Department of Labor Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
Date issued: November 13, 1997
Case No. 94-TSC-5
In the Matter of:
JUDY K. STEPHENSON
Complainant
v.
NATIONAL AERONAUTICS
& SPACE ADMINISTRATION
Respondent
APPEARANCES:
EDWARD A. SLAVIN, JR., ESQ.
LORI A. TETREAULT, ESQ.
For The Complainant
DAVID A. SAMUELS, ESQ.
DANIEL R. REMINGTON, ESQ.
For The Respondent
Before: LEE J. ROMERO, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the employee protection provision of the Clean Air Act,
42 U.S.C. § 7622 and the pertinent regulations at 29 C.F.R. Part 24. On February 11, 1994,
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Judy K. Stephenson (Complainant) filed an administrative complaint against the National
Aeronautics & Space Administration (Respondent or NASA) with the Wage and Hour Division of
the United States Department of Labor (DOL). The complaint was initially filed pursuant to the
Toxic Substance Control Act (TSCA) against Martin Marietta Services Incorporated, Martin
Marietta Corporation, the Johnson Space Center, National Aeronautics and Space Administration
(NASA), and five individuals. Later, Complainant filed a consolidated complaint which alleged
violations of the employee protection provisions of the Clean Air Act.
Procedural Background
On July 3, 1995, following the filing of a series of pre-hearing motions
including a motion to dismiss, the Secretary of Labor (herein Secretary) adopted the following
recommendations of the administrative law judge: (1) Complainant and Martin Marietta respondents
had agreed to a settlement that was fair, adequate, and reasonable, (2) the individually named
Respondents were employees not subject to suit under the TSCA or the Clean Air Act, and (3)
Respondent was immune from suit under the TSCA. In addition, the Secretary determined that the
Complainant filed a timely claim pursuant to the Clean Air Act, under which NASA did not have
sovereign immunity, although Complainant did not specifically allege in her complaint a violation
of the Clean Air Act. The case was remanded to the administrative law judge for a hearing on the
Clean Air Act complaint of unlawful discrimination against NASA, the sole remaining respondent.
(ALJX-4).
Respondent filed a motion to dismiss the case under Federal Rules of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction which was granted by Administrative Law
Judge Quentin McColgin. On August 21, 1995, the Secretary rejected the administrative law judges
recommendation. On September 28, 1995, upon reconsideration, the Secretary issued a new order
in which Respondent's 12(b)(1) motion to dismiss was treated as a Rule 12(b)(6) motion to dismiss
for failure to state a claim upon which relief may be granted. (ALJX-6). Furthermore, the Rule
12(b)(6) motion to dismiss was treated as a motion for summary judgment. The Secretary rejected
Respondent's motion because it submitted three cursory, conclusory affidavits which were
insufficient to demonstrate that there was no genuine issue as to any material fact. The Secretary
remanded the case to the administrative law judge for further development and an opportunity for
each party to submit evidence in support of its position. (Id).
Thereafter, Respondent filed a motion for summary judgment arguing that it
was not Complainant's direct employer or common law employer. Respondent's motion for
summary judgment was granted by the administrative law judge but denied by the Administrative
Review Board on February 13, 1997. 1
(ALJX-7).
[Page 3]
1 Respondent filed a motion for
reconsideration that was denied on April 7, 1997. (ALJX-8).
2 References to the record are as
follows: Transcript: Tr.___; Complainant's Exhibits: CX-___; Respondent's Exhibits: RX-___; and
Administrative Law Judge Exhibits: ALJX-__.
3 In Complainant's post-hearing brief,
she relied on an incorrect version of the Secretary's order, dated July 3, 1995, obtained from the
Department of Labor, Office of Administrative Law Judges Law Library, Whistleblower Collection
found on the Internet. Where a discrepancy exists between an Internet-reported decision and an
original slip opinion, the slip opinion will be considered authoritative.
4 One of Complainant's prior job
positions included laboratory manager. (Tr. 144).
5 Originally, Complainant began
employment with GE Government Services which later became Martin Marietta. (Tr. 148).
6 Complainant explained that this
room is commonly referred to as the "clean room," however, it is not an actual
operational clean room with sterile technique, like an operating room and negative air flow, but a
controlled work location. It is the size of two basketball courts and is four stories high. (Tr. 168-169). Complainant and other workers were assigned work areas with desks in the clean room. She
explained that it was not common to have desks and work areas in a clean room. (Tr. 186).
Complainant's desk was in close proximity to the table on which the exposed PVPDs were air
drying. (Tr. 186-187).
