The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
This is a race discrimination in employment action brought by four hourly-paid unionized employees pursuant to 42 U.S.C. § 2000e, et seq., [Title VII] and 42 U.S.C. § 1981, arising out of their employment as security guards at the Y-12 Plant in Oak Ridge, Tennessee. The employment of three of the four plaintiffs stretches back over 30 years into periods where neither defendant in this case was their employer. They complain that they have been subjected to a racially hostile work environment first by defendant Lockheed Martin Energy Systems, Inc. (Lockheed Martin) and later its successor as security forces contractor at Y-12, defendant Wackenhut Services, Inc. - Oak Ridge (Wackenhut). They claim discrimination on account of their race (black) in promotions, job assignments, other terms and conditions of their employment, and the perpetration over years of a racially hostile work environment. Currently pending are motions for summary judgment of both defendants with respect to all four of the remaining plaintiffs [Court Files #7, #9, #11, #13, #15, #17, #19, #21, and #23]. For the reasons that follow, each of those motions will be granted and this action dismissed.
The following factual allegations are considered in the light most favorable to the plaintiffs.
This case involves the Y-12 Plant in Oak Ridge, Tennessee, and the security guards who protect it. The Y-12 Plant is situated on over 800 acres of land and contains some 250 buildings that house approximately seven million square feet of laboratory, machining, dismantlement, and research and development areas. The armed protective forces at Y-12 guard the Nation's largest single storage of weapons-grade uranium. Without a doubt, the security of the Y-12 Plan is vital to national security.
The Department of Energy has always contracted out the security services for the Y-12 Plant. From the late 1940s until 1984, Union Carbide Corporation was the managing and operating contractor. In 1984, pursuant to a contract with the Department of Energy, Martin Marietta replaced Union Carbide. In 1995, Martin Marietta's parent corporation merged with Lockheed Corporation, at which point the name of the operating contractor was changed to Lockheed Martin. Effective January 10, 2000, the Department of Energy awarded Wackenhut the contract to perform the security and related support services at Y-12. As of January 10, 2007, Wackenhut replaced Lockheed Martin insofar as providing security and related support services is concerned. It is undisputed that Wackenhut and Lockheed Martin are totally separate companies, although at the time of the changeover in 2000, many of the former Lockheed Martin employees, both supervisors and others, including the four plaintiffs in this case, were hired by Wackenhut.
The work done by security guards at Y-12 - Security Police Officers (SPOs) and Security Officers (SOs), as they are officially called - is subject to extensive DOE regulations that apply to protective force personnel at government-owned facilities like Y-12. See 10 CFR Part 1046. This regulation requires SPOs to meet certain physical fitness and other requirements, at specified intervals, to maintain their status. The International Guards Union of America, Local 3 (Guards Union) represents the hourly paid guards at Y-12. Its members are "guards" as defined in the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. As such, they cannot be represented by a labor organization that represents employees other than guards. At all times material to this case, the employment of the four guards has been covered by a collective bargaining agreement (CBA) between the guards union and their employer, formerly Lockheed Martin and now Wackenhut. On occasion, guards who initially work in positions covered by the CBA, including two guard plaintiffs previously in this case, James Clark and Paul Moore, move into supervisory positions outside the bargaining unit covered by the CBA.
Wackenhut's CBA with the guards union covers security guards in three bargaining unit classifications: Security Police Officers III (SPO-III), Security Police Officers-II (SPO-II), both armed guards, and Security Officers (SOs), who are unarmed guards. The same is true of the CBAs that Lockheed Martin had with the guards union. In general terms, the SPOs and SOs are responsible for providing physical security for the Y-12 Plant; for providing protection for DOE property and classified material; for providing protection for special nuclear materials from theft, fire, sabotage, or unauthorized detonation; and for planning and executing work in a safe manner in accordance with applicable safety rules and regulations.
