WBZ3-17-0007/WBH-17-0007 - In the Matter of John Smallman

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On August 23, 2018, the Office of Hearings and Appeals (OHA) issued an order granting Lawrence Livermore National Security’s (LLNS) motion for summary judgement (Motion) and denying Mr. John Smallman’s complaint (Complaint) under the Department of Energy’s (DOE) Contractor Employee Protection Program, 10 C.F.R. Part 708. Pursuant to an interlocutory order dated June 22, 2018 (Order), OHA dismissed five (5) acts of alleged retaliation by LLNS cited by Mr. Smallman in the Complaint as untimely, and rejected Mr. Smallman’s claims of retaliation under a hostile work environment theory. LLNS’s Motion argued that the sole remaining act of retaliation alleged by Mr. Smallman, LLNS’s decision to deny Mr. Smallman a bonus in 2017, was an inevitable consequence of its earlier assignment of a marginal performance rating to Mr. Smallman because LLNS’s compensation policy provided that no employee with a performance rating of marginal would receive a bonus. According to LLNS, there was no factual dispute that LLNS denied bonuses to all employees who received marginal performance ratings for that period. LLNS argued that it assigned Mr. Smallman a marginal performance rating more than ninety (90) days before Mr. Smallman filed the Complaint, that its denial of a bonus to Mr. Smallman was an effect of that decision and not an independent act of retaliation, and therefore that Mr. Smallman’s Complaint was untimely and should be dismissed. In his response to the Motion, Mr. Smallman admitted that LLNS’s denial of a bonus to Mr. Smallman was because of his marginal performance rating and did not dispute LLNS’s assertion that it did not pay bonuses to any employees with marginal performance ratings. Accordingly, OHA determined that there was no dispute of any material fact, that LLNS’s denial of a bonus to Mr. Smallman was not an independent act of retaliation, and that Mr. Smallman’s Complaint was untimely as to all of the other acts of alleged retaliation asserted in the Complaint. For those reasons, OHA denied the Complaint. OHA Case No. WBH-17-0007/WBZ3-17-0007.