Porter v. Brown & Root, Inc., 91-ERA-4 (ALJ Mar. 9, 1992)

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USDOL/OALJ Reporter
Porter v. Brown & Root, Inc., 91-ERA-4 (ALJ Mar. 9, 1992)

U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C 20001-8002

DATE: MAR 9 1992

CASE NO.: 91-ERA-4

In the Matter of:

LINDA PORTER,
Complainant,

BROWN & ROOT, INC., and
TEXAS UTILITIES,
Respondents.

ORDER

On January 23, 1991, Complainant filed a Motion to Amend her complaint and an Amended Complaint, to which Respondents filed their joint opposition on January 31, 1991. Complainant filed a Request for Leave to Reply to Respondents' Opposition to Motion to Amend and Complainant's Reply, on February 7, 1991. In an Order dated February 21, 1991, Complainant's motion to amend her complaint was denied. The Order explained that Complainant failed to show (1) how the amendments would facilitate the determination of the controversy or (2) how such amendments would be reasonably within the scope of the original complaint. See 29 C.F.R. § 18.5(e).

On April 18, 1991 Complainant filed a Motion to Reconsider

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Amended Complaint. Respondents filed a Joint Opposition to Complainant's Motion for Reconsideration, on May 2, 1991. In an Order to Show Cause, issued May 20, 1991, Complainant was directed to set forth any reasons why this matter should not be dismissed for lack of a timely complaint, as the most recent allegedly discriminatory act took place on March 24, 1988, and the complaint of August 23, 1990 did not appear to be timely filed. In addition, to protect the parties from potentially unnecessary burdens and expenses, the Order stayed all further discovery.

On June 14, 1991, Complainant filed a Brief in Response to the Administrative Law Judge's Order to Show Cause. on June 25, 1991, Respondents filed their Joint Response. Complainant filed her Motion for Leave to Reply and an accompanying reply to Respondents' June 25 submission on July 19, 1991. Finally, on July 24, 1991, the undersigned issued an Order accepting Complainant's Reply of July 19, 1991. The Order directed that any further response from Respondents was to be filed on or before August 5, 1991. Additionally, the Order prohibited any further submissions from any party on the issue of timeliness after August 5, 1991. Respondents' filed their Rebuttal to Complainant's July 19 Reply on August 5, 1991.

1. Timeliness of Complaint

The regulations governing the employee protection provisions of the various statutes possibly at issue in this proceeding require an employee to file his or her complaint within 30 days after the occurrence of the alleged violation. 29 C.F.R. § 24.3; see also 42 U.S.C. §§ 5851, 9610.

Complainant alleges she was laid off from her position as Journeyman Painter and Coatings Supervisor at the Comanche Peak Steam Electric Station ("CPSES") of Glen Rose, Texas, on March 24, 1988. She contends that prior to her termination, she contacted the Occupational Safety and Health Administration ("OSHA") regarding nuclear, environmental and industrial safety violations at CPSES. More specifically, she alleges that reprisal actions were taken against her as a result of reporting these violations to her employer. In addition, Complainant alleges that she reported these violations to an on-site- employee-concerns program known as SAFETEAM. Complainant submits that on March 24, 1988 she notified OSHA, via telephone, of her

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termination and of her nuclear, environmental, and industrial safety concerns, and on April 10, 1988, she filed a written complaint with OSHA.

Following her complaint, OSHA undertook an investigation, and on September 22, 1988, dismissed her complaint, explaining that the burden of establishing that she had been discriminated against could not be sustained. Complainant appealed the determination, which presumably is still being investigated by OSHA. She alleges that in mid-August of 1990, during a telephone conversation with an OSHA investigator of the Washington, D.C. office, in which she inquired as to the status of her complaint, she was informed that the Wage and Hour Division of the U.S. Department of Labor ("DOL") was the proper agency to contact for the filing of a complaint concerning nuclear and environmental issues.