7 Based on Complainant's testimony,
Ms. Lee referred the matter to Ms. Villerreal because Ms. Lee had not been with the project from
the beginning as had Ms. Villarreal. (Tr. 181).
8 The message was dated November
12, 1993. (Tr. 255; RX-11, p. 4).
9 The AMSCO Company is a
commercial manufacturer of ETO sterilizers used in hospitals. (Tr. 183).
10 Complainant later testified that
she moved the PVPDs on the following Tuesday or Wednesday, November 16 or 17, 1993, two
working days after she first expressed her complaint to Ms. Lee and after she spoke with Mr. Seitz.
(Tr. 256).
11 The PVPDs had been on the
work table for approximately 8-9 days before Complainant placed them in the hall. Complainant
surmised that the PVPDs had remained on the table for such a time period to dry. The next step
would have been to put the PVPDs in packages and send them for ETO sterilization. (Tr. 190).
12 Complainant testified that she
signed the reprimand acknowledging receipt of it, however, she did not agree with the facts as they
were explained to her. (Tr. 199).
13 A discrepancy report is an
"anomaly report" in Respondent's reporting system which describes out-of-the-ordinary
occurrences. Personnel and quality personnel from Raytheon, another NASA contractor, are
responsible for completing discrepancy reports. (Tr. 191).
14 Although it is unclear from
Complainant's testimony, it appears that Complainant was transferred before she first spoke with
Lance Carrington at the Inspector General's office on December 7, 1993. (Tr. 197-198).
15 Complainant informed Mr.
Carrington of the following allegations: (1) Complainant believed the sterilization process of the
PVPDs did not properly offgas the ETO and the PVPDs used on a previous flight were not sterile;
(2) the PVPD dome assembly consists of a pressure dome and two extension sets which are attached
to the PVPD pressure transducer; the extension set is attached to the three-way stopcock on the
saline vial and injector assembly; at the end of the dome assembly's second extension set is a Blunt
Cannula that is inserted into the injection port at the end of the extension tubing in the crew
members' arm, thus creating a continuous fluid column between the crew members' vein and the
PVPD dome; (3) the pressure dome is a pre-packaged sterile device not intended to be repackaged
or re-sterilized by the end user; (4) before the SLS-2 mission, the PVPD dome assemblies were used
by Respondent as recommended by the manufacturers and not re-packaged or re-sterilized; the crew
members assembled the PVPDs in space from the original sterile packaging; upon being assembled
in space, a safety device was also removed from one extension tube that prevented blood from back
flowing into the PVPD; (5) on the SLS-2 mission, a new procedure was used where the separate
component parts of the PVPD were removed from sterile packaging, assembled and placed in non-sterile water to perform leakage testing; although no water should enter the device, the outside of
the device was being contaminated; if water did get inside the PVPD, there was no guarantee that
a proper amount of ETO could get inside the tubing to effectively sterilize the interior of the device;
(6) the assembled PVPDs were dried for six hours once removed from the water; they were packaged
and sealed, and sent to St. John's Community Hospital for ETO sterilization for 1 hour and 45
minutes at 130 degrees and aerated for 12 hours; Respondent was supplied with a certificate of
compliance in conjunction with the sterilization performed; (7) St. John's Hospital's ETO
sterilization process did not effectively sterilize the interior tubing and the pressure dome of the
PVPDs; the tubing should be sterilized using pressure steam (autoclave); (8) the PVPDs may have
residual ETO as a result of the ETO sterilization process conducted at St. John's Hospital such that
it could affect the integrity of the hardware and the space shuttle environment; (9) the ETO exposure
time is dependent on the type of hardware material, the cleanliness of the hardware, and the
temperature used in the ETO sterilizer; the exposure periods have to be determined experimentally
utilizing acceptable microbiological sterility controls as a basis; (10) although St. John's Hospital
issued a certificate of compliance, the PVPDs may not be effectively sterilized because the same
parameters were used each time; (11) Respondent and Martin Marietta were informed of the above
mentioned concerns, however, no one appeared to address the concerns; and (12) if the PVPDs were
not properly sterilized, the crew could face possible blood infection which could be fatal; if the ETO
was not completely removed from the hardware, a possible chemical reaction could occur which
would incapacitate the crew. (RX-7; CX-50; Tr. 201-209).
16 The memorandum ordered
Complainant not to travel onto Johnson Space Center for any business purposes related to her work
for Respondent's Life Sciences Division and Martin Marietta Services. Complainant was prohibited
from contacting any of Respondent's Life Sciences civil servants for any purpose related to her duties
as a Life Sciences Division contractor working for Martin Marietta. Furthermore, Complainant was
prohibited from entering the Webster facility or any other facility producing flight hardware.
