In July 1991, Complainant we. employed by DLD Technical Services (hereinafter "DLD") which provided contract engineering services to clients. (TR:17-18; RX:1:1-2). Complainant had a signed employment contract with DLD specifying wage rates and conditions of employment. (RX:1). Pursuant to a U.S. government contract, Westinghouse Hanford Company (hereinafter "WHC"), a licensee of the Department of Energy, purchased the services of DLD to provide contract designers, drafters, and engineers. (RX:3, TR:22). The terms of the contract between DLD and WHC specified that DLD's relationship to WHC was that of an independent contractor and that DLD shall pay all wages, salaries and other amounts due its employees" in connection with the contract. (RX:3:3). Additionally, the contract between DLD and WHC specified that all employees of DLD were required to undergo both a physical examination and a background investigation, and, if the result" of any examination or investigation were "not satisfactory to WHC or DOE [Department of Energy] for any reason, any offer or contract may be terminated in accordance with the direction received from WHC." (RX:3:4) (emphasis added).

   Complainant was offered an assignment at the WHC facility by his employer, Mr. Albert Cohen, President of DLD, and informed of the terms and conditions of that assignment including the required background investigation. (RX:1, TR:72-75). Complainant received a WHC Non-Employee Background Investigation form from Mr. Cohen with instructions to return the

completed form directly to WHC. (RX:1, TR:88). Complainant completed, signed, and returned the Non-Employee Background Investigation to WHC. (RX:4). Upon receipt of Complainant's completed form, the Administrator for Pre-Employment and Access Investigations, Mr. Guy Lobdell, proceeded routinely with the investigation by first sending Complainant's completed form to General Information Services (hereinafter "GIS"), an independent investigation company employed by WHC to assist WHC in performing all its background investigations. (TR: 102-104; RX:5).

   After the investigation wan returned from GIS, Mr. Lobdell noted inconsistencies in the addresses reported by Complainant and the address information reported by GIS. (TR:106-07). Mr. Lobdell then telephoned a representative of Pacific Engineering, a previous sub-contractor at the Trojan Nuclear facility in Ranier, Oregon, for whom Complainant had performed services as an independent contractor. (TR:110-11; RX:5:MRC-10005-10006). Mr. Lobdell was informed that Pacific Engineering was unable to give a reason for Complainant's termination without a release of liability from Complainant. (TR:lll). Mr. Lobdell then called Mr. Jerry Culp, Manager of Personnel Security at the Trojan Nuclear facility, a facility licensed by the Nuclear Regulatory Agency, for information regarding Complainant's job performance at that facility. (TR:112). Mr. Culp reported that Complainant had made statements to the effect that he had secreted a .45 caliber automatic in his briefcase past security points on to and off from this Trojan Nuclear site". (TR:112-13).

   Based upon this information, Mr. Loddell concluded that, for security reasons, Complainant should be denied access to the WHC facility. (TR:113). Mr. Loddell then contacted WCH general counsel, Mr. Charles MacLeod, who concurred with Mr. Loddell's decision to deny Complainant access to the WHC facility. (TR:114). According to usual procedures, Mr. Loddell prepared and sent a typed memo notifying the appropriate departments that Complainant would not be allowed access. (TR:115). Prior to July 15, 1991, the date Complainant was to report to the WHC facility for work, Ms. Rebecca Kohlhas, Procurement Specialist with WHC, informed DLD by telephone that Complainant was denied access. (TR:83-84, 90-94).

   On the morning of July 15, 1991, Complainant presented himself for work at the WHC facility as instructed by DLD. However, a few hours later, Complainant was telephoned by DLD and informed that his access was denied. (TR:l9). Complainant attempted to ascertain the reason for WHC's action and was referred to Mr. MacLeod, senior labor counsel for WHC. (TR:l9). Approximately one week later, Complainant spoke to Mr. Macleod who refused to state a reason for denying Complainant's access and explained that WHC's policy was not to discuss reasons for the denial of access. (TR:20, 137).

   On August 29, 1991 Mr. Cohen of DLD sent Complainant a letter advising Complainant of WHC's action and terminating Complainant's employment with DLD. (RX:2; TR:76-78).

The issues raised by the parties are as follows:

1. Whether Complainant's complaint and appeal were timely filed.

2. Whether Complainant was engaged in "protected activities" within the meaning of the Act and was discriminated against by WHC because of those activities.

3. Whether Respondent can demonstrate a valid non-discriminatory reason for denying Complainant access to the WHC facility.