On August 23, 1990 Complainant filed a complaint with the Wage and Hour Division of DOL. On October 10, 1990, the Wage and Hour Division concluded that Complainant's allegations could not be substantiated. Complainant timely appealed the findings of the Wage and Hour Division to the Office of Administrative Law Judges on October 15, 1990.

As cited by Complainant and Respondents, issues of statutory time limitations were relevantly considered by the Third Circuit in Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981) and by the Secretary of Labor in Dartey v. Zack Company, 82-ERA-2, (Decision and Order of the Secretary of Labor, dated April 25, 1983). Allentown provides that a statute of limitations may be tolled in the following circumstances: (1) where a defendant has actively misled the plaintiff with respect to the cause of action; (2) where a plaintiff has in some extraordinary way been prevented from asserting his or her rights; and (3) where the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum (although the filing still must have been timely). Allentown at 19, citing Smith v. American President Lines, Ltd., 571 F. 2d 102 (2d Cir. 1978); see also Burnett v. New York Central Railroad, 380 U.S. 424, (1965). This equitable tolling doctrine has been applied to consider the timeliness of numerous and varied complaints: Meckes v. Reynolds Metals Co., 604 F. Supp. 598 (N.D. Al. 1985); Posey v. Skyline Corporation, 702 F. 2d 102 (7th Cir. 1983); Bledsoe v. Pilot Life Ins. Co., Inc., 473

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F. Supp. 864 (M.D. N.C. 1978); Covey v. Arkansas River Co., 865 F. 2d (5th Cir. 1989), and Morgan v. Washington Manufacturing Co., 660 F. 2d 710 (6th Cir. 1981).

In Dartey, the Secretary of Labor excused an untimely filing which should have been filed with the Wage and Hour Division, but was erroneously yet otherwise timely filed with another agency within DOL. Id. at 6, n.1. More specifically, the complainant had filed his complaint with OSHA before filing it with Wage and Hour one year and four months later. (The applicable whistleblower statute required filing with the Secretary of Labor). The Secretary deemed OSHA and the Wage and Hour Division to be "the Secretary of Labor, for filing purposes," adding that "OSHA is not an independent government agency, but is a component part of DOL" (Administrative Law Judge's decision in Dartey at 2 and 4, which was adopted by the Secretary).

In this matter, Complainant's filing with OSHA (and thus DOL), on April 10, 1988, seventeen days after the alleged discriminatory act, was within the thirty-day statutory deadline for the filing of whistleblower complaints, and is thus considered timely filed under the Secretary's decision in Dartey. While Complainant's letter of April 10, 1988 does not detail any specifics of her complaint, it meets the minimal criteria necessary for a complaint under 29 C.F.R. § 24.3, and was sufficient to put Respondents on notice as to the basis of the complaint.¹

The Secretary's decision in Darty addresses the issue before us and is binding on a decision in this matter. As this cause of action arises in the Fifth Circuit, the Seventh Circuit decision in Wheeldon v. Monon Corp., 946 F. 2d 533 (7th Cir. 1991), on which Respondents rely in their February 26, 1992 submission, is not controlling.

2. Motion to Reconsider Amended Complaint:

On April 18, 1991, Complainant filed a Motion to Reconsider Amended Complaint and an Amended Complaint. In her motion to reconsider, Complainant seeks relief under the following environmental protection statutes, as well as the relief originally sought under the Energy Reorganization Act, 42 U.S.C. § 5851, to wit: the Solid Waste Disposal Act,

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42 U.S.C. § 6971; the Clean Air Act, 42 U.S.C. § 7622; the Water Pollution Control Act, 33 U.S.C. § 1367; the Safe Drinking Water Act, 42 U.S.C. § 300j-9(i); the Toxic Substances Control Act, 15 U.S.C. § 2622; and the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9610.

Complainant argues, in her Memorandum of Points and Authorities in Support of Motion to Amend, that pro se complaints should be given broad interpretation, citing, among other cases, Conley v. Gibson, 355 U.S. 41 (1957), for the proposition that the form of a complaint is sufficient where it is: "'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests". Id. at 103. She submits that she should be afforded the opportunity to present proof of all of her claims, and contends that the amendments are within the scope of the original complaint and that they will facilitate determination of the controversy.

