Turpin v. Lockheed Martin Corp., 2001-ERA-37 (ALJ Oct. 15, 2001)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue date: 15Oct2001

CASE NO.: 2001-ERA-00037

In the matter of:

HUGH K. TURPIN,
    Complainant

    v.

LOCKHEED MARTIN CORPORATION,
LOCKHEED MARTIN ENERGY SYSTEMS, INC.,
and JAMES H. BARKER
    Respondents

   The complainant filed a Request for Hearing and Motion for Remand to OSHA by letter dated August 20, 2001 alleging violations of the following whistleblower statues: Section 211 of the Energy Reorganization Act of 1974; Section 312 of the Clean Air Act; Section 110(a) of the Comprehensive Environmental Response, Compensation, and Liability Act; Section 507 of the Federal Water Pollution Control Act; Section 1450 of the Safe Drinking Water Act; Section 7001 of the Solid Waste Disposal Act; and Section 23(a) of the Toxic Substance Control Act. The complainant stated that OSHA failed to adequately investigate the merits of the complaint and assigned the complaint to a biased investigator. On August 28, 2001 Administrative Law Judge Thomas M. Burke issued an Order Denying Request for Remand. He determined that any arguable flaws in the investigation would not adversely affect litigation in a case before an ALJ and that the complainant is provided under 29 C.F.R. § 24.6 with the opportunity to present evidence to establish his complaint. During a conference call with the undersigned on September 7, 2001, counsel for the complainant renewed his Motion for Remand to OSHA.

   I am in accord with Judge Burke's conclusion. The complainant is entitled to a de novo hearing before the undersigned and can introduce evidence to support these allegations at the hearing, to be scheduled at a later date. Therefore, the complainant's Motion for Remand to OSHA is denied.

   On August 27, 2001 respondent James Barker filed a Motion to Dismiss. He stated that at all times material to the complaint he was employed as manager of the Radiological Controls Organization for Lockheed Martin Energy Systems, Inc. ("Lockheed") and that only employers, as distinguished from individuals, are appropriate respondents in an environmental or nuclear whistleblower action. The complainant filed a response on September 6, 2001.

   Section 24.2(a) states in pertinent part; "No employer . . . may discharge any employee or otherwise discriminate against any employee . . ." 29 C.F.R. § 24.2(a). The Administrative Review Board has held that persons who are not "employers" within the meaning given that word in the Energy Reorganization Act may not be held liable for whistleblower actions. Varnadore v. Oak Ridge National Laboratory, 29-CAA-2 (ARB June 14, 1996) (relying upon Stevenson v. National Aeronautical and Space Administration, 94-TSC-5 (Sec Dec. and Ord. on Remand July 3, 1995)). There is no evidence of record that establishes that Barker employed the complainant. Therefore, Barker is not an employer of the complainant and thus is not subject to action under whistleblower protection laws.

   In the complainant's September 6, 2001 filing, he stated that the correct caption of this case also includes respondent BWXT and referred to numerous letters contained in the record. Lockheed filed a response on September 14, 2001 stating that the complainant is attempting to assert a claim against a separate legal entity, BWXT Y-12, L.L.C. ¹ A review of the OSHA decision and subsequent filings of record does not include BWXT as a named respondent. The complainant's September 6, 2001 filing is therefore construed as a request to join BWXT as a respondent.

   The Federal Rules of Civil Procedure are applicable in situations where the Rules of Administrative Practice and Procedure do not apply. Rule 19 of the Federal Rules of Civil Procedure permit joinder for a party-in-interest. BWXT and Lockheed are ordered to show cause why the joinder of BWXT as a respondent should not be granted. ² The response is to be filed within fifteen days of the date of this order. Accordingly,

¹ Counsel for Lockheed is also counsel for BWXT.

² Since counsel for Lockheed is also representing BWXT, only one response from both parties is necessary.