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

   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 et seq. 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.

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 prima facie 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'd Dysert 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.

   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

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. See Nunn 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.

      JAMES W. KERR, JR.
      Administrative Law Judge

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