Additionally,
Complainant testified that he reported the "existence of a
fairly large herbicide pesticide dump there, tin cans and
everything else, which we had turned over to agencies within
Grant County" in 1991. (TR:55). Complainant alleges that WHC
knew of his previous reports of the presence of hazardous
substances on the WHC facility and that he was denied access to
the WHC facility In July 1991 in retaliation for his prior
"environmental activities." (TR:21, 153). Finally,
Complainant alleges that the report by Trojan Nuclear facility
that Complainant secreted a gun onto the premises in false
information which WHC has used as a pretext for denying
Complainant access to WHC. (TR:55, 152). Claimant alleges that
WHC has granted access to other individuals who have carried guns
onto the Hanford facility. (TR:151).
ISSUES
The issues raised by the parties are as follows:
1. Whether Complainant's complaint and appeal were timely
filed.
2. Whether Complainant was engaged in "protected
activities" within the meaning of the Act and was
discriminated against by WHC because of those activities.
3. Whether Respondent can demonstrate a valid non-discriminatory reason for denying Complainant access to the WHC
facility.
4. Whether Complainant is barred from bringing an action
under 29 C.F.R. 24 pursuant to 29 C.F.R. 24.9.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Jurisdiction
This case was investigated and referred by
[Page 6]
the Assistant District Director, Department of Labor
Employment Standards Administration Wage and Hour Division, to
the Office of Administrative Law Judges for formal hearing
under the CAA. However, it is unclear that the CAA or its
implementing regulations are involved. See, e.g. 40
C.F.R. Part 61. While Complainant alleges that the CAA is
implicated, examination of the record fails to establish CAA
coverage. The CAA seeks to prevent and control air pollution
by regulating emission. into the atmosphere at particular
sources. The Complainant herein neither alleged nor presented
evidence that contaminants were emitted into the
atmosphere or into the workplace as contemplated by 40 C.F.R.
61.146, 61.147.
At the hearing, Complainant
additionally alleged coverage under the employee protection
provisions of the Energy Reorganization Act of 1974
(hereinafter "ERA".), 42 U.S.C. 5851. (TR:16). To
establish the jurisdiction of the Department of Labor over
employee protection complaints arising under the ERA, the
Secretary of labor has held that Congress included only those
employers who are engaged in activities at a site regulated to
some extent by the Nuclear Regulatory Commission. Wensil v.
B.F. Shaw Co., 87-ERA-12 (Sec'y Mar. 29, 1990) (holding
that the ERA whistleblower provisions do not cover activities
at a nuclear weapons facility regulated by the Department of
Energy). This jurisdictional defense was raised by Respondent
at the hearing as the Hanford facility is apparently regulated
by the Department of Energy. (TR:22). Complainant has not
argued or presented evidence that the present complaint under
the ERA is therefore not excluded from the jurisdiction of the
Department of Labor.
Complainant also alleged at the hearing
that the present complaint is covered by the Solid Waste
Disposal Act (hereinafter "SWD"), 42 U.S.C. 6971 and
implementing employee protection provisions, 29 C.F.R. 24.
Complainant's allegations of adverse effects and public safety
hazards created by WHC's storage of unexploded ordnances on
WHC property accessible to the public is more compatible with
the coverage criteria of the SWD as enumerated at 40 C.F.R
255.1.
The employee protection provisions of
all the statutes referred to in 29 C.F.R. 24.1 are
substantially similar and patterned after the National Labor
Management Act and the Federal Mine Safety Act. See Kansas
Gas & Electric Co. v. Brock, 780 F.2d 1505 (l0th Cir.
1985). All provisions focus on employment discrimination.
Congress expressed a broad intention to protect employees
[Page 7]
making health and safety complaints from discriminatory
or retaliatory action by their employers:
[E]mployees [are protected] from discharge, discrimination,
or other retaliation which adversely affects the terms and
conditions of employment due to an employee's participation
in, or assistance to, the administration, implementation, or
enforcement of the Clean Air Act. . . . Retaliatory action by
the employer would also be prohibited if it were in response
to an employee's exercise of rights under Federal, State, or
local Clean Air Act legislation or regulations. This would be
the case even if the employee's action was not directed
against the employer (e.g., the filing of a citizen suit
against the Administrator or against another company).
