ARB CASE NO. 98-100
ALJ CASE NO. 95-CAA-19
DATE: March 30, 2001
In the Matter of:
BRENDA W. SHELTON,
COMPLAINANT,
v.
OAK RIDGE NATIONAL LABORATORIES;
LOCKHEED MARTIN ENERGY SYSTEMS, INC.;
MARTIN MARIETTA TECHNOLOGIES, INC.;
LOCKHEED MARTIN CORPORATION; and
U.S. DEPARTMENT OF ENERGY,
RESPONDENTS.
Appearances: For the Complainant: Edward R. Slavin, Jr., Esq., St. Augustine, Florida
For Respondents:
E. H. Rayson, Esq. and John C. Burging, Jr., Esq., Kramer, Rayson, Leake, Rodgers, & Morgan, Knoxville, Tennessee
Robert E. James, Esq., Oak Ridge Operations Office, U.S. Department of Energy, Oak Ridge, Tennessee
FINAL DECISION AND ORDER
I.INTRODUCTION
This case arises under the Clean Air Act, 42 U.S.C.A. §7622 (West 1995) ("CAA"), the Toxic Substances Control Act, 15 U.S.C.A. §2622 (West 1998 ) ("TSCA"), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. §9610 (West 1995) ("CERCLA"), the Solid Waste Disposal Act, 42 U.S.C.A. §6971 (West 1995) ("SWDA"), and the Safe Drinking Water Act, 42 U.S.C.A. §§300j-9(I) (West 1991) ("SDWA") (collectively, the "environmental acts") and the Energy Reorganization Act, 42 U.S.C.A. §5851 (West 1995) ("ERA").2 By this Order, and for the reasons set forth herein, we dismiss the complaint. The relevant facts follow.
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1 This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).
2 These statutes generally prohibit employers from discriminating against or otherwise taking action against an employee because the employee reported concerns regarding nuclear or environmental safety.
3 The Oak Ridge National Laboratory is government-owned. LMES operates the facility under a contract with Respondent Department of Energy ("DOE"). LMES is a wholly-owned subsidiary of Lockheed Martin Corporation ("LMC"). All corporate respondents in this case will be referred to collectively as the "Lockheed Respondents."
4 Because we determine that Shelton was not subject to adverse action, we need not decide the extent to which Mlekodaj's negative feelings about Shelton were the result of Shelton's protected activity and the extent of Mlekodaj's limited involvement in the decision to issue the Oral Reminder.
5 LMES initially hired Shelton as a clerk typist, but Shelton later accepted a position as a janitor so that she could work in the afternoons and attend college during the day.
6 At the time Shelton filed her complaint, §24.4(d)(3)(i) stated:
If on the basis of the investigation the Administrator determines that the alleged violation has occurred, the notice of determination shall include an appropriate order to abate the violation, and notice to the respondent that the order shall become the final order of the Secretary unless within five calendar days of its receipt the respondent files with the Chief Administrative Law Judge a request . . . for a hearing.
7 Once this matter was before the ALJ, Shelton again raised her argument that the Administrator's decision became final when the Lockheed Respondents failed to file a timely request for hearing with OCALJ. The ALJ found no reason to disturb the OCALJ's decision on this issue.
8 As to Shelton's other claims, the ALJ found them either interrelated with or inseparable from these two claims, lacking in substance, not actionable under the ERA or the environmental acts, and/or time barred.
9 Letter to Acting Chief Judge John Vittone from Edward A. Slavin, Jr., dated June 26, 1995.
10 The employee protection provisions of SWDA and the CERCLA contain different language than the other whistleblower statutes. Specifically, SWDA states: "[n]o person shall fire, or in any way discriminate against, or cause to be fired, or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter . . . ." 42 U.S.C.A. §6971 (a). CERCLA states: "[n]o person shall fire or in any discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has provided information to a State or to the Federal Government . . . ." 42 U.S.C.A. §9610 (a). Shelton has not suggested that these differences in wording create different standards for evaluating whether an action is adverse.
11 As to Shelton's remaining arguments, we have reviewed them and find that they are without merit and do not warrant a separate discussion in this opinion.