Date: November 2, 1998

Case Nos.: 98-ERA-40 and 98-ERA-42

In the Matters of

HARRY L. WILLIAMS
SHERRIE G. FARVER
    Complainants

    v.

LOCKHEED MARTIN CORPORATION
LOCKHEED MARTIN ENERGY SYSTEMS, INC.
UNITED STATES DEPARTMENT OF ENERGY, OAK RIDGE OPERATIONS
    Respondents

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   This proceeding arises under Section 211 of the Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851; Section 322 (a) (1-3) of the Clean Air Act, 42 U.S.C. 7622; Section 110 (a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610; Section 507 (a) of the Federal Water Pollution Control Act, 33 U.S.C. 1367; Section 1450 (I)(1) (A-C) of the Safe Drinking Water Act, 42 U.S.C. 300j-9; 42 U.S.C. 9610; Section 7001(a) of the Solid Waste Disposal Act, 42 U.S.C. 6971; and Section 23 (a) of the Toxic Substances Control Act, 15 U.S.C. 2622. The complaints state that Harry L. Williams was a Commander in Lockheed Martin Energy Systems (hereinafter LMES) security at the Oak Ridge Nuclear plants and that Sherrie G. Farver is a senior radiological control technician working for LMES at the Oak Ridge Nuclear Plants. The United States Department of Energy (hereinafter DOE) contracts with LMES to manage and operate DOE's Oak Ridge facilities. The Complainants filed complaints with the Department of Labor on April 8, 1998 and April 10, 1998, respectively.

   Complainants allege that on March 23, 1998, employees and agents of LMES surreptitiously taped meetings between Mr. Williams, Ms. Farver, their physicians, and members of the "Coalition for a Healthy Environment", regarding health problems which they attribute to employment at the Oak Ridge Nuclear Plant. The complaints state that DOE personnel were present in an adjacent area at the time of the alleged surveillance and either ordered the surveillance or observed it and failed to halt it. On July 7, 1998, the Department of Labor, following an investigation, determined that the complaints had no merit. The Department of Energy now moves for dismissal from this action on the basis that (1) DOE is protected by sovereign immunity (2) DOE is not an employer of the complainants and (3) DOE did not take any retaliatory action against the complainants.

   Since DOE relied upon the affidavit of Lois Jago in its motion, it will be treated as requesting summary decision pursuant to 29 C.F.R. 18.40. See Freels v. LMES, Inc., 95-CAA-2 (ARB Dec. 4, 1996) at 9, appeals dismissed, Nos. 97-3117, 97-3883 (6th Cir. Dec. 31, 1997). The standard for granting summary decision in whistleblower cases is set forth at Title 29, Section 18.40 (d) of the Code of Federal Regulations. Analogous to Rule 56 of the Federal Rules of Civil Procedure, Section 18.40 (d) permits an Administrative Law Judge to recommend a summary decision where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Gillilan v. Tennessee Valley Authority, 91-ERA-31, at 3 (Sec'y, Aug. 28, 1995); Flor v. United States Dept. Of Energy, 93-TSC-1, at 5 (Sec'y Dec. 9, 1994). The party opposing a motion for summary decision "must set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. 18.40 (c). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Only disputes over facts that might affect the outcome of the suit will properly prevent the entry of a summary decision. Anderson, 477 U.S. at 251-52. In determining whether a genuine issue of material fact exists, however, the factfinder must consider all evidence and factual inferences in the non-moving party's favor. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Held v. Held, 137 F.3d 998, 999 (7th Cir. 1998).

    On November 2, 1998, a response was received from Complainants. Complainants argue that summary decision is inappropriate since DOE has not responded to discovery requests and that DOE has a history of harassing whistleblowers. No new evidence was attached. Complainants' arguments have no effect on the instant order since no amount of discovery will change a non-employer into an employer or eliminate the applicability of the doctrine of sovereign immunity. Complainants also move to postpone response to the DOE motion. In my October 21, 1998 order, I stated that no extensions would be granted. I stand by that order.

   Upon my review of the parties' arguments and supporting declarations and documents, I find a sufficient basis to grant the relief requested. Interpreting the allegations in a light most favorable to the non-moving parties, I find that the complainants have alleged no set of facts under which they can prevail against DOE. Therefore, for the reasons discussed below, it is recommended that DOE be granted summary decision.

   Any waiver of the United States' sovereign immunity must be unequivocal, and waiver of immunity is construed strictly in favor of the government. United States Department of Energy v. Ohio, 112 S.Ct. 1627, 1633-35 (1992). The Secretary of Labor has held that DOE has not waived sovereign immunity with respect to the Energy Reorganization Act. See, In the Matter of Stefan K. Telas v. U.S. Dept. of Energy, 94-ERA- 22 (Secretary of Labor, August 7, 1995). In addition, DOE does not fit the definition of an employer under the ERA as set forth in 42 U.S.C. 5851(a)(2). DOE is not a licensee of the Nuclear Regulatory Commission or an agreement state, an applicant, or a contractor or subcontractor of the Department of Energy. See Varnadore v. Oak Ridge National Laboratory, 92-CAA-2 to 95-ERA-1 at 33-35 (Administrative Review Board, June 14, 1996), affirmed Nos. 96-3888, 96-4389 (6th Cir. April 6, 1998). For the Toxic Substances Control Act (TSCA), the Secretary of Labor has held that sovereign immunity has only been waived with respect to lead-based paint complaints. Stephenson v. National Aeronautics & Space Administration, et al., 94-TSC-5 (Secretary of Labor, July 3, 1995). The cases of Williams and Farver here, do not involve lead based paint. With respect to the Solid Waste Disposal Act, the federal government likewise has not waived sovereign immunity. Id. For these reasons, it is recommended that summary decision be granted in favor of DOE based on the Energy Reorganization Act, the Toxic Substances Control Act, and the Solid Waste Disposal Act.

