ML020660173

Reply in Support of Tennessee Valley Authority'S Motion for Summary Decision

ML020660173
Person / Time
Site:	Browns Ferry, Watts Bar, Sequoyah
Issue date:	03/01/2002
From:	Slater J Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
Byrdsong A
References
+adjud/rulemjr200506, 50-259-CIVP, 50-260-CIVP, 50-296-CIVP, 50-327-CIVP, 50-328-CIVP, 50-390-CIVP, ASLBP 01-791-01-CIVP, EA-99-234, RAS 4019
Download: ML020660173 (27)

Text

Ras qo~cq DOCKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AN D LICENSING BOARD 2002 MAR -5 AM II: 17

,,FICL . . LisfARY RULi1 XIHGS AND IN THE MATTER OF ) Docket Nos. 50-390-CivP; ADJUDiCATIONS STAFF

) 50-327-CivP; 50-328-CivP; TENNESSEE VALLEY AUTHORITY ) 50-259-CivP; 50-260-CivP;

) 50-296-CivP

)

(Watts Bar Nuclear Plant, Unit 1; ) ASLBP No. 01-791-01-CivP Sequoyah Nuclear Plant, Units 1 & 2; )

Browns Ferry Nuclear Plant, ) EA 99-234 Units 1, 2, & 3) )

REPLY IN SUPPORT OF TENNESSEE VALLEY AUTHORITY'S MOTION FOR

SUMMARY

DECISION In this proceeding, Tennessee Valley Authority (TVA) has requested a hearing with respect to a May 4, 2001, order from the NRC Staff imposing a civil monetary penalty of $110,000. The order is based on a February 7, 2000, notice of violation (NOV) against TVA for allegedly violating 10 C.F.R. § 50.7 (2001) by discriminating against Gary L. Fiser, a former TVA employee, for engaging in "protected activities."

Pending before the Board is TVA's motion for summary decision on the grounds that there is no genuine issue as to any material fact and that it is entitled to a decision in its favor as a matter of law. As set forth in its initial brief, the bases of TVA's motion are twofold: (1) contrary to the NRC Staffs assertion that Thomas J.

McGrath was "knowledgeable and critical" of Fiser's protected activity, there is absolutely no evidence that he had any awareness that Fiser had purportedly raised concerns in 1991-93 or filed a 1993 DOL complaint prior to 1996; and (2) the NRC Staff inference of discrimination based in part upon the "temporal proximity between 1

ienp /lte icsc tV-o 4

the appointment of [McGrath and Dr. Wilson C. McArthur] as Fiser's supervisors and his non-selection in July 1996" (Feb. 7, 2000, letter at 3) is contrary to law. 1

1. The NRC Staff's contention that TVA filed an improper motion for summary decision is without merit. The NRC Staff "requests that the Board deny TVA's motion for summary decision for failure to comply with regulatory requirements" (resp. at 25). It claims that TVA did not "annex a statement of undis-puted facts to its motion for summary decision" as required by 10 C.F.R. § 2.749(a)

(2001) (resp. at 25). To the contrary, TVA's "statement of undisputed facts" that it "contends that there is no genuine issue to be heard" (10 C.F.R. § 2.749(a)) is set forth in its brief in support of its motion for summary decision. (TVA br. at 3-9). The rule does not preclude the inclusion of the moving party's statement of facts in its brief.

The NRC Staff's argument is frivolous.

2. The NRC Staff points to no facts in the summary decision record showing that McGrath had knowledge of Fiser's protected activity prior to the filing of his 1996 complaint. Instead, it speculates that he had such knowledge.

First, the NRC Staff states that McGrath "admitted" that he had "likely seen" or read a newspaper article in the Dayton HeraldNews (Exhibit No. 80) about the DOL complaint filed by William Jocher that "discussed Fiser's 1993 complaint" (resp.

at 32). That is wrong. McGrath did not admit, explicitly or implicitly, that he read the June 14, 1994, Dayton HeraldNews article about Jocher's complaint. The transcript illustrates the NRC Staffs mischaracterization of McGrath's clear and unambiguous testimony:

Q. And I asked you earlier about Jocher's DOL complaint. Do you recall---it's my understanding there was a lot of newspaper articles about that at the time---[remember] ever reading any of those?

1 TVA will cite to its initial brief as "TVA br. at " and to NRC Staff's eviden-tiary submission as "Exhibit No. _." All other citations to the record are to TVA's previously submitted evidentiary submission.

2

A. I probably did [Exhibit No. 79, McGrath dep. at 50].

As reflected above, McGrath did not testify that he had read or "likely seen" the article set forth in Exhibit No. 80. Nor does his testimony remotely suggest that he had read or "likely seen" any newspaper article containing any information about Fiser's 1993 complaint. The NRC Staff fails to identify which of the numerous articles written about Jocher's complaint that McGrath did in fact read (resp.

at passim). The NRC Staff simply offers up speculation that McGrath read the June 14, 1994, Dayton Herald News article. As the Supreme Court has made clear, to defeat a motion for summary judgment, the NRC Staff is required to present "affirma-tive evidence." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986) ("Instead, the plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment" (emphasis added)). Speculation, as is presented here, will not suffice to defeat TVA's properly supported motion for summary decision. 2 Anderson, 477 U.S. at 257.

Second, the NRC Staff asserts that "the 1993 DOL complaint is not the only protected activity in which Fiser engaged," "at least two of which were known to McGrath--the dispute over trending, and the dispute over the three hour PASS require-ment" (resp. at 32). Again, the NRC Staff engages in speculation. As to the "trend-ing" issue, Fiser concedes that sometime in early 1992 the Nuclear Safety Review Board (NSRB) gave him the directive to "place in procedures where [chemistry data]

trends are required to be generated every day" (Exhibit No. 12, Fiser dep. at 128).

2 The NRC Staff also speculates that the speculation of others should be consi-dered by the Board as evidence of McGrath's knowledge of Fiser's protected activity.

For example, the NRC Staff states that "Grover perceived that McGrath's negative per-ception of Fiser was due to Fiser's DOL activities" (resp. at 9; emphasis added). This is speculation of the rankest order, and is not the affirmative evidence required to over-come the undisputed fact that McGrath was unaware of Fiser's protected activity. See Lewis v. Young Men's ChristianAss'n, 53 F. Supp. 2d 1253, 1255 (N.D. Ala. 1999)

("'Tenuous insinuation' and empty speculation based on loose construal of the evidence will not satisfy the nonmovant's burden."), affd, 208 F.3d 1303 (11th Cir. 2000).

3

Fiser concedes that he "could not meet that requirement" (id.) "[b]ecause it would have required work seven days a week, holidays, et cetera" (id. at 129). In his refusal to perform this task, Fiser did not claim that providing such information would implicate nuclear safety concerns (id. at 128-29). Nor did he claim that his inability to provide such information would violate any NRC rules (id.).

To manufacture protected activity where none exists, the NRC Staff leaps to the speculation that Fiser's declaration, that "I could not put that in procedures" a requirement to provide the chemistry data trends seven days a week is protected activity (Exhibit No. 12, Fiser dep. at 128; resp. at 31). To the contrary, if Fiser told the NSRB in 1992 of his inability to provide certain requested data, that was not protected activity as a matter of law. The NSRB was established pursuant to NRC and industry guidelines to provide safety oversight to nuclear plants (McArthur decl.

¶ 2). In fact, Fiser admits in his 1993 complaint ("Sequence of Events" at 1-2) that his organization at Sequoyah discontinued providing daily information to the Sequoyah plant operators which the NSRB felt would contribute to the safe operation of the plant.

Fiser refused to resume providing that information, not because he felt it would cause a safety problem or that providing such information would violate the Atomic Energy Act (AEA) or the Energy Reorganization Act (ERA), but because of the administrative inconvenience to him (Exhibit No. 12, Fiser dep. at 128-29).

According to the Secretary of Labor, management is entitled to establish job responsibilities and work schedules, and an employee's lack of performance is not protected by simply claiming an inability to meet those expectations. Skelly v. TVA, No. 87-ERA-8, slip op. at 8 (ALJ Feb. 22, 1989), adopted (Sec'y Mar. 21, 1994)

("[T]he complaints Skelly voiced to his co-workers and supervisors related to the quan-tity of work Skelly was required to produce" "was not at the expense of safety and thus no safety issue is involved" and "cannot conceivably be perceived as being protected 4

by Section 5851.") (id. at 10); Sutherland v. Spray Sys. Envtl., No. 95-CAA-1, slip op. at 3 (Sec'y Feb. 26, 1996) ("Management has the prerogative to determine which means it deems to be most effective provided such means comport with requisite safety and health standards. There is no requirement for management to engage in a dialog with the refusing workers as to which procedure would be most efficacious."). See also Crosby v. United States Dep't of Labor, 53 F.3d 338 (table), 1995 WL 234904 (9th Cir. Apr. 20, 1995; copy attached), affg Crosby v. Hughes Aircraft Co.,

No. 85-TSC-2 (Sec'y Aug. 17, 1993) (court affirming Secretary's determination that the complainant was discharged for proper reasons when he refused to work on a project because he did not like the protocol). 3 Of equal significance, even if the refusal to provide such information could conceivably rise to the level of protected activity, Fiser never even told the NSRB that he believed that there was any nuclear safety hazard in providing the requested data or it would violate the AEA or the ERA (Exhibit No. 12, Fiser dep.

at 128-29). Given this undisputed fact, the NRC Staff has not raised a genuine issue of disputed fact, that any NSRB member who was present at the January 1992 meeting could have retaliated against Fiser for engaging in protected activity simply because none of the members were aware that he had engaged in protected activity. Bartlik v.

