Procedural Background/Jurisdictional Facts

   1. Case No. 2000-CAA-0020

    All parties were notified that a hearing on the above-captioned consolidated cases would be held from April 8, 2002 to April 12, 2002 in Orlando, Florida by my Notice of Hearing and Order of February 6, 2002.

Record of Hearing/Evidence

Factual Background

    Ultimately, Complainant recorded this incident in the log book, which is the official record of all activities occurring in the engine room. (Tr. at 112, 354-55, 1238, 1242; see also CX 30A). These log book entries were scratched out the next day by First Assistant Engineer Schilling, who also instructed Complainant not to record such incidents in the log book. (Tr. at 1242-45; CX 30A). As a result of his log book entry, though, Complainant believes that, in retaliation, First Assistant Engineer Schilling hosed down the engine room, spraying water on him and a coworker, while the ship was running. (Tr. at 1245-47).

    After leaving the ship, Complainant returned to his home in Florida, and while there, contacted the U.S. Coast Guard to report various problems aboard THE MONSEIGNEUR, complaints that mirrored those contained in the NCARs. (Tr. at 1334-35). After the Coast Guard investigated Complainant's allegations and found no deficiencies aboard THE MONSEIGNEUR, Complainant next contacted OSHA, alleging the same safety violations, whereupon the case proceeded in the manner described above. (Tr. at 404, 1338-39). In addition to contacting OSHA and the Coast Guard, Complainant contacted AHL on numerous occasions to express his continuing displeasure over being fired. (See Tr. at 1514-39).

Applicable Law

    As discussed above, the instant case has been brought under the employee protection provisions of six different environmental statutes (the CAA, the CERCLA, the WPCA, the SDWA, the SWDA, and the TSCA). These "whistleblower" provisions are designed to "protect employees from retaliation for protected activities such as complaining, testifying, or commencing proceedings against an employer for a violation of one of these federal statutes." Devereux v. Wyoming Association of Rural Water, 1993-ERA-18 (Sec'y, October 1, 1993).

    The CAA's employee protection provision provides, in relevant part:

(a) Discharge or discrimination prohibited

No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) --

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration of enforcement of any requirement imposed under this chapter or under any applicable implementation plan,

(2) testified or is about to testify in any such proceeding, or

(3) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other action to carry out the purposes of this Act.

42 U.S.C. § 7622 (emphasis added). Almost identical wording appears in this provision's counterpart in the SDWA at 42 U.S.C. § 300j-9(i), and the TSCA at 15 U.S.C. § 2622(a). A similar provision appears in the SWDA, stating that:

No person shall fire, or in any other 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 or under any applicable implementation plan, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter or of any applicable implementation plan.

42 U.S.C. § 6971(a) (emphasis added). Similar language appears in the WPCA at 33 U.S.C. § 1367(a), and the CERCLA at 42 U.S.C. § 9610(a).

Preliminary Issues/Jurisdiction

    Respondents have raised several preliminary issues that must be resolved prior to consideration of the merits of Complainant's cases. Specifically, issues regarding the timeliness of Complainant's initial complaint, as well as whether all of the named respondents are appropriate parties, must be addressed. Once these issues are resolved, the undersigned will turn to the merits of the claim.

    4. Failure to State a Claim against Individual Respondents/Lack of Jurisdiction over Individual Parties

    As shown above, the CAA, SDWA, and the TSCA make it illegal for any "employer" to discriminate against any employee engaging in activities protected by these three Acts' whistleblower provisions, while the SWDA, WPCA, and the CERCLA make it illegal for any "person" to discriminate against any employee for the same reason. Compare 15 U.S.C. § 2622(a); 42 U.S.C. §§ 300j-9(i), 7622(a) with 33 U.S.C. § 1367(a); 42 U.S.C. §§ 6971(a), 9610(a). Part 24 of the Code of Federal Regulations, which implements all six of the environmental statutes, tracks the "employer" language used in the CAA, the SDWA, and the TSCA. 29 C.F.R. § 24.2(a) (2001).

