" was not
a covert operation. The subject of a surveillance was notified
ahead of time that his or her work procedures would be evaluated.
[48]
According to Moneyhun, Varnadore spent considerable time on the
telephone making personal calls and had many visitors. R. D. and
O. at 29. Moneyhun mentioned this to Roger Jenkins and probably
mentioned it to Guerin. R. D. and O. at 29.
[49]
Varnadore testified that after he was moved to E-163 he was
given "essentially no assignments." T. 175 (Varnadore); R. D.
and O. at 19. However, the parties stipulated that "[i]n 1990,
while assigned to Organic Analysis group, [Varnadore] was
assigned to perform some tasks for the Special Projects group
under Roger Jenkins." Stip. at 9. Jenkins testified that
Varnadore was assigned to coordinate the renovation of some
laboratory space. T. 2466 (Jenkins); R. D. and O. at 20.
[50]
He worked no full days in January, two full days in February,
one full day in March, three full days in April, and six full
days in May. Ex. 219.
[51]
According to Jenkins, Varnadore's performance in 1990 was poor
and had gone down hill from the previous time Varnadore had
worked for him. R. D. and O. at 29. Jenkins felt that Varnadore
had a poor attitude. Id.
[52]
Guerin felt that employees on long-term leave should be paid
for by the Division as a whole. Guerin also continued to be
concerned that his Section did not have work that suited
Varnadore's skills. T. 2281-2282 (Guerin).
[53]
As explained by the ALJ:
By being put on Division overhead Complainant was not
paid from a programmatic account but out of the
overhead which pays for the Division Director and
others who work for the entire division. This did not
affect Complainant's salary or job level; it did affect
the type of work he was assigned.
R. D. and O. at 20 n.8.
[54]
Shults had asked Wright to attend the meeting, but Wright was
"tied up doing something else". T. 2976 (Wright).
[55]
Varnadore worked only 12 full days and 39 partial days in all
of FY-90. Thus, Varnadore worked 13 percent of the time in FY-
90. Ex. 219. He was absent for over four months immediately
preceding his FY-90 evaluation. Id. Although
Maskarinec's statement that Varnadore was out "all year"
therefore was a bit exaggerated, it was not far off the mark.
[56]
The ALJ noted that one supervisor, Caton, "felt that Varnadore
was making a significant contribution to his group." R. D. and
O. at 26.
[57]
This was inaccurate. Varnadore received an Acceptable
(equivalent to a CM-Minus ) in FY-86, a CM rating in FY-87, a CM-
Minus rating in FY-88, an NI rating in FY-89, and a UA rating in
FY-90. R. D. and O. at 23-24. Varnadore had been told, however,
that the FY-86 evaluation would have been an NI but for the fact
that Shults hoped the higher rating would help Varnadore get a
job elsewhere. T. 319 (Varnadore); Ex. 18-A at 14-15.
[58]
There had been a history of complaints by Varnadore s
supervisors regarding his proclivity to spend significant time
visiting on the telephone and with co-workers who happened by.
Roger Jenkins first mentioned this problem in the FY-87
performance evaluation he wrote for Varnadore. Ex. 18-G.
Botts, who supervised Varnadore in the TRU on three occasions,
testified that "[a] number of shift leaders and people in the
group expressed a concern about him talking on the telephone
quite a bit . . . ." T. 1760-1761 (Botts). Guerin testified
that Varnadore's interruptions of others' work played a part in
his recommendation to Shults that Varnadore be removed from E-
163. R. D. and O. at 19. Caton, who had been the most favorably
disposed towards Varnadore of any of his supervisors, testified
that ". . . Mr. Varnadore spent as much or a little more time on
the telephone than the average person." T. 631-632 (Caton).
Roger Jenkins testified that when Varnadore returned from his
cancer surgery the amount of time he spent talking with
colleagues and on the telephone increased markedly. "Very few
times did I actually see him engage in what I considered to be
productive activity." T. 2467 (R. Jenkins).
[59]
Varnadore was paid his full salary throughout his illness. T.
1453 (Shults).
[60]
Building 4500 South (4500S) housed most of ACD, including the
offices of Shults, Wright, and many of ACD's laboratories.
See Ex. 217.
[61]
As part of an effort to clean up laboratories in preparation
for a Department of Energy inspection (Tiger Team inspection),
ACD decided to collect surplus reagent grade chemicals in Lab E-
259. R. D. and O. at 21. The long term plan was to inventory
the chemicals, make sure they were in proper containers, with
caps intact, and donate them to "historically black colleges and
universities." R. D. and O. at 21. Varnadore was assigned to
prepare the inventory and to make sure that the bottles of
chemicals were in good shape. The chemicals collected in E-259
for purposes of donation were solids.T. 1399 (Shults);
T. 3098, 3105 (Wright).
[62]
The problem with the computer related to the fact that the
software program was created on one computer and then transferred
to the laptop. Something about the way the program was set up
caused the laptop to lose information saved on its hard drive
when the laptop was turned off for several hours.