TVA, No. 88-ERA-15, slip op. at 2 (Sec'y Apr. 7, 1993), aff'd sub nom. Bartlik v.

United States Dep't of Labor, 73 F.3d 100 (6th Cir. 1996); Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1987).

As to the post accident sampling system (or PASS) matter, the NRC Staff opines that "Fiser and Jocher disagreed with Sequoyah plant management over the 3 It would indeed be anomalous if any employee could excuse his poor performance by refusing to provide information helpful to safely operate a nuclear plant by claiming that his refusal to fulfill his job responsibilities entitled him to immunity under the ERA. The Board's acceptance of such an absurdity would stand the employee protection provision of the ERA on its head.

5

proper implementation of the three hour requirement for conducting post-accident sampling system (PASS) analyses" (resp. at 31), and that this disagreement constitutes protected activity on the part of Fiser (id. at 31, 32). However, this is a flat out incorrect statement of the facts. In his December 11, 2001, deposition, Fiser disavows that he had any disagreement with Jocher or Sequoyah plant management (Exhibit No. 12, Fiser dep. at 136-37). He testified as follows:

Q. Isn't that reflected in the minutes of the NSRB that the two of you could not agree, and it occurred and it continued to occur from meeting to meeting as the NSRB was reviewing the PASS system at Sequoyah?

A. I would have to--what I recall is us having questions about, sorting this out, giving a test and documenting it. I don't have knowledge of an explicit disagreement between Jocher and I. I need to see that, I guess. I remember there was a significant disagreement between Jocher and Jack Wilson, the site VP. That's what I recall

[Exhibit No. 12, Fiser dep. at 137; emphasis added].

Since Fiser had no disagreement with Sequoyah plant management over the implemen-tation of the three-hour requirement for conducting PASS analyses, under the NRC Staff's own theory, he could not have engaged in protected activity regarding the PASS matter. 4 In its zeal to overcome its lack of any proof that McGrath had any knowledge of Fiser's protected activity before the filing of his 1996 complaint, the NRC Staff suggests that the Board should reject this defense and infer that McGrath has the requisite because "both the AU and the ARB rejected TVA's ignorance 4 Nor did Fiser raise the issue about the ability of the Sequoyah technicians to meet the three-hour PASS requirement. It was raised by the NSRB in November 1991 (Exhibit No. 41, McGrath's PEC dep. at 85-86; McArthur decl., ex. 1 at 14, ex. 2 at 14-15, ex. 3 at 1, 3-4, 23).

6

defense" in three other unrelated TVA cases (resp. at 33).5 This argument is ludicrous; the NRC Staff cites to no supporting authority, because there is none.

In advancing this argument, the NRC Staff ignores the fact that this proceeding is de novo (10 C.F.R. §§ 2.205(d), (e) (2001)), and the Staff carries the burden of establishing that the NOV and civil penalty are justified based on the evidence in this case. See Radiation Technology, Inc., ALAB-567, 10 NRC 533, 536-37 (1979). Simply put, this case rises and falls on its own facts, not the facts in other cases. Indeed, the alleged discriminating officials in the other TVA cases cited by the NRC Staff are not the same officials in this proceeding. Similarly, the challenged personnel actions involved in the other cases are not involved in this proceeding. This is a red herring.

Moreover, two of the cases cited by the NRC Staff-Jocher and Klock-were settled after the issuance of AU recommended decisions, but before final decisions were issued. The law is clear that "AU recommended decisions in ERA cases are simply that and have no precedential value unless explicitly adopted by the Secretary." Hill v. TVA, 87-ERA-23 and 24, slip op. at 7 n.4 (Sec'y Dec. Apr. 21, 1994), aff'd, 66 F.3d 1331 (6th Cir. 1995). The third case-Overall-iscurrently before the Sixth Circuit Court of Appeals on appeal, involves different technical issues, different plants, and different decisionmakers, and is unrelated to this case as described above.

The NRC Staffs final argument on this point is that "[e]ven if the Board accepts TVA's argument that McGrath lacked knowledge of Fiser's protected activity, TVA is still not entitled to summary judgment" because "it would have no impact on TVA's violation because there is no dispute that McArthur, the other wrongdoer in this 5 The cases to which the NRC Staff refers (resp. at 33) are Overall v. TVA, 97-ERA-53 (ALJ Apr. 1, 1998) (ARB Apr. 30, 2001); Jocher v. TVA, 94-ERA-24, (ALJ July 31 1996) (ARB June 24, 1996); and Klock v. TIVA, 95-ERA-20 (ALJ Sept. 29, 1995) (ARB May 30, 1996).

7

case, had knowledge of Fiser's protected activities" (resp. at 33). In this last argument, the NRC Staff acknowledges that McGrath's lack of knowledge "would mean that McGrath was cleared of wrongdoing" (id.). This admission undercuts any inference that McArthur was a "wrongdoer." The facts in the summary decision record are undisputed that McGrath, not McArthur, was the architect of the 1996 reorganization of Operations Support, the organization in which Corporate Chemistry was located (Exhibit No.79, McGrath dep. 8-15, 17-18; McArthur decl. ¶ 7). The facts also are undisputed that it was McGrath who rejected the plan that was proposed and presented by Grover that would have allowed Corporate Chemistry to reduce its budget by 17 percent, permitting all of the incumbents, including Fiser, to keep their jobs (resp. at 10). Instead, as the NRC Staff points out, "McGrath rejected this plan and insisted that Grover and McArthur develop a plan that would accomplish the entire 40 percent reduction in the first fiscal year" (resp. at 10).

3. The NRC Staff does not cite to any legal authority refuting TVA's position that an inference of discrinination based on temporal proximity must be measured between the date of the protected activity and an adverse action. Instead, the NRC Staff continues to insist that "the temporal proximity between McArthur and McGrath becoming Fiser's supervisors and his nonselection" is the proper measurement, contrary to the law enunciated by the Supreme Court (Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 121 S. Ct. 1508, 1511 (2001) (holding where "temporal proximity" is relied upon to infer discrimination, it is the time between the "employer's knowledge of protected activity and an adverse employment action" that is subject to measurement) and the Sixth Circuit. TVA v. Frady, 134 F.3d 372 (table), 1998 WL 25003, **3 n. 1 (6th Cir. Jan. 12, 1998; copy attached) ("We believe that the date of the [DOL] complaint, January 21, 1991, is the more appropriate date to use" in measuring temporal proximity.); Hafford v. Seidner, 183 F.3d 506 (6th Cir. 1999).

8

In its response, the NRC Staff failed to address TVA's contention that even if the Board were to subscribe to its theory that temporal proximity should be based on when McGrath and McArthur became Fiser's superiors, no discrimination could be inferred as a matter of law (TVA br. at 15). As the courts instruct, "the temporal proximity must be 'very close.'" Clark County Sch. Dist. v. Breeden, 121 S. Ct. at 1511; Warren v. Ohio Dep't of Pub. Safety, No. 00-3560, 2001 WL 1216979, at *4 (6th Cir. Oct. 3, 2001; copy attached). For example, in a recent decision handed down by the Eighth Circuit Court of Appeals, the court held that a 37-day period between alleged protected activity and adverse action was insufficient to infer discrimination. See Curd v. Hank's Disc. Fine Furniture, Inc., 272 F.3d 1039, 1041 (8th Cir. 2001). The NRC Staff ignores the fact that McArthur became Fiser's second-level supervisor in April 1994, which lasted until August 1994 (TVA br. at 4, 15), a period much longer than the 37-day period in Curd, and the NRC Staff does not allege that he took any action against Fiser. A full two years would pass before McArthur would again become Fiser's supervisor. Further, McGrath became the Acting General Manager of Operations Support in October 1995 (Exhibit No. 79, McGrath dep. at 17-18), nearly nine months before the purported discrimination-again a period longer than the 37-day period in Curd. These undisputed facts point out that even measured using the NRC Staff's standard, there is no temporal proximity here since McArthur and McGrath could have taken action against Fiser much earlier, had they been so motivated.

4. The NRC Staff's contention that Kent's statement about Fiser's DOL complaint prior to the interview constitutes a per se violation of Section 211 has no basis in fact or law (resp. at 47-48).6 As the NRC Staff 6 Charles Kent (Manager of Radiological and Chemistry Control at Sequoyah),

was a member of the Selection Review Board (SRB) that was impaneled to review the relative qualifications of the candidates for the positions of Program Manager, 9

acknowledges in its response, Kent "testified that he told McArthur that, in light of Fiser naming McArthur as a discriminating official in the DOL complaint, perhaps he should not say anything during the interviews" and that "he should not participate in the interviews" (id. at 21, 47). McArthur did not participate in the interviews. In a similar scenario, the Milestone Independent Review Team (MIRT) found that it is reasonable to inform responsible managers of employees' protected status when possible adverse actions, such as reductions in force, are contemplated "to ensure that they had not been targeted specifically for reduction." See Report of Review, Allegations of Discrimination in NRC Office of Investigations Case Nos. 1-96-002, 1-96-007, 1-97-007 and Associated Lessons Learned, at 13 (NRC March 12, 1999).

