listed in the caption. The District Director found that the complainant was an employee of MMCOR and TMM, and that he engaged in activities protected under CERCLA. However, he found that none of the respondents illegally discriminated against Dr. Reid.

the hiring party has the right to assign additional projects to the hired party; the extent of hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party."

Id., quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989).

    Under this test, it is clear that Dr. Reid is neither TMM's nor MMCOR's employee. First, under the contract between TMM and complainant, it was the parties' intent that Dr. Reid be considered an independent contractor, not an employee (see Paragraph 9 of the contract). Although an employment relationship can still be considered one of employer/employee despite the contrary intentions of the parties, see, e.g., Faulkner v. Olin Corp., 85-SWD-3, Recommended Decision at 3 (August 16 1985) aff'd, Final Order of Secretary of Labor (Nov. 18, 1985), the parties' intentions must nonetheless be given weight. More important is that Paragraph 9 of the contract also states:

Physician shall be solely responsible for his medical practice conducted at the Office and TMM exercise no control or direction over the medical judgement and medical practice and professional services of the Physician except as provided herein.

TMM exercised no supervision or control over Dr. Reid's treatment of his patients. Nor could it, since TMM is 8 management company with no medical expertise. Accordingly, Dr. Reid had full control over .' the manner and means by which the product [treatment of patients] is accomplished." Darden, supra, at 1348.

    In regard to the other factors the Court has directed be considered, virtually none of them are indicative of an employer/employee relationship in this case. First, although complainant was paid a fixed sum monthly under this agreement by TMM, this payment was not payment of a salary by TMM. Rather, this was a draw on expected revenues generated by complainant's medical practice. Simply stated, TMM was returning the fees collected from complainant's patients to him at a rate of $9,167.67 a month. Forever, any

additional fees collected which exceeded this amount would be paid to him on a twice-yearly basis, after TMM's fees and expenses were deducted. TMM would become liable under the contract to pay its own funds to complainant only in the event the receipts from complainant's medical practice were less than $110,000 a year (TR 49-50). This was not expected to happen. In fact, at the pre-hearing conference, complainant's counsel indicated that complainant may have billed as much as a half-millon dollars in one year under the contract (TR 67). This is not a method of payment typical of an employer/employee relationship. Further, complainant set his own fees for medical services (see Paragraph 2 of the contract), which is indicative of his independent status.

    In addition, the level of skill required for complainant's job obviously was extremely high; the relationship was for a fixed period of time rather than the indefinite period characteric of an employment relationship; subject to some minor exceptions (see Paragraphs 3(d) and 4 of the contract), complainant set his own work schedule; complainant received no employee benefits from TMN, nor did TMM withhold any payroll taxes or assist complainant in any way in meeting his income tax obligations; and TMM did not have the right to assign any work to complainant.

    Finally, although TMM apparently was responsible for purchasing equipment for the complainant, and provided him with office space for his medical practice, it was complainant who ultimately paid for these things (see Paragraph 5 of the contract). TMM also provided complainant with administrative and nursing personnel, but this was "[s]ubject to the approval of Physician." (Contract at Paragraph 1).

    Thus, the criteria set out by the Court as applied to the relationship between TMM and complainant overwhelmingly support a finding that, as the parties indicated in their contract, Dr. Reid was not an employee, but was an independent contractor.

    In regard to the relationship between complainant and MMCOR, complainant points to the case of Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973), to support his position that he is MMCOR's employee. In Sibley Hospital, a male private duty nurse who was paid directly by patients sued a hospital for discrimination under Title VII of the Civil Rights Act of 1964 because the hospital refused to assign him to female patients. Although vacating a summary decision by the trial judge in favor of the nurse, the court upheld jurisdiction of the case

under Title VII.

neither case is on point. For Hill was an employee of a TVA contractor; and Cowan was a former employee of the respondent. That former employees of a respondent may be considered employees does not aid complainant's case.

    Although "employee" should be interpreted broadly to achieve the purposes of the statutes in issue, that Congress specifically limited the protections afforded by these statutes to "employees" cannot be ignored. As the Supreme Court stated in a case under the Longhore and Harbor Workers' Compensation Act:

We are aware that this is a humanitarian act, and that it should be construed liberally to effectuate its purposes; but that does not give us the power to rewrite the statute of liminations at will, and make what was intended to be a limitation no limitation at all.... While it might be desirable for the statute to provide as petitioners contend, the power to change the statute is with Congress, not us.

Pillsbury v. United Engineering Co., 342 U.S. 197, 200 (1951). I find that the complainant is not covered as an employee under any of the six statutes at issue. Accordingly, his complaint must be dismissed.

    The complaint also must be dismissed because the complainant has not alleged that he engaged in any activity which would protect him from discrimination under the employee protection provisions of these statutes.

