This case arises under the employee protection provisions of the
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Toxic Substance Control Act (TSCA), 15 U.S.C. § 2622 (1988), and the Clean Air Act
(CAA), 42 U.S.C. § 7622 (1988) (collectively, the environmental acts). Complainant,
Jesse
J.Robinson, II, complained that the Martin Marietta respondents violated the
environmental acts when Martin Marietta took certain adverse actions against him, and that the
remaining respondents, the National Aeronautics and Space Administration (NASA) and its
Office
of Inspector General (OIG), violated the environmental acts when NASA's OIG declined to
investigate a safety problem that Robinson brought to its attention.
The Administrative Law Judge (ALJ) found that NASA and OIG
were immune from suit under the TSCA's employee protection provision because the United
States has not waived its sovereign immunity. Nov. 18, 1994 Recommended Order at 2.
In a later Recommended Decision and Order (R. D. O.), the ALJ
found that NASA was not a joint employer of Robinson and dismissed the CAA complaint
against
the NASA respondents as well. Concerning the claims against the Martin Marietta respondents,
the ALJ recommended dismissing the complaint on the ground that Robinson did not establish a
primafacie case of a violation of the environmental acts.
Although we agree with the dismissal recommendation, we reach that
conclusion through a different legal analysis as explained below.
BACKGROUND
Robinson was employed by Respondent Martin Marietta Services,
Inc. as a development engineer and worked at NASA's Johnson Space Flight Center. T. 70. In
September 1992, two scientists disclosed to NASA that they had invented a Dried Blood
Collection System (DBCS) and would be seeking a patent for it. CX 13. The next month,
Robinson was assigned to work on the DBCS, which was a method to preserve blood serum and
plasma samples on board a space flight. T. 328, 613-614, 618, 631.
Fellow engineer Skip Todd expressed concern in December 1992
that a catalyst expected to be used as an oxygen scavenger in the DBCS might be a safety hazard.
T. 723-724; RX 76. Robinson expressed similar concerns to his superiors at Martin Marietta. T.
98-101. In March 1993, after Robinson complained to his management that Todd had been
promoted to Job Order Manager on the DBCS project, RX 88, Robinson was also promoted to
that
position. T. 262-263. A July 1993 performance evaluation praised Robinson's engineering skills
but stated that he needed to improve his interpersonal skills. RX 99.
Preliminary tests were undertaken to assess the ignitability risk, and
use of the catalyst was found acceptable. CX 38, notwithstanding this evaluation Robinson
wrote
in a memorandum to his superiors that there was a potential touch temperature problem with the
catalyst, recommended further testing, and warned that any attempt to "'cook' the
data"
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would seem suspicious. RX 109 at 3. One of the co-inventors of the DBCS, Dr. Clift, yelled at
Robinson concerning the reference to cooking the data. T. 119-121. Robinson wrote the
protocol
for conducting a touch temperature test of the catalyst, was present during the test, and approved
the use of the catalyst on board the October 1993 shuttle flight. RX 1, 111; R. 240, 243.
After testing was completed, Robinson received assignments to
other projects because there no longer was a need for two manufacturing engineers on the DBCS.
T. 129-130, 665-666, 776-777. Robinson later complained to a member of the staff of NASA's
OIG that he had been relieved of his normal duties after he expressed concerns about the safety
of
the catalyst. CX 4 at 2; T. 141-143.
Christy Hinders, a co-op student working as an intern at NASA, had
the assignment to formulate and design an in-flight maintenance tool kit. T. 827-829. Robinson
was assigned as the primary engineer on the mini-oscilloscope, one of the tools in the kit. T.
829-830. Hinders attempted to redesign the mini-oscilloscope with only the aid of a draftsman.
T.
123-135. When Robinson informed his management that Hinders' design violated general
engineering standards, T. 135, the managers asked him to cooperate with her. T. 137. Robinson
refused to sign or approve the drawing set of Hinders' modifications to the oscilloscope, and as a
result Hinders' version was not built. T. 138.
Robinson asked his managers to give him a different assignment
because he disliked the mini-oscilloscope project. T. 261-262; RX 119. At about that time,
Robinson failed to attend three required meetings and showed up late or unprepared for others.
T.
269-272. Although he had work to do, Robinson played games, read the newspaper, wrote
stories,
and slept while at work. T. 274-275. As a consequence, in February 1994, Robinson's
supervisor,
Pat Hite, issued a written warning that further similar behavior would be viewed as refusal to do
his job and would result in sanctions. T. 273; RX 150. Hite also placed Robinson on a weekly
supervision schedule to monitor his progress.
Hite suggested that Robinson file a formal grievance concerning the
catalyst used in the DBCS when Robinson raised the issue at one of the supervision meetings. T.
799-800; see RX 121. Hite discontinued his investigation of the use of the catalyst when
he learned that Robinson had no further safety concerns about it. T. 804, 813.
In late April 1994, Robinson submitted a resignation letter stating
that his "goals, beliefs and standards are essentially incompatible with those of NASA,
Martin Marietta, and their respective management." RX 126. He asked that his resignation
be made effective at a future date after he had secured other employment. Id. As a result,
Hite stopped the weekly supervision sessions and stopped assigning Robinson new work. T.
806-808.
In May 1994, Martin Marietta's in-house newspaper published an
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article about the Medical Sciences Products Group that discussed the DBCS project but did not
mention Robinson's name. CX 70. At the time, Robinson was not a member of that Group. T.
288. A short time later, Robinson learned that his name was not included on the patent
application
form submitted for the DBCS. CX 30.
Martin Marietta officially accepted Robinson's resignation and set
June 24, 1994 as his last day. T. 284. Robinson sent his managers a memorandum rescinding
his
resignation. CX 51 at 3. Nevertheless, Martin Marietta treated Robinson as having resigned.
The
company later contested Robinson's right to collect benefits for unemployment on the ground
that
he had resigned and was not entitled to those benefits. T. 177.
DISCUSSION
Procedural Fairness
Robinson contends that the ALJ erred by declining to compel
discovery responses, denying his request for a continuance of the hearing, and disallowing the
testimony of two witnesses. Comp. Br. 25-26. We address these matters seriatim.
1One originally named respondent,
Martin Marietta Corporation, changed its name to Lockheed Martin Corporation in 1995.
Varnadore v. Oak Ridge National Laboratory, Case Nos. 92-CAA-2, et al., Final Consol.
Dec. and Ord.. June 14, 1996. slip op. at 1 n. 1. The parties have not notified us if the other
related
corporations have undergone name changes.
2On April 17, 1996, a Secretary's
Order was signed delegating jurisdiction to issue final agency decisions under these statutes and
the implementing regulations to the newly created Administrative Review Board (ARB).
Secretary's Order 2-96 (Apr. 17, 1996), Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96
contains a comprehensive list of statutes, executive order, and regulations under which the
Administrative Review Board now issues final decisions.
3Reference is to the transcript of a
prehearing conference on December 7, 1994.
4The Secretary has found that the
ERA's definition of employer covered the Tennessee Valley Authority, which so interfered with
its
contract with a separate company that it caused the termination of the complainants'
employment.
Hill and Ottney v. Tennessee Valley Authority, Case Nos. 87-ERA-23 and 87-ERA-24,
Sec. Dec. and Ord. of Remand, May 24, 1989. There is no allegation of similar contractual
interference in this case.
5Although afforded the
opportunity
to explain why he deserved to be included on the patent application, RX 145, Robinson did not
attempt to do so.