The MIRT determined that such disclosure "is not information sufficient to provide a reasonable expectation that a violation of section 50.7 can be shown by a preponderance of the evidence." Id. at 14.

The NRC Staff cites to Earwood v. Dart Container Corp., 93-STA-0016 (Sec'y Dec. 7, 1994), for the proposition that Kent's comment was a per se violation of the employee protection provisions of the ERA. Its reliance on this case is misplaced.

In Earwood, in response to a request by prospective employers, a representative of Dart made comments about Earwood's engaging in protected activity, stating the company was not pleased that Earwood "took us to court" and that "he had no use for Complainant." 93-STA-0016, slip op. at 2. The Secretary of Labor considered these comments to constitute blacklisting because they "'had a tendency to impede and interfere with [Complainant's] employment opportunities.'" Id. at 3. In so finding, the Secretary determined that the comments evinced discriminatory animus. Id.

... . continued) Chemistry (PWR), PG-8, and to recommend a selectee to McArthur, the selecting official. In addition to Kent, the other SRB members were John Corey (Manager of Radiological and Chemistry Control at Browns Ferry) and H.R. (Rick)

Rogers (Manager of Technical Support/Operations Support). See McArthur decl.

ex. 7.

10

The NRC Staff presented no reasonable basis upon which such animus can be inferred from Kent's comments. Unlike the comments in Earwood, Kent's comments were not negative, he did not indicate or reveal a displeasure with Fiser for filing an ERA complaint, and he did not, explicitly or otherwise, suggest that Fiser should not be selected because of his protected activity. To the contrary, he counseled McArthur not to participate in the interviews to help to ensure the integrity and fairness of the process.

The NRC Staff also claims that Corey overheard Kent's comment (resp.

at 47). The fact that members of the SRB were aware of Fiser's 1996 complaint does not give rise to an inference of discrimination. See Kelly v. Drexel Univ., 94 F.3d 102, 109 (3d Cir. 1996):

[T]he mere fact that an employer is aware of an employee's impairment is insufficient to demonstrate either that the employer regarded the employee as disabled or that that perception caused the adverse employ-ment action.... If we held otherwise, then by a parity of reasoning, a person in a group protected from adverse employment actions i.e., any-one, could establish a primafacie discrimination case merely by demon-strating some adverse action against the individual and that the employer was aware that the employee's characteristic placed him or her in the group, e.g., race, age, or sex.

See also Sutton v. Lader, 185 F.3d 1203, 1208 n.6 (11th Cir. 1999).

11

Based on the foregoing reasons and the authorities cited herein and in TVA's initial brief, TVA's motion for summary decision should be granted, the NOV dismissed, and the civil penalty should not be enforced.

Respectfully submitted, March 1, 2002 Maureen H. Dunn General Counsel Office of the General Counsel Tennessee Valley Authority Thomas F. Fine 400 West Summit Hill Drive Assistant General Counsel Knoxville, Tennessee 37902-1401 Facsimile 865-632-6718 Brent R. Marquand Senior Litigation Attorney Barbara S. Maxwell, Attorney Of Counsel: Jc~h E. Sla9Er, (SC BPR 005149)

David A. Repka, Esq. Senior Litigation Attorney Winston & Strawn Telephone 865-632-7878 1400 L Street, NW Washington, D.C. 20005 Attorneys for Tennessee Valley Authority 003692519 12

53 F.3d 338 (Table) Page 1 Unpublished Disposition (Cite as: 53 F.3d 338, 1995 WL 234904 (9th Cir.))

C NOTICE: THIS IS AN UNPUBLISHED OPINION.

FNl. Originally, Crosby brought his action under (The Court's decision is referenced in a "Table of the provisions of the Clean Air Act, 42 U.S.C. § Decisions Without Reported Opinions" appearing in 7622, and the Toxic Substances Control Act, 15 the Federal Reporter. Use FI CTA9 Rule 36-3 for U.S.C. § 2622. The Secretary granted his post-trial rules regarding the citation of unpublished opinions.) motion to amend his complaint to include a cause of action under the Comprehensive Environmental United States Court of Appeals, Ninth Circuit. Response, Compensation and Liability Act, 42 U.S.C. § 9610.

Patrick CROSBY, Petitioner, If an employee has made out a prima facie case of V.

retaliatory discharge, the burden of production shifts UNITED STATES DEPARTMENT OF LABOR; to the employer to show that it had legitimate, Hughes Aircraft Company, Respondents, nondiscriminatory reasons for its actions. See St.

Mary's Honor Ctr. v. Hicks, U.S. , , 113 S.

No. 93-70834.

Ct. 2742, 2747, 125 L. Ed. 2d 407 (1993). If it does so, the production burden shifts back to the Argued and Submitted April .7, 1995.

plaintiff to show that those reasons were pretextual.

Decided April 20, 1995.

Id. More to the point for purposes of this appeal, once an employment discrimination case has been Petition to Review Decision of the Secretary of tried, as this one has been, the only truly relevant Labor, No. 0973-2.

question is whether the plaintiff has met his ultimate burden of proving to the trier of fact that he was the DOL victim of intentional discrimination. See id. at 113 S. Ct. at 2747- 48.

PETITION DENIED.

The Secretary's decision should be upheld unless it Before: McKAY, [FN*] REINHARDT, and is unsupported by substantial evidence or is arbitrary, FERNANDEZ, Circuit Judges.

capricious, an abuse of discretion or otherwise not in accordance with the law. 5 U.S.C. § 706(2)(A), (E)

FN* Hon. Monroe G. McKay, Senior United States (Administrative Procedure Act); Lockert v. United Circuit Judge, United States Court of Appeals for the Tenth Circuit, sitting by designation. States Dep't of Labor, 867 F.2d 513, 516-17, 520 (9th Cir. 1989).

MEMORANDUM [FN**]

Here the Secretary determined that the reasons for FN** This disposition is not appropriate for Crosby's termination were that his work was not publication and may not be cited to or by the courts good and he was often insubordinate. Moreover, the of this circuit except as provided by Ninth Circuit final straw was his absolute refusal to work on the Rule 36-3. PPUP project because he did not like the protocol for the performance of that task. We understand that he

• • 1 Patrick Crosby appeals the Secretary of Labor's sought to retract the refusal; alas, the decision had adoption of an administrative law judge's already been made.

recommended decision and order to the effect that Crosby was not discriminated against by his former Crosby does not contend that the actual working employer, Hughes Aircraft Company, in violation of conditions related to the PPUP project were unsafe or the whistleblower provisions of various federal unhealthy. "Employees have no protection ... for environmental statutes. [FNI] The Secretary ruled refusing to work simply because they believe another that Crosby had not shown that Hughes had method, technique, procedure or equipment would be terminated him for protected rather than non- better or more effective." Pensyl v. Catalytic, Inc.,

discriminatory business reasons. We deny the Case No. 83-ERA-2, at 8 (Sec. Dec. Jan. 13, 1984).

petition. When an employee's refusal to work does not meet Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works

53 F.3d 338 (Table) Page 2 (Cite as: 53 F.3d 338, 1995 WL 234904, **1 (9th Cir.))

the Pensyl test, an employer may legitimately entitled to a continuance because certain discovery terminate the employee. Wilson v. Bechtel Constr., was delivered late. But though that continuance was Inc., Case No. 86-ERA-34, at 12 (Sec. Dec. Jan. 9, denied him, after two days of hearings the 1988). The record is filled with evidence of proceeding was adjourned for five weeks. Thus, he incidents of Crosby's supervisors' dissatisfaction with effectively got his continuance anyway. He also his work, which began long before he engaged in any asked that adverse inferences be drawn against protected activities at issue here. From the very Hughes because of the lateness of the discovery and beginning of his work for Hughes he resisted because Hughes asserted a privilege as to some completing assignments given to him, refused to discovery which was sought. But the issue of work on certain projects and even refused to pass on sanctions is left to the discretion of the AUJ, and we information to those who were brought in to see no abuse of that discretion here. See 29 C.F.R.

complete the projects. Finally, he was asked to § 18.6(d)(2)(i). Moreover, it is not appropriate to perform work on PPUP. His reaction was draw adverse inferences from the failure to produce characteristic. He objected to the whole thing and documents protected by the attorney-client and work finally said he would not work on the project at all. product privileges. See Wigmore on Evidence § 291 In short, there is evidence that Crosby fairly bristled (rev. 1979).

with antagonism, complaints, foot dragging, insubordination, and fractiousness. The ALJ and the Crosby further complains that he did not get to Secretary decided that his termination was based examine certain subpoenaed witnesses after the upon that. There is substantial evidence to support district court refused to enforce a subpoena for them.

the decision. He said that adverse inferences should have been drawn, but the ALJ determined that their testimony

• • 2 It is noteworthy that the individuals who would have been immaterial. Moreover, Crosby did terminated Crosby did not even know of most of his have an opportunity to examine the officials who alleged protected activity. While they did hear him actually fired him. We see no reversible error.

complain about PPUP, they did not understand that he was complaining about a possible environmental Finally, Crosby complains that certain offers of problem related to a gas detector system if PPUP proof were improperly relied upon. Those were were used with that system. What they did made when the AUJ refused to hear testimony from understand was that Crosby was, once again, certain Hughes witnesses and allowed Hughes to refusing to do work that he was directed to do. The protect the record by stating what the witnesses' Secretary did not err when he found that Crosby was testimony would have been. The ALJ did not rely discharged for proper reasons. [FN2] upon the offers at all. While the Secretary did refer to them, those occasional references were not FN2. The parties spill much ink over whether necessary to the final decision and were accompanied Crosby spelled out a prima facie case. We, of by references to proper evidentiary matter. We are course, recognize that a prima facie case is the first step in a trial of this kind. However, given the unable to say that Crosby's substantial rights were ultimate determination, there is no need for us to affected by those stray, though improper, references.

delve into the intricacies of prima facie case See 29 C.F.R. § 18.103.

building.

