Poulos v. Ambassador Fuel Oil Co., 86-CAA-1 (ALJ Sept. 17, 1986)

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USDOL/OALJ Reporter
Poulos v. Ambassador Fuel Oil Co., 86-CAA-1 (ALJ Sept. 17, 1986)

U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036

2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
Telephone (609) 757-5312

Case No. 86-CAA-1

In the matter of

PAUL POULOS
Complainant,

AMBASSADOR FUEL OIL CO., INC.,
Respondent

RECOMMENDED DECISION AND ORDER DISMISSING COMPLAINT

This proceeding was commenced pursuant to the provisions of the Clean Air Act, (hereinafter "the Act'), 42 U.S. C. §7622, and its implementing regulations, 29 C.F.R. Part 24. The complaint, dated November 27, 1985, alleges that on October 31, 1985, Ambassador Fuel: Oil Co., Respondent, discharged Mr. Paul Poulos, Complainant, in retaliation for complaining:

(a) That Ambassador was fueling their fleet with #2 home heating oil, rather than diesel fuel, causing air pollution; and

(b) That Ambassador delivered #2 oil to a charter bus company, unbeknownst to that company, which charter bus company utilized the # 2 oil to fuel its buses, believing that it was diesel fuel.

These complaints were raised in February of 1985. Respondent maintains that Complainant was discharged for failing to report to work on four occasions after having been scheduled to work, and denies that Complainant's complaints concerning the use and sale of #2 home heating oil in lieu of diesel fuel had anything to do with the discharge.

The Department of Labor conducted an investigation in this matter, and informed Complainant by letter dated January 22, 1986, that it had been determined that his actions as alleged were not entitled to protection under the Act. An Appeal was requested on January 27, 1986. The matter was originally scheduled to be heard on February 12, 1986 before Administrative Law Judge Williams. However, on February 5, 1986, Complainant requested an adjournment of the hearing in order to conduct additional discovery, and also purported to waive statutory time limits for completion of action by the Secretary of Labor. Judge Williams granted the request and continued the hearing until further notice. On March 7, 1986, this case was reassigned to the undersigned Administrative Law Judge, and subsequently scheduled for hearing on May 12, 1986. For good cause shown, the hearing was rescheduled for June 18, 1986. However, due to circumstances beyond the control of the undersigned Administrative Law Judge, the hearing was postponed.

Throughout the numerous motions and correspondence in this proceeding to date, Respondent has readily admitted to engaging in the use and sale of #2 fuel, and also admitted that Complainant complained of such use. However, Respondent maintains such practices do not violate the Clean Air Act. Complainant contends that he need not show, and has no intention of attempting to prove, that Respondent's practices actually violate the Act. It is enough, Complainant alleges, that the complaints were based on a good faith belief that Respondent's conduct violated the Act. Complainant argues that the legislative history of the employee protection provision of the Act supports his position, citing the following statement from committee hearings on the

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provision:

... the employer would not have to be proved to be in violation of a Clean Air Act requirement in order for this section to protect the employee's action.

U.S. Code Congressional and Administrative News 1977, p. 1405.

By letters dated June 13, 1986 and June 19, 1986, Respondent moved that his case be dismissed. Complainant opposed said motion. Pursuant to 29 C.F.R. §24.5(e)(4)(ii), on June 25, 1986, an order was issued directing the parties to submit pre-hearing briefs addressing the issue of whether or not this complaint should be dismissed. Both parties submitted briefs.

The Act prohibits employers from discharging or otherwise discriminating against an employee because the employee has engaged in "protected activity". The employee has engaged in protected activity if he has:

(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 or 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 chapter.

42 U.S.C. §7622; 24 C.F.R. 24.2 (b). There are no reported decisions interpreting this employee protection, or "whistleblower", provision of the Clean Air Act. However, such provisions are also found in other federal statutes, including the Energy Reorganization Act, (hereinafter, ERA). Therefore, cases resolving disputes arising under similar statutory provisions will be referenced to define the burdens of proof and the elements of a case under the Clean Air Act.¹

