Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220
(412) 644-5754 (412) 644-5005 (FAX)
Issue date: 08Mar2002
CASE NO. 2001-ERA-37
In the Matter of:
HUGH TURPIN
Complainant
v
LOCKHEED MARTIN CORPORATION,
LOCKHEED MARTIN ENERGY SYSTEMS, INC., and
BWXT Y-12, LLC
Respondents
ORDER DENYING RESPONDENTS' MOTION FOR SUMMARY DECISION AND
COMPLAINANT'S CROSS MOTION FOR SUMMARY JUDGMENT
This proceeding arises under the whistleblower protection provisions of the Energy Reorganization Act of 1974 (ERA), § 210(a) as amended, 42 U.S.C. § 5851. A hearing is scheduled before the undersigned in Knoxville, Tennessee on March 19-21, 2002. On February 14, 2002, Respondents filed a Motion for Summary Decision pursuant to 29 C.F.R. § 18.40. At counsel's request, Complainant was given until March 6, 2002 to reply. Complainant filed a timely response to the Motion for Summary Decision and a Cross Motion for Summary Judgement on March 6.
A motion for summary decision in an ERA whistleblower case is governed by 29 C.F.R. §§ 18.40 and 18.41. A party opposing a motion for summary decision "must set forth specific facts showing there is a genuine issue of material fact for the hearing." 29 C.F.R. § 18.40 (c). Under the analogous Federal Rule of Civil Procedure 56 (e), the non-moving party "may not rest upon mere allegations or denials of his pleading, but instead must set forth specific facts showing that there is a genuine issue for trial . . . Instead, the party opposing summary judgement must present affirmative evidence in order to defeat a properly supported motion for summary judgement." Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986). The determination of whether a genuine issue of material fact exists must be made in the light most favorable to the non-moving party. Gillilan v. Tennessee Valley Authority, 91-ERA-31 and 34, (Sec'y Aug. 28, 1995.)
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Respondents contend that Complainant can not establish an essential element of his case because he has no admissible evidence that his claimed protected activity was a contributing factor in the alleged adverse employment actions. Respondents assume that the first three elements of a prima facie case could be established. 1
1 To establish a prima facie case, the complainant must show that he engaged in protected activity, that he suffered an adverse employment action, that his employer was aware of the protected activity, and he must present evidence sufficient to raise an inference that protected activity was the likely reason for the adverse employment action. Larry v. Detroit Edison, 86-ERA-32 (Sec'y June 28, 1991).