Complainant was required to adhere to the directives as a condition of her continued employment.
The memorandum informed Complainant that Martin Marietta did not expect the directives to hinder
her ability to perform effectively her current position. The directives were not to be considered as
a factor in future performance evaluations, salary increases, or promotional status. (CX-2).
17 The library is located on the
second floor of Building 36. The library contains all the drawings and procedures for experiments.
(Tr. 266).
18 This division develops and
supports the use of life sciences hardware for shuttle and space lab missions. (Tr. 73).
19 Mr. Kitterman explained that
Complainant received a written warning instead of a verbal warning because she handled
government property inconsistent with established procedure and did not notify her management.
(Tr. 107).
20 According to Mr. Kitterman,
Complainant returned to Building 36 on only one occasion. (Tr. 110-111). Furthermore, Mr.
Kitterman believed that Complainant was at Building 36 for work-related purposes. (Tr. 112).
21 Mr. Kitterman testified that he
was on speaker phone with Mr. Barnett. Mr. Hite and Mr. Mims were in the room with Mr.
Kitterman and could hear the phone conversation. (Tr. 78-79).
22 Performance was the basis for
the amount of profit Martin Marietta would earn on the contract with Respondent. Performance was
assessed by Ms. Kramer and the managers reporting to her. According to Mr. Kitterman, the
assessment had a number of subjective elements such that Ms. Kramer had some freedom to
determine the "score" given to Martin Marietta which determined the profit received by
Martin Marietta. (Tr. 89-90).
23 Mr. Hanby and Mr. Huber were
employees of Respondent under Ms. Kramer's supervision. (Tr. 90).
24 A discrepancy report (DR) may
be written by a quality engineer, quality assurance personnel, or a safety person. Any person can
request a discrepancy report be written. (Tr. 500).
25 Quality assurance personnel
were generally not Respondent's personnel. (Tr. 501).
26 Ms. Kramer explained that she
did not "know everything, every day that goes on in my building" nor did she request
to be kept informed of Complainant's activities. (Tr. 497, ln 19; 498). However, she was informed
of Complainant's five minute visit in the clean room. (Tr. 497).
27 Ms. Kramer testified that new
PVPDs were then being assembled. (Tr. 582).
28 Ms. Kramer denied having the
authority to have Mr. Kitterman transferred. (Tr. 282).
29 Complainant testified that she
requested, from the civil servant engineer, non-confidential video tapes of training exercises using
the PVPDs. (Tr. 1262).
30 Mr. Proctor voluntarily left the
employ of Respondent in accordance with a plea agreement with the Department of Justice. (Tr.
137; RX-35).
31 Mr. Proctor testified that he
believed the SPDEO contract did not permit Respondent to "hand pick" contractor
employees for specific projects. Respondent was permitted to declare the educational level and skill
level required to work on the project. It was the contractor manager's decision to supply employees
to meet those needs. (Tr. 120).
32 Mr. Carrington testified that the
Inspector General's office attempts to provide anonymity when it is requested. (Tr. 597).
33 A principal investigator is the
lead scientist for an experiment. The principal investigator wrote and designed the experiment and
obtained its funding. (Tr. 171).
34 Ms. Villarreal delegated such
calls to other employees who assisted in the investigation of this matter. (Tr. 713). She assumed
the people contacted by Respondent's team were not sales people but a scientist, a repairman of St.
John's Hospital's ETO sterilizer machine, and Bonnie Sapp, a registered nurse supervising the
sterilization department at St. John's Hospital. (Tr. 713-714).
35 Because the PVPDs had to be
loaded into the shuttle forty-five days before the scheduled launch date, Respondent had only two
weeks to obtain new component parts, assemble the parts, leak test the PVPDs, re-sterilize and pack
them into the PVPD kits. In addition, the PVPDs had to go through other safety verification tests
and then be shipped to Kennedy Space Center. (Tr. 667).
36 Dr. Huntoon was Dr. Pool's first
line supervisor and conducted his performance evaluations. (Tr. 982). In addition, Dr. Huntoon was
the principal investigator on the PVPDs. (Tr. 983).
37 Dr. Pool testified that John
James and Duane Pierson conducted additional testing on the hardware, however, the testing was
not performed until in May 1994. (Tr. 979; See CX-18).
38 Dr. Pool testified that pre-flight,
in-flight, and post-flight medical records of the crew were reviewed. (Tr. 980).
39 Dr. James further testified that
ETO has never been detected in the space shuttle cabin. (Tr. 1070; CX-56; RX-26-27).