PETITION DENIED.

Crosby, however, complains of the procedures used to reach a decision in this case. He says that he was END OF DOCUMENT Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works

134 F.3d 372 (Table) Page 1 Unpublished Disposition (Cite as: 134 F.3d 372, 1998 WL 25003 (6th Cir.))

C NOTICE: THIS IS AN UNPUBLISHED OPINION. is not supported by substantial evidence. We, therefore, REVERSE that decision.

(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in I. Facts the Federal Reporter. Use FI CTA6 Rule 28 and FI CTA6 IOP 206 for rules regarding the citation of Plaintiff Frady was employed by TVA from 1978 unpublished opinions.) until 1992. From 1983 on, he worked as a nuclear inspector at the Sequoyah and Watts Bar nuclear United States Court of Appeals, Sixth Circuit. plants. While working as an inspector, he raised safety concerns with the NRC and TVA management TENNESSEE VALLEY AUTHORITY, Petitioner, on several occasions. In December 1990, Frady V. received notice that he would be terminated due to a Randolph FRADY, United States Department of reduction in force. In response, Frady filed a Labor, Respondents. complaint under the ERA. The complaint resulted in a settlement agreement which extended Frady's No. 96-3831. employment with TVA until January 1992. As part of that agreement, Frady was placed in the Employee Jan. 12, 1998. Transition Program from June 1991 until his termination. The program allowed him to seek a Before: RYAN, SUHRHEINRICH, and COLE, new position within TVA, which he did. However, Circuit Judges. Frady was not selected for any of the positions he applied for, and he filed ERA complaints challenging PER CURIAM. these non- selections.

• • 1 This appeal arises from claims by Randolph After an investigation by the DOL's Wage and Hour Frady under the whistleblower protection provision Division found no merit to Frady's complaints, he of the Energy Reorganization Act of 1974(ERA), as filed a request for a hearing. An administrative law amended, 42 U.S.C. § 5851 (1988), which prohibits judge (hereinafter AU), charged with making licensees of the Nuclear Regulatory Commission recommendations to the Secretary, conducted the (NRC) from discriminating against employees who hearing and thereafter dismissed eight of the fourteen engage in protected activity, such as identifying allegations upon TVA's motion for summary nuclear safety concerns or making complaints under judgment. The AU issued a written opinion the ERA. Pursuant to the ERA, Plaintiff Frady filed discussing the remaining six allegations and complaints with the U.S. Department of Labor recommended that they all be decided in TVA's (DOL), alleging that his non-selection for fourteen favor. The Secretary adopted the ALJ's different positions was the result of unlawful recommendations concerning the eight dismissed retaliation for his protected activities while working allegations and three of the six allegations decided on as a nuclear inspector for Defendant Tennessee the merits, but found for Frady on the remaining Valley Authority (TVA). The case ultimately three allegations, which are the only ones contested reached the Secretary of Labor (hereinafter Secretary here. While on remand to the ALJ for

), who found for Plaintiff with regard to three of the determination of Plaintiffs remedy, the parties fourteen allegations. reached agreement on the appropriate remedy, contingent upon this appeal. The resulting "Joint Petitioner TVA appeals the Secretary's decision for Stipulation" was recommended for approval by the Plaintiff on those three allegations. The issues ALJ, and the Administrative Review Board of the raised by Petitioner on appeal ask whether "the DOL issued an order approving it.

Secretary was arbitrary and capricious in disregarding the ALI's credibility determinations," **2 Two of the three contested allegations concern and whether his "decision was supported by Frady's application for machinist trainee positions at substantial evidence." We find that the Secretary's both the Watts Bar and Sequoyah nuclear plants, as decision with regard to the three contested allegations well as for a steamfitter trainee position at Sequoyah.

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Applicants for each of these three positions were quotes omitted); accord Curran v. Dept. of the considered by a different three-person committee, Treasury, 714 F.2d 913, 915 (9th Cir.1983) (

consisting of a TVA representative, a member of the "Special deference is to be given the AL's credibility applicable union, and Kevin Green, a human judgments"). Given the conflicts in this case resources manager for TVA. The TVA and union between the conclusions of the ALJ and the Secretary representatives were charged with ranking the I we must examine the record with particular applicants and making the hiring decisions, while scrutiny. Tel Data, 90 F.3d at 1198.

Green was assigned to be a facilitator. Each of the committees ranked Frady below the applicants who **3 The law governing Frady's proof of his claims were ultimately selected. The third contested was carefully laid out by the Secretary:

allegation concerns Frady's application for a quality a complainant ... must first make a prima facie control inspector position at the Sequoyah facility. case of retaliatory action by the [defendant], by Shortly after the vacancy for this position was establishing that he engaged in protected activity, announced, a staffing study conducted by an outside that he was subject to adverse action, and that the consultant recommended that staffing levels at the [defendant] was aware of the protected activity facility be reduced. Roy Lumpkin, Frady's former when it took the adverse action. Additionally, a supervisor and the supervisor for the open position, complainant must present evidence sufficient to ultimately decided to cancel the vacancy without raise the inference that the protected activity was hiring anyone for it. the likely reason for the adverse action. If a complainant succeeds in establishing the foregoing, II. Applicable Law the [defendant] must produce evidence of a legitimate, nondiscriminatory reason for the We review the Secretary's decision to ensure that it adverse action. The complainant bears the is not "arbitrary, capricious, an abuse of discretion, ultimate burden of persuading that the [defendant's]

or otherwise not in accordance with law." Ohio v. proffered reasons ... are a pretext for Ruckelshaus, 776 F.2d 1333, 1339 (6th Cir. 1985) discrimination. At all times, the complainant (quoting 5 U.S.C. § 706(2)(A)(Administrative bears the burden of establishing by a Procedure Act)). As part of our review, "we must preponderance of the evidence that the adverse determine whether [the decision] is supported by action was in retaliation for protected activity.

substantial evidence, which is 'such relevant evidence Frady v. Tennessee Valley Authority, Nos.

as a reasonable mind might accept as adequate to 92-ERA-19 & 92-ERA-34, slip op. at 5-6 (Secretary support a conclusion.' " Moon v. Transport Drivers, of Labor Oct. 23, 1995) (citations omitted)

Inc., 836 F.2d 226, 229 (6th Cir. 1987) (quoting (hereinafter Secretary's Opinion); accord Moon, 836 Richardson v. Perales, 402 U.S. 389. 401 (1971)). F.2d at 229. The Secretary went on to state that, as The substantial evidence standard requires us to part of the establishment of a prima facie case, consider evidence in the record that is contrary to the "Frady must establish that he was qualified for such Secretary's findings and conclusions. Tel Data Corp. position; that, despite his qualifications, he was

v. National Labor Relations Bd., 90 F.3d 1195, 1198 rejected; and that TVA continued to seek and/or (6th Cir. 1996). select similarly qualified applicants." Secretary's Opinion at 18 (adopted from McDonnell Douglas Although the ALJ only recommends a decision, the Corp. v. Green, 411 U.S. 792, 802 (1973)). The evidentiary support for the Secretary's conclusions Secretary concluded that, for each of the three "may be diminished, however, when the contested allegations, Frady established all the administrative law judge has drawn different elements of a prima facie case discussed above and conclusions." National Labor Relations Bd. v. met his ultimate burden of proving that TVA's Brown-Graves Lumber Co., 949 F.2d 194, 196-97 proffered reasons for its personnel decisions were a (6th Cir.1991). In particular, this court "will not pretext for retaliation.

normally disturb the credibility assessments of ... an administrative law judge, who has observed the III. Trainee Positions demeanor of the witnesses." Litton Microwave Cooking Prods. Div., Litton Sys., Inc., 868 F.2d Two of the three contested allegations involve the 854, 857 (6th Cir.1989) (reversing National Labor machinist and steamfitter trainee positions. The Relations Board, which declined to follow ALJ's record contains little to support the Secretary's recommendation to dismiss complaint) (internal finding that Plaintiff established a prima facie case of Copr. C)West 2002 No Claim to Orig. U.S. Govt. Works