Guards are hired as armed guards or SPO-IIs, the classification that has a higher rate of pay than the SO classification. An SPO who is unable to meet the requirements of DOE regulation 10 CFR Part 1046 is automatically reclassified as an SO as provided in the CBA. The employee remains an SO provided he/she has sufficient seniority, or until he meets the requirements, at which point the employee is reclassified in the SPO-II classification. If there are more SOs than there are positions for SOs, the SO (or SOs as the case may be) with the least seniority are given, pursuant to the CBA, a "ninety-day letter" which requires the SO to requalify as an SPO or find another job within the ninety-day period. If the employee can do neither, the employee is terminated. For example, guard plaintiff Sheard, originally an SPO, has been an SO since 1993. Due to work-related injuries, Sheard has not attempted to requalify as an SPO since 1993. Guard plaintiffs John Davidson and John Moran were SOs for over ten years; both are now specially classified as SPOIIs because of their armorer jobs. All SOs and SPOs are required to maintain a Q-clearance, or security clearance, as a condition of their employment.
Throughout the years that Lockheed Martin and Wackenhut have been DOE's security contractors at Y-12, they have continuously promoted and implemented principles of Equal Employment Opportunity (EEO), Affirmative Action (AA), and diversity in all aspects of employment. Both have implemented and publicized internal complaint procedures which they have used to encourage employees to resolve any kind of employment-related concern they might have, including harassment and hostile work environment concerns. Lockheed Martin's Employee Concerns / Response Program, adopted in 1988, was described in LMES's 1995 Affirmative Action Plan:
A key principle of [LMES]' Values and the Corporate Code of Ethics and Standards of Conduct is that all individuals have the opportunity to raise concerns and make disclosures without fear of retribution. [LMES] is committed to providing an environment where people feel free to speak out on issues or concerns including health, safety, environment, waste, fraud, abuse, harassment, misconduct, unfair treatment, etc. Each person in [LMES] has a responsibility to surface concerns that arise in the workplace and should be assured that these concerns will be addressed in a responsible, timely, and confidential manner.
We are constantly trying to improve all of our activities, and the Employee Concerns Program is no exception. In an effort to be sure that all employees know that their concerns and suggestions will be taken seriously and feel free to voice them, we have instituted a new Employee Concerns / Response Program. We believe that dealing with employees' problems as concerns and not treating them as "complaints" is an important change in the way we do business. To make it easier for individuals to raise concerns of all kinds, we have adopted a single form to document issues and to help assure feedback and follow-up. A letter was sent to each employee explaining the new process and articles were featured in the Energy System News and News Wire.
Declaration of Gail Sewell, Appx. ¶ 9.
The Lockheed Martin Employee Handbook also contained a section entitled "Employee Concerns Response Program" which says in part:
You are encouraged to address suggestions and concerns regarding safety and health, environmental protection, ethics, equal employment opportunity/affirmative action (EEO/AA), sexual harassment, and other issues relating to the workplace. Within 180 calendar days from when the concern occurred, you should contact your direct manager or the next appropriate level of line management. Concerns can be reported orally or in writing, using an Employee Concern Response Program form (UNC-19937), and anonymous reporting and concerns consulting are available by calling one of the numbers below.
See Sewell Affidavit, ¶ 10. The Lockheed Martin Employee Handbook listed various telephone numbers that employees could call in order to express concerns and described several other ways for employees to express concerns, without fear of "intimidation, retribution or reprisal." Lockheed Martin also disseminated its Equal Employment Opportunity / Affirmative Action Plan internally and externally in many different ways. Management officials were required to attend training sessions with employees and to participate in additional training tailored to supervisors. During each EEO/AA training session, Lockheed Martin's commitment to a strong policy prohibiting racial discrimination and harassment was communicated to all employees.
James M. Barnes, an African-American, was Director of Lockheed Martin's Workforce Diversity Organization. As Barnes informed the EEOC, "Affirmative action is not merely a policy at Lockheed Martin, it is the practice."
Barnes Affidavit at ¶ 4. In addition to Barnes, Lockheed Martin's EEO / Workforce Diversity Organization was comprised of four workforce diversity managers and 43 diversity representatives at Oak Ridge in 1998. In September 1998, three of the four workforce diversity managers were black. At the same time, there were 43 workforce diversity representatives, of whom 19 were black.