H.R. Rep. No. 294, 95th Cong., 2d Seas. 325-326, reprinted
in 1977 U.S. Code Cong. & Admin. News 1404-1405.
Considering the broad protective
purposes of Congress, the substantial similarity of the
employee protection language in each of these statutes, and
construing the facts alleged in the light most favorable to
Complainant, I assume coverage under the CAA.
Timeliness
Respondent alleges that neither
Complainant's original complaint nor Complainant's appeal of
the District Director's investigatory findings were timely
filed.
Pursuant to 29 C.F.R. 24.3(b), an
employee who believes that he has been discriminated against
must file a complaint within 30 days after the occurrence of
the alleged violation. For the purpose of determining
timeliness of filing, a complaint filed by mail is considered
filed as of the date of mailing.
In the instant case, Complainant
alleges that WHC took discriminatory action against him by
denying him access to the WHC facility on July 15, 1991.
Complainant subsequently filed a complaint which was received
the District Director, Department of Labor Employment
Standards Administration Wage and Hour Division on November
7, 1991. See Letter of Notification dated February 24,
1992. Even assuming Complainant did not receive definitive
notice of the alleged discriminatory action by WHC until
August 29, 1991, the date of DLD's termination letter to
Complainant, Complainant did not file a complaint for over 60
days. Thus, Complainant's original complaint was not timely
filed.
[Page 8]
Pursuant to 29 C.F.R. 24,4(d)(2)(i),
the Administrator's notice of determination shall become the
final order of the Secretary denying the complaint unless
within five calendar day. of its receipt the complainant
files with the Chief Administrative Law Judge a request by
telegram for a hearing on the complaint.. Equitable
modification of the mandatory filing period in whistleblower
cases has been granted by the courts only under narrow
circumstances such a. when: (1) the employer has actively
misled the complainant regarding the cause of action; (2) the
complainant has been prevented in some extraordinary way from
asserting his rights; or (3) the complainant ha. raised a
proper statutory claim but mistakenly done so in the wrong
forum. School District of the City of Allentown v.
Marshall, 657 F. 2d 16 (3d Cir. 1981); Larry v.
Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).
In the instant case, the District
Director's notification was mailed to Complainant on February
24, 1992, and a copy received by the Office of Administrative
Law Judges on February 27, 1992. Pursuant to the five day
rule" for service by mailing set forth at 29 C.F.R.
18.4, service to Complainant was completed upon receipt or on
Monday, March 2, 1992. Pursuant to 29 C.F.R. 24.4(d)(2)(i),
Complainant'- reply by telegram was due on or before Monday
March 9, 1992. Complainant sent a notice of appeal by Western
Union mailgram on Thursday, March 12, 1992 which was received
by the Office of Administrative Law Judges on Thursday, March
19, 1992. (CX:2). Thus, Complainant's request for appeal of
the decision of the District Director was sent at least 2
days late and is, therefore, not timely filed.
Complainant asserts that his appeal to
the Office of Administrative Law Judges for formal hearing
was nonetheless timely because he was "on travel"
and did not receive the notification until he returned home.
Additionally, Complainant asserts that he sent his appeal and
request for hearing by telegram, although, as Complainant
acknowledged, the document submitted into evidence as proof
of appeal is a mailgram. (TR:151-52; CX:1). I do not find
that Complainant's reasons for equitable modification of the
statutory filing requirements meets the criteria set forth in
City of Allentown, supra. Therefore, I find that
Complainant's claim should be dismissed for lack of
timeliness.
Assuming, arguendo, that
Complainant's claim had been timely filed, I find that the
instant claim should be dismissed on the merits for
the following additional reasons.
[Page 9]
Elements of a Valid Claim Under Section 7622
A discrimination claim under Section 7622
must include proof:
(1) That the party charged with discrimination is an
employer subject to the Act; (2) that the complaining
employee was discharged or otherwise discriminated against
with respect to his compensation, terms, conditions or
privileges of employment; and (3) that the alleged
discrimination arose because the employee participated in [a
CAA] proceeding . . .
Mackowiak v. University Nuclear Systems, Inc., 735
F.2d 1159, 1162 (9th Cir. 1984) (quoting DeFord v.
Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983));
Johnson v. Old Dominion Security, 86-CAA-3, 86-CAA-4,
86-CAA-5 (Sec'y May 29, 1991).