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retaliation with regard to these positions. As to the Secretary discussed several evidentiary reasons why knowledge element of a prima facie case, we agree he reached this conclusion, id. at 26-31, but none of with the ALU's finding that there is no evidence that them amount to substantial evidence.

members of the selection committees knew about Plaintiff's protected activity, including his earlier The most direct reason cited by the Secretary was ERA complaint. (J.A. at 73). As to the inference that he did "not find the testimony indicating that the element of a prima facie case, the Secretary found selectees ... were found by each committee to be that Plaintiff "established an inference of retaliatory better qualified than Frady based on their 'hands on' motive based on temporal proximity." Secretary's experience to be persuasive." Id. at 26. In reaching Opinion at 24. Where adverse employment action this conclusion, the Secretary did not give any follows rapidly after protected activity, common deference, as required, to the AL's implicit finding sense and case law allows an inference of a causal that this testimony was credible. Moreover, the connection. See Moon v. Transport Drivers, Inc., Secretary substituted his judgment for that of the 836 F.2d 226, 229 (6th Cir.1987) (stating, in a case selection committees at an inappropriate level of where the plaintiff was fired less than two weeks detail, when he determined that Frady's experience after making a complaint, that "the proximity in time using calibration tools and building a log home was between protected activity and adverse employment equivalent to other applicants' experience with action may give rise to an inference of a causal automobile engines and heating and air-conditioning connection"). However, because seven or eight equipment. Id. at 20-21.

months elapsed between Frady's most recent protected activity, namely the filing of the earlier The other reasons cited by the Secretary for his ERA complaint, and the decisions by the selections conclusion that Frady proved pretext are speculative committees, the Secretary's inference is a weak one. at best. For example, the Secretary concludes that

[FNI] "other candidates could have been 'primed' in advance to assist them in answering the standard FNI. The Secretary chose to determine temporal questions that were asked of each applicant." The proximity based on Frady reaching a settlement Secretary bases this hypothesis solely on committee agreement with TVA in June 1991, two or three member Green's off-hand comment during his months before his non-selection by the committees. testimony that "I have no knowledge that [the We believe that the date of the complaint, January candidate] was primed or anything." Id. at 27-28.

1991, is the more appropriate date to use, because I) unlike a settlement agreement, a complaint is The Secretary also cites, as evidence of pretext, that clearly a protected activity under the ERA, and 2) eleven of the eighteen applicants selected by the common sense dictates that employees are much committees were from outside TVA, despite a TVA more likely to be retaliated against for filing a policy of filling vacancies from within the ranks of complaint against their employer than for resolving TVA employees. Id. at 29. However, the Secretary the dispute with their employer by reaching a fails to explain how discrimination against Frady can settlement agreement. explain more than one of the eleven selections from outside TVA.

• • 4 Even if we were to overlook the scarcity of evidence supporting the knowledge and inference As further evidence of pretext, the Secretary cites elements of Plaintiffs prima facie case, we would still the fact that TVA "relied almost entirely on be forced to conclude that the Secretary's decision [committee member] Green's testimony concerning regarding the trainee positions was not supported by the relevant qualifications." Id. at 30. The substantial evidence. Assuming arguendo that Secretary concludes that this indicates that Green was Plaintiff established a prima facie case, Defendant less than honest when he indicated that he was a must produce evidence of a legitimate, facilitator on the selection committees, rather than a nondiscriminatory reason for the non-selection. The decision maker. Even if we ignore the problems Secretary conceded that Defendant met this burden of with citing a defendant's strategy as evidence of a production by presenting testimony that the people witness's credibility, Defendant's reliance on Green's selected for the trainee positions had qualifications testimony about qualifications can be explained by superior to those of Plaintiff. Secretary's Opinion at the fact that Green was the personnel representative

24. However, the Secretary found that Plaintiff met on the committees and was the only person to serve his ultimate burden of proving that this legitimate on all the relevant selection committees.

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• • 5 Finally, the Secretary cites evidence "that Frady canceled. Id. at 36 n. 26. Second, Roy Lumpkin, was the subject of a considerable degree of animus the manager who canceled the vacancy, moved to an from supervisory personnel ... at TVA" Id. at 31. unrelated position four months before the inspectors However, the Secretary cites no evidence that the returned, (J.A. at 600), and was uninvolved in their animus was due to Frady's protected activity. In return. Third, the two inspectors returned based on fact, there is evidence pointing in the opposite settlement agreements, whereas Plaintiff sought the direction. For example, TVA employee Michael position through regular application channels. [FN2]

Miller, a witness vouched for by Frady, (J.A. at For all these reasons, Plaintiff cannot show that he 492-93), attributed the animus from one supervisor to was treated any differently than similarly qualified personality conflicts rather than Frady's candidates. See White v. General Motors Corp.

whistleblowing. (J.A. at 662-4). Without evidence Inc., 908 F.2d 669, 671 (10th Cir.1990) ("to that the animus was based on protected activity, the maintain an action for wrongful discharge, animus does not suggest retaliation for such activity. [plaintiffs] must demonstrate that they were treated differently because of their whistleblowing activity").

We also note that one of the two decision makers on each selection committee was a union representative, FN2. Plaintiff's earlier settlement agreement rather than a representative of TVA. Frady never guaranteed only that he would be placed in the alleged, and the Secretary never found, that the there Employee Transition Program.

was any reason why the union representatives would discriminate against Frady. Thus, it is significant **6 The Secretary also concludes that Plaintiff met that the TVA and union representatives ranked Frady the prima facie requirement of raising an inference at about the same level, as he concedes. (J.A. at that his protected activity was the likely reason for 487). This appears to us to be compelling evidence the adverse action, namely the vacancy cancellation.

that the TVA representatives were not biased by The Secretary bases this conclusion on two factors.

Plaintiffs protected activity. Moreover, the fact that One factor is the temporal proximity between the the union representatives gave Plaintiff a relatively cancellation and Frady's protected activity.

low ranking indicates that they too believed there was Secretary's Opinion at 38.. However, as discussed a legitimate reason for not selecting him. with regard to the trainee positions, the Secretary's inference based on temporal proximity is a weak one, For all the reason discussed above, we conclude that because seven months elapsed between Frady's the Secretary's decision regarding the machinist and earlier ERA complaint and the cancellation of the steamfitter trainee positions is not supported by vacancy. 'The second factor cited by the Secretary is substantial evidence. his "conclu[sion] that Lumpkin strongly suspected, if he did not have certain knowledge, that Frady had IV. Quality Control Inspector Position applied for the position." Id. This is by no means a forgone conclusion, given that Lumpkin canceled the One of the three contested allegations involves a vacancy before he received the applications from quality control inspector position at the Sequoyah Human Resources. Yet the Secretary explicitly facility. Unlike the trainee positions, this position bases his conclusion on the following summary of was canceled rather than being filled by other Lumpkin's testimony: "although [Lumpkin] was applicants. However, after Roy Lumpkin canceled unsure whether he had been told ... that Frady had the inspector vacancy, two inspectors "returned to applied for the job, he was 'reasonably certain if their positions as nuclear inspectors at the Sequoyah [Frady] wanted the inspector job at Sequoyah, he plant pursuant to the terms of a settlement would have applied.' " Id. We fail to see how this agreement." Secretary's Opinion at 36. The testimony leads to the conclusion that Lumpkin Secretary, therefore, "conclude[d] that TVA, in strongly suspected or knew for sure that Frady had effect, filled the announced nuclear inspector vacancy applied.

with similarly qualified candidates," thus establishing one element of a prima facie case. Id. In summary, substantial evidence is lacking with regard to at least two elements of a prima facie case We find, however, that this conclusion is not of retaliation involving the canceled inspector supported by substantial evidence for a number of position. Plaintiff cannot show that the canceled reasons. First, the two inspectors returned to their vacancy was filled with similarly qualified positions almost a year after the vacancy was candidates, and the Secretary's finding that Plaintiff Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works

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successfully raised an inference of discrimination (6th Cir. 1987), which Plaintiff failed to do here.

lacks adequate support. We conclude, therefore, that the Secretary's decision regarding the inspector V. Conclusion position fails to meet the substantial evidence standard. In addition, we note that the consultant's The Secretary's decision for Plaintiff with regard to study, which recommended a reduction in staff, each of the three contested allegations is unsupported appears to be the legitimate reason for the by substantial evidence. We, therefore, REVERSE cancellation, as Defendant contends. However, we that decision and VACATE the orders of the need not reach this issue, because a defendant's Secretary and Administrative Review Board. The obligation to proffer a legitimate reason for an Secretary's decision for Defendant regarding adverse employment decision is not triggered until a Plaintiff's other eleven allegations is undisturbed.

prima facie case of discrimination is established, Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 END OF DOCUMENT Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works

24 Fed.Appx. 259 Page 1 (Cite as: 24 Fed.Appx. 259, 2001 WL 1216979 (6th Cir.(Ohio)))

This case was not selected for publication in the who has opposed a practice unlawful under Title VII Federal Reporter or against employee who participated in any manner in a Title VII investigation, employee must show that NOT RECOMMENDED FOR FULL--TEXT (1) she engaged in activity protected by Title VII, (2)

PUBLICATION exercise of protected activity was known to employer, (3) employer took an adverse employment Sixth Circuit Rule 28(g) limits citation to specific action, and (4) there was a causal connection between situations. Please see Rule 28(g) before citing in a protected activity and adverse employment action.

proceeding in a court in the Sixth Circuit. If cited, a Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § copy must be served on other parties and the Court. 2000e-3(a).