40 Mr. Seitz testified that they were
discussing the November 1993 removal of the flight hardware incident since Complainant returned
to the Johnson Space Center and was around the flight hardware in the clean room. (Tr. 1157).
41 The February 1994
memorandum states that Ms. Kramer did not instruct Martin Marietta management to prohibit
Complainant from entering Johnson Space Center, Building 36, or speaking to Respondent's civil
servants. (RX-33).
42 Mr. Seitz testified that a lawyer,
a paralegal, Ms. Kramer, or Dr. Huntoon asked him to write the February 1994 memorandum. (Tr.
1180).
43 Mr. Gibson's responsibilities
included developing and implementing "processes" for the various devices the company
was manufacturing, installation of sterilization equipment, basic research for the effect of
sterilization on various materials, and trouble-shooting the sterilization processes used by the
company. (Tr. 336).
44 The devices were ETO sterilized
and the solutions were steam sterilized.
45 These standards are consensus
documents that are agreed to by industry, hospitals, and regulators. Mr. Gibson explained that these
standards are considered guidelines and become enforced by the FDA when the standards are
adopted by industry and become industry norms. (Tr. 346).
46 Becton Dickinson did not
provide time limits for exposure and aeration time. Instead, the report listed these times as
"dependent on strength of source." (CX-22). Aeration occurs when the chamber is
purged with filtered clean air that is within a regulated cycle which accelerates the evacuation of
ETO that might be a residual. (Tr. 1105).
47 New hardware to be developed
included a portable blood pressure system. (RX-38, Pt. 1, cl. 4.3).
48 The benefits include life
insurance, accident insurance, health insurance, sick leave, civic and personal leave, pension plans,
severance pay, savings and thrift plans, vacation leave, and holiday leave.
49 Notwithstanding the Secretary's
order dated July 3, 1995, it is questioned whether the Clean Air Act applies to this claim since it
cannot be determined, based on a plain reading of the statute, if Congress intended to regulate
negligible amounts of ETO released into an environment. Moreover, it cannot be determined
whether Congress intended to regulate offgassing from transportable medical hardware, rather than
a stationary particular source, into a restricted environment such as a shuttle cabin or laboratory. It
is unknown whether Congress intended to regulate the release of contaminants only into the outside
environment where the pollution can drift from city to city and affect a large geographic area and
a large number of people.
Furthermore, it should be noted that the PVPDs were placed into the shuttle
45 days prior to launch which would provide additional time for the hardware to offgas. As the
record demonstrates, ETO was never found in post-flight air samples taken from the shuttle cabin,
and there is no record evidence that ETO was found in the laboratory air. (Tr. 1070). Lastly,
Complainant's concerns with the effects from intravenous use of the PVPDs is arguably not an
environmental issue but a medical/occupational issue. Tucker v. Morrison & Knudson,
Case No. 94-CER-1 (ARB Feb. 28, 1997).
Even in light of the above mentioned concerns, the conclusion that
Complainant's claim comes within the purview of the Clean Air Act may also be supported under
the test articulated in Minard v. Nerco Delamar Co., Case No. 92-SWD-1 (Sec'y Jan. 25,
1994) that Complainant reasonably believed Respondent violated the Clean Air Act.
50 In Reid, the Secretary
rejected the "economic realities" test and held that Darden was not controlling
law, however, it was appropriate to apply to the environmental statutes at issue, including the Clean
Air Act. ButseeCoupar v. U. S. Dept. of Labor, 105 F.3d 1263, 1265
(9th Cir. 1997)(Using the "economic realities" test, a federal inmate who filed
whistleblower complaints against Federal Prison Industries, Incorporated was not an employee
within the employee protection provision of the Clean Air Act.)
51 These benefits include health
insurance, life insurance, personal accident insurance, and disability insurance. (RX-34).
52 Although Ms. Villerreal testified
that she believed Complainant was performing poorly at work due to her absenteeism, about which
Complainant did not inform Ms. Villerreal, she further testified that Complainant was not required
to inform her of any scheduled or extended leave time.
53 I further find that the badge and
parking decal issued to Complainant did not provide her with security clearance to classified
material. (See CX-5; CX-65a, pp. 27-28). Instead, Complainant's name was placed on the
visitors' list which allowed Complainant access to Respondent's Johnson Space Center. (RX-34;
CX-65a, pp. 27-28).
54 Ms. Kramer testified that she
did not instruct Mr. Kitterman or Mr. Hite to discipline Complainant, but to remove her from access
to flight hardware. Mr. Hite testified that he was never instructed to remove Complainant from
access to the medical hardware. Although the record contains this discrepancy, the record is devoid
of evidence demonstrating that Respondent directed Martin Marietta to discipline Complainant.