Brever v. Rockwell Intern. Corp.
| Decision Date | 22 November 1994 |
| Docket Number | No. 92-1290,92-1290 |
| Citation | 40 F.3d 1119 |
| Parties | 129 Lab.Cas. P 11,262, 30 Fed.R.Serv.3d 1080, 10 IER Cases 153 Jacqueline Margaret BREVER, Plaintiff, and Karen Alane Pitts, Plaintiff-Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, a corporation; EG & G, Inc., a corporation; EG & G Rocky Flats, Inc., a corporation; Williams F. Weston, Ricky G. Carlson, Donald P. Bell, Michael A. Evans, Michael D. Bretz, Gary D. Poling, Patrick F. Eustrom, John E. Senna, William J. Lippold, III, Dana Dorr, Lu Oliver, also known as Lu Oliver-Tank; Dennis J. Wise, Blase S. Mo, Rick Williams; Jeffrey W. Shainholtz, Kevin L. Chandler, Donald G. Sherrill, also known as Dee Sherrill; Larren K. Kallerud, also known as Larry Kallerud; Paul S. Weis, and unknown persons, Does 1 through 20, inclusive, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
1122 Hartley David Alley, Wheat Ridge, CO, for plaintiff-appellant.
Daniel R. Satriana, Jr. (Sean R. Gallagher with him on the brief) of Hall & Evans, Denver, CO, for EG & G defendants-appellees.
Karen H. DuWaldt (Michael A. Williams and Richard P. Salgado, with her on the brief) of Williams, Youle & Koenigs, P.C., Denver, CO, for Rockwell Intern. Corp. and William F. Weston, defendants-appellees.
Before SEYMOUR, Chief Judge, SETH, and LOGAN, Circuit Judges.
Karen Pitts, a former plutonium worker at the Rocky Flats plant in Colorado, brought suit for damages in Colorado state court against Rockwell International Corporation and Rockwell's Manager of Plutonium, William Weston (collectively referred to as Rockwell defendants), EG & G, Inc., EG & G Rocky Flats, and eighteen named individual defendants, 1 as well as twenty unnamed individuals, alleging violations of 42 U.S.C. Secs. 1985(2), 1986 and various state law tort claims. Defendants removed the suit from state court to federal district court pursuant to 28 U.S.C. Secs. 1441, 1446. The district court dismissed all of Ms. Pitts' claims either for failure to state a claim or for preemption on the basis of section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. Sec. 185. 801 F.Supp. 424. Ms. Pitts now appeals, raising numerous claims of error. For the reasons stated below, we reverse and remand for further proceedings.
This appeal arises from a suit filed by Ms. Pitts and a co-worker, Ms. Jacqueline Brever, both former plutonium workers at Rocky Flats. 2 Ms. Pitts and Ms. Brever alleged they were labelled "whistleblowers" for cooperating with the FBI, which was investigating possible environmental crimes at Rocky Flats. Plaintiffs claim they thereafter were harrassed, intimidated, threatened, subjected to unsafe working conditions, deterred from testifying before a grand jury investigating possible crimes at Rocky Flats, and retaliated against after testifying. On review of a motion to dismiss for failure to state a claim, we accept all well-pleaded facts in the complaint as true. Williams v. Meese, 926 F.2d 994, 997 (10th Cir.1991). The facts surrounding this appeal, as asserted in the complaint, are as follows.
The Rocky Flats facility, located near Golden, Colorado, and operated under contract with the United States Department of Energy, produces and reprocesses detonation devices or "triggers" for nuclear warheads using materials including plutonium. The facility's activities include, among other things, storing, shipping, and incinerating plutonium-laden waste materials generated at Rocky Flats and other facilities. Rockwell International Corporation operated Rocky Flats from 1975 through 1989. EG & G has operated Rocky Flats since January 1, 1990. Ms. Pitts worked as a Chemical Operator at Rocky Flats from February 1984 until April 1991, when she resigned. Jacqueline Brever worked as a Chemical Operator at Rocky Flats from January 1984 until April 1991, when she also resigned.
Numerous agents of the FBI raided Rocky Flats on June 6, 1989 to investigate the illegal operation of an incinerator in Building 771 during 1988 and 1989. Ms. Pitts and Ms. Brever realized they had worked together removing thermally hot residue from the incinerator in question during the relevant time period and became concerned that they may have unwittingly participated in illegal activity. At a staff meeting attended by Ms. Pitts, Ms. Brever, and several of the named individual defendants on June 12, Ms. Pitts was told not to cooperate with the FBI investigation. She stated that she would not lie or cover up anything if interviewed by the FBI. The following day, defendants refused Ms. Pitts and Ms. Brever access to documentation that would confirm the dates and nature of their duties with respect to the Building 771 incinerator.