Respondents, in their Joint Opposition to Complainant's Motion for Reconsideration, filed May 2, 1991, argue against acceptance of the proposed amended complaint. They argue (1) that Complainant's proposed amendment does not fall reasonably within the scope of the original complaint as required by 29 C.F.R. § 18.5(e); (2) that the proposed amendment would impede and delay, rather than facilitate a determination of the controversy; (3) that the claims Complainant seeks to add are time-barred; (4) that amendment of the complaint at this time would be unduly prejudicial to Respondents; and (5) that denial of the proposed amendment would be neither premature nor inequitable.

Twenty-nine C.F.R. § 18.5(e) states, in part:

If and whenever determination of a controversy on the merits will be facilitated thereby, the administrative law judge may, upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, allow appropriate amendments to complaints, answers, or other pleadings; provided, however, that a complaint may

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be amended once as a matter of right prior to the answer, and thereafter if the administrative law judge determines that the amendment is reasonably within scope of the original complaint .... "

The liberal interpretation afforded complaints subject to amendment is illustrated by Complainant's offer of the discussions found in the cases of Rohler v. TRW, Inc., 576 F.2d 1260 (7th Cir. 1978) and Hildebrand v. Honeywell, 622 F.2d 179 5th Cir. 1980). See Memorandum and Points of Authorities in Support of Motion to Amend, at 4 and 5. In both cases, however, the nature of the claims asserted under the new statute were the basis for the original complaint and were, in fact, sufficiently stated in the original complaint. In this matter, no such statements, or reasonable inference thereof, are found in the original complaint.

The Solid Waste Disposal Act was designed, in part, to aid in the implementation of the Occupational Safety and Health Act of 1970 [29 U.S.C.A. § 651 et seq.] by encouraging the reporting of hazardous working conditions, and by protecting employees who in good faith institute or take part in a proceeding aimed at exposing violations of the Act. Similarly, the Clean Air Act, Water Pollution Control Act, the Safe Drinking Water Act, and the Comprehensive Environmental Response, Compensation and Liability Act afford such protections to employees voicing concerns under those acts. See also 29 C.F.R. § 24.2. In addition, the Solid Waste Disposal Act directs the Administrator to report any:

"...hazards to which persons working at a hazardous waste generation, treatment, storage, disposal facility or site or otherwise handling hazardous waste may be exposed, the nature and extent of the exposure, and methods to protect workers from such hazards; ... incidents of worker injury or harm at a hazardous waste generation, treatment, storage or disposal facility or site ..."

(42 U.S.C. § 6971).

Hazardous waste, the subject of the Act, was not mentioned

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in Complainant's complaint or in her letter of August 23, 1990, to Carl Bass, Director of Enforcement at the Department of Labor. Nor can such a claim be surmised from the expression of "nuclear safety concerns", "industrial safety concerns" or "the safety and health of employees with regards to exposure to asbestos, silica and many other chemicals", as stated in the original complaint, without prejudicing the rights of Respondents. Likewise, alleged violations related to air quality, water pollution control, the quality of drinking water, and the disposal of hazardous substances ² were not specifically addressed in, nor could they be reasonably inferred from, the complaint or the language contained in Complainant's letter of August 23, 1990.

Claims pursuant to the Solid Waste Disposal Act, The Clean Air Act, the Water Pollution Control Act, the Safe Drinking Water Act, and the Comprehensive Environmental Response, Compensation and Liability Act are claims not anticipated, and certainly not implied by the language of the original complaint nor by that of Complainant's subsequent letter of August 23, 1990, and are, therefore, new theories of liability which fall outside the scope of the original complaint. Factual allegations supporting or clarifying these claims were not provided to the slightest degree in the complaint. Accordingly, I find it is not reasonable to assert that Respondents were put on notice by the original complaint that these other statutes or concerns were implicated.