Once a complainant establishes a
prima facie case of unlawful discrimination, the
burden of proof shifts to the employer to prove by a
preponderance of the evidence that, if even part of the
employer's motive was unlawful, it was also motivated by the
complainant's unprotected activities and would have taken
adverse action against the complainant in any event for the
unprotected activities alone. me burden of persuasion then
returns to the complainant to show by a preponderance of the
evidence that the employer's reasons are mere pretext. Mt
. Healthy City School District Board v. Doyle, 429 U.S.
274 (1977); Mackowiak, supra; Johnson, supra.
A. Whether WHC is a covered
employer under the Act
WHC argues that is not an
employer of Complainant within the meaning of the Act.
(TR:22-23). However, the employee protection provisions of
the "whistleblower" statutes focus on employment
discrimination. Directed at preventing unreasonable risk to
health, safety, and the environment, the CAA prohibits the
kind of retaliation alleged here by eliminating certain
activities, including making health or safety complaints, as
legitimate bases for adverse action taken by an employer.
In the instant case, but for the
business arrangement of contracting with another employer
(DLD) for particular engineering services, a single employer
(WHC) would control all employees directly. In these
circumstances it would not make sense to tolerate
discriminatory action taken by one employer while outlawing
[Page 10]
it when taken by another. The issue is not whether WHC
had control over Complainant's employment, but whether it was
capable of effecting employment discrimination against
Complainant. Because WHC was capable of discrimination
against Complainant by denying him the right to work, I find
it is a covered employer. See Johnson, supra.
B. Whether Complainant was
Discriminated Against
Complainant argues that he had
previously engaged in a protected activity by reporting the
presence of dangerous materials on the Hanford site, that WHC
knew of Complainant'= previous safety reporting activities,
and that WHC denied Complainant the right to work in the WHC
facility in retaliation for those protected reporting
activities. WHC argues that it did not know of Complainant's
alleged environmental safety reporting activity and that the
Complainant's activity was not related to, or a motivation
for denying Complainant work at the WHC facility.
Complainant has the burden of proving
that he engaged in a protected activity, i.e. ,
unassisted or participated or is about to assist or
participate in any manner in such a proceeding or in any
other action to carry out the purpose. of this chapter."
42 U.S.C. 7622. After reviewing the evidence, I am not
persuaded that Complainant has in fact participated in any
proceeding to carry out the purposes of this Act.
Complainant testified that he found
unexploded ordnance. on the Hanford site at some non-specified date in 1990, that he prepared reports to this
effect, and that he complained to "various government
agencies" about WHC"s alleged safety violations.
Complainant offered no corroborating testimony from any
witness to support the truth of these assertions. Complainant
offered no documentary evidence of any such reports or
complaints to any Federal, State, or local authority to
support his testimony that he was in fact engaged in
protected reporting activity. The photographic evidence which
Complainant submitted to demonstrate the existence of
hazardous materials on the WHC facility was not
authenticated, although Complainant alleges that the
photographs were taken on the WHC premises by an employee of
the Department of Energy. (TR:43; CX:3-7). The photographic
evidence alone does not conclusively demonstrate that the
photographs in fact represent live ordnances which are in
fact hazardous.
Although Complainant asserts that WHC
was aware of Complainant's 1990 reporting activities, WHC
[Page 11]
presented the witnesses, Mr. Lobdell, WHC's
Administrator for testimony of two Pre-Employment & Access
Investigations, and Nr. MacLeod, WHC's senior labor counsel,
who stated that, at the time adverse action was taken against
Complainant in July 1991, they had no knowledge of
Complainant's alleged reporting activities.
I find that Complainant has failed to
demonstrate that he was in fact engaged in any protected
activity within the meaning of the Act.
C. Causation - "Dual
Motive" Test
Even assuming that Complainant had
been engaged in protected activity, Complainant must also
prove that the Respondent's discharge or discrimination arose
because of the protected activity. Mackowiak, supra
at 1162. A complainant must present "evidence
sufficient to raise the inference that . . protected activity
was the likely reason for the adverse action."
Johnson, supra at 133 (citing Dartey v. Zack
Company of Chicago, 82-ERA-2 (Sec'y April 25, 1983)
(quoting Cohen v. Fred Mayer, Inc. , 686 F.2d 793, 796
(9th Cir. 1982)). Under Mt. Healthy, supra, once the
employee shows that illegal motives played come part in the
adverse action against the employee, the burden shifts to the
employer to show that it would have discharged the employee
even if he had not engaged in protected conduct. See also
Mackowiak, supra at 1164; Darty, supra.
