Varnadore v. Secretary of Labor, Nos. 96-3888

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtRYAN
Citation141 F.3d 625
Parties13 IER Cases 1521, 28 Envtl. L. Rep. 21,102 C.D. VARNADORE, Petitioner, v. SECRETARY OF LABOR, Respondent, Lockheed Martin Energy Systems, Inc., et al., Intervenors.
Decision Date19 June 1998
Docket NumberNos. 96-3888,96-4389

Page 625

141 F.3d 625
13 IER Cases 1521, 28 Envtl. L. Rep. 21,102
C.D. VARNADORE, Petitioner,
v.
SECRETARY OF LABOR, Respondent,
Lockheed Martin Energy Systems, Inc., et al., Intervenors.
Nos. 96-3888, 96-4389.
United States Court of Appeals,
Sixth Circuit.
Argued Jan. 29, 1998.
Decided April 6, 1998.
Rehearing and Suggestion for Rehearing En Banc Denied June 19, 1998.

Page 626

Edward A. Slavin, Jr. (argued and briefed), Deerfield Beach, FL, for Petitioner.

Allen H. Feldman, Judith D. Heimlich, Nathaniel I. Spiller, U.S. Dept. of Labor, Office of the Solicitor, Washington, DC, Marleigh D. Dover, Christine N. Kohl (argued and briefed), U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Respondent in No. 96-4389.

Allen H. Feldman, Judith D. Heimlich, Nathaniel I. Spiller, U.S. Dept. of Labor, Office of the Solicitor, Washington, DC, Marleigh D. Dover (briefed), Christine N. Kohl (argued and briefed), U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Respondent in No. 96-3888.

E.H. Rayson (argued and briefed), John B. Rayson (briefed), John C. Burgin, Jr., Kramer, Rayson, Leake, Rodgers & Morgan, Knoxville, TN, G. Wilson Horde, Jr. (briefed), Patricia McNutt (briefed), Oak Ridge, TN, for Intervenor in No. 96-4389.

E.H. Rayson (argued and briefed), John B. Rayson (briefed), John C. Burgin, Jr. (briefed), Kramer, Rayson, Leake, Rodgers & Morgan, Knoxville, TN, G. Wilson Horde, Jr. (briefed), Patricia McNutt (briefed), Lockheed Martin Energy Systems, Inc., Oak Ridge, TN, for Intervenor in No 96-3888.

Before: RYAN and SILER, Circuit Judges; HOOD, District Judge. *

OPINION

RYAN, Circuit Judge.

Following what C.D. "Bud" Varnadore considered to be various acts of retaliation for protected activity during the course of his employment at Oak Ridge National Laboratory, he filed three complaints with the Secretary of Labor under the whistleblower provisions of seven environmental statutes: the Clean Air Act, 42 U.S.C. § 7622(b); the Toxic Substances Control Act, 15 U.S.C. § 2622(b); the Safe Drinking Water Act of 1974, 42 U.S.C. § 300j-9(i)(2); the Federal Water Pollution Control Act, 33 U.S.C. § 1367(b); the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9610(b); the Energy Reorganization Act of 1974, 42 U.S.C. § 5851(b); and the Solid Waste Disposal Act, 42 U.S.C. § 6971(b). The Secretary concluded that Varnadore's first complaint was time-barred; then, a newly created entity called the Administrative Review Board concluded that Varnadore's second and third complaints were not valid for various reasons.

In this appeal, Varnadore raises two issues. First, he argues that the Secretary erred in concluding his complaint was time-barred, and claims the Secretary wrongly decided that the only complained-of act occurring within the statutorily determined 30-day period was not a retaliatory act. He also argues that the Secretary acted unconstitutionally in creating the Administrative Review Board and delegating his decisionmaking authority for this case to the board.

For the reasons that follow, we will affirm.

I.

Varnadore was hired to work in the Analytical Chemistry Division of Oak Ridge National Laboratory in Oak Ridge, Tennessee, in 1985; ORNL "is one of the world's largest and most diverse centers for basic and applied scientific research and technology development." During the period in question, Varnadore's employer was Martin Marietta Energy Systems, Inc., a wholly owned subsidiary of the Martin Marietta Corporation. The current employer at ORNL, however, is Lockheed Martin Energy Systems, Inc.