Not selected for publication in the Federal Reporter. [21 Master and Servant 'Z'40(1) 255k40(1)

This opinion was not selected for publication in the Federal Reporter. Please use FIND to look at the If employee establishes prina facie case of retaliation applicable circuit court rule before citing this in violation of Title VII, burden shifts to employer to opinion. FI CTA6 Rule 28(g). articulate legitimate, nondiscriminatory reasons for employee's discharge, and employee must then United States Court of Appeals, demonstrate that proffered reasons were a mere Sixth Circuit. pretext for discrimination. Civil Rights Act of 1964,

§ 704(a), 42 U.S.C.A. § 2000e-3(a).

Florence A. WARREN, Plaintiff-Appellant, V. [3] States (553 OHIO DEPARTMENT OF PUBLIC SAFETY, 360k53 William L. Vasil, Defendants-Appellees.

No. 00-3560. Equal Employment Opportunity (EEO) compliance officer with state agency failed to establish a claim of Oct. 3, 2001. retaliation for participating in a Title VII investigation with respect to internal investigation Equal Employment Opportunity (EEO) compliance concerning one state employee, where there were no officer for state agency brought action against agency allegations of violation of Title VII rights. Civil and former supervisor, alleging she was discharged Rights Act of 1964, § 704(a), 42 U.S.C.A. § in violation of Title VII and free speech clause of 2000e-3(a).

First Amendment. The United States District Court for the Southern District of Ohio, Algenon L. [4] Master and Servant Zz30(6.10)

Marbley, J., granted summary judgment for state 255k30(6. 10) agency and supervisor. Compliance officer appealed.

The Court of Appeals, Ralph B. Guy, Jr., Circuit Under opposition clause which prohibits retaliation Judge, held that: (1) compliance officer failed to against someone opposing violation of Title VII, show a causal connection required to establish claim person opposing apparently discriminatory practices under opposition clause and participation clause of must have a good faith belief that practice is Title VII, and (2) compliance officer failed to unlawful. Civil Rights Act of 1964, § 704(a), 42 establish causal connection between her free speech U.S.C.A. § 2000e-3(a).

and her termination, as required to establish claim under First Amendment. [5] Master and Servant c&330(6.10) 255k30(6.10)

Affirmed.

Under opposition clause which prohibits retaliation West Headnotes against someone opposing violation of Title VII, there is no qualification on who individual doing

[1] Master and Servant e&:30(6.10) complaining may be or on who party to whom 255k30(6.10) complaint is made; thus, fact that plaintiff is a human resource director who may have a contractual To establish a claim for retaliation against employee duty to voice such concerns does not defeat a claim Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works

24 Fed.Appx. 259 Page 2 (Cite as: 24 Fed.Appx. 259, 2001 WL 1216979 (6th Cir.(Ohio)))

of retaliation, and complaint may be made to a co- 92k90.1(7.2) worker, a newspaper reporter, or anyone else. Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § A public employee does not forfeit his protection 2000e-3(a). against governmental abridgement of freedom of speech if he decides to express his views privately

[6] Master and Servant c&-40(4) rather than publicly. U.S.C.A. Const.Amend. 1.

255k40(4)

[11] Civil Rights cg'194 Temporal proximity alone in the absence of other 78k194 direct or compelling circumstantial evidence is generally not sufficient to support a finding of causal [11] Civil Rights '332 connection between protected activities and 78k332 termination, for purposes of establishing a violation of Title VII. Civil Rights Act of 1964, § 701 et seq., An employee may sue a public employer under both 42 U.S.C.A. § 2000e et seq. Title VII and § 1983 when the § 1983 violation rests on a claim of infringement of rights guaranteed by

[7] States c&=53 the Constitution. Civil Rights Act of 1964, § 701 et 360k53 seq., 42 U.S.C.A. § 2000e et seq.; 42 U.S.C.A. § 1983.

Equal Employment Opportunity (EEO) compliance officer for state agency failed to show a causal [12] Constitutional Law (Z'90.1(7.2) connection between her alleged activity in opposition 92k90.1(7.2) to Title VII violation and her termination, as required to establish claim under opposition clause; officer To establish a § 1983 claim for violation of right to relied wholly on temporal proximity of her meeting free speech, public employee must first establish that in morning with legal counsel and her termination in her speech was protected because it was directed the afternoon to establish causation, and testimony toward an issue of public concern, and her interest in established that supervisor had decided to terminate making the speech outweighs public employer's officer before her meeting with legal counsel. Civil interest in promoting efficiency of the public Rights Act of 1964, § 704(a), 42 U.S.C.A. § services. U.S.C.A. Const.Amend. 1; 42 U.S.C.A.

2000e-3(a). § 1983.

[8] States 5&53 [13] Constitutional Law c&'90.1(7.2) 360k53 92k90.1(7.2)

In the absence of any other evidence of retaliatory Matters only of personal interest to public employee conduct, single fact that Equal Employment are not afforded constitutional protection under First Opportunity (EEO) compliance officer for state Amendment's free speech clause. U.S.C.A.

agency was discharged two to eleven months after Const.Amend. 1.

she was involved in internal discrimination investigations did not establish a causal connection [14] Constitutional Law cg9;90.1(7.2) between protected activity and her termination. Civil 92k90.1(7.2)

Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e-3(a). Public employee's speech upon matters of public concern, which is protected by First Amendment,

[9] Constitutional Law Z'90.1(7.2) relates to any matter of political, social, or other 92k90. 1(7.2) concern to the community. U.S.C.A. Const.Amend.

1.

A public employee. has constitutionally protected right to comment on matters of public concern [15] Constitutional Law '24'45 without fear of reprisal from the government as 92k45 employer. U.S.C.A. Const.Amend. 1.

It is a question of law for the court to decide whether

[10] Constitutional Law <90.1(7.2) a public employee's speech is a matter of public Copr. (CWest 2002 No Claim to Orig. U.S. Govt. Works

24 Fed.Appx. 259 Page 3 (Cite as: 24 Fed.Appx. 259, 2001 WL 1216979 (6th Cir.(Ohio)))

concern so as to be protected by free speech clause of U.S.C.A. Const.Amend. 1.

First Amendment. U.S.C.A. Const.Amend. 1.

[21] Constitutional Law 8'90.1(7.2)

[16] Constitutional Law (9:=90.1(7.2) 92k90.1(7.2) 92k90.1(7.2)

[21] States c8=53 Whether a public employee's speech addresses a 360k53 matter of public concern, so as to be protected by free speech clause of First Amendment, must be State employer was not liable to employee for determined by the content, form, and context of a violation of free speech rights in connection with given statement, as revealed by the whole record. allegations of supervisor's improper handling of U.S.C.A. Const.Amend. 1. discrimination complaints, given evidence that clearly showed that supervisor decided and took steps

[17] Constitutional Law '~'90.1(7.2) to effectuate employee's termination before 92k90.1(7.2) employee's meeting with state legal counsel occurred and before he learned of meeting. U.S.C.A.

Once public employee establishes that her speech is Const.Amend. 1.

protected by First Amendment's free speech clause, *262 On Appeal from the United States District employee challenging her discharge on free speech Court for the Southern District of Ohio.

grounds must present sufficient evidence to create a genuine issue that her speech caused her discharge, Before GUY and MOORE, Circuit Judges; and and the speech must have been a substantial or HULL, District Judge. [FN*]

motivating factor in public employer's decision to terminate employment. U.S.C.A. Const.Amend. 1. FN* The Honorable Thomas G. Hull, United States District Judge for the Eastern District of Tennessee,

[18] Federal Civil Procedure cg=;2497.1 sitting by designation.

17OAk2497. 1 RALPH B. GUY, JR., Circuit Judge.

While causation ordinarily is a question of fact for the jury in public employee's action alleging .**1 Plaintiff, Florence A. Warren, appeals from the violation of free speech, a court may nevertheless order granting summary judgment in favor of grant summary judgment on issue of causation when defendants, Ohio Department of Public Safety warranted. U.S.C.A. Const.Amend. 1. (ODPS) and William L. Vasil. Plaintiff argues that the district court erred in finding (1) that she did not

[19] Constitutional Law 'S'90.1(7.2) participate in protected activity under the retaliation 92k90.1(7.2) provisions of Title VII, (2) that there was no causal connection between protected activity and her If protected speech was a substantial or motivating termination, and (3) that plaintiff's speech did not factor in public employee's termination, public address a matter of public concern under the First employer may present evidence that employee would Amendment. [FN1] For reasons different than those have been terminated in the absence of the protected given by the district court, we affirm the grant of speech. U.S.C.A. Const.Amend. 1. summary judgment.

[20] Constitutional Law (&90.1(7.2) FN1. Plaintiff does not pursue and, therefore, has 92k90.1(7.2) abandoned on appeal the dismissal of her other 42 U.S.C. § 1983 and state law claims.

