Jones v. Tennessee Valley Authority

Decision Date31 October 1991
Docket NumberNo. 90-5570,90-5570
Citation948 F.2d 258
Parties120 Lab.Cas. P 10,987 James C. JONES; Linda Jones, Plaintiffs-Appellants, v. TENNESSEE VALLEY AUTHORITY; Charles H. Dean; John B. Waters, Jr.; Michael S. Kidd; Harrison Newt Culver; Richard D. Smith; Joan T. Muecke; Kermit Whitt; William F. Willis; Robert J. Mullin; Steven A. White; Nicholas C. Kazanas; Unknown Employees of the Tennessee Valley Authority, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

David Stern, Lynne Bernabei (argued and briefed), Debra Katz (briefed), Bernabei & Katz, Washington, D.C., for plaintiffs-appellants.

Justin M. Schwamm, Sr., Asst. Gen. Counsel, Thomas F. Fine, Sr. Litigation Atty., Brent R. Marquand (argued and briefed), Thomas A. Robins, Tennessee Valley Authority, Knoxville, Tenn., for defendants-appellees.

Before KEITH and KRUPANSKY, Circuit Judges, and ENGEL, Senior Circuit Judge.

KEITH, Circuit Judge.

Plaintiff-appellant James C. Jones ("plaintiff") appeals the district court's dismissal of his claims against defendants-appellees, Tennessee Valley Authority ("TVA") officials (collectively "defendants"), for violation of plaintiff's first and fifth amendment rights, violation of 42 U.S.C. § 1985(1) and intentional infliction of emotional distress. For the reasons stated below, we AFFIRM.

I.
A.

For the purpose of review, we accept plaintiff's allegations as true. According to plaintiff, from 1981 through September 1988, he was employed by TVA as a nuclear engineer. Plaintiff's status as a TVA employee was that of a preference eligible non-disabled veteran. Plaintiff was hired as a manager at the M-5 level on TVA's management schedule. From September 1981 until December 1984, plaintiff held the position of Nuclear Engineer and Quality Assurance Specialist on the Nuclear Safety Review Staff ("NSRS") of TVA, with the responsibility to conduct overall investigations, reviews, and appraisals of safety systems and safety activities at TVA's nuclear power plants.

From November 1981 until July 1983, plaintiff conducted reviews of the welding program at the Watts Bar nuclear plants, which was at that time preparing to meet licensing standards. Plaintiff identified serious safety problems, which prohibited immediate licensing of the plants. Among these safety violations were the use of unqualified welding inspectors, the failure of TVA's welding program to meet nuclear industry codes and the lack of required documentation for the plants' weld inspection program. Plaintiff also found that TVA management failed to resolve any of these safety problems after they were identified to management, in violation of Nuclear Regulatory Commission ("NRC") requirements.

Plaintiff reported these safety problems to his NSRS supervisors but his supervisors allegedly attempted to pressure plaintiff to suppress his safety findings through harassment and intimidation. Plaintiff alleges that his supervisors verbally abused and intimidated him by assigning him to menial tasks, singling him out for undeserved reprimands, and unfairly lowering his performance appraisal. Plaintiff purportedly requested that he be relieved of his welding responsibilities in order to escape the harassment, but his supervisors denied the request.

From June 1984 until November 1984, plaintiff participated in an overall review of procurement practices in TVA's nuclear program. Plaintiff identified serious deficiencies in TVA's procurement program at its Sequoyah and Browns Ferry facilities. Allegedly, in retaliation, plaintiff's supervisors escalated the harassment against plaintiff by unfairly reprimanding him, verbally abusing him, belittling his work, assigning him to work under an inexperienced engineer who lacked the proper qualifications to lead an audit, and monitoring and obstructing his work activities in a manner so as to discredit him. Plaintiff alleges that defendants' intentions were to pressure him to suppress his safety findings and certify that TVA's plants were safe for operation.

In November 1984, plaintiff left NSRS and transferred to a lower level, M-4 position in TVA's Chattanooga office. Plaintiff was no longer given substantive assignments in his area of expertise. On June 11, 1986, plaintiff and four other TVA engineers testified before the Subcommittee on Oversight and Investigations of the United States House of Representatives Committee on Energy and Commerce. They described, under oath, the serious welding and procurement problems in TVA's nuclear power program which they had identified and which demonstrated that TVA could not safely operate its nuclear reactors. After the hearing, TVA Director John B. Walters publicly ridiculed plaintiff and the other engineers for their testimony by calling them the "Fabulous Five."