4. Whether Complainant is barred from bringing an action under 29 C.F.R. 24 pursuant to 29 C.F.R. 24.9.

Jurisdiction

    This case was investigated and referred by

the Assistant District Director, Department of Labor Employment Standards Administration Wage and Hour Division, to the Office of Administrative Law Judges for formal hearing under the CAA. However, it is unclear that the CAA or its implementing regulations are involved. See, e.g. 40 C.F.R. Part 61. While Complainant alleges that the CAA is implicated, examination of the record fails to establish CAA coverage. The CAA seeks to prevent and control air pollution by regulating emission. into the atmosphere at particular sources. The Complainant herein neither alleged nor presented evidence that contaminants were emitted into the atmosphere or into the workplace as contemplated by 40 C.F.R. 61.146, 61.147.

   At the hearing, Complainant additionally alleged coverage under the employee protection provisions of the Energy Reorganization Act of 1974 (hereinafter "ERA".), 42 U.S.C. 5851. (TR:16). To establish the jurisdiction of the Department of Labor over employee protection complaints arising under the ERA, the Secretary of labor has held that Congress included only those employers who are engaged in activities at a site regulated to some extent by the Nuclear Regulatory Commission. Wensil v. B.F. Shaw Co., 87-ERA-12 (Sec'y Mar. 29, 1990) (holding that the ERA whistleblower provisions do not cover activities at a nuclear weapons facility regulated by the Department of Energy). This jurisdictional defense was raised by Respondent at the hearing as the Hanford facility is apparently regulated by the Department of Energy. (TR:22). Complainant has not argued or presented evidence that the present complaint under the ERA is therefore not excluded from the jurisdiction of the Department of Labor.

   Complainant also alleged at the hearing that the present complaint is covered by the Solid Waste Disposal Act (hereinafter "SWD"), 42 U.S.C. 6971 and implementing employee protection provisions, 29 C.F.R. 24. Complainant's allegations of adverse effects and public safety hazards created by WHC's storage of unexploded ordnances on WHC property accessible to the public is more compatible with the coverage criteria of the SWD as enumerated at 40 C.F.R 255.1.

   The employee protection provisions of all the statutes referred to in 29 C.F.R. 24.1 are substantially similar and patterned after the National Labor Management Act and the Federal Mine Safety Act. See Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (l0th Cir. 1985). All provisions focus on employment discrimination. Congress expressed a broad intention to protect employees

making health and safety complaints from discriminatory or retaliatory action by their employers:

[E]mployees [are protected] from discharge, discrimination, or other retaliation which adversely affects the terms and conditions of employment due to an employee's participation in, or assistance to, the administration, implementation, or enforcement of the Clean Air Act. . . . Retaliatory action by the employer would also be prohibited if it were in response to an employee's exercise of rights under Federal, State, or local Clean Air Act legislation or regulations. This would be the case even if the employee's action was not directed against the employer (e.g., the filing of a citizen suit against the Administrator or against another company).

H.R. Rep. No. 294, 95th Cong., 2d Seas. 325-326, reprinted in 1977 U.S. Code Cong. & Admin. News 1404-1405.

   Considering the broad protective purposes of Congress, the substantial similarity of the employee protection language in each of these statutes, and construing the facts alleged in the light most favorable to Complainant, I assume coverage under the CAA.

Timeliness

    Respondent alleges that neither Complainant's original complaint nor Complainant's appeal of the District Director's investigatory findings were timely filed.

   Pursuant to 29 C.F.R. 24.3(b), an employee who believes that he has been discriminated against must file a complaint within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail is considered filed as of the date of mailing.

   In the instant case, Complainant alleges that WHC took discriminatory action against him by denying him access to the WHC facility on July 15, 1991. Complainant subsequently filed a complaint which was received the District Director, Department of Labor Employment Standards Administration Wage and Hour Division on November 7, 1991. See Letter of Notification dated February 24, 1992. Even assuming Complainant did not receive definitive notice of the alleged discriminatory action by WHC until August 29, 1991, the date of DLD's termination letter to Complainant, Complainant did not file a complaint for over 60 days. Thus, Complainant's original complaint was not timely filed.

   Pursuant to 29 C.F.R. 24,4(d)(2)(i), the Administrator's notice of determination shall become the final order of the Secretary denying the complaint unless within five calendar day. of its receipt the complainant files with the Chief Administrative Law Judge a request by telegram for a hearing on the complaint.. Equitable modification of the mandatory filing period in whistleblower cases has been granted by the courts only under narrow circumstances such a. when: (1) the employer has actively misled the complainant regarding the cause of action; (2) the complainant has been prevented in some extraordinary way from asserting his rights; or (3) the complainant ha. raised a proper statutory claim but mistakenly done so in the wrong forum. School District of the City of Allentown v. Marshall, 657 F. 2d 16 (3d Cir. 1981); Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).

