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U.S. Department of Labor
Office of Administrative Law Judges
525 Vine Street, Suite 900
Cincinnati, OH 45202
Date: January 29, 1998
Case No.: 96-CAA-0008
In the Matter of:
DAVID MARSHALL HIGH,
Complainant
v.
LOCKHEED MARTIN ENERGY SYSTEMS, INC.;
LOCKHEED MARTIN CORPORATION;
OAK RIDGE OPERATIONS OFFICE; and,
U.S. DEPARTMENT OF ENERGY,
Respondents
RECOMMENDED DECISION AND ORDER OF DISMISSAL
Complainant, David Marshall High, by his attorney, Edward A. Slavin,
Jr., on December 12, 1995, filed a complaint against Lockheed Martin Energy Systems, Inc.
(LMES), Lockheed Martin Corporation (LMC), Oak Ridge Operations Office (ORO), and the U.S.
Department of Energy (DOE). Complainant alleges that Respondents have violated his rights under
the Energy Reorganization Act, 42 U.S.C. § 5851 (ERA), the Clean Air Act, 42 U.S.C.
§ 7622 (CAA), the Toxic Substances Control Act, 15 U.S.C. § 2622 (TSCA), the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9610
(CERCLA), the Solid Waste Disposal Act, 42 U.S.C. § 6971 (SWDA) (a/k/a the Resource
Conservation and Recovery Act (RCRA)), and the Safe Drinking Water Act, 42 U.S.C. §
300j-9(i) (SDWA).
Complainant states that he was hired as the Physical Training Coordinator or
Manager for Martin Marietta Systems, the predecessor of Lockheed Martin Energy Systems, Inc.,
[Page 2]
to supervise physical training of security guards working for Oak Ridge Operations. He alleges that
security personnel at the Oak Ridge facilities have not been exercising as required by DOE orders
and regulations and, as a
. . . result of the failure to act on [his] concerns, there are members of the guard force
at Oak Ridge who would probably be unable to perform some of their expected
duties in protecting the plant in event of attack, attempted theft, sabotage, accidental
or intentional release or other foreseeable actions, any of which could pose an
environmental catastrophe . . . .
(Comp. ¶22). Complainant states that he has raised concerns since 1992 to Lockheed Martin
and DOE concerning violations of DOE orders and regulations. These concerns include the failure
of guards to exercise pursuant to DOE orders, the failure of LMES protective service managers to
discipline guards who failed to exercise, false claims by LMES against the government for exercise
which did not take place and concerns regarding the number of guards on duty at certain times of
the day (Comp. ¶15). As a result of raising these concerns to management, Complainant
alleges that he has suffered retaliation in the form of adverse performance appraisals, unequal pay
and denial of promotions, and has been labeled as a "troublemaker." (Comp. ¶27).
Complainant has moved that this case be remanded to the Wage and Hour
Division of the U.S. Department of Labor for an investigation of the aspect of the complaint
regarding possible blacklisting. The undersigned Administrative Law Judge denied this motion on
December 4, 1996. On December 13, 1996, an Order to Show Cause was issued directing that
Complainant, David M. High, show cause why DOE should not be dismissed as a party in this case.
The DOE had moved that it be dismissed as a party because it was not an employer of Complainant,
Complainant has failed to make a prima facie case, and Complainant's concerns are related
to waste, fraud, and abuse and do not involve environmental whistleblower concerns. On June 19,
1997, a Show Cause Order was issued directing Complainant to show cause why his complaint
should not be dismissed as to all parties due to failure of the complaint to state a cause of action
under which relief can be granted.