In order to prevail in whistleblower cases, the burden is on the

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complainant to show: 1) that his conduct was protected activity under the statute, and 2) that the conduct was a substantial or motivating factor in his discharge. Once the complainant has established a prima facie case, the burden shifts to the employer to show that it would have reached the same employment decision even in the absence of the protected activity. The employer's burden is frequently referred to as the "but for" test. In other words, the employee would not have been disciplined or dismissed but for his engaging in protected activity. This three-step approach was initially enunciated in a U.S. Supreme Court decision involving an alleged discharge for asserting constitutional rights. Mt. Healthy City Board of Ed. v. Boyle, 429 U.S. 274 (1977), (hereinafter, Mt. Healthy). Thereafter, the Mt. Healthy approach was adopted for use in cases arising under the employee anti-discrimination provision of the National Labor Relations Act. NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981); NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). It has also been applied in cases arising under the ERA. Consolidated Edison Co. of N.Y., Inc. v. Donovan, 673 F.2d 61 (2nd Cir. 1982); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984). In that there is no precedent as to how cases under Section 7622 should be treated, the Mt. Healthy approach utilized in proceedings under the ERA should logically be applied in proceedings under §7622 of the Clean Air Act.

Respondent's brief sets forth, inter alia, the argument that Complainant did not engage in protected activity under the Act. In order to state a claim under the Act, Respondent submits that the plain language of the employee protection provision requires that the employee commence, testify in, assist in or participate in a proceeding for the administration or enforcement of any requirement under the Act or under an implementation plan. 42 U.S.C. §7622(a)(1)-(3). Since Complainant never filed a complaint nor took any action other than expressing his concern within the company itself, Respondent contends that Complainant's conduct does not constitute the kind of activity which the Act intends to protect. Therefore, Respondent argues, since Complainant's activity was not protected activity, he cannot meet the first criteria of the Mt. Healthy test, and he fails to establish a prima facie case under 42 U.S.C. §7622.

Complainant argues that his purely internal complaints to his employer, based on his good faith belief that substitution of #2 fuel caused pollution, constitutes protected activity under the Act. Complainant contends that the breadth of the protection provision is much broader than suggested by Respondent: not only does the statute protect those who commence, testify in, assist or participate in a

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proceeding, but also it protests those who assist or participate "in any other action to carry out the purposes of this chapter". 42 U.S.C. §7622 (a)(3). This language, Complainant suggests, is intended to protect any employee action to prevent air pollution. Therefore, Complainant argues, his conduct was protected activity under the Act.

Assuming Complainant's conduct as alleged to be true, I am of the judgment that such conduct does not constitute protected activity under the Act. In interpreting the nearly identical employee protection provision of the ERA, the Fifth Circuit held that "the language of Section 5851 cannot be construed to protect the filing of purely internal quality control reports". Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1031 (5th Cir. 1984), (hereinafter, Brown & Root). In that case, the employee alleged employer retaliation for filing intracorporate nonconformance reports in good faith. The employee did not attempt to bring the alleged nonconforming conditions to the attention of the Nuclear Regulatory Commission, (NRC), nor to any other governmental entity. It was argued that the employee's filing of these internal reports was "any other action to carry out the purposes of " the ERA. However, the Court in Brown & Root reasoned that since the general term "in any other action" followed references to specific types of conduct and proceedings, then it was rational to interpret the term "actions" to refer to something similar to the specific proceedings mentioned. Common sense dictates against interpreting the use of a general term following a list of specifics to mean something wholely unrestrained by the specifics. Moreover, the Court reasoned that if "in any other action" were construed to mean any conduct, then it would render much of the language of the provision redundant. Such a construction was found to be particularly strained and unlikely. Brown & Root, supra at 1032.

Although the Ninth Circuit seems to conclude, contrary to Brown & Root, that internal safety and quality control complaints are protected from employer retaliation under §5851 of the ERA, when the facts of the case are examined this conclusion is not as broad as it first appears. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984), (hereinafter, Mackowiak). Whereas the employee in Brown & Root merely filed an internal complaint and did not attempt to bring the complaint to the attention of the NRC, the employee in Mackowiak was a quality control inspector who did identify alleged safety problems to the Nuclear Regulatory Commission, thereby initiating an investigation by NRC inspectors. He was subsequently terminated. The Court noted that quality control inspectors play a crucial role in the NRC's regulatory scheme, and also that the NRC requires that

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employer-licensees give quality control inspectors the authority and organizational freedom needed to fulfill their role as independent observers. Therefore, the Court rationalized that the complainant's conduct in this case occurred in an NRC proceeding since it was his duty to enforce the NRC regulations. Mackowiak, supra at 1163. In that the Court specifically found that the employee's activity constituted participation in a proceeding for the enforcement of the ERA, his conduct was not merely an internal complaint which needed to be covered under the "in any other action" clause of §5851. Consequently, Mackowiak does not support Complainant's argument in the instant case that his purely internal complaint should be considered protected activity under the Act.