The Toxic Substances Control Act ("TSCA") protects employees from discriminatory treatment for participating in proceedings under the Act. It was designed, in part, to address the regulation of all chemical substances which have an impact on the employee in the workplace. 15 U.S.C. § 2601; 2622(a)(1,3), (b). Complainant stated, with specificity, in the OSHA Notice of Alleged Safety or Health Hazards submitted with the original complaint, the nature of alleged violations that fall within the scope of the TSCA, so that Respondents have had notice of these assertions ab initio. Therein Complainant stated:

Employees were exposed to harmful concentration levels of asbestos, mitro propane and silica without adequate personal protective equipment and/or ventilation when applying NUTEC II and NUTEC II5

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protective coating and later polishing/rubbing dried coating....

NUTEC II and NUTEC II5 used was not properly labelled and appropriate training regarding its hazards was not given to employees working with these materials over the past 2-3 years ....

Company supplying NUTEC II and NUTEC II5 did not label materials properly with respect to the asbestos content present over the past 2-3 years.

The complaint need not have been more specific to invoke the protection of the TSCA at this juncture, as Complainant's TSCA concerns were sufficiently mentioned with the filing of her original complaint, putting Respondents on notice of this claim.

3. Depositions

On May 16, 1991, Complainant filed a Motion for Protective Order and a Motion to Compel Discovery. Her Motion for Protective Order included a request for the postponement of the proposed deposition of Emilio Longoria, and a request that Respondents' discovery rights be held in abeyance until Complainant has had discovery rights comparable to those of Respondents. In addition, counsel for Mr. Longoria filed a Motion for Protective Order on May 20, 1991. Complainant's Motion to Compel consisted of a request that Respondents provide responsive answers to interrogatories, and that they produce and identify all documents responsive to her request for production of documents. Respondents opposed Complainant's Motion in their Joint Opposition to Complainant's Motion for Protective Order, filed May 17, 1991, alleging that Complainant had delayed proceedings (including the taking of depositions) on several occasions. Respondents further noted that both parties agreed to be available for the taking of any depositions during the week of May 20, 1991. Finally, Respondents claim that Complainant delayed proceedings by waiting nearly two months to file an objection to interrogatory answers. In their Joint Opposition, Respondents also filed a subpoena duces tecum, served by them on

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the Custodian of Records for General Dynamics Corporation, and a Notice of Deposition and subpoena duces tecum addressed to Sam Keeling. Counsel for Mr. Keeling filed a Motion for Protective Order on June 4, 1991.

In light of the order staying discovery issued on May 20, 1991, the undersigned issued Orders on June 4 and June 6, 1991, in which he denied the Motions for Protective Order on behalf Mr. Longoria and Mr. Keeling, noting that these motions were moot. As the complaint has now been deemed timely filed, there is no further reason to continue the stay on discovery. Therefore, that portion of the order of May 20, 1991 will be vacated, and discovery may resume. Motions to compel or protect against further discovery may be filed as such issues arise. Finally, the parties shall submit within 20 days of this order their respective discovery schedules. Unless circumstances should prevent, discovery should be completed on or before May 15, 1992.

ORDER

Accordingly,

IT IS ORDERED that Complainant's complaint of April 10, 1988, is accepted as timely filed.

IT IS ORDERED that an amendment of Complainant's original complaint will be permitted to include only the additional assertion of a claim under the Toxic Substances Control Act, whistleblower provision. Complainant's Motion for Reconsideration of Amended Complaint is, in all other respects, denied.

IT IS FURTHER ORDERED that the portion of the May 20, 1991 order staying discovery is hereby vacated.

At Washington, D.C. Entered: 3/9/92

       by:
          JAMES GUILL
          Associate Chief Judge

[ENDNOTES]

¹ This regulation provides: "No particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation."

² The Comprehensive Environmental Response, Compensation and Liability Act authorizes state and federal governments to institute actions for the containment, cleanup, and removal of hazardous wastes (42 U.S.C. § 9604; see generally U.S. v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1111, D. Minnesota, 1982; City of Philadelphia v. Stepan Chemical Co., 544 F. Supp. 1135, 1140, E.D. Pa., 1982).