[63]
The chemicals in E-259 were the reagent grade solids that ACD
had planned to donate to historically black colleges and
universities, and that Varnadore had worked on beginning in
November 1990. At some point in the late spring of 1991 that
plan was abandoned and it was decided that the chemicals would be
disposed of as waste. Once that decision was made, by operation
of the Resource Conservation Recovery Act, E-259 became a "less
than 90 day hazardous waste accumulation" area. R. D. and O. at
21; See T. 3013-3015 (Wright). This occurred on June 3, 1991.
T. 3014 (Wright).
The nature of the chemicals did not change, however. They were
still solid reagent grade chemicals, stored in bottles with caps,
and in turn placed in boxes. Varnadore was assigned to "fill out
the waste disposal sheets that would go with each box of
chemicals, and to interface with the Waste Operations group to
see what the best most efficient, way to do that was." T. 3012
(Wright).
[64]
On March 19, 1991, CBS national news carried a story regarding a
recently issued report (the Wing Report) on cancer rates among
Oak Ridge facilities employees. Ex. 192. Varnadore was
interviewed on that news segment:
Commentator Hayes: Bud Varnadore isn't surprised. An
Oak Ridger recovering from colon cancer, he says he has
seen plenty of cancer at work.
Varnadore: To be honest with you, I've known a lot of
people with cancer and I've known several people who
died with cancer.
Commentator Hayes: At Oak Ridge?
Varnadore: Right. A good friend of mine, buried him
last July 4.
Id. Varnadore alleged that his participation in the news
story was protected activity under the environmental
whistleblower statutes.
[65]
R-151 had not been used as a home base for three years. R. D.
and O. at 31.
[66]
Space was always at a premium in ACD. T. 2986-2987 (Wright);
T. 1392, 1551-1557 (Shults); T. 3153 (Hopkins).
[67]
These were the drums that Wright had assigned Varnadore to
arrange for disposal. See p. 42 above.
[68]
These countertops were wrapped and were in R-151 for a week or
two. T. 2830-2832 (Biggs); T. 3009 (Wright).
[69]
On advise of the attorney Varnadore had consulted in late 1990,
Varnadore had begun to keep a diary of workplace events. T. 292
(Varnadore).
[70]
Wright testified that "[p]ractically all of [Varnadore's] work"
involved being in places other than of R-151. T. 2999 (Wright).
[71]
"Radiation Protection, also called Health Physics (HP) is a
department at ORNL that concerns itself with radiation protection
and control." Stip. at 18.
[72]
"A REM is a measure of exposure to radiation. One REM equals
one thousand (1000) millirem." Stip. at 10.
[73]
An exposure of 0.875 mr/hr of radiation means that if Varnadore
sat at his desk for 2000 hours (a typical work year) he would
have been exposed to 175 millirem of radiation (0.875 x 2000 =
175). DOE limits worker exposure to 5000 millirem of radiation
per year, over 28 times the dose Varnadore would have received if
he sat at his desk in R-151 all the time for a year.
[74]
Hollis had surveyed the drums in R-151 in January 1991. T.
2913 (Hollis). Health physics procedures at ACD require that
"anything that reads greater than 3 millirem per hour at 30
centimeters must be roped off and posted as a radiation area."
T. 2915 (Hollis). Hollis had tagged the drums for radioactivity.
However, the radiation levels being emitted from the drums did
not warrant that she rope them off and post the area. T. 2914-15
(Hollis).
[75]
Wright testified that he knew of no uncontained mercury in E-
259 when he recommended that Varnadore s home base be moved
there. T. 3035-3036 (Wright).
[76]
Hubbard was a friend and co-worker of Varnadore's. He
volunteered to contact Industrial Hygiene for Varnadore. T. 259
(Varnadore).
[77]
"Industrial Hygiene (IH) is the department at ORNL that
concerns itself with exposures to chemicals and other industrial
hazards." R. D. and O. at 8.
[78]
The PEL for mercury was established by the Occupational Safety
and Health Administration and is based on an assumption that an
employee may safely be exposed at that level for his or her
entire working life. See 29 U.S.C. § (b)(5) (1988).
[79]
The ALJ found:
Under the circumstances, the record does not
permit a finding that the health consequences
to complainant of the exposures in the two
rooms in a physical sense were adverse or
that adverse physical consequences are
probable in the future.
R. D. and O. at 80.
[80]
In FY-91 Varnadore missed 49 days of work for either health or
personal reasons. Ex. 219. The average ACD employee missed
between four and six days a year for these reasons. T. 3060
(Wright). Thus, although Varnadore's attendance was improved
from the previous year, it was still well outside the norm for
the Division.
