Fox v. U.S. Environmental Protection Agency, 2004-CAA-4 (ALJ Mar. 17, 2004)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue Date: 17 March 2004
CASE NO: 2004-CAA-4

IN THE MATTER OF

CATHERINE A. FOX
    Complainant

    v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, ET AL
    Respondent

   This case arises from a complaint of discrimination brought by Complainant under the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Safe Drinking Water Act (SDWA), Toxic Substances Control Act (TSCA), Federal Water Pollution Control Act (FWPCA), and the Solid Waste Disposal Act (SWDA).

   By letter dated September 18, 2003, Complainant filed her whistleblower complaint with the U. S. Department of Labor. Following an investigation, a determination letter was mailed to Complainant on December 10, 2003, advising her she had failed to provide evidence of protected activity on her part. Her complaint was denied. By letter dated December 18, 2003, Complainant appealed that decision and requested a de novo hearing before the Office of Administrative Law Judges. Thereafter, by Order dated December 23, 2003, a formal hearing was scheduled for February 18, 2004; however, following a telephonic conference with the parties, by agreement, the hearing was reset for May 3, 2004, and a pre-trial order confirming that date and establishing deadlines for pre-trial activities issued on January 21, 2004.

   By the pre-hearing order dated January 21, 2004, Complainant was requested to file a detailed complaint setting out the Respondents against whom she was bringing her action as well as the alleged violations upon which she based her complaint and the relief she was seeking.

   Complainant complied with the order and filed a 21 page complaint naming as Respondents the U.S. Environmental Protection Agency (EPA), the EPA Office of Inspector General (OIG), and eight individuals, all of whom are employees of the named agencies.

   In response to the complaint, EPA filed an answer, and OIG, on its own behalf as well as on behalf of the individuals named, filed a Motion to Stay the Proceedings until a determination could be made as to whether the named individuals were proper Respondents. The Motion was granted, and by Order dated February 27, 2004, Complainant was given time to show cause why the named individuals should be deemed "employers" within the meaning of the whistleblower statutes under which this action is brought.

   Complainant contends that at least as to three of the environmental whistleblower statutes upon which she brings her complaint, CERLA, SWDA and FWPCA, "persons" as well as "employers" can be held liable for forbidden retaliation. OIG, through counsel, however, disagrees and provides authority to the contrary. I am persuaded by the latter's argument.

   In Bath v. United States Nuclear Regulatory Commission, ARB No. 02-041, ALJ No. 2001-ERA-41 (September 29, 2003), the Administrative Review Board held as follows:

   Even if, as Bath alleges, NRC employees directed him in his work and influenced Robotech's decision to fire him, that would not make them employers in their own right. Employees are not employers within the meaning of §5851 even if they are supervisory employees. Kesterson v. Y-12 Nuclear Weapons Plant, ALJ No. 95-CAA-0012, slip op. at 10 (Aug. 15, 1996), affirmed, ARB No. 96-173 (ARB Apr. 8, 1997) (dismissing §5851 complaint against employees of employer because the complainant "failed to set forth any allegations that, even if taken as true and construed in the light most favorable to him, establish an employment relationship with these individuals rather than a mere supervisory relationship").

   Therefore, based on Bath, and construing Complainant's allegations most favorably to her, I do not find that any of the eight named individual Respondents fall within the meaning of "employer" under the terms of those acts which express forbidden retaliation by an "employer" for protected activity on the part of an employee. Even if some of these employees interfered with Complainant's employment, they did not control her employment and were not her "employer" as defined by the Act. The relief sought by Complainant, if she is found so entitled, can be provided by the agencies for which she worked.

   Turning to the three whistleblower protection statutes that do refer to "person" rather than "employer," I am again persuaded by the clear language of the Administrative Review Board in its recent case of Lewis v. Synagro Technologies, Inc., et al, ARB Case No. 02-072, ALJ 2-CAA-12, 2-CAA-14 (Feb. 27, 2004).

   In Lewis, the Board visited the same issue of the meaning of the word "person" as used in CERCLA, SWDA and FWPCA and concluded that regardless of the use of the word "person," as opposed to "employer":

An examination of the whistleblower provisions of the FFWPCA, SWDA and CERCLA in their entirety, their legislative history, and the Secretary's implementing regulations, establishes that the "person" referred to in the pertinent sections of these statutes must have an employment relationship with the complainant or act in the capacity of an employer.

   Consequently, just as with the other statutes, when Complainant's complaint is construed most favorably to her, she has failed to allege that anyone other than her actual employer controlled the terms, conditions and privileges of her employment. If successful in her litigation, the relief sought by Complainant can be provided by her actual employer. In fact, only her employer can provide to Complainant the affirmative relief she seeks in the form of promotion to GS-14, purging of information in her personnel file, reinstatement as project manager, back pay, reinstatement of sick and annual leave, injunctive relief pertaining to her work environment, removal of managers with whom she is displeased, monitoring of work place and mandating meetings and testing. Likewise, her employer too can respond in money damages if so awarded.

   As to the eight individuals named as Respondents by Complainant in her complaint, I find lack of subject matter jurisdiction because Complainant has failed to show a real employment relationship with these individuals. Stated another way, these named individuals are not covered employers under the Acts upon which Complainant bases her complaint.

   It is hereby ORDERED:

   1. The following individuals are dismissed as Respondents in this action: Bruce Miller, Dr. Stanley Meiburg, Ph.D., William Anderson, Phyllis Harris, Karol Smith Berrien, Nikki Tinsley, Mark Bialek, and Eric Hanger;

   2. That the Order Staying Proceedings dated February 27, 2004, is lifted as to the EPA and OIG and the matter shall proceed to hearing against these two Respondents;

   3. That EPA and OIG are each granted 15 days from the date of this Order to respond to Complainant's Motions for Partial Summary Decisions filed February 9, 2004 and February 20, 2004; and

   4. That OIG is granted 15 days from the date of this Order to file an answer to Complainant's complaint.

   So ORDERED this 17th day of March, 2004, at Metairie, Louisiana.

       C. RICHARD AVERY
      Administrative Law Judge

CRA:kw