[20] States (z'53 360k53 I.

State employee's allegations of her supervisor's Plaintiff was the senior EEO compliance officer and improper handling of discrimination complaints were Chief of Human Resources at ODPS. At the relevant inherently matters of public concern, for purposes of times in this case, plaintiff reported to defendant free speech clause of First Amendment, even if they Vasil, the Assistant Director of ODPS.

were tied to personal employment disputes.

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24 Fed.Appx. 259 Page 4 (Cite as: 24 Fed.Appx. 259, *262, 2001 WL 1216979, **1 (6th Cir.(Ohio)))

Plaintiff's duties included supervising personnel ineffectiveness of the Human Resources division and matters; providing advice to the Director and the lack of confidence in her judgment and reliability.

Assistant Director regarding personnel matters; Defendants offered evidence that Vasil decided to drafting pamphlets and handbooks concerning work discharge plaintiff and took steps to initiate the rules, disciplinary procedures, and other matters discharge before plaintiff's meeting with Armstrong.

related to EEO compliance. Plaintiff also In anticipation of discharging plaintiff, Vasil investigated or supervised the investigation of sexual discussed transferring plaintiff's duties to another discrimination *263 and harassment complaints by employee. Vasil talked to Warren Davies about ODPS employees. having John Demaree assume responsibility for all human resource matters for ODPS. Davies stated in There were a large number of sexual discrimination his affidavit that this discussion occurred and harassment complaints within ODPS during approximately two weeks before November 9. While plaintiff's tenure. Three specific internal they did not specifically discuss plaintiff's investigations were the focus of plaintiff's Title VII termination, Davies understood that Vasil was going claim. The first involved Bessie Smith, a Human to transfer all of plaintiff's responsibilities to Resources employee, who was disciplined in May Demaree. The transfer of those responsibilities 1995 for neglect of duty and malfeasance. As a became effective on November 9.

result of Bessie Smith's mishandling of the termination of another employee, the terminated Vasil did specifically discuss plaintiff's termination employee was awarded back pay. There were no with Armstrong. Armstrong testified in her affidavit allegations of discrimination under Title VII in that and during her deposition that Vasil told her several internal investigation. In the second, Rebecca weeks before the November 9 meeting that Vasil Gustamente complained of sexual harassment by her intended to discharge plaintiff and restructure the supervisor. In November 1994, the supervisor was Human Resources functions within ODPS. Finally, reassigned within ODPS. Gustamente testified that Demaree testified that several days before November she was not subjected to further harassment 9, 1995, Vasil asked him to prepare the paperwork thereafter. Warren testified that her last involvement for terminating plaintiff's employment.

with the Gustamente complaint was in mid to late 1994 and no later than February 1995. Julie Smith The district court granted summary judgment in was the subject of the third investigation. Julie Smith favor of defendants. Plaintiff appealed.

was disciplined in August 1995, after she was charged with sexual harassment by another female H.

employee.

We review de novo the district court's grant of Plaintiff subsequently heard that the union was summary judgment. See, e.g., *264 Smith v.

considering filing an unfair labor practices complaint Ameritech, 129 F.3d 857, 863 (6th Cir.1997). We or class action litigation with respect to may affirm the grant of summary judgment on other discrimination complaints. She then arranged to grounds, even one not considered by the district meet with Maria J. Armstrong, the Deputy Chief court. Boger v. Wayne County, 950 F.2d 316, 322 Legal Counsel for the Governor of Ohio, on the (6th Cir. 1991). Summary judgment is appropriate morning of November 9, 1995. Plaintiff states that when there are no issues of material fact in dispute, she informed Armstrong of the threatened union and the moving party is entitled to judgment as a action and discussed plaintiff's concerns that Vasil matter of law. Fed. R. Civ. P. 56(c). In deciding a acted illegally in his direct handling of several motion for summary judgment, the court must view discrimination issues, including the Julie Smith the factual evidence and draw all reasonable matter. In the afternoon of that same day, Vasil gave inferences in favor of the non-moving party. See plaintiff notice of termination of her employment Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

with ODPS. While he did not have prior knowledge, 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 Vasil learned of the morning meeting between (1986).

plaintiff and Armstrong in the afternoon of the day that plaintiff's employment was terminated. A. Title VII Retaliation

• • 2 Vasil stated that he terminated plaintiff's Title VII prohibits an employer from retaliating employment because of complaints about the against an employee who has "opposed' any practice Copr. © West 2002 No Claim to Orig. U.S. Govt. Works

24 Fed.Appx. 259 Page 5 (Cite as: 24 Fed.Appx. 259, *264, 2001 WL 1216979, **2 (6th Cir.(Ohio)))

by an employer made unlawful under Title VII. It also prohibits retaliation against an employee who With respect to the Julie Smith and Rebecca has "participated" in any manner in an investigation Gustamente internal investigations, the district court under Title VII. 42 U.S.C. § 2000e-3(a). These two found that there was no protected activity under the provisions are known as the opposition clause and the participation clause because plaintiff did not participation clause. See Johnson v. Univ. of participate in an EEOC proceeding. Plaintiff argues Cincinnati, 215 F.3d 561, 578 (6th Cir.), cert. on appeal that internal investigations by an denied, 531 U.S. 1052, 121 S.Ct. 657, 148 L.Ed.2d employer's EEO compliance officer are protected 560 (2000). activity under the *265 participation clause. This Court has not directly addressed the question of

[1][2] To establish a claim under either the whether participation in internal investigations opposition or the participation clause, plaintiff must constitutes protected activity under the participation show that (1) she engaged in activity protected by clause. [FN2] Other courts, however, have held that Title VII, (2) this exercise of protected activity was protected activity under the participation clause does known to defendants, (3) defendants took an adverse not include participation in internal investigations.

employment action, and (4) there was a causal See EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, connection between the protected activity and the 1174 (11th Cir.2000); Brower v. Runyon, 178 F.3d adverse employment action. If plaintiff establishes 1002, 1006 (8th Cir.1999); and Vasconcelos v.

this primafacie case, the burden shifts to defendants Meese, 907 F.2d 111, 113 (9th Cir.1990).

to articulate legitimate, nondiscriminatory reasons for plaintiff's discharge. Plaintiff must then demonstrate FN2. See Davis v. Rich Prods. Corp., 2001 WL that the proffered reasons were a mere pretext for 392036, 11 Fed.Appx. (6th Cir. Apr. 9, 2001) discrimination. Id. The plaintiff bears the burden of (unpublished disposition).

persuasion throughout the entire process. See Morris

v. Oldham County Fiscal Court, 201 F.3d 784, 793 These decisions comport with the plain language of (6th Cir.2000). 42 U.S.C. § 2000e- 3(a): "because he has made a charge, testified, assisted, or participated in any

• • 3 Plaintiff argues that she was retaliated against in manner in an investigation, proceeding, or hearing violation of both the participation and the opposition under this subchapter." (Emphasis added.) They clauses because she complained about Vasil to also are consistent with our decision in Booker v.

Armstrong at the November 9 meeting. The district Brown & Williamson Tobacco Co., 879 F.2d 1304, court in this case found that plaintiff did not engage 1313 (6th Cir.1989), where we stated that the in protected activity under the participation clause purpose of the participation clause is "to protect and that she failed to show a causal connection access to the machinery available to seek redress for between her alleged opposition activities and her civil rights violations and to protect the operation of termination. We find that summary judgment was that machinery once it has been engaged." In appropriate on both plaintiff's opposition and Booker, we examined the participation clause under participation claims because she failed to show a Title VII in interpreting similar provisions under the causal connection between the alleged protected Michigan Elliott Larsen Civil Rights Act. We activity and her termination. concluded that the language must be read literally and, therefore, the instigation of proceedings leading

1. Participation Claim to the filing of a complaint or a charge, including a visit to a government agency to inquire about filing a

[3] The district court concluded that plaintiff failed charge, is a prerequisite to protection under the to establish a claim of retaliation with respect to the participation clause. Id.