Complainant responded to the Show Cause Order on August 11, 1997. He
argued that the complaint meets the liberal, remedial standards for Department of Labor
whistleblower complaints by alleging concerns about a lax in security which could ultimately result
in potential environmental pollution. LMES and LMC argue1
that the reports made by Complainant regarding fraud, waste, and abuse do not
directly concern nuclear or environmental hazards to the public and are not in furtherance of the
statutory objectives of the CAA and the other Environmental Acts. As such, they should not be
considered protected activity under the Environmental Acts. LMC also argues that it should be
dismissed as a party because it is not an employer of Complainant. DOE argues that Complainant
has failed to state a prima facie case under the ERA or the Environmental Statutes because
DOE is not an employer of Complainant and the activities of Complainant are not protected under
the Environmental Statutes.
[Page 3]
A review of the record shows that Complainant has not made a prima
facie case in that the activities of which he complains are not protected under the Acts. See
Kesterson v. Y-12 Nuclear Weapons Plant, et al, 95-CAA-12 (ARB Apr. 8, 1997). The concerns
expressed by Complainant are related to potential fraud, waste, and abuse that were going on in the
physical training program rather than to environmental problems covered by the ERA and
Environmental Acts. See Tucker v. Morrison-Knudson, 94-CER-1 (ARB Feb. 28, 1997);
Tyndall v. EPA, 93-CAA-6, 95-CAA-5 (ARB June 14, 1996); Devareux v. Wyoming
Association of Rural Water, 93 ERA-18 (Sec'y Dec. Oct. 1, 1993). The potential safety
problems arising from an unfit group of guards are speculative at best and do not directly concern
harm to the environment. The fact that terrorists would have a better chance of stealing uranium if
the guards at Oak Ridge are unfit does not necessarily mean that Complainant engaged in protected
activity. These speculative fears are not enough to bring Complainant's activities within the
protection of the Environmental Statutes stated in his complaint. See Crosby v. Hughes Aircraft
Co., Case No. 85-TSC-2 (Sec'y Dec. Aug. 17, 1993).
Additionally, Complainant fails to offer evidence that LMC or DOE is his
employer. Even if DOE was Complainant's employer, the ERA, TSCA, and SWDA claims would
have to be dismissed as the Federal Government has not waived its general sovereign immunity
under these acts. See Varnadore v. Martin Marietta Energy Systems, DOE, 95-CAA-2, 92-CAA-5, 93-CAA-1, 94-CAA-2, 94-CAA-3, 95-ERA-1 (ARB June 14, 1996);
Stephenson v. NASA, 94-TSC-5 (Sec'y Dec. July 3, 1995). The remaining CAA, CERCLA,
and SDWA claims against DOE would have to be dismissed because Complainant has failed to
articulate any manner in which any DOE actions have had an adverse effect upon the terms,
conditions, or privileges of Complainant's employment with LMES or even claim that anyone at
DOE has shown any retaliatory animus toward Complainant. See Kesterson, Case No. 95-CAA-12 (ARB Apr. 8, 1997).
The complaint also fails to give a time when the alleged retaliation occurred.
The ERA has a limitations period of 180 days, while the other Acts have limitations periods of 30
days. A determination cannot be made as to whether the claim is time barred from prosecution.
Complainant, by letter dated November 5, 1996, complains that Respondents
systematically offered to pay whistleblower lawyers' fees but not to pay any damages or backpay to
employee whistleblowers. The issue is whether an offer by a respondent company to settle a
whistleblower case on a fees-only basis will support a cause of action under the pertinent statutes.
The monetary amount of a settlement offer is not a proper basis for the filing of a complaint under
any of the listed whistleblower statutes.
Upon consideration of the record and the arguments of the parties, it is
therefore,
RECOMMENDED that the Secretary of Labor
DISMISS the complaint of David M. High in its entirety.
ROBERT L. HILLYARD
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the administrative file in this
matter will be forwarded for review by the Secretary of Labor to the Administrative Review Board,
U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue,
N.W., Washington, D.C., 20210. The Administrative Review Board has the responsibility to advise
and assist the Secretary in the preparation and issuance of final decisions in employee protection
cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 61 Fed. Reg.
19978 (1996). |