Two months later, TVA managers relieved plaintiff of his welding and procurement responsibilities. TVA managers allegedly increased their surveillance of him in order to monitor his communications with the NRC and congressional investigators. Although TVA's General Manager, Willis, and TVA directors, Waters and Charles Dean, were informed of the harassment of plaintiff, they did nothing to stop it.

Plaintiff alleges that his Chattanooga supervisors unfairly lowered his performance appraisals in order to make him susceptible to being terminated in future work force reductions, and denied him promotions, bonuses and pay raises to which he was entitled. In addition, plaintiff alleges that the Chattanooga supervisors intentionally caused him emotional distress by attempting to obtain his confidential medical records.

Plaintiff further alleges that during the entire period from 1982 to the present, defendants pressured plaintiff to withdraw his safety findings, engaged in an unlawful conspiracy to discredit plaintiff within TVA and with the general public and attempted to damage plaintiff's professional reputation. Defendants also engaged in a campaign to silence plaintiff from speaking publicly about TVA's safety problems by removing him from his primary responsibilities, downgrading his performance appraisals and constantly monitoring his activities.

Plaintiff claims that as a result of this long pattern of harassment and intimidation, he suffered physical and emotional injury. Plaintiff was diagnosed in 1988 with post traumatic stress disorder, a permanent psychiatric injury which totally incapacitates him from working or enjoying many activities in which he could formerly engage.

B.

On May 7, 1987, plaintiff filed a complaint in district court against TVA, six former and current TVA officials, and other unknown employees of TVA. The complaint alleged that defendants had harassed, intimidated and attempted to silence plaintiff, damaged his professional reputation and attempted to drive him from the federal service, in violation of the first and fifth amendments and 42 U.S.C. § 1985(1). Plaintiff also alleged that defendants had committed the tort of intentional infliction of emotional distress against him. Linda K. Jones, plaintiff's wife, alleged loss of sexual society, loss of services, companionship and affection as a result of the intimidation and harassment of her husband. On June 31, 1987, plaintiff filed an amended complaint which added the claim that defendants wiretapped or intercepted plaintiff's phone calls at work, in violation of the fourth amendment and 18 U.S.C. § 2510.

On August 10, 1987, defendants moved for dismissal for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment. In their motion, defendants asserted that plaintiff's claims based on events prior to May 7, 1986, were barred by limitations, that no judicial remedy for a constitutional violation could be implied, that the exclusive remedy provision of the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8116(c), barred plaintiff's claims for mental and physical injury and, finally, that there was no basis in fact for the wiretapping claim.

On January 22, 1988, the district court dismissed plaintiff's constitutional claims on the ground that it was inappropriate for the court to imply a Bivens 1 cause of action under the Constitution because plaintiff had comprehensive administrative remedies under the Energy Reorganization Act ("ERA") and the Civil Service Reform Act ("CSRA"). The district court also stayed plaintiff's claim for intentional infliction of emotional distress pending a determination by the Secretary of Labor as to whether plaintiff's claim was covered under the Federal Employees' Compensation Act ("FECA"). Finally, the district court denied dismissal of the wiretapping claim.

Both parties filed motions for reconsideration. On April 15, 1988, the district court held that FECA was not a bar to plaintiff's claim of intentional infliction of emotional distress because the injuries fell outside the scope of FECA. However, the district court otherwise denied both motions for reconsideration.

On June 6, 1988, the district court dismissed plaintiff's amended complaint alleging a conspiracy to violate plaintiff's civil rights under 42 U.S.C. § 1985(1). The district court held that the § 1985(1) claim merely re-alleged the Bivens constitutional claim which the district court had previously dismissed. Plaintiff filed a motion for reconsideration of the dismissal, arguing that § 1985(1), unlike other civil rights statutes, creates substantive rights and is not limited to providing a remedy for a constitutional violation. On July 15, 1988, the district court denied the motion for reconsideration, stating that § 1985 should not be extended to federal employer-employee relations for which adequate administrative remedies are available.

On September 2, 1988, defendants moved for dismissal or in the alternative for summary judgment on the remaining claims of intentional infliction of emotional distress and wiretapping. On October 14,...

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