    At the pre-hearing conference, complainant was asked to make an offer of proof regarding his alleged protected activity (see TR 8-9). He listed the following as his protected activities:

1. He requested information from MMCOR's tumor registry;

2. He called MMES' medical director, Dr. Conrad, on August 5, 1991 and requested information regarding the use of heavy metals at MMES and any related health problems;

3. He contacted numerous State and Federal

agencies, and Congressman Dingell, regarding the existence of heavy metals in the bodies of the people living in Oak Ridge as well as an usually large incidence of lupus in Oak Ridge residents; and

4. He made a presentation on June 11, 1982 to a State governmental body, an Oak Ridge health steering panel, regarding the unusually high incidence of certain diseases in his patients.

    Also at the pre-hearing conference, complainant was ordered to file a statement identifying with specificity his protected activity under each of the six statutes under which this case was brought (TR 13-14). He also was ordered to identify with specificity the actions by which each of the eight respondents violated each of these six statutes (e.g., TR 37). Although complainant filed a 39-page supplemental brief (a brief which incidentally, he was not given leave to submit) with lengthy attachments (see n.5 supra), he has failed to point to any activities on his part in which he either complains about, or reports to a governmental agency, violations or alleged violations of any of the six statutes at issue. Instead, beginning on page 27, he states that a nuclear weapons plant (presumably run by MMES) releases allegedly hazardous substances into the air, soil, and water, and that allegedly hazardous substances also are released at the "Oak Ridge Reservation." Nowhere does he allege that any of these hazardous substances were released in violation of any statute at issue or that any ongoing violation of law is occurring (see, e.g., TR 19). Rather, he alleges only that these hazardous substances may adversely affect the public health.

    Complainant's allegations can be summed up in this sentence from his supplemental brief:

Once Dr. Reid made clear his diligent interest in disease patterns with specific reference to possible contamination by environmental pollution in Oak Ridge, Dr. Reid was fingered by [MMES and MMCOR], acting through Dr. Daniel Conrad and others, for employer retaliation.

(Complainant's Supplemental Brief, at 36). Such general complaints, which are not directed against any single employer and, more importantly, do not allege a violation of

law, do not create a cause of action under the applicable whistleblower protection statutes.

    The statues at issue in this case all have provisions similar to the following section of SWDA, 42 U.S.C. §6971(a), which prohibits discrimination against an employee

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.

(Emphasis added).

    Although there is case law holding that, to fall under the jurisdiction of whistleblower protection or similar legislation, an employee's activities may be protected even if the conduct complained of ultimately is found not to have occurred or not to have violated the law, see, e.g., Wu v. Thomas, 863 F.2d 1543, 1549 (llth Cir. 1989); Womack v. Munson, 619 F.2d 1292, 1298 (8th Cir. 1980); Pettway v. American Case Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969), none of these cases concern a situation where the complaint failed to allege an underlying violation of the statutes affording protection to employees. But that is the case here. For when considered in a light most favorable to the complainant, he did nothing more than ask State and Federal agencies and Congress to investigate his allegation that there were unusual health problems in Oak Ridge, Tennessee. Claimant has not alleged that he attributed these health problems to a particular business, or that he contended any illegal activity was occurring, in any of the "complaints" he made regarding the unusual incidence of disease he believe existed in Oak Ridge.

Similarly, in E.E.O.C. v. Crown Zellerback Corp., 720 F.2d 1008 (9th Cir. 1983), a case arising under the opposition clause of the Civil Rights Act of 1964, the Court stated that:

The employee's statement cannot be "opposed to an unlawful employment practice" unless it refers to some practice by the employer that is allegedly unlawful.

Id. at 1013 (emphasis in original).

    Complainant's allegations are far removed from the jurisdictional requirements of these six environmental statutes. For he did not contend that any activity, either lawful or unlawful, was engaged in. Nor did he point the finger at any particular employer.

    Logic dictates, and the statutory, regulatory and decisional language quoted above make clear, that complaints which, even if true, do not allege either a violation of any statute providing whistleblower protection or that any particular employer has violated such a statute, are not protected by those statutes. If it could be shown that such generic complaints actually led to an investigation of a particular employer under one of the whistleblower protection statutes, then the employee's complaints may be protected activity as having caused a proceeding. But without such a causal nexus, there is no basis to find Jurisdiction for a complaint which alleges neither unlawful activity nor an employer or person engaging in such activity.

    If the allegations raised by claimant are true, he may well have a meritorious action for breach of contract against TMM. He may also have viable causes of action for damages under tort law (e.g., defamation, misfeasance) against several of the respondents. But he does not have a case falling under the whistleblower protection statutes under which this case was brought.

    Therefore, this complaint should be dismissed for failing to allege a violation of any of the environmental statutes providing protection for whistleblowers as well as for the fact that the complainant is not a covered employee.

    It is recommended that this case be dismissed for lack of jurisdiction under the CAA, TSCA,

CERCLA, WPCA, SDWA, and SWDA.

       JEFFREY TURECK
       Administrative Law Judge