ARB CASE NO. 02-072
ALJ CASE NOS. 02-CAA-12
02-CAA-14
DAVID L. LEWIS,
COMPLAINANT,
v.
SYNAGRO TECHNOLOGIES, INC.,
ROSS M. PATTEN and ROBERT
O'DETTE,
RESPONDENTS,
and
ARB CASE NO. 02-116
ALJ CASE NO. 02-CAA-17
DAVID L. LEWIS,
COMPLAINANT,
v.
WATER ENVIRONMENT
FEDERATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Stephen M. Kohn, Esq., Christopher J. Wesser, Kohn, Kohn and Colapinto, P.C., Washington, D.C.
For the Respondents, Synagro Technologies, Inc., Ross M. Patten and Robert O'Dette: James B. Slaughter, Esq., Thomas A. Blaser, Esq., Beveridge & Diamond, P.C., Washington, D.C.
For the Respondent, Water Environment Federation:
David E. Nash, Esq., Keely J. O'Bryan, Esq., Thomas Hine LLP, Cleveland, Ohio, and Irving P. Cohen, Esq., Thomas Hine LLP, Washington, D.C.
ORDER OF CONSOLIDATION AND FINAL DECISION AND ORDER
On February 11, 2002, David L. Lewis filed a complaint against Synagro Technologies, Incorporated, and its Chief Executive Officer (CEO) seeking relief under the employee protection provisions of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C.A. § 1367 (West 2000), Solid Waste Disposal Act (SWDA), 42 U.S.C.A. § 6971 (West 1995), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C.A. § 9610 (West 1995), Safe Drinking Water Act (SDWA), 42 U.S.C.A. § 300j-9(i) (West 2003), Clean Air Act (CAA), 42 U.S.C.A. § 7622 (West 1995), Toxic Substances Control Act (TSCA), 15 U.S.C.A. § 2622 (West 1998), and the
1 We hereafter refer to Synagro Technologies, Inc., as Synagro, and to Synagro; Ross M. Patten, Synagro's CEO, and Robert O'Dette, a Synagro employee, as the Synagro respondents.
2 We hereafter refer to these complaints and the disposition below as Synagro or the Synagro case.
3 The Respondents in Synagro also have filed before us a Motion to Strike Scandalous Pleadings (i.e., part of the Complainant's Brief in Support of Petition for Review) pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.
4 We note that Lewis's brief on appeal in WEF states that the legal issues raised in that case are substantially identical to those raised in Synagro and that Lewis incorporates in his WEF brief the legal arguments he raised in his brief to us in Synagro. Complainant's Brief On Appeal at 1.
5 Lewis also alleges that he engaged in protected activity by raising "concerns with his supervision [sic], members of Congress, the news media, the Centers for Disease Control, and the EPA Office of Inspector General, among others, concerning" his belief that the use of biosolids has created health hazards. See Synagro complaint (Feb. 11, 2002).
6 Receiving payment allegedly would have violated the rules applicable to Lewis as a federal employee. See Synagro complaints (Feb. 11, 2002 and Feb. 21, 2002).
7 In an affidavit attached to an affidavit of Lewis, dated April 8, 2002, accompanying [Lewis's] Opposition to Synagro's Combined Motions to Dismiss and to Strike Discovery Pleadings before the ALJ, Bynum describes himself as someone "who would like to employ Dr. Lewis as an expert in the sludge issues related to the harm caused by sludge contamination." See Lewis Affidavit, Attachment 8 (Apr. 8, 2002). Bynum states that he was contacted by O'Dette, a representative of Synagro, who "clearly wants to discourage my use of Dr. Lewis as an expert, and has provided me information which calls into question Dr. Lewis' credibility, science and his ability to be qualified as an expert." Bynum adds that "if the Synagro accusations against Dr. Lewis were true, I would not be able to employ him as an expert witness."
8 In his WEF complaint, Lewis submits that EPA sent information to UGA about the scope of his IPA, knowing that Synagro would be able to discover that information under Georgia's Open Records statute. Lewis does not allege, however, that his employer, the EPA, has actually stopped approving his outside employment in any capacity.