    The environmental statutes that use "employer" (the CAA, the SDWA, and the TSCA) do not specifically define the term. Case law establishes, though, that a strict employer-employee relationship is not required to invoke the employee protection provisions of these environmental statutes. See Williams v. Lockheed Martin Energy Systems, Inc., 1995-CAA-10 (Admin. Review Bd., Jan. 31, 2001); Stephenson, supra. Both the Secretary of Labor and the ARB have routinely found that entities "acting in the capacity of [an] employer with regard to a [complainant]" are liable for retaliation under the environmental statutes, and they have also held that if the respondent's actions were motivated by events that arose out of a previous employer-employee relationship, the entity may be liable despite the absence of an employer-employee relationship at the time the alleged retaliatory conduct occurred. See Williams, supra (quoting Stephenson, supra). See also Delcore v. W.J. Barney Corp., 1989-ERA-38 (Sec'y, Apr. 19, 1995), aff'd sub nom., Conn. Light & Power Co. v. Sec'y of the U.S. Dept. of Labor, 85 F.3d 89 (2d Cir. 1996) (holding that a former employee is an "employee" within the coverage of the ERA if the employer's retaliation arose out of a previous employer-employee relationship); Odom v. Anchor Lithkemko/International Paper, 1996-WPC-1 (Admin. Review Bd., Oct. 10, 1997) (acknowledging that post-employment "blacklisting" is a form of retaliation). The "underlying question" is whether the respondent acted as an employer with regard to the complainant, "by exercising control over the production of the work product or by establishing, modifying, or interfering with the terms, conditions, or privileges of employment." Stephenson, supra (citing Apr. 7, 1997 Order); see also Varnadore v. Oak Ridge National Laboratories (Varnadore I, II, and III), 1992-CAA-2 to 1995-ERA-1 (Admin. Review Bd., June 14, 1996), aff'd sub nom., Varnadore v. Sec'y of Labor, 141 F.3d 625 (6th Cir. 1998).

    It is through this lens that I will now consider whether all of the above-captioned respondents are appropriately named parties to these actions.

    Claims Against AHL under Case No. 2001-CAA-0009

    While it is undisputed that AHL is appropriately named as a party to Case No. 2000-CAA-0020, Complainant has failed to prove that AHL is a properly named party in Case No. 2001-CAA-0009. Regarding Case No. 2001-CAA-0009, Complainant has done little more than allege a "joint-employer" relationship between AHL and MM & P. While the ARB recognizes a joint-employer theory of liability, it is a complainant's burden to prove that the alleged joint-employer "acted" as an employer. See, e.g., Williams, supra; Varnadore, supra.

    Testimony at the hearing shows that MM & P had no input whatsoever regarding Complainant's employment and does not support a finding that the two entities were joint employers. MM & P is a union that represents all of the workers aboard AHL vessels, as well as those aboard other vessels. (Tr. at 111-12, 431, 621-22, 652). At the time Complainant worked for AHL, the company was jointly owned by the MM & P Pension Fund and the IRAP fund, which are both employee benefit plans recognized under the Employee Retirement Income Security Act. (Tr. at 423, 431, 561; CX 4). Both CEO Horner and Mr. Brown testified that the MM & P Pension Fund and IRAP fund are independently administered by an independent fiduciary located in Washington, DC, not by MM & P itself, and at no point has the Union directly or indirectly involved itself in any decision affecting AHL's management or daily operations. (See Tr. at 431-32, 563, 649-51). Mr. Brown emphasized that the MM & P Pension Fund and IRAP fund do not in any way serve the same role or function as a labor organization. (See Tr. at 649). Mr. Brown further testified that MM & P has never maintained any ownership interest in AHL, and that he, as MM & P president, has never exerted any control over AHL's business operations. (Tr. at 649-50).

    Complainant has also failed to establish that AHL controlled the actions taken by the union in not accepting Complainant as a member. Any action by AHL in this regard is limited to its firing of Complainant and its decision to place Complainant on the list of persons that it would not rehire. Complainant has failed to establish that AHL otherwise participated in the union's failure to accept him as a member, but even if he were to make such a showing, he would be merely complaining of activities that naturally flowed from AHL's decision to terminate him. At most, such an allegation would relate to possible damages based upon alleged "blacklisting." Such a claim would thus fall within the purview of Case No. 2000-CAA-0020. Accordingly, the claims brought against AHL in Case No. 2001-CAA-0009 should be dismissed.

    Claims Against Lincoln Nye, Bob Schilling, Michael C. Herig, Timothy A. Brown, and James T. Hopkins

    All claims against Capt. Michael C. Herig, Chief Engineer Lincoln Nye, First Assistant Engineer Bob Schilling, MM & P International President Timothy A. Brown, and MM & P International Secretary/Treasurer James T. Hopkins should be dismissed to the extent that they were brought against these respondents in their individual capacities. None of these named respondents were served in their individual capacities, and former First Assistant Engineer Schilling was not served in any capacity, as he was no longer employed by AHL when the complaint was served upon it. The remaining respondents were only served in their official capacities when their employers were served.

    Further, I recommend that all five of the individual respondents be dismissed as parties in any capacity. In this regard, Complainant has not proved that any of these individuals may be considered an "employer" as that term is used in the CAA, the SDWA, and the TSCA. See Stephenson, supra. While liability may potentially exist under the broader language ("person") contained in the SWDA, the CERCLA, and the WPCA, any discriminatory actions undertaken by these individuals should be imputed to their employers, irrespective of the particular environmental statute. Cf. Lissau v. Southern Food Services, Inc., 159 F.3d 177 (4th Cir. 1999) (finding individual supervisors not liable under title VII.)