   Second, with regard to all of the whistleblower causes of action, the complainants do not make a prima facie case against DOE based on the issue of an employer/employee relationship. The complainants do not allege anywhere in their complaints that DOE is their employer. The Secretary of Labor has concluded that the proper test to determine whether an individual is an employee is set forth in National Mutual Insurance v. Darden, 503 U.S. 318 (1992). Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4, (Secretary of Labor April 3, 1995) at pp.11-12. This analysis was upheld by the Sixth Circuit Court of Appeals in Reid v. Secretary of Labor, 106 F.3d 401, unreported (6th Cir. Dec. 20, 1996). The Darden decision states that:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Darden, 503 U.S. at 323-24 (quoting Community for Creative Nonviolence v. Reid, 490 U.S. 730, 751-52 (1989)). In the instant matter, there have been no allegations that DOE made any employment decisions relating to Mr. Williams or Ms. Farver.

DOE has introduced the declaration of Ms. Lois J. Jago, Chief of the Personnel and Management Analysis Branch of DOE. Ms. Jago states that neither Mr. Williams nor Ms. Farver have ever been federal employees of the Oak Ridge Operations. Ms. Jago also states that DOE did not determine when or how long the complainants worked. Similarly, Ms. Jago claims that DOE had no authority to terminate complainants and that LMES, not DOE, withholds money for the complainants' taxes. There has been no showing that DOE is involved in the specific work of Mr. Williams or Ms. Farver, nor has it been alleged that DOE participated in personnel matters or benefits of employment. Conducting surveillance or failing to stop surveillance is conduct wholly dissimilar from determining work hours, assigning projects, providing employee benefits, or any of the other recognized indicia of an employment relationship.

   The Administrative Review Board has applied the Darden test and found that LMES employees are not employees of DOE. In Varnadore at p. 35, the ARB determined that an LMES employee at Oak Ridge National Laboratory could be considered a DOE employee "by no stretch of the law or facts. . . ". See also, Freels at pp. 9-10 (involving an employee of Oak Ridge National Laboratory); and, Kesterson v. Y-12 Nuclear Weapons Plant, et al., 95-CAA-12 (ARB April 8, 1997) (involving an employee of the Oak Ridge Nuclear Facilities), affirming, the ALJ's Recommended Decision and Order Granting Respondents' Motions to Dismiss and/or for Summary Decision (ALJ Aug. 5, 1996) certification to the 6th Circuit, No. 97-3579 (ARB January 20, 1998). Indeed, in Harry L. Williams v. Y-12 Nuclear Weapons Plant, et al., 95-CAA-10 (ALJ August 2, 1995), the Administrative Law Judge determined that Harry L. Williams, one of the complainants in the instant cause of action, was not a DOE employee.

   In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ARB April 7, 1997), the ARB stated that an entity could be treated as an employer if it acted like an employer with respect to the employee, e.g. when a contracting agency cancels a contract, thus causing termination of the employees in question or when it establishes, modifies, or interferes with the employee's compensation, terms, conditions, or privileges of employment. Id. at 1. Assuming arguendo, that DOE agents did indeed tape or permit the taping of a meeting involving the complainants, this fact alone would not establish, modify, or interfere with Mr. Williams' and Ms. Farver's compensation, terms, conditions, or privileges of employment as required by Stephenson to create an employment relationship.

   Finally, complainants have failed to allege that any adverse action was taken against them by DOE. To prove a prima facie case, the complainants must demonstrate that an employer took adverse action against them. Passaic Valley Sewerage Commissioners v. U.S. Dept. of Labor, 992 F.2d 474, unreported (3rd Cir. April 16, 1993), cert denied 510 U.S. 964 (Nov. 8, 1993). Complainants do not present any evidence that the recording of their meeting was done with malicious intent.

   With regard to each of the complaints, it is recommended that DOE be granted summary decision since it is not an employer of the complainants and took no adverse action against them. 29 CFR § 18.40. Secondarily, if summary decision had not been granted, with regard to the Energy Reorganization Act, the Solid Waste Disposal Act, and the Toxic Substances Control Act, it would have been recommended that the Department of Energy be dismissed for the additional reason that sovereign immunity has not been waived.

   The DOE has also filed a Motion to Stay Discovery on October 19, 1998. In view of the disposition of the DOE Motion for Summary Decision, the Motion to Stay Discovery is now rendered moot.

   Upon consideration of the record and the arguments of the parties, it is therefore,

   RECOMMENDED that the Secretary of Labor grant Respondent, U.S. Department of Energy's, Motion for Summary Decision. The United States Department of Energy, Oak Ridge Operations will be stricken from the caption of this case.

      RUDOLF L. JANSEN
      Administrative Law Judge