Due to budget-driven reductions in force in the 1990s, the number of guards (SPO-IIIs, SPO-IIs, and SOs) at Y-12 decreased from 420 in September 1995 to 356 in September 1999. Despite these force reductions, the percentage of minorities and African-Americans employed as guards at Y-12 remained virtually constant at slightly over 20%.
With respect to promotions, Lockheed Martin implemented policies and programs designed to assist incumbent employees in increasing the level of their training and education so as to enhance their opportunity for promotion. Each program, although not available to all employees, has proven helpful to many minority employees. In 1990, Lockheed Martin formalized a Job Opportunity System (JOS) for non-exempt salaried positions. Under the JOS, employees were notified when vacancies in non-exempt salaried positions occurred so that they could apply if they wished to and obtain counseling, upon request, if they were not selected for the job. The Job Advertising System (JAS) for exempt salaried employees, adopted in 1994, formalized the existing practice of advertising internally (bulletin boards and electronic media) so that employees could express an interest in available job openings for purposes of promotion, career planning and career development. These two programs were merged in 1999. Many hourly paid employees who worked in the bargaining unit, including African-Americans, covered by the CBA were promoted to salaried positions outside the bargaining unit. There were no promotions, as such, within the bargaining unit itself. So long as protective force personnel chose to remain in the bargaining unit, they were classified either as SPOIIs or SPO-IIIs or SOs, and the terms and conditions of their employment were governed by the CBA. All of Lockheed Martin's CBAs at Y-12 contained strong anti-discrimination provisions which were enforceable under the CBAs' grievance and arbitration clauses and through the company's EEO organization. Under the Employee Concerns / Response Program, employees could and did challenge initial job selections if they believed the selection was discriminatory.
Lockheed Martin also provided an annual performance appraisal for each employee. The appraisal forms provided a space in which the salaried employees were encouraged to identify any condition, such as discrimination or harassment, that negatively impacted their job performance.
The Workforce Diversity / EEO Organization was part of Lockheed Martin's Human Resources Organization. Its Director was James Barnes. Additionally, each Lockheed Martin division had its own Affirmative Action Representative, who received on-going training and worked as a liaison between the Division Managers and the Workforce Diversity / EEO Organization in identifying issues and concerns.
Lockheed Martin's actions with respect to the EEO/AA were also monitored externally by DOE. Lockheed Martin was required to submit an annual "EEO/AA Plan" to DOE.
On January 10, 2000, when Wackenhut began operations under its contract with DOE, Wackenhut transitioned 350 Security Police Officers and Security Officers. Upon their transition into employment by Wackenhut, these employees occupied four classifications: Security Police Officer-I (SPO-I), Security Police Officer-II (SPO-II), Security Police Officer-III (SPO-III), and Security Officer (SO). Employees in the SPO classification who did not work at Y-12 and were promptly converted to the SPO-II classification by Wackenhut. SPO-IIs are classified as armed, defensive, combative personnel. See 10 CFR § 1046.3. SPO-IIIs are members of the Special Response Team and are classified as armed, offensive, combative personnel. Id. To become an SPO-III, one must already be employed as an SPO-II and must pass an additional training course designed to provide skills necessary to perform Special Response Team duties. SOs are unarmed guards who are former SPO-IIs or SPO-IIIs and who became no longer able to meet the physical fitness, weapons qualifying, or other DOE-mandated requirements to be an armed SPO. Of the 350 SPO and SO transitional employees, 69 were African-American, four were Hispanic or American Indian, and 276 were Caucasians. Thus, 19.7% of Wackenhut's starting SPO-II, SPO-III, and SO employees were African-American and 20.9% were minorities.