    Claims Against MM & P

Minard, supra, slip op. at 5 n.6. Thus, as the ARB indicated in Minard, although a complaint may at first glance appear to fall outside the scope of protected activities, a complainant should be given the opportunity to show that his or her concerns "touch upon" concerns targeted by the Six Acts.

    Preliminarily, Complainant appears to allege that previous, oral complaints communicated to his supervisors motivated, in part, the decision to terminate him. These complaints include his concerns about trash and barrel disposal, the operation of the ballast pump, and various conditions that were corrected. However, he has not established a causal nexus between these complaints and his termination. The NCARs memorialized some of these prior oral complaints.

    Complainant himself acknowledged that many of the items forming the basis of his NCARs were no longer problems at the time he re-reported them via the NCAR submission process. See, e.g., CX 19 (indicating that several of the NCARs [CX 3A, at 5, 6, 7, 15, 16, 20, and 21] reported conditions that were addressed before they were filed). All Six Acts mandate a dismissal of claims premised upon the employee-complainant's deliberate violation of the environmental statutes. 29 C.F.R. § 24.9 (2001). A fortiori, a claim for relief cannot be based upon an employee's assertion of health and safety concerns that the employee knows do not currently exist. To hold otherwise would be to invite disgruntled employees to file frivolous claims.

    While some of Complainant's complaints allege general health and safety concerns and routine maintenance issues, or deal with conditions that do not exist, he has nonetheless asserted sufficient viable environmental concerns in the NCARs to establish that he engaged in protected activity. Initially, I find that Complainant filed his internal complaints with a good faith, reasonable belief that some of these items could potentially affect the environment. Complainant is a very experienced maritime employee, as he began working aboard ships similar to THE MONSEIGNEUR in 1979. During the course of his employment, Complainant has become acutely aware of the potential dangers that chemical and oil tanks pose to the environment if these ships are not operated carefully. Complainant testified that several former employers experienced accidents that he attributed to unsafe conditions aboard the ship prior to the accidents. (See, e.g., Tr. at 1188-91, 1193-96, 1198-1201, 1353-54). Additionally, within three weeks of being hired, Complainant witnessed an oil line burst in the pump room, resulting in oil being sprayed over the room and into the bilge area. Complainant also testified that prior to this incident, he was surprised at several other conditions aboard the ship, including what he perceived as the intentional bypassing of a sanitation device used to purify sewage to allow for safe discharge into the ocean. After witnessing these conditions, he was determined to maintain his watch in a careful manner to ensure that the condition of the ship would not deteriorate to a level that would endanger the environment.

    However, I find that at least some of the remaining NCARs cite conditions that could potentially affect the environment, whether directly or by potentially causing the ship to run aground. The clearest examples are the complaints alleging improper use of the marine sanitation device and illegal barrel discharge at sea. (CX 3A, at 18 and 22). While I am a bit skeptical that these activities actually took place, based upon Capt. Herig's testimony, the validity of the underlying complaint is not the focus of the protected activity analysis. See Minard, supra. However, even if these items, which Capt. Herig fully investigated and determined to have no merit, are discounted, the remaining items are of sufficient significance to allow Complainant to fall within the whistleblower provisions in the Six Acts. (CX 3A, at 1, 2, 4, 13, 19). I note that while these items may not pose environmental dangers alone, when viewed in the aggregate, they reflect conditions that could potentially contribute to a situation in which the environment is harmed. The importance that all systems and machinery be in working order is underscored by the fact that THE MONSEIGNEUR is an oil tanker, a work environment that requires a heightened concern for safety, as even the most innocuous of problems could pose a credible risk to the environment if left unattended.

    In sum, while many of Complainant's complaints do not assert conditions that could reasonably lead to an environmental hazard, Complainant has met his burden in proving that he engaged in protected activity, affording him the protections contained in the whistleblower provisions applicable to this action.

    Complainant Was Not Subjected to Adverse Action For Engaging in Protected Activity

    While Complainant engaged in protected activity, his claims in Case No. 2000-CAA-0020 should be dismissed, as the record establishes that the actual decision to fire him was made and implemented prior to Complainant submitting these NCARs to his superiors, and he has failed to show a causal nexus between his initial raising of these concerns and his termination. Furthermore, AHL has established that its decision to fire Complainant was motivated solely by legitimate, nondiscriminatory reasons.

