Department of Labor Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
DATE ISSUED:NOVEMBER 20, 1997 Case No. 97-ERA-17
In the Matter of:
DELBERT L. COX &
LINDA J. COX,
Complainants
v.
LOCKHEED MARTIN ENERGY SYSTEMS, INC.
LOCKHEED MARTIN CORPORATION,
Respondents
DECISION AND ORDER DENYING MOTIONS
FOR SUMMARY JUDGMENT
These proceeding arise under the "whistleblower" protection
provisions of the Energy Reorganization Act of 1974 (hereinafter "ERA"), §
210(a), as amended, 42 U.S.C. § 5851, and implemented by 29 C.F.R. § 24.1
etseq. On September 24, 1996, Delbert L. Cox and his wife, Linda J. Cox,
jointly filed a charge of whistleblower discrimination with the Wage & Hour Division of the
Department of Labor under the ERA and six environmental statutes. On May 13, 1997, Respondents
filed their Motions for Summary Judgment. On November 15, 1997, Complainants filed their
response to the motions for summary judgment.
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Contention of the Parties
In regard to the motions for summary judgment, Respondents claim that Mr.
Cox did not engage in any protected activity of which the decision makers were aware of at the time
they made their decisions. In regard to Linda J. Cox, Respondents argue that summary judgment
should be granted because the decision to eliminate Ms. Cox's position as a Facility Operator
Specialist I was not in any way influenced by her alleged protected activity. If Complainants
establish a primafacie case, Respondents concede that they have the burden of
persuasion to produce evidence that the terminations were motivated by legitimate,
nondiscriminatory reasons. Bryant v. Ebasco Services, Inc, 88-ERA-31 slip op. at 3-4
(Sec. April 21, 1994); Rainey v. Wayne State University, 89-ERA-48, slip op. at 5 (Sec.
April 21, 1994). Respondents note that the decisions to terminate the positions were made
necessary because of government budget decisions. Thus, Respondents note that Complainants must
then show that the alleged legitimate reasons were a pretext and that the reasons for the terminations
were discriminatory. Dysert v. Florida Power Corp., 93-ERA-21, slip op. at 5 (Sec'y
August 7, 1995), aff'dDysert v. Dept. of Labor, 105 F.3d 607 (11th Cir. 1997).
Respondents indicate that Complainants cannot establish discrimination simply by stating their own
conclusion that the terminations were discriminatory. Locke v. Commercial Union Ins.
Co., 676 F.2d 205, 206 (6th Cir. 1982); LaGrant v. Gulf & Western Mfg. Co., Inc.,
748 F.2d 1087, 1091 (6th Cir. 1984); Gagne v. Northwestern National Insurance Co., 881
F.2d 309, 316 (6th Cir. 1989); Simpson v. Midland-Ross Corp., 823 F.2d 937, 941 (6th
Cir. 1987). In regard to Complainants argument that bumping should have been allowed,
Respondents argue that the Sixth Circuit has repeatedly held that an employer in the midst of an
economically motivated reduction in force has no duty to transfer an employee to another position
within the company. Barnes v. GenCorp Inc., 896 F.2d 1465, 1469 (6th Cir. 1989).
On the other hand, Complainants argue that this case is a dual motive case
whereby Respondents cannot show that protected activity did not contribute to the decision to issue
the reduction in force. Complainants argue that Respondents are attempting to show that the
reduction in force was an ordinary layoff decision. However, Complainants insist that these are
disputed material facts requiring trial.
Discussion
The standard for granting summary decision in an ERA whistleblower case
is governed by 29 C.F.R. § 18.40 and 18.41. The section permits an administrative law judge
to recommend summary decision for either party where "there is no genuine issue as to any
material fact and ... a party is entitled to summary decision." 29 C.F.R. § 18.40 (d).
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).
A party opposing a motion for summary decision "must set forth
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specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. §
18.40 (c). Pursuant to the Department of Labor regulations and the developed case law, the non-moving party cannot defeat a supported motion for summary judgment by resting on allegations or
denials. 29 C.F.R. § 18.40 (c); Foster v. Arcata Associates, Inc., 772 F.2d 1453,
1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). The granting of
summary judgment is appropriate where the parties have been afforded the opportunity for discovery
and the non-moving party is unable to demonstrate that he will be able to produce sufficient evidence
at trial to withstand a motion for a directed verdict. Street v. J.C. Bradford & Co., 886 F.2d
1472, 1476-1481 (6th Cir. 1989).
In this case, there are various issues of material fact that cannot be dealt with
at this time without a hearing to determine the credibility of the witnesses. Respondents' argument
that Complainants did not engage in any protected activity of which the decision makers were aware
of at the time they made their decisions to terminate the positions is a factual issue. In addition, the
determination of pretext is also a factual issue. If a genuine issue of material fact is present the
motion should be denied and the matter decided after discovery and hearing. SeeNunn
v. Duke Power Co., 84-ERA-7 (Sec'y July 30, 1987)(remand). Furthermore, the Secretary of
Labor indicated that the Supreme Court in Poller v. Columbia Broadcasting System, Inc.,
368 U.S. 464, 473 (1962) held that the summary decision procedures should be used
"sparingly" when "motive and intent play lead roles." Richter v.
Baldwin Associates, 94-ERA-9 to 10 (Sec'y Mar. 12, 1986)(order of remand). The Secretary
additionally noted that the above rule is especially applicable to whistleblower proceedings because
the "presence or absence of a retaliatory motive most often must be proved by circumstantial
evidence and the inferences drawn therefrom." Id.
Accordingly, this Court must deny the motions for summary judgment as there
exists issues of material facts.
It is, therefore, ORDERED, ADJUDGED and
DECREED that Respondents' Motions for Summary Judgment are hereby
DENIED.
Entered this 20th day of November, 1997, at Metairie, Louisiana.