Wackenhut also states its commitment to Equal Employment Opportunity (EEO) and Affirmative Action (AA) in its policies. Each version of its policy provides, "All personnel actions are effected without regard to race, color, ... in accordance with the following." It also provides an annual AA Plan submitted to DOE. The terms and conditions of employment of bargaining unit personnel, such as SPOs and SOs, who were transitioned from employment by Lockheed Martin to Wackenhut, were also governed by the collective bargaining agreement between Lockheed Martin and the International Guards Union of America (IGUA). Its first CBA prohibited discrimination by either the employer or IGUA on the basis of race or color. It provides that any employee may discuss with his or her superiors any matter that he or she feels requires adjustment. The first CBA provides a multi-step grievance procedure addressing all complaints, disputes, or misunderstandings involving questions of interpretation or application of any provision of the CBA. The second CBA between Wackenhut and IGUA, in effect between November 15, 2001, and November 15, 2006, provides similar non-discrimination and grievance provisions. Wackenhut has filed annual diversity reports with DOE since 2000. The 2005 diversity reports demonstrate that Wackenhut has put a significant effort into promoting diversity not only in recruiting and hiring, but across the board in its efforts to maintain a diverse workforce.
DOE's oversight of Wackenhut's diversity results, including regular review of the results of SPO recruiting and hiring, is also demonstrated in a semi-annual award fee termination process. Under the DOE contract, Wackenhut does not receive a guaranteed fee for its performance. Rather, the award fee is based on performance against objectives that DOE establishes on a semi-annual basis. After the evaluation period, Wackenhut provides DOE with its semi-annual evaluation of performance against the objectives, DOE, and now the National Nuclear Security Administration (NNSA), grade Wackenhut's performance in each category and the resulting grades are tallied to determine the award fee. The Human Resources and Labor Relations performance objectives make up 5% of the award of the fee. The statistics for 2005 revealed that while only 7% of the applicants of a known race were minorities, 11% of the officer positions went to the minorities.
Wackenhut contends that it is committed to immediate and appropriate preventive and corrective action upon learning of racial discrimination, including verbal or written reprimands, suspensions, demotions, or terminations, in accordance with its written policy. Wackenhut purports to take all claims of harassment seriously and takes prompt remedial action whenever a violation is found. Promotions to salaried and usually supervisory positions outside of the collective bargaining group are determined through an interview process with employees' work records a consideration. An employee who is currently being disciplined cannot apply for a promotion. Selection of job assignments within the CBA are determined by seniority in most cases. Occasionally, special assignments during the day are given to SOs who have lost their SPO-II status because of failure to meet the physical demands, so that they have access to exercise equipment during the day.
It is undisputed that all four plaintiffs who remain in this case were familiar with the complaint or grievance procedures both through their employer's EEO programs and through their union's grievance procedures. In fact, on several occasions throughout the years they have taken advantage of those procedures.
Because of the security concerns at Y-12, drug testing of the security guards is an important consideration. The record is undisputed that, despite some unsubstantiated suspicions by the plaintiffs, this drug testing is carried out in a completely random basis. For example, in January 2000, Wackenhut entered into a contract with NetGain Corporation to manage and handle the drug testing of Wackenhut employees. To select Wackenhut SPOs and SOs for drug testing, NetGain uses each work day the PSAP/HRP Random Selection Database Process provided by Fastech, Inc., a separate unaffiliated contractor corporation, to select randomly for drug testing Wackenhut's security personnel. In essence, NetGain asked the PSAP/HRP Database to select 10 to 25 Wackenhut employees for drug testing, without specifying in any manner the identity, race, or gender of any such employees to be selected. The system then randomly selects personnel for testing based on the individual's last test dates. Once selected, such individuals are contacted and tested, and eventually made available in the random selection pool one month following their test. The database structure does not contain either gender or ethnic information relative to any member included in the database. One using the database for purpose of selection of security personnel for drug testing receives a list of such personnel selected randomly according to their last drug test dates, and not selected according to race or gender.
Many of the complaints from the four plaintiffs have common themes and, for the sake of simplicity, the Court has divided them into the following subgroups:
(1) Claims of unequal or discriminatory discipline;
(2) Excessive drug testing of blacks;
(3) Inadequate promotion opportunities;
(4) Unfair distribution of overtime hours (either too much mandatory overtime or not ...