Bessie Smith internal investigation because there were no allegations of violation of Title VII rights. **4 It is not necessary, however, for us to decide We agree. Section 2000e-3(a) requires participation whether an internal investigation is protected activity in proceedings under Title VII or opposition to under the participation clause. To do so would not unlawful employment practices under Title VII. fully resolve the case because plaintiff's participation Holden v. Owens-1llinois, Inc., 793 F.2d 745, 748 in the internal investigations and her meeting with the (6th Cir. 1986). There were no Title VII allegations Governor's office may have been protected activity involved in the Bessie Smith matter, and it cannot under the opposition clause. See Booker, 879 F.2d form the basis of a retaliation claim under Title VII. at 1313 n. 3; Laughlin v. Metro. Wash. Airports Copr. ©D West 2002 No Claim to Orig. U.S. Govt. Works

24 Fed.Appx. 259 Page 6 (Cite as: 24 Fed.Appx. 259, *265, 2001 WL 1216979, **4 (6th Cir.(Ohio)))

Auth., 149 F.3d 253, 259 (4th Cir.1998). Whether [FN3] Defendants claim that there was no causal plaintiff's participation in the Julie Smith and connection because Vasil decided to terminate Rebecca Gustamente internal investigations is plaintiff's employment before the meeting. Plaintiff considered protected activity under the participation argues that Vasil's statements should be discredited clause or the opposition clause, as discussed in the because in his deposition he could provide little detail next section, plaintiff failed to show the requisite about his reasons for terminating her employment, causal connection. and he did not ask that complaints about plaintiff's performance be made in writing. This is not relevant

2. Opposition Claim. or responsive to the testimony of Vasil, Armstrong, and other employees that Vasil took steps to transfer

[4][5] Under the opposition clause, the person plaintiff's duties to Demaree and asked Demaree to opposing apparently discriminatory practices must prepare paperwork to terminate plaintiff's have a good faith belief that the practice is unlawful. employment before Vasil learned of the meeting with There is no qualification on who the individual doing Armstrong. Employers need not suspend previously the complaining may be or on who the party to contemplated employment actions upon learning of whom the complaint is made. Thus, the fact that the protected activity by the employee. See Alexander, plaintiff is a human resource director who may have 121 S.Ct. at 1511 (no evidence of causality where a "contractual duty to voice such concerns" does not employer planned to transfer employee before defeat a claim of retaliation; and the complaint may learning Title VII suit had been filed). Here, be made to a co-worker, a newspaper reporter, or plaintiff offered no evidence, other than mere anyone else. Johnson, 215 F.3d at 579-80. temporal proximity, that she was terminated because of the Armstrong meeting. Plaintiff has failed to

[6] To defend against summary judgment, plaintiff raise a genuine issue of material fact of causation.

was required to show the existence of a causal Accordingly, she has failed to establish a prima facie connection between her protected activities and her case of retaliation under Title VII, and summary termination. Temporal proximity alone in the judgment in favor of defendants is appropriate.

absence of other direct or compelling circumstantial evidence is generally not sufficient to support a FN3. The issue of causation as it related to the finding of causal connection. See Nguyen v. City of internal investigations was briefed by the defendants Cleveland, 229 F.3d 559, 566 (6th Cir.2000). Cases before the district court and on appeal. Plaintiff, addressing this issue have said that temporal therefore, has not been denied the opportunity to respond, and it is appropriate for us to affirm proximity may establish a primafacie case only if the summary judgment on this other ground. See temporal proximity is "very *266 close." Clark Carver v. Dennis, 104 F.3d 847, 849 (6th Cir.1997)

County Sch. Dist. v. Breeden, 532 U.S. 268, 121 . Plaintiff's involvement in the Gustamente sexual S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001). See harassment investigation was resolved by November also, Hafford v. Seidner, 183 F.3d 506, 515 (6th 1994, or at the latest February 1995; and the Julie Cir. 1999) (absent additional evidence, two to five Smith internal investigation was completed by months insufficient to create a triable issue of August 1995. Plaintiff offered no evidence to show causation); Cooper v. City of North Olmsted, 795 a causal connection between these investigations and F.2d 1265, 1272 (6th Cir.1986) (four months her termination. In the absence of any other evidence of retaliatory conduct, the single fact that insufficient to support an inference of retaliation). plaintiff was discharged two to eleven months after she was involved in internal discrimination

[7][8] The district court found that plaintiff failed to investigations does not establish a causal connection show a causal connection between her alleged between protected activity and her termination.

oppositional activity and her termination because the Gustamente matter had been resolved almost 11 B. First Amendment months before plaintiff met with Armstrong.

Plaintiff does not argue that there was a causal **5 [9][10][11] A public employee has the connection between her involvement with the internal constitutionally protected right to comment on investigations and her termination under the matters of public concern without fear of reprisal participation or the opposition clauses. She relies from the government as employer. [FN4] See wholly on the temporal proximity of her meeting in Connick v. Myers, 461 U.S. 138, *267 147, 103 the morning with Armstrong and her termination in S.Ct. 1684, 75 L.Ed.2d 708 (1983). A public the afternoon of November 9 to establish causation. employee does not forfeit his protection against Copr. ©-West 2002 No Claim to Orig. U.S. Govt. Works

24 Fed.Appx. 259 Page 7 (Cite as: 24 Fed.Appx. 259, *267, 2001 WL 1216979, **5 (6th Cir.(Ohio)))

governmental abridgement of freedom of speech if he decides to express his views privately rather than [19] If the protected speech was a substantial or publicly. Givhan v. W. Line Consol. Sch. Dist., 439 motivating factor in an employee's termination, the U.S. 410, 412, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) employer may present evidence that the employee would have been terminated in the absence of the protected speech. Dambrot v. Cent. Mich. Univ., 55 FN4. Defendants argue that plaintiff's § 1983 action F.3d 1177, 1186 (6th Cir.1995).

is precluded by Title VII. The district court did not address this argument. An employee may sue a [20] Plaintiff argues that her discussion with public employer under both Title VII and § 1983 Armstrong about improper handling of discrimination when the § 1983 violation rests on a claim of claims was protected speech, and that she was infringement of rights guaranteed by the Constitution. Day v. Wayne County Bd. of terminated because of that speech in violation of the Auditors, 749 F.2d 1199, 1205 (6th Cir.1984). See First Amendment. The district court found plaintiff's also, Johnson, 215 F.3d at 583. Defendants also discussion with Armstrong was not protected speech argue that plaintiff abandoned her First Amendment because it was nothing more than the "quintessential claim by not briefing it in response to the motion for employee beef: management has acted summary judgment. The district court, however, incompetently. "

ruled on the First Amendment claim, and plaintiff is not relying on facts or arguments that were not Allegations of racial and sexual discrimination are considered by the district court in making that inherently matters of public concern even if they are ruling.

tied to personal employment disputes. See, Connick, 461 U.S. at 148 n. 8 (allegations of racial

[12][13][14][15][16] To establish a § 1983 claim for discrimination by a public employer are a "matter violation of her right to free speech, plaintiff must inherently of public concern" discussing Givhan, 439 first establish that her speech was protected because U.S. at 415-16); Strouss v. Mich. Dept. of Corr.,

it was directed toward an issue of public concern, 250 F.3d 336, 346 n. 5 (6th Cir.2001) (sexual and her interest in making the speech outweighs the harassment is a matter of public concern); Boger, public employer's interest in promoting the efficiency 950 F.2d at 322 (response to reporter's question of the public services. See Mt. Healthy City Sch.

about racial discrimination addressed matter of public Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 concern); Matulin v. Vill. of Lodi, 862 F.2d 609, S.Ct. 568, 50 L.Ed.2d 471 (1977); Bailey v. Floyd 612-13 (6th Cir. 1988) (sexual and handicap County Bd. of Educ., 106 F.3d 135, 144 (6th discrimination in the workplace are matters of public Cir. 1997). Matters only of personal interest are not concern). Whether the motive behind complaining of afforded constitutional protection. Speech upon discrimination is civic *268 mindedness or an matters of public concern relates to "any matter of individual employee concern is not relevant. What is political, social, or other concern to the community."

relevant is the subject of the complaint, Connick, 461 U.S. at 146. It is a question of law for discrimination, which is a matter "inherently of the court to decide whether an employee's speech is a public concern." Perry v. McGinnis, 209 F.3d 597, matter of public concern. Johnson, 215 F.3d at 583. 608 (6th Cir.2000).

"Whether an employee's speech addresses a matter of public concern must be determined by the content, **6 While plaintiff offered somewhat differing form, and context of a given statement, as revealed accounts of her meeting with Armstrong, at one point by the whole record." Connick, 461 U.S. at 147-48. in her deposition she testified that she informed Armstrong of a potential problem relating to the

[17][18] Once she establishes that her speech is handling of discrimination complaints, that Vasil had protected, plaintiff must present sufficient evidence told plaintiff not to be concerned because they were to create a genuine issue that her speech caused her "just passing through," and that the Governor's discharge. The speech must have been a substantial office needed to do something about it. On this or motivating factor in defendants' decision to record, plaintiff presented sufficient evidence that her terminate her employment. See Mt. Healthy, 429 discussion with Armstrong was about the improper U.S. at 287. While causation ordinarily is a question handling of sexual discrimination complaints, which of fact for the jury, a court may "nevertheless grant is inherently a matter of public concern. The district summary judgment on the issue of causation when court erred, therefore, in finding that the discussion warranted." Bailey, 106 F.3d at 145. with Armstrong was not protected speech under the Copr. i) West 2002 No Claim to Orig. U.S. Govt. Works

24 Fed.Appx. 259 Page 8 (Cite as: 24 Fed.Appx. 259, *268, 2001 WL 1216979, **6 (6th Cir.(Ohio)))

First Amendment. plaintiff's termination before the meeting with Armstrong occurred and before he learned of the

[21] Defendants nonetheless are entitled to summary meeting. There being no material fact in dispute on judgment. In order for plaintiff to prevail on her § causation, defendants were entitled to summary 1983 claim, she must prove that her speech was a judgment on plaintiff's First Amendment claim.

substantial or motivating factor in defendants' decision to terminate her employment. As discussed AFFIRMED.

in the previous section, the evidence clearly shows that Vasil decided and took steps to effectuate END OF DOCUMENT Copr. ©West 2002 No Claim to Orig. U.S. Govt. Works