9 Before the ALJ in the Synagro case, Lewis filed a Motion to Compel Discovery and the Respondents filed a combined Motion to Dismiss for lack of subject matter jurisdiction, for failure to make a prima facie case or state a claim for which relief may be granted, and because the Respondents' actions are protected under the Petition Clause of the First Amendment. The Respondents also filed a Motion to Strike Discovery Pleadings and an Opposition to Motion to Compel. The ALJ granted the Respondents' Motion to Dismiss for lack of subject matter jurisdiction and Motion to Strike Discovery Pleadings and denied Lewis's Motion to Compel Discovery. In the WEF case, the ALJ granted the Respondent's Motion to Dismiss for lack of subject matter jurisdiction and denied Lewis's Motion for Jurisdictional Discovery.
10 We note that to discharge an employee or "otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment," control over those aspects of employment must exist.
11 The common-law test for determining who qualifies as an "employee" under the environmental whistleblower statutes considers:
the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the 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.
See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-324 (1992), quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751-752 (1989); Robinson v. Martin Marietta Serv, Inc., ARB No. 96-075, ALJ No. 94-TSC-7, slip op. at 5 (ARB Sept. 23, 1996); Reid v. Methodist Med. Center, 93-CAA-4, slip op. at 6 (Sec'y Apr. 3, 1995). "[A]ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive." NLRB v. United Ins. Co. of America, 390 U.S. 254, 258 (1968).
12 In WEF, the ALJ focused on whether there was a "relevant nexus" between WEF and EPA, and found that there was not. Lewis's allegations, he determined, failed to show that WEF had any ability to influence the conditions of Lewis's employment with EPA. He therefore concluded it was not a covered employer.
13 We note that although Lewis alleges that EPA and WEF are engaged in joint activities, Lewis has not alleged that he was involved as an employee in those activities and that WEF controlled his employment thereby.
14 Although the existence of an employment relationship in a particular case arising under the environmental whistleblower statutes may be determined based on a variety of factors, it is essential in finding coverage that the respondent putative employer exercised control over the terms, conditions, or privileges of the complainant's employment. See, e.g., Williams, ARB No. 98-059 slip op. at 6; Stephenson v. National Aeronautics & Space Admin., ARB No. 96-080, ALJ No. 94-TSC-5, slip op. at 1-2 (ARB Apr. 7, 1997); Stephenson v. National Aeronautics & Space Admin, ARB No. 96-080, ALJ No. 94-TSC-5, slip op. at 2 (ARB Feb. 13, 1997); Freels v. Lockheed Martin Energy Sys., Inc., ARB No. 95-110, ALJ Nos. 94-ERA-6, 95-CAA-2, slip op. at 7 (ARB Dec. 4, 1996); Varnadore v. Oak Ridge National Lab. (Varnadore III), 92-CAA-2&5, 93-CAA-1, 94-CAA-2&3, 95-ERA-1, slip op. at 24 (ARB June 14, 1996); Hill and Ottney v. TVA, 87-ERA-23, 24, slip op. at 1-3 (Sec'y May 24, 1989).
15 The FWPCA, for example, provides: "Except as otherwise specifically provided, when used in this chapter: (5) The term ‘person' means an individual, corporation, partnership, association, State, municipality, commission, or political subdivision of a State, or any interstate body." 33 U.S.C.A. § 1362(5). The other statutes contain comparable definitions. See 42 U.S.C.A. § 6903(15); 42 U.S.C.A. § 9601(21).
16 In Varnadore III, slip op. at 23, the Board cited the Secretary's decision in Stephenson, ARB No. 96-080, slip op. at 2, that only employers, as distinguished from individuals who are not employers, are subject to the employee protection provisions of the TSCA and the CAA. The Board held that individuals were not subject to suit under the environmental whistleblower provisions of the TSCA and the CAA, which prohibit "employers" from retaliating against employees who engage in protected activity, and that persons who are not "employers" within the meaning given that word in the statutes may not be held liable for whistleblower violations.