[81]
Varnadore s participation in a news broadcast related to
possible elevated cancer rates among Oak Ridge Reservation
employees is not protected activity under the
environmental whistleblower provisions. See p. 16 n.18
above.
[82]
The ALJ cannot have intended to find that assignment of
Varnadore to a home base by himself constituted isolative adverse
action, as the ALJ approved of Varnadore's assignment in December
1991 to G-12, an office which Varnadore shared with no one. R.
D. and O. at 69. It was not uncommon for an ACD technician to be
assigned a home base by him- or herself. See, e.g., T.
3091 (Wright). The ALJ also found that R-151 and E-259 were not
"physically adverse." R. D. and O. at 80.
[83]
The ALJ did not find that the removal of Varnadore from sample
preparation work upon his return in November 1989 was
retaliatory.
[84]
Energy Systems also challenges some aspects of the relief
recommended by the R. D. and O.
[85]
15 U.S.C. § 2622(b) (TSCA) (1988); 33 U.S.C. § 1367(b)
(1988) (WPCA); 42 U.S.C. § 300j-9(I)(2)(A) (1988) (SDWA); 42
U.S.C. § 6971 (1988) (SWDA); 42 U.S.C. § 7922(b)(1)
(1988) (CAA); 42 U.S.C. § 9610(b) (1988) (CERCLA).
[86]
For purposes of determining whether Varnadore's November 20,
1991 complaint was time barred I assume, but do not decide, that
the ALJ correctly found that each of these actions constituted
unlawful retaliation against Varnadore.
[87]
Varnadore was moved to a different home base, G-12, on December
9, 1991. R. D. and O. at 37.
[88]
Evans dealt with a 1968 act of overt discrimination
against Evans, which was never challenged, and a neutral
seniority system which perpetuated the effects of the previously
unchallenged discrimination against Evans, who sued in 1972.
[89]
In an amendment to his supplemental complaint, filed on April
13, 1992, Varnadore alleged that Energy Systems retaliated
against him in 1989 by failing to select him to fill the position
of Administrative Assistant to the Director of ACD. That
allegation is also time barred.
[90]
In fact, the only action on anyone s part between 1985
and November 1989 that the ALJ found to be retaliatory was
Varnadore's FY-89 performance appraisal.
[91]
The only limited exception to this general principle arises in
a dual motive case. Where an employee proves (i.e.,
establishes by a preponderance of the evidence) that illegitimate
reasons played a part in the employer s decision, the employer
then has the burden of proving by a preponderance of the evidence
that it would have taken the adverse action against the employee
for the legitimate reason alone. Price Waterhouse v.
Hopkins, 490 U.S. 228, 237-248 (1989). The dual motive
analysis does not apply in this case.
[92]
The ALJ made no finding that Shults was aware of the David
Jenkins incident prior to the filing of the complaint.
[93]
Hostile work environment cases involve issues of the
environment in which an employee works, and not tangible job
detriment such as dismissal, failure to hire, or assignment to a
particular office space. See, e.g., Rogers v. EEOC, 454
F.2d 234 (5th Cir. 1971), cert. denied, 406 U.S. 957
(1972)(Hispanic employee claimed that employer discriminated
against her in violation of Title VII of the Civil Rights Act of
1964 because it gave discriminatory service to its Hispanic
clientele); Taylor v. Jones, 653 F.2d 1193, 1198-99 (8th
Cir. 1981) (department-wide dismal racial atmosphere
characterized by threats, fights, epithets, and display of a
hangman s noose); Leonard v. City of Frankfort Electric and
Water Plant, 752 F.2d 189 (6th Cir. 1985) (pattern of racial
epithets by supervisors); Henson v. City of Dundee, 682
F.2d 897, 902 (11th Cir. 1982) ( A pattern of sexual harassment
inflicted upon an employee because of her sex is a pattern of
behavior that inflicts disparate treatment upon a member of one
sex with respect to terms, conditions, or privileges of
employment. There is no requirement that an employee subjected
to such disparate treatment prove in addition that she has
suffered tangible job detriment. ); Meritor Savings Bank v.
Vinson, 477 U.S. 57 (1986) (sexual harassment which does not
affect economic or tangible aspects of employment is
nonetheless actionable under Title VII).
[94]
That complaint was ultimately docketed as 94-CAA-2.
[95]
These complaints were ultimately docketed as 94-CAA-3.
[96]
The ALJ recommended that all but one of the alleged acts of
retaliation be dismissed.
[97]
In Varnadore III (see p. 4 n.4 above), which also
involves allegations of post-complaint retaliation, the ALJ
issued a Recommended Order of Dismissal without an evidentiary
hearing. That case is also awaiting secretarial review. If I
deem it prudent, I will also consider that case in conjunction
with the issues remaining in Varnadore I and the issues
raised in Varnadore II.