There are two events in Varnadore's employment history at ORNL that the ALJ found constituted protected activity: an incident in 1985 when he told his supervisor that, due to a vision problem, he was unable to use some mechanical hands to manipulate contaminated material without spilling it, and an incident in 1989 when he complained about a coworker's handling of contaminated soil samples. The particulars of neither incident are relevant to the issues in this appeal;

Page 627

what is important is that it has been determined that Varnadore engaged in protected activity, and, therefore, he has established that element of his prima facie case.

Further, Varnadore has alleged, and the ALJ found, that various acts of retaliation were directed against Varnadore, such as assigning him "makework" jobs; giving him poor appraisals; and purposefully isolating him from his coworkers. Only one category of retaliatory action, however, is directly pertinent to this appeal: assigning Varnadore certain office space contaminated, at least to some degree, by hazardous wastes.

In the summer of 1989, Varnadore was diagnosed with colon cancer and underwent surgery. He makes no claim that the cancer was related to his work. After he returned to work in early 1990, he was repeatedly reassigned to different groups and divisions. The reassignments resulted in "a series of miscellaneous jobs [for Varnadore,] such as inventorying idle equipment in the attic," or inventorying surplus chemicals. In March 1991, Varnadore was "officially placed under [the] supervision [of Darrell Wright] on a permanent basis."

Wright assigned Varnadore to a new "home base" in laboratory room R-151. A "home base" is where ORNL technicians are assigned desk space. Generally, technicians use their home base for phone calls and completing paper work. The ALJ found that the reason for the new assignment was an effort to "get ... [Varnadore] away from all the employees." At the time, R-151 "was a temporary storage area to accumulate waste from other laboratories. Fifty percent of the floor space was covered with waste. It had not been used as a home base for three years." It is the nature of the waste that is significant here:

The room contained drums of radioactive waste, bags of radioactive waste, bags of asbestos waste and some waste chemicals. Some of the chemicals had a low level of radioactivity. There were also radioactive asbestos impregnated counter tops.

Both Wright and Wright's supervisor, W.D. Shults, who approved the room assignment, knew that the room contained radioactive waste, but thought the level of radioactivity was low--which, in fact, it was. There is no dispute, however, that other rooms were available for Varnadore at the time.

One day in the late summer of 1991, after Varnadore had been assigned to R-151 for about six months, a health physics technician passed by and saw Varnadore in the room. She was surprised because she had previously "assumed that it was just a RAD (radiation) waste storage area." She told Varnadore that she did not think he should be working in the room, and after taking some radiation-dose readings, told Varnadore "that either he or the drums should be moved immediately." This health physics technician told another person, who in turn told Wright "that either the occupant of the room or the drums [should] be removed."

Varnadore was next assigned to room E-259, at the beginning of September 1991. E-259 had previously been a mercury reclamation center, and was "used to store samples and waste"; it, like R-151, had not been used as a home base for three or four years. Visible mercury was in several places throughout the room. An industrial hygienist wrote to Wright at the end of October 1991, "recommend[ing] that [E-259] not be utilized as office space." Despite receiving this communication, Wright "felt there was no urgency in moving Varnadore." Several weeks later, while Varnadore was still assigned to the room, an inspection team noted that E-259 contained improperly labeled chemical hazardous waste, and described it as "a housekeeping NIGHTMARE."

Shults, Wright's supervisor, conceded at trial "that during the time [Varnadore] was in R-151 as his home base, he was receiving a daily dose of radiation in excess of normal background radiation." He also agreed with the conclusions of a survey conducted by a Department of Energy panel in March through May 1992 "that at the time [the DOE] did this survey that Rooms R-151 and E-259 were not appropriate office space," and likewise, "that a room with visible mercury is not acceptable for office space." Shults further agreed that it would have been "a simple matter" to clean up R-151 before Varnadore used it as his home base,

Page 628

and the ALJ found that E-259 could also have been cleaned up in one or two days. The ALJ specifically found--based in part on explicit testimony--that "[t]he intent" behind the room assignments "was to isolate [Varnadore] from his fellow employees."