In Mackowiak and
Johnson, the record contained at least circumstantial
evidence to support an inference that the employer's illegal
motive played some part in the discriminatory action against
the complainant. In Mackowiak, the employer acknowledged
making statements about the complainant'- negative attitude
immediately prior to the adverse action. In Johnson,
the proximate timing of the adverse action vis-a-vis the
protected conduct supported an inference of causation.
However, I find that the record in the
instant case does not support even an inference that
WHC was motivated even in part by Complainant's alleged
protected conduct. Complainant's allegedly protected conduct
occurred at some unspecified time in 1990 while the alleged
discrimination occurred on July 15, 1991. Complainant has not
presented any statements attributable to WHC officials or
documents originated by WHC or any other party implying that
WHC was aware of Complainant's allegedly protected conduct.
[Page 12]
Complainant has not presented any evidence that WHC
harbored any discriminatory or retaliatory intent
towards Complainant based upon Complainant's allegedly
protected conduct.
In sum, I find that Complainant has
failed to establish a prima facie case of
discriminatory treatment in violation of the CAA or the SWD.
I find that Complainant's allegedly protected activities are
undocumented and unsubstantiated. WHC had no knowledge of the
content of those alleged activities, and, thus could not be
imputed to have discriminatory intent toward Complainant.
Even assuming, under some construction
of these facts, that Complainant had established a prima
facie case, I find that Respondent has rebutted the
presumption of disparate treatment by showing a legitimate,
non-discriminatory justification for denying Complainant
access to WHC. Mr. Lobdell's inquiry into the nature of
Complainant's discharge from the Trojan Nuclear facility was
reasonable and appropriate due to the high security standards
at nuclear facilities. The report by Trojan's Manager of
Security Personnel of Complainant's violation of Trojan's
security rules provided Mr. Lobdell with a legitimate reason
to deny Complainant access to the WHC facility. Mr. Lobdell
testified credibly that he based his decision to deny access
to Complainant solely on the basis of the information
obtained from the Trojan facility. Furthermore, Mr. Lobdell
testified that he had not treated Complainant any differently
than any other contract employee and had never, to his
knowledge, granted access to anyone who had previously taken
firearms onto WHC premises. (TR:127-129).
Complainant does not dispute that he
engaged in the conduct upon which WHC relies. for it.
justification. Complainant bears the burden of establishing
that WHC was not in fact motivated by its justification but
by Complainant's protected activities. For the reasons
discussed previously, I do not find that WHC was motivated
even in part by Complainant's allegedly protected activities
in denying Complainant access to WPC.
Applicability of 29 C.F.R 24.9
Respondent argues that
Complainant is excluded from the protection of the employee
protection provision" of all statutes listed at 29
C.F.R. 24.1 because he deliberately violated the regulations
of the Trojan Nuclear Plant, a facility regulated by the
Nuclear Regulatory Commission. 29 C.F.R. 24.9; (TR:25).
However, the question of whether Complainant
"deliberately cause[d] a violation of any requirement of
[Page 13]
a Federal statute listed in Section 24.1" was not
an issue in this proceeding, and, accordingly, I make no
findings as to the applicability of Part 24.9.
For the reasons state above, I find
that the complaint filed by Complainant herein is time
barred. I find that Complainant has failed to establish a
prima facie case of discrimination under either the
CAA or the SWD, and that Respondent has demonstrated a
legitimate, non-discriminatory reason for denying
Complainant's access to the WHC facility. I further find that
Complainant has failed to show that Respondent's legitimate
reason is mere pretext.
RECOMMENDED ORDER
For the reasons set forth
hereinbefore, my Recommended Decision and Order is that the
complaint of Michael R. Crosier be denied.
EDWARD C. BURCH
Administrative
Law Judge
ECB/kaf
[ENDNOTES]
1 The
following abbreviations are used herein: Complainant's
exhibits: "CX"; Respondent's exhibits:
"RX"; hearing transcript: "TR".
2 None
of the documents or reports which Complainant allegedly made
and referred to in his testimony were presented at the
hearing.