U.S. Department of Labor Office of Administrative Law Judges
800 K Street. N W.
Washington. D C 20001-8002
Date Issued: March 29, 1993
In the Matter of
DR. WILLIAM R. REID
Claimant
v.
METHODIST MEDICAL CENTER OF OAK RIDGE
TENNESSEE MEDICAL MANAGEMENT, INC.
RALPH LILLARD
MARSHALL WHISNANT
DR. RICHARD BRANTLEY
MARTIN MARIETTA ENERGY SYSTEMS, INC. MARTIN MARIETTA
CORP.
DR. DAVID CONRAD
Respondents
Case No. 93-CAA-4
Before: JEFFREY TURECK
Administrative Law Judge
RECOMMENDED ORDER OF DISMISSAL
On February 24, 1993, I held a pre-hearing conference in this case which was attended by the
complainant, two attorneys representing the complainant, and
eight attorneys representing the various respondents. The
purpose of the pre-hearing conference, inter alia, was
to hear argument on motions to dismiss the case filed by each
of the respondents. For the reasons stated below, these
motions are granted, and it is recommended that the case be
dismissed.1
1 This order
construes the proposed evidence most favorably to the
complainant, as is appropriate in a summary decision.
2 This document
has been marked as Administrative Law Judge Exhibit 1. The
authenticity of this document was not contested by the parties
at the pre-hearing conference.
3 Due to the
importance of this contract in defining the relationship
between TMM and Dr. Reid, it is attached as an appendix to
this decision.
4 It should be
noted that the transcript contains many errors. But since the
parties have not moved to correct these errors, and no
testimony is involved, no attempt to correct these errors will
be made.
5 In a brief
filed after the pre-hearing conference, complainant cited the
testimony of respondent Ralph Lillard at a peer review
hearing, paraphrasing the testimony in some instances and
allegedly quoting from it in others. See Complainant's
Supplemental Brief Supporting DOL Jurisdiction at 1-2. The
Methodist Respondents strongly objected to complainant's
reference to that testimony. In regard to these objections,
first, complainant's counsel's failure to disclose that the
transcript of this hearing had not yet been prepared, and that
his statements regarding the content of Mr. Lillard's
testimony were based on his co-counsels notes rather than an
official record, is an inexcusable misrepresentation.
Counsel's zeal in representing his client cannot get in the
way of his duties as an officer of the court. Second, nothing
in the purported testimony of Mr. Lillard, which concerns the
"recruitment" of Dr. Reid by MMCOR, has any bearing
on the issue of whether Dr. Reid was an independent contractor
or an employee. The attributes to be considered in determining
the nature of an employment relationship, as set out by the
Supreme Court in Nationwide Mutual Ins. Co. v. Darden,
112 S. Ct. 1344, 48 (1992)(see infra), do not include
"recruitment." Since complainant was not given leave
to re-argue the employment relationship issue, and this
purported testimony does not aid his case in any event,
respondents' motion to strike footnote 1 of Complainant's
Supplemental Brief is granted.
Third, whether complainant violated
Tennessee law and/or the order of the presiding official not
to disclose any testimony occurring at the peer review
proceeding is best left to the presiding official. If he feels
that complainants counsel acted illegally or unethically in
this regard, he can take appropriate action.
6 Similarly, in
Doe v. St. Joseph's Hospital, 788 F.2d 411 (7th Cir.
1986), the court held that there was Jurisdiction under Title
VII where a doctor was suing a hospital for loss of her
hospital privileges. The Court held that while admittedly the
doctor was not an employee of the hospital, Title VII
"does not use the term 'employee' but rather refers to
'any individuals.'" Id. at 422.
7 These
regulations do not state that they apply to cases brought
under CERCLA, which apparently was enacted into law after 29
C.F.R. Part 24 became effective. But since no other
regulations specifically applying to CERCLA whistleblower
cases have been promulgated, it makes sense to apply Part 24
to CERCLA cases as well.
8 CERCLA's
employee protection provision, in protecting workers who have
provided information to State or Federal agencies, does not
specifically state that this information must relate to a
violation of CERCLA. However, it is clear from the language of
42 C.F.R. §9610(a), as well as from the ludicrous results
that would be produced by not limiting the applicability of 42
C.F.R. §9610(a) to complaints under CERCLA, that this
section must be construed as so limited.