   In the instant case, the District Director's notification was mailed to Complainant on February 24, 1992, and a copy received by the Office of Administrative Law Judges on February 27, 1992. Pursuant to the five day rule" for service by mailing set forth at 29 C.F.R. 18.4, service to Complainant was completed upon receipt or on Monday, March 2, 1992. Pursuant to 29 C.F.R. 24.4(d)(2)(i), Complainant'- reply by telegram was due on or before Monday March 9, 1992. Complainant sent a notice of appeal by Western Union mailgram on Thursday, March 12, 1992 which was received by the Office of Administrative Law Judges on Thursday, March 19, 1992. (CX:2). Thus, Complainant's request for appeal of the decision of the District Director was sent at least 2 days late and is, therefore, not timely filed.

   Complainant asserts that his appeal to the Office of Administrative Law Judges for formal hearing was nonetheless timely because he was "on travel" and did not receive the notification until he returned home. Additionally, Complainant asserts that he sent his appeal and request for hearing by telegram, although, as Complainant acknowledged, the document submitted into evidence as proof of appeal is a mailgram. (TR:151-52; CX:1). I do not find that Complainant's reasons for equitable modification of the statutory filing requirements meets the criteria set forth in City of Allentown, supra. Therefore, I find that Complainant's claim should be dismissed for lack of timeliness.

   Assuming, arguendo, that Complainant's claim had been timely filed, I find that the instant claim should be dismissed on the merits for the following additional reasons.

Elements of a Valid Claim Under Section 7622

   A discrimination claim under Section 7622 must include proof:

(1) That the party charged with discrimination is an employer subject to the Act; (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and (3) that the alleged discrimination arose because the employee participated in [a CAA] proceeding . . .

Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984) (quoting DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983)); Johnson v. Old Dominion Security, 86-CAA-3, 86-CAA-4, 86-CAA-5 (Sec'y May 29, 1991).

   Once a complainant establishes a prima facie case of unlawful discrimination, the burden of proof shifts to the employer to prove by a preponderance of the evidence that, if even part of the employer's motive was unlawful, it was also motivated by the complainant's unprotected activities and would have taken adverse action against the complainant in any event for the unprotected activities alone. me burden of persuasion then returns to the complainant to show by a preponderance of the evidence that the employer's reasons are mere pretext. Mt . Healthy City School District Board v. Doyle, 429 U.S. 274 (1977); Mackowiak, supra; Johnson, supra.

   A. Whether WHC is a covered employer under the Act

    WHC argues that is not an employer of Complainant within the meaning of the Act. (TR:22-23). However, the employee protection provisions of the "whistleblower" statutes focus on employment discrimination. Directed at preventing unreasonable risk to health, safety, and the environment, the CAA prohibits the kind of retaliation alleged here by eliminating certain activities, including making health or safety complaints, as legitimate bases for adverse action taken by an employer.

   In the instant case, but for the business arrangement of contracting with another employer (DLD) for particular engineering services, a single employer (WHC) would control all employees directly. In these circumstances it would not make sense to tolerate discriminatory action taken by one employer while outlawing

it when taken by another. The issue is not whether WHC had control over Complainant's employment, but whether it was capable of effecting employment discrimination against Complainant. Because WHC was capable of discrimination against Complainant by denying him the right to work, I find it is a covered employer. See Johnson, supra.

   B. Whether Complainant was Discriminated Against

    Complainant argues that he had previously engaged in a protected activity by reporting the presence of dangerous materials on the Hanford site, that WHC knew of Complainant'= previous safety reporting activities, and that WHC denied Complainant the right to work in the WHC facility in retaliation for those protected reporting activities. WHC argues that it did not know of Complainant's alleged environmental safety reporting activity and that the Complainant's activity was not related to, or a motivation for denying Complainant work at the WHC facility.

   Complainant has the burden of proving that he engaged in a protected activity, i.e., unassisted 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 purpose. of this chapter." 42 U.S.C. 7622. After reviewing the evidence, I am not persuaded that Complainant has in fact participated in any proceeding to carry out the purposes of this Act.

   Complainant testified that he found unexploded ordnance. on the Hanford site at some non-specified date in 1990, that he prepared reports to this effect, and that he complained to "various government agencies" about WHC"s alleged safety violations. Complainant offered no corroborating testimony from any witness to support the truth of these assertions. Complainant offered no documentary evidence of any such reports or complaints to any Federal, State, or local authority to support his testimony that he was in fact engaged in protected reporting activity. The photographic evidence which Complainant submitted to demonstrate the existence of hazardous materials on the WHC facility was not authenticated, although Complainant alleges that the photographs were taken on the WHC premises by an employee of the Department of Energy. (TR:43; CX:3-7). The photographic evidence alone does not conclusively demonstrate that the photographs in fact represent live ordnances which are in fact hazardous.