17 Under the FMSHA, "‘person' means any individual, partnership, association, corporation, firm, subsidiary of a corporation, or other organization." 30 U.S.C.A. § 802(f).
18 We note that the FMSHA prohibition appears broader than the prohibition at issue. It states: "No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner, representative of miners or application for employment in any coal or other mine…." 30 U.S.C.A. § 815(c)(1). Moreover, the FMSHA remedy section provides for broader relief (contrast the FMSHA provisions for the Secretary to "propose an order granting appropriate relief" and the Commission's "granting such relief as it deems appropriate, including but not limited to, an order requiring the rehiring or reinstatement of the miner to his former position with back pay and interest or such remedy as may be appropriate," see 30 U.S.C.A. § 815(c)(2)- (3), with "requiring such action to abate the violation as the Secretary ... deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee …," see 33 U.S.C.A. § 1367(b) (emphasis added)). Thus, if anything, the FMSHA language would better support Lewis's argument for applying "person" literally for purposes of liability than does the language at issue.
19 In Hiler, the court also noted that although Title VII was amended to encompass compensatory and punitive damages (i.e., remedies typically available against individuals), there is a long line of precedent which finds that Congress's intent that only employing entities be subject to suit, is clearly evidenced by the fact that the statute originally limited remedies to reinstatement and back pay. Those remedies typically are only obtainable from an employing entity. Hiler, 177 F.3d at 546. But see Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1173 (11th Cir. 2003) (which analyzes the totality of the statutory text, as well as legislative history and the Department of Justice's broadly written implementing regulations, to find individual liability under the Americans With Disabilities Act).
20 Lewis contends that use of the verb "cause" in the discrimination prohibition subsections (the (a) subsections) of the pertinent sections ("No person shall fire or … discriminate against, or cause to be fired or discriminated against, any employee") (emphasis added), means that a "person" under the FWPCA, SWDA and CERCLA need not be an employer. Used as he proposes, a "person" is any individual or corporation that might have some role, however small, in the chain of events leading to the discrimination. We observe that the use of "cause" as a verb in the remedy provisions (the (b) subsections) suggests a different interpretation ("the Secretary of Labor shall cause such investigation to be made as he deems appropriate) (emphasis added), i.e., that "cause" as used indicates the exercise of control to effectuate the result. See 33 U.S.C.A. § 1367(b), 42 U.S.C.A. § 6971(b), 42 U.S.C.A. § 9610(b).
21 Likewise, 29 CFR § 24.2(b) provides: "Any employer is deemed to have violated the particular federal law and the regulations in this part if such employer intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee …," (emphasis added). Further, 29 CFR § 24.3(a), which sets forth the complaint process, states: "Who may file. An employee who believes that he or she has been discriminated against by an employer …," (emphasis added). And the language of 29 CFR § 24.4(d)(3) is: "A request for a hearing shall be filed with the Chief Administrative Law Judge …. A copy of the request for a hearing shall be sent by the party requesting a hearing to the complainant or the respondent (employer), as appropriate, on the same day that the hearing is requested . . . ." (emphasis added).
22 The Secretary added in the comments provided with the regulations at 29 C.F.R. § 24 that the Secretary "interprets all of the whistleblower statutes to apply to such internal whistleblower activities," see 59 Fed. Reg. 12508 (Mar. 16, 1994). Subsequently, in the comments provided with the revised regulations at 29 C.F.R. § 24 implementing the environmental whistleblower statutes, the Secretary observed that "[t]he Department's consistent interpretation" under the "environmental whistleblower laws" which the Department administers, "has been that employees who file complaints internally with an employer are protected from employer reprisals" "against the employee," see 63 Fed. Reg. 6614-6615 (Feb. 9, 1998) (emphasis added). The Secretary further noted, "The Department has also published a proposed rule to provide new alternative dispute resolution ("ADR") procedures in … Departmental programs, including the various whistle blower statutes …. The proposed rule envisions a pilot program under the which the Department would … offer the employer and employees the option of mediation and/or arbitration." See 63 Fed. Reg. 6616 (Feb. 9, 1998) (emphasis added).