On the afternoon of June 13, Rockwell called an employee meeting, attended by Ms. Pitts and Ms. Brever. William Weston, Rockwell's Manager of Plutonium Operations, stated in connection with the ongoing FBI raid and investigation that Aplt. App. at 4, p 21. On June 14, the FBI initiated contact with Ms. Pitts and Ms. Brever. Later that same day, defendant Ricky Carlson requested that plaintiffs report to the legal department of Rockwell to be interviewed by representatives of Rockwell. They refused to do so without legal representation. When they told Mr. Carlson that they intended to report his request to the FBI, he forbade them from doing so.
Ms. Pitts and Ms. Brever asserted in their complaint that on June 15 defendants began "a campaign of harassment, intimidation, terror, physical attack upon the person and property of plaintiffs, and other cowardly acts, intended to coerce plaintiffs into falsifying, concealing, or covering up material facts and information which the FBI, and later the United States Department of Justice, was seeking directly from plaintiffs." Aplt. App. at 5, p 25. From June 15 to September 14, defendants subjected Ms. Pitts and Ms. Brever to acts including, among other things, direct threats of harm; publication of false charges that they were whistleblowers; repeated assignment to onerous or excessively hazardous work duties; intentional bypassing of required safety procedures affecting them; intentional delay in responding to incidents where Ms. Pitts and Ms. Brever were contaminated with radioactive material and in need of monitoring and decontamination; sexually explicit and insulting remarks; and sexually harassing body contact.
On September 14, Ms. Pitts and Ms. Brever "were intentionally exposed to radiation due to deliberate sabotage whereby defendants caused a hole to be made in a newly installed glove in a glovebox," id. at 7, p 26, used to handle highly contaminated radioactive material. When Ms. Pitts and Ms. Brever encountered defendants Donald Bell and Michael Evans later that day, the two men were laughing about the contamination incident and stated, "That's what you get for making waves." Id. Ms. Pitts and Ms. Brever allege that the harassment and intimidation continued from September 15 onward with the consent of Rockwell. On October 12, the United States Attorney for Colorado granted Ms. Pitts and Ms. Brever immunity from prosecution for any crimes committed at Rocky Flats and ordered them to testify before the federal grand jury in Denver. The harassment and intimidation continued thereafter and included, among other things, ignoring reports by Ms. Pitts and Ms. Brever of hazardous working conditions; demanding to know the nature and extent of their communications with the FBI; and entering their residences when no one was at home to leave signs of entry for purposes of intimidation.
On October 23 and 24, Ms. Brever testified before the grand jury in Denver. Ms. Pitts gave testimony on October 25. During the days of Ms. Brever's testimony, Ms. Pitts noticed a marked increase in hostility from defendants, including comments containing vulgar and obscene language. Ms. Pitts had been working in the "hot side" of Rocky Flats 3 and her requests for a transfer out of this area went unheeded. At the express request of the FBI and the United States Department of Justice, Rockwell allowed Ms. Pitts and Ms. Brever to be transferred from the "hot side" of the plant to the "cold side" on October 30. Several individual defendants jeered and heckled Ms. Pitts and Ms. Brever as they were cleaning out their lockers, and defendants Michael Evans and Donald Bell proclaimed, Id. at 9, p 31.
After the October 30 transfer to the "cold side" of Rocky Flats, Ms. Pitts and Ms. Brever continued to experience harassment including the following: harassing phone calls and mail; deliberate interference with previously filed worker compensation claims and scheduled medical treatment; intentional illegal wiretapping of their home telephones; vandalizing vehicles belonging to Ms. Pitts and her husband; shooting out the windows of Ms. Pitts' daughter's car when it was parked at Ms. Pitts' home, and firing gunshots in the yard of Ms. Pitts' home; parking conspicuously in front of Ms. Pitts' home and then following her when she travelled in her car; attempted arson of Ms. Pitts' home; attempted breaking and entering of Ms. Pitts' home; an attempt to kill or seriously injure Ms. Pitts by sabotaging her vehicle; and a threat by defendant Rick Williams to " 'hunt [plaintiffs] down and kill them' if plaintiffs caused defendant Rick Williams to lose his job." Id. at 10-11, p 35.
On April 17, 1991, Ms. Pitts resigned her position as Chemical Operator at Rocky Flats because of unbearable work conditions, harassment, and for fear of her safety and the safety of her family. Ms. Brever resigned one week later.
Ms. Pitts and Ms. Brever filed suit in October 1991 alleging that the Rockwell defendants conspired to deter testimony and that both the Rockwell defendants and...
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