Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ALJ June 21, 1994)

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Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ALJ June 21, 1994)

Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201

Date: June 21, 1994

CASE NO. 94-TSC-5

IN THE MATTER OF

JUDY K. STEPHENSON,
Complainant,

NATIONAL AERONAUTICS & SPACE ADMINISTRATION; CATHY KRAMER; CAROLYN HUNTOON; HENRY FLAGG, JR.; JENNIFER VILLARREAL; & SAM PEREZ,
Respondents

RECOMMENDED ORDER DISMISSING INDIVIDUAL RESPONDENTS

Motions have been filed in this proceeding to dismiss all five of the individual respondent's named herein and a show cause order has been issued directing the parties to show cause why these individual respondent's should not be dismissed. Having now considered the responses to the motions and order, it is determined that all five of the individual respondent's should be dismissed. The basis for this determination follows.

In a series of amended informal complaints, complainant alleged that four employee's of the National Aeronautic & Space Administration (NASA), Cathy Kramer, Carolyn Huntoon, Jennifer Villarreal, Henry Flagg, Jr.; an employee of the Wage and Hour Division of the Department of the Labor, Sam Perez; two corporations¹ and a government agency (NASA) discriminated against her in violation of the employee protection statute embodied in the Toxic Substance Control Act: (15 U.S.C. § 2622). Since the referral of this case for adjudication, complainant has filed a consolidated complainant in which all of these individuals and entities are again named as parties respondent on the basis that they violated the employee protection provision of both the Toxic Substance Control Act as well as the Clean Air Act. (42 U.S.C. § 7622).

Both employee protection statutes prohibit "employers" from

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discriminating against employees for certain specified protected activities. The prohibition in both 42 U.S.C. § 7622 and 15 U.S.C. § 2622 begin with the identical language "[n]o employer may discharge any employee or otherwise discriminate against any employee .... " It thus appears on its face that a person who is not, an employer is not subject to these statutory prohibitions and, thus, cannot be said to violate either employee protection statute.

Complainant cites as the sole authority for naming these five individuals, cases under the Surface Transportation Assistance Act (STAA) to wit: Gagnier v. Steinmann Transportation Inc., 91-STA-46 (Secretary, July 29, 1992 and Wilson v. Bollin Associates, Inc., 91-STA-4 (Secretary, December 30, 1991). These cases are, however., distinguishable because the language of the employee protection statutes involved here. The former provides: "[n]o person shall discharge" an employee for conduct protected by STAA. 49 U.S.C. § 2305(a).

Based on the lack of authority for a contrary holding and giving effect to the more restrictive language of the employee protection statutes involved here, it is found that only employers as distinguished from individuals who are not employers, are subject to the employee protection provisions of the Toxic Substance Control Act and the Clean Air Act. Since it is not alleged here that any of the five individual respondents are employers and since it is affirmatively alleged that all five are employees of government-agencies, it is found that "these five individuals are not proper parties respondent and it is therefore recommended that they be dismissed as parties herein.

RECOMMENDED ORDER

IT IS THEREFORE ORDERED that Carolyn Huntoon, Cathy Kramer, Jennifer Villarreal, Henry Flagg, Jr., and Sam Perez be dismissed as parties in this preceding.

QUENTIN P. MCCOLGIN
ADMINISTRATIVE LAW JUDGE

Metairie, Louisiana
QPMC:daq

[ENDNOTES]

¹The two corporations entered into a settlement with complainant and a recommended order has been issued recommending that they be dismissed as parties and their settlements be approved.