Complainant also cites Kansas Gas & Elec. Co. v. Brock,. 780 F.2d 1505 (10th Cir. 1985), (hereinafter Kansas Gas), as support for its position that his purely internal complaints should be considered protected activity under the Act. In Kansas Gas, as in Mackowiak, the employee involved was a quality assurance inspector who was required under the NRC regulatory scheme to act as an independent observer and document potential deficiencies in the nuclear power plant construction. Such documentation was used to facilitate NRC audits. In effect, the employee was participating in a regulatory program which "serves as the eyes and ears of the NRC". Kansas Gas, supra at 1507. The Secretary argued, and the Tenth Circuit agreed, that since quality control inspectors are individually charged with enforcing NRC regulations, their actions in filing safety reports with their superiors constitutes the first step in the initiation of an enforcement proceeding. Kansas Gas, supra at 1511. The instant case is clearly distinguishable in that Complainant was not charged with enforcing regulations under the Clean Air Act, and his purely internal complaint does not rise to a level where it can possibly be considered as an initiation of an enforcement proceeding.²

Not only does the plain language of the whistleblower provision indicate that Complainant's internal complaints are not protected activity under the Act, the legislative history also indicates such conduct is not protected. The committee report accompanying the legislation states that §7622 of the Act:

... contains provisions to protect employees from discharge, discrimination, or other retaliation which adversely affects the terms and conditions of employment due to an employee's participation in, or

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assistance to, the administration, implementation, or enforcement of the Clean Air Act or any requirements promulgated pursuant to it. These requirements would include any State or local requirements which are incorporated in the applicable implementation plan as well as any such requirements adopted pursuant to section 116 of the act.

U.S. Code Congressional and Administrative News, 1977, p. 1404. The committee report simply does not suggest protecting purely internal complaints made by an employee to his employer.

Moreover, the employee protection provision of the Clean Air Act was patterned after a provision of the Mine Safety Act (MSA). However, the MSA contains language expressly protecting employees filing internal complaints:

No person shall discharge or in any way discriminate against ... any miner ... because such miner ... has filed or made a complaint under or relating to this chapter, including a complaint notifying the operator or the operator's agent, ... of an alleged danger or safety or health violation in a ... mine ....

30 U.S.C. §815(c)(1). In that the Clean Air Act failed to adopt this express language, the implication is that Congress intended to deny protection to one who merely files an internal report.

I feel compelled to comment regarding Complainant's assertion that he need only show a good faith belief of a violation under the Act to invoke coverage. It may well be true that Respondent does not have to prove a violation of the Act if in good faith Complainant had commenced, testified in, assisted in or participated in, a proceeding for the administration or enforcement of the Act, (or was about to do one of the above). However, that does not dispense with the requirement that Complainant must allege he engaged in activity which is protected under the Act. In this case, Complainant's complaints were internal, even though he had ample time to report the alleged violations to appropriate governmental entities, (there being eight months between the time he complained and when he was discharged). In that his internal complaints do not amount to protected activity, it is of no moment whether these complaints were made in good faith, nor whether a violation could be proven.

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Accordingly, since Complainant's conduct as alleged does not amount to protected activity under the Act, I recommend that this complaint be dismissed for failure to state a claim under the Clean Air Act.

Ainsworth H. Brown

Administrative Law Judge

DATED: September 17, 1986

[ENDNOTES]

¹ It should be noted that the whistleblower provision of the Energy Reorganization Act, 42 U.S.C. §5851, is virtually identical to that of §7622 of the Clean Air Act. For comparison, §5851 (a) provides:

No employer ... may discharge any employee or otherwise discriminate against any employee ... because the employee ...

(1) commenced, caused to be commenced or is about to commence or cause to be commenced a proceeding under this chapter of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.), or a proceeding for the administration or enforcement of any requirement imposed under this chapter or the Atomic Energy Act of 1954, as amended;

(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 manner in such a proceeding or in any other action to carry out the purposes of this chapter or the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.).

² Complainant's brief also cites Consolidated Edison Company of New York v. Donovan, 673 F.2d 61 (2d Cir. 1982), as holding that purely internal complaints constitute protected activity. However, in that case there is no discussion regarding the issue of purely internal complaints, and thus it is hardly persuasive precedent.