    As discussed above, to prevail on a whistleblower complaint, an employee must establish that the respondent took adverse employment action because the employee engaged in protected activity, and the causal relationship may be established by temporal proximity. Unquestionably, Complainant's discharge is an adverse action that could be compensable under the Six Acts. However, the temporal proximity between Complainant's filing of his NCARs and his termination � which I found a sufficient nexus to defeat AHL's summary decision motion � vanishes upon closer examination.

    AHL offered extensive testimony concerning Chief Engineer Nye's decision to fire Complainant, and, by all accounts, this decision was reached on the morning of April 13, 2000, well before Complainant submitted his internal complaints to Capt. Herig. (Tr. at 57, 65-66, 71, 130, 224, 304-07, 330, 471-72, 759, 763, 872, 989-90, 1016, 1082). Complainant contends that the decision to fire him was actually made on April 14, 2000. However, as Chief Engineer Nye's and Capt. Herig's testimony show, the decision to fire Complainant was clearly made the day before, as were all the necessary steps to procure a replacement for Complainant, and this decision was only effectuated the night of April 14, 2000 once the ship arrived at the Wilmington, North Carolina port. Moreover, Capt. Herig and Chief Engineer Nye were following company policy in not informing Complainant that he was fired the moment the decision was made, as policy dictates that employees are only informed of such personnel decisions after the ship they are working on arrives at port. (Tr. at 210-11, 224, 334-36, 991-92). Ms. Bourcq's testimony that AHL contacted her on April 13, 2000 and asked her to find a replacement third assistant engineer further corroborates Chief Engineer Nye's and Capt. Herig's testimony that Complainant was effectively fired prior to filing his NCARs. (Tr. at 1126-27, 1132-33, 1163, 1172-73; RU 27, 28). Finally, CEO Horner stated that after Chief Engineer Nye and Capt. Herig informed him of their decision to terminate Complainant, a decision he agreed with, they were instructed to provide Complainant with NCARs for him to fill out.

    In short, Complainant has failed to establish that any of AHL's actions towards him were prompted by the protected activity he engaged in. Accordingly, I recommend that all claims against AHL in Case No. 2000-CAA-0020 be dismissed.

    2. Case No. 2001-CAA-0009

    As discussed above, the claims brought against AHL, ILA, and all of the individual respondents named in Case No. 2000-CAA-0009 have been dismissed, as well as the claims brought under the CAA, the SDWA, and the TSCA against MM & P. Thus, the only remaining claims related to this action are those brought against MM & P under the SWDA, the WPCA, and the CERCLA, and these claims should be dismissed as well, as Complainant has not shown that he was subject to any adverse employment action as a result of his protected activity.

    Preliminarily, Complainant alleges the same protected activity in this action as he did in Case No. 2000-CAA-0020, and, for the same reasons discussed above, I find that Complainant has engaged in protected activity.

    The SWDA, the WPCA, and the CERCLA recognize a broad spectrum of activities that could qualify as adverse action, provided that a complainant proves by a preponderance of the evidence that the alleged retaliatory action touches upon an "employee's compensation, terms, conditions, or privileges of employment." 29 C.F.R. § 24.2(a) (2001). Again, merely alleging that a privilege of employment is affected is not enough, as Complainant must prove that such a condition was affected. See Trimmer v. U.S. Dept. of Labor, 174 F.3d 1098 (10th Cir. 1999).

    Assuming, arguendo, that MM & P's rejection of Complainant's application may be considered an adverse action cognizable under any of the environmental statutes, Complainant has failed to prove that it was motivated by his protected activity. To the extent that the decision was contributed to by AHL's firing of him, I have already found no causal nexus between the protected activity and his firing, for the reasons set forth above. Mr. Brown testified that he did not discuss the decision to reject Complainant's then-pending membership application with CEO Horner or anyone else at AHL. Rather, Mr. Brown relied upon Captain Higgins' determination that Complainant's discharge was justified, made after a full investigation was conducted, coupled with the tone of Complainant's post-firing correspondence. (Tr. at 648, 658, 663, 665-66, 671; CX 21D). Mr. Brown further testified that he was not aware of the safety complaints Complainant filed when the decision to reject his application for membership was made. (Tr. at 647-48). As noted above, the union's action was consistent with established procedures and I find no evidence that it was motivated by Complainant's protected activity.

    In short, Complainant has utterly failed to prove by a preponderance of the evidence that MM & P, or any of its employees, undertook any adverse employment action against him. Additionally, he has failed to show that the action complained about � his membership application rejection � was motivated by his alleged protected activity. As a result, Complainant has failed to meet an essential element of his claim. I therefore recommend that his claim against MM & P in Case No. 2001-CAA-0009 be dismissed.

    IT IS HEREBY RECOMMENDED that the complaints in these matters be DISMISSED.

      PAMELA LAKES WOOD
      Administrative Law Judge

Washington, D.C.

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.