Date: 2/26/96



CASE NO.  94-TSC-5

IN THE MATTER OF

     JUDY K. STEPHENSON,
               Complainant


        v.

     NATIONAL AERONAUTICS & SPACE
     ADMINISTRATION (NASA)
               Respondent

RECOMMENDED ORDER DISMISSING COMPLAINT ON SUMMARY DECISION

     NASA, the sole remaining respondent in this proceeding,
moves for summary decision dismissing the complaint against it
pursuant to Fed. R. Civ. P. 12(b)(6) and 29 C.F.R. § 18.40. 
This motion is based on a claimed failure of Complainant to state
a claim upon which relief can be granted.

     In this motion, NASA shows that the sole basis for the
maintenance of this action against it is the allegation that NASA
violated the employee protection provisions of the Clean Air Act
(CAA) codified at 42 U.S.C. § 7622 which provides in
relevant
part:

     No employer shall discharge any employee or otherwise
     discriminate against any employee with respect to his
     compensation, terms, conditions or privileges of
     employment because the employee [engaged in certain
     specified protected activities].

NASA then argues that the prohibition contained in this statute
should be construed as applying only to the employers of an
employee who has engaged in protected activity and has been 
[PAGE 2]
subjected to an adverse employment action as a result thereof.
NASA makes a showing that it is not Complainant's employer.  NASA
further shows that the complaint against it does not allege that
it is Complainant's employer nor does the complaint allege facts
supporting such a finding.  Based on the foregoing, NASA then
argues that the complaint against it should be dismissed.

     In support of NASA's interpretation of the cited statute,
NASA relies upon the standard adopted in Reid v. Methodist
Medical Center of Oakridge, 93-CAA-4, (Sec'y April 3, 1995)
which defines the term "employee" under the environmental
whistleblower acts including CAA.  There, the Secretary announced
that he would apply the test adopted by the Supreme Court in
Nationwide Mutual Ins. Co. v. Darden, 112 S. Ct. 1344
(1992), (Darden).  Under this Darden test, the term
"employee" is to be construed in accordance with common law
principles applicable to master-servant relationships under
agency law. Darden, 112 S. Ct. at 1344-49.  This
construction is accepted and it is found that the prohibitions
contained in the employee protection provision of CAA applies
only to Complainant's employer and the remaining question is
whether NASA is Complainant's employer under common law
principles applicable to master-servant relationships.

     The proof offered in support of NASA's motion, consists of
affidavits from four NASA officials and two Martin Marietta
managers.  It also contains pertinent provisions of the contract
between NASA and Martin Marietta whereby the latter agrees to
provide support services to NASA, including the provisions which
define the functions to be performed by Martin Marietta on the
Science Payload Development Engineering and Operations Project;
the work orders (SOW's) applicable to projects to which
Complainant was assigned; and the contract provisions which set
forth the tasks ordering procedure.  Additionally, NASA presents
Complainant's personnel file maintained by Martin Marietta and
its predecessor GE Government Services.[1] 


     NASA then addresses each of the criteria set forth in
Darden for identifying master-servant relationships and
shows that under each such criterion Complainant is not its
employee.  This proof, which stands unchallenged, is more than
sufficient and it is found that at all times relevant herein,
Complainant was not an employee of NASA.

     NASA further shows that its proof is uncontradicted
by the  pleadings.  The consolidated complaint filed on behalf of
Complainant by her counsel does not contain conclusionary or 
[PAGE 3]
factual allegations that NASA is her employer.  To the contrary,
it is alleged in paragraph one of her complaint that she "is an
employee of Martin Marietta Services Inc., (MMS), a wholly-owned
subsidiary of Respondent Martin Marietta Corporation (MMC), which
exercises control over MMS and other Martin Marietta
subsidiaries.[2]   In paragraph two of her complaint, Complainant
further alleges that MMS and MMC are contractors of Respondent
National Aeronautics (NASA) (sic) and Space Administration at its
Johnson Space Center Facility (JSC)."  She further alleges in
paragraph five "NASA is sued because it was NASA that ordered the
discrimination against her and only NASA can end that
discrimination now...."

     The gravamen of Complainant's complaint against NASA is set
forth in paragraphs thirty-seven and thirty-eight of her
consolidated complaint.  There, it is alleged that NASA and an
individual respondent ordered Martin Marietta management to take
certain specified adverse employment actions against Complainant,
to wit: ordering her not to talk to NASA officials, ordering her
not to go onto JSC property and pulling her unescorted access
clearance.  Thus, the theory of violation advanced by Complainant
against NASA in her consolidated complaint is that NASA violated
the prohibitions of 42 U.S.C. § 7622 by causing
Complainant's employer Martin Marietta Services to initiate
certain specified adverse employment actions against Complainant. 
Such complaint simply cannot reasonably be construed as alleging
that a co-employment or shared employment relationship exist
under which NASA is also Complainant's employer.

     In his most recent order remanding this case, the Secretary
set forth the standard for granting relief on summary decision. 
There, the Secretary states "the moving party must demonstrate
that there is an absence of evidence to support the non-moving
party's case" and "the burden to establish that no relevant facts
are in dispute most be born by the movant against whom all
ambiguities are resolved."  Stephenson v. NASA, 94-TSC-5
(Sec'y Order of Remand September 28, 1995) slip op. at 6.

     The proof offered by NASA in support of its motion for
summary decision meets this standard.  Since Complainant has not
responded to this motion and has not set forth specific facts
showing that there is a genuine issue of material fact in dispute
which requires a hearing; since NASA's proof is uncontradicted by
the pleadings; and since Complainant has had a reasonable
opportunity to secure all discovery pertinent to this motion, it
is found that there is no genuine issue as to any material fact
related to Complainant's employment status and that the motion
for summary decision should be granted.  It is therefore found
that Complainant is not NASA's 
[PAGE 4]
employee and Complainant's complaint against NASA under 42 U.S.C.
§ 7622 cannot be maintained.  Since Complainant has
previously settled her claim against her employer Martin
Marietta, and since NASA is the sole remaining Respondent, it is
recommended that her complaint be dismissed.



                         RECOMMENDED ORDER

     IT IS THEREFORE ORDERED that the complaint filed on behalf
of Judy K. Stephenson against the National Aeronautics & Space
Administration be DISMISSED.




                              ___________________________________
                              QUENTIN P. MCCOLGIN
                              ADMINISTRATIVE LAW JUDGE
Metairie, Louisiana
QPMC:daq


NOTICE:  This Recommended Order and the administrative file in
the matter will be forwarded for review by the Secretary of
Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, D.C. 20210.  The Office of
Administrative Appeals 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 55 Fed.
Reg. 13250 (1990).


[ENDNOTES]
           
[1]   There are two documents in Complainant's personnel file
which appear to be letters of commendation.  The first is a
memorandum dated October 23, 1991 from NASA's Metabolic
Experiment Manager to an official of GE Government Services
praising Complainant's job performance on the Space Life
Sciences-1 project.  The second is a letter dated November 19,
1992, from Dr. Lymon N. Hazelton Chief Scientist, "Principle
Investigator in a Box" of the Center for Space Research,
Massachusetts Institute of Technology praising Complainant's
support in a testing and training mission.  Neither of these
documents is construed as being an employee evaluation - meaning
a careful appraisal of an employee's performance.  They are,
instead, construed as being the sort of gratuitous praise that is
occasionally transmitted by a person in authority from one
organization to another praising the performance of the latter's
employee.


[2]   Complainant further alleges in this paragraph that MMC
exercises "total control" over MMS.