   Although Complainant asserts that WHC was aware of Complainant's 1990 reporting activities, WHC

presented the witnesses, Mr. Lobdell, WHC's Administrator for testimony of two Pre-Employment & Access Investigations, and Nr. MacLeod, WHC's senior labor counsel, who stated that, at the time adverse action was taken against Complainant in July 1991, they had no knowledge of Complainant's alleged reporting activities.

   I find that Complainant has failed to demonstrate that he was in fact engaged in any protected activity within the meaning of the Act.

    C. Causation - "Dual Motive" Test

   Even assuming that Complainant had been engaged in protected activity, Complainant must also prove that the Respondent's discharge or discrimination arose because of the protected activity. Mackowiak, supra at 1162. A complainant must present "evidence sufficient to raise the inference that . . protected activity was the likely reason for the adverse action." Johnson, supra at 133 (citing Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y April 25, 1983) (quoting Cohen v. Fred Mayer, Inc., 686 F.2d 793, 796 (9th Cir. 1982)). Under Mt. Healthy, supra, once the employee shows that illegal motives played come part in the adverse action against the employee, the burden shifts to the employer to show that it would have discharged the employee even if he had not engaged in protected conduct. See also Mackowiak, supra at 1164; Darty, supra.

    In Mackowiak and Johnson, the record contained at least circumstantial evidence to support an inference that the employer's illegal motive played some part in the discriminatory action against the complainant. In Mackowiak, the employer acknowledged making statements about the complainant'- negative attitude immediately prior to the adverse action. In Johnson, the proximate timing of the adverse action vis-a-vis the protected conduct supported an inference of causation.

   However, I find that the record in the instant case does not support even an inference that WHC was motivated even in part by Complainant's alleged protected conduct. Complainant's allegedly protected conduct occurred at some unspecified time in 1990 while the alleged discrimination occurred on July 15, 1991. Complainant has not presented any statements attributable to WHC officials or documents originated by WHC or any other party implying that WHC was aware of Complainant's allegedly protected conduct.

Complainant has not presented any evidence that WHC harbored any discriminatory or retaliatory intent towards Complainant based upon Complainant's allegedly protected conduct.

   In sum, I find that Complainant has failed to establish a prima facie case of discriminatory treatment in violation of the CAA or the SWD. I find that Complainant's allegedly protected activities are undocumented and unsubstantiated. WHC had no knowledge of the content of those alleged activities, and, thus could not be imputed to have discriminatory intent toward Complainant.

   Even assuming, under some construction of these facts, that Complainant had established a prima facie case, I find that Respondent has rebutted the presumption of disparate treatment by showing a legitimate, non-discriminatory justification for denying Complainant access to WHC. Mr. Lobdell's inquiry into the nature of Complainant's discharge from the Trojan Nuclear facility was reasonable and appropriate due to the high security standards at nuclear facilities. The report by Trojan's Manager of Security Personnel of Complainant's violation of Trojan's security rules provided Mr. Lobdell with a legitimate reason to deny Complainant access to the WHC facility. Mr. Lobdell testified credibly that he based his decision to deny access to Complainant solely on the basis of the information obtained from the Trojan facility. Furthermore, Mr. Lobdell testified that he had not treated Complainant any differently than any other contract employee and had never, to his knowledge, granted access to anyone who had previously taken firearms onto WHC premises. (TR:127-129).

   Complainant does not dispute that he engaged in the conduct upon which WHC relies. for it. justification. Complainant bears the burden of establishing that WHC was not in fact motivated by its justification but by Complainant's protected activities. For the reasons discussed previously, I do not find that WHC was motivated even in part by Complainant's allegedly protected activities in denying Complainant access to WPC.

Applicability of 29 C.F.R 24.9

    Respondent argues that Complainant is excluded from the protection of the employee protection provision" of all statutes listed at 29 C.F.R. 24.1 because he deliberately violated the regulations of the Trojan Nuclear Plant, a facility regulated by the Nuclear Regulatory Commission. 29 C.F.R. 24.9; (TR:25). However, the question of whether Complainant "deliberately cause[d] a violation of any requirement of

a Federal statute listed in Section 24.1" was not an issue in this proceeding, and, accordingly, I make no findings as to the applicability of Part 24.9.

   For the reasons state above, I find that the complaint filed by Complainant herein is time barred. I find that Complainant has failed to establish a prima facie case of discrimination under either the CAA or the SWD, and that Respondent has demonstrated a legitimate, non-discriminatory reason for denying Complainant's access to the WHC facility. I further find that Complainant has failed to show that Respondent's legitimate reason is mere pretext.

   For the reasons set forth hereinbefore, my Recommended Decision and Order is that the complaint of Michael R. Crosier be denied.

      EDWARD C. BURCH
       Administrative Law Judge

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