The incident that stands at the crux of this appeal occurred on November 4, 1991: a conversation between Wright and Varnadore relating to Varnadore's possible relocation back to R-151. The parties hotly dispute the tenor of this conversation, particularly whether Wright was threatening Varnadore, or whether Wright was simply neutrally...

To continue reading

Request your trial
15 practice notes
  • Willy v. Administrative Review Bd., No. 04-60347.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 24, 2005
    ...Order 102992, 67 Fed.Reg. 64272, 64273 (Oct. 17, 2002); 61 Fed.Reg. 19,978. 24. 61 Fed.Reg. 19,978; see also Varnadore v. Sec'y of Labor, 141 F.3d 625, 630 (6th 25. See Landry v. FDIC, 204 F.3d 1125 (D.C.Cir.2000). 26. Pennsylvania v. U.S. Dep't of Health and Human Servs., 80 F.3d 796, 804-......
  • Rhode Island Environmental v. U.S., No. 00-2326.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 30, 2002
    ...with judicial review provisions of the APA, 5 U.S.C. §§ 701-706. See 42 U.S.C. §§ 6971(b), 6976(b); see also Varnadore v. Sec'y of Labor, 141 F.3d 625, 630 (6th Cir.1998); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 n. 2 (8th B. Factual Background and Proceedings Below 1. Administrative ......
  • William J. Lang Land v. Administrator, Wage, Civil Case No. 04-10336.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 29, 2007
    ...or if it is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Varnadore v. Secretary of Labor, 141 F.3d 625, 630 (6th Cir.1998) (quoting the Administrative Procedure Act at 5 U.S.C. 706(2)(A)). The ARB acts for the Secretary of Labor and is responsib......
  • Tucker v. Comm'r of Internal Revenue, No. 3165–06L.
    • United States
    • United States Tax Court
    • July 26, 2010
    ...Appeals for the Fifth Circuit, see Willy v. Admin. Review Bd., 423 F.3d at 491–492, and the Sixth Circuit, see Varnadore v. Sec. of Labor, 141 F.3d 625, 631 (6th Cir.1998), and Holtzclaw v. Sec. of Labor, 172 F.3d 872 (6th Cir.1999), approved the creation of the ARB as being within the gene......
  • Request a trial to view additional results
15 cases
  • Willy v. Administrative Review Bd., No. 04-60347.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 24, 2005
    ...Order 102992, 67 Fed.Reg. 64272, 64273 (Oct. 17, 2002); 61 Fed.Reg. 19,978. 24. 61 Fed.Reg. 19,978; see also Varnadore v. Sec'y of Labor, 141 F.3d 625, 630 (6th 25. See Landry v. FDIC, 204 F.3d 1125 (D.C.Cir.2000). 26. Pennsylvania v. U.S. Dep't of Health and Human Servs., 80 F.3d 796, 804-......
  • Rhode Island Environmental v. U.S., No. 00-2326.
    • United States
    • U.S. Court of Appeals — First Circuit
    • August 30, 2002
    ...with judicial review provisions of the APA, 5 U.S.C. §§ 701-706. See 42 U.S.C. §§ 6971(b), 6976(b); see also Varnadore v. Sec'y of Labor, 141 F.3d 625, 630 (6th Cir.1998); Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 n. 2 (8th B. Factual Background and Proceedings Below 1. Administrative ......
  • William J. Lang Land v. Administrator, Wage, Civil Case No. 04-10336.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • September 29, 2007
    ...if it is `arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Varnadore v. Secretary of Labor, 141 F.3d 625, 630 (6th Cir.1998) (quoting the Administrative Procedure Act at 5 U.S.C. 706(2)(A)). The ARB acts for the Secretary of Labor and is respons......
  • Tucker v. Comm'r of Internal Revenue, No. 3165–06L.
    • United States
    • United States Tax Court
    • July 26, 2010
    ...Appeals for the Fifth Circuit, see Willy v. Admin. Review Bd., 423 F.3d at 491–492, and the Sixth Circuit, see Varnadore v. Sec. of Labor, 141 F.3d 625, 631 (6th Cir.1998), and Holtzclaw v. Sec. of Labor, 172 F.3d 872 (6th Cir.1999), approved the creation of the ARB as being within the gene......
  • Request a trial to view additional results
1 firm's commentaries

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT