DATE: December 9, 1994
CASE NO. 93-TSC-0001
IN THE MATTER OF
MARLENE FLOR,
COMPLAINANT,
v.
U.S. DEPARTMENT OF ENERGY,
KIRTLAND AFB, NEW MEXICO,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
Marlene Flor filed a complaint in September 1992 in which
she alleged that her employer, the United States Department of
Energy (DOE), discriminated against her in violation of the
employee protection provisions of the Toxic Substances Control
Act (TSCA), 15 U.S.C. § 2622 (1988), the Comprehensive
Environmental Response, Compensation, and Liability Act (CERCLA),
42 U.S.C. § 9610 (1988), the Resource Conservation and
Recovery Act (RCRA), 42 U.S.C. § 6971 (1988) [1] and the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A.
§ 31105 (West 1994). Flor complained that after she
disapproved a project on environmental grounds, DOE retaliated
against her in several ways. The Administrative Law Judge (ALJ)
recommended dismissing the complaint in a March 26, 1993,
Recommended Decision and Order Granting Respondent's Pre-Hearing
Motion to Dismiss (R.D. and O.).
The case is now before me for decision. I have considered
the briefs of the parties as well as the entire record before the
ALJ.
I. Factual Background [2]
[PAGE 2]
Complainant Flor was a Physical Scientist at DOE's
Albuquerque Field Office whose duties included approving work
that intelligence agencies wished to have performed at two
government owned, contractor run national laboratories, Los
Alamos and Sandia. Flor examined the statement of work and other
documents submitted by intelligence agencies to determine whether
the projects met criteria established by Federal environmental
laws, among other statutes.
In mid-1991, Flor examined an intelligence agency project
that have would required the Los Alamos laboratory to use a
highly toxic chemical that Flor believed the laboratory was not
equipped to handle safely. Flor also believed that the project's
plan of transporting the chemical from Washington, D.C. to Los
Alamos, New Mexico, would violate Department of Transportation
regulations. Consequently, Flor disapproved the project and
required the agency to change it so that it would comply with all
laws and regulations.
Flor contended that DOE took several acts of retaliation as
a result of her disapproval of the project. DOE announced a
reorganization, including disbanding of the intelligence staff of
which Flor was a part, in September 1991. Flor contends that the
reorganization stunted her career growth. The next month, Flor
was reassigned to DOE's Kirtland Area Office to work exclusively
with projects at the Sandia laboratory.
In November 1991, at a supposedly routine interview
concerning Flor's security clearance, a personnel security
specialist informed Flor that there were allegations that she was
a threat to national security. Flor contends that DOE did not
give her sufficient information to enable her to counter the
allegations. DOE suspended Flor's security clearance in May 1992
and she has since been assigned to predominantly clerical duties.
Flor contends that continuing retaliation against her
occurred when she learned from a coworker in August 1992 that a
former supervisor "on several occasions denigrated [her] in the
presence of other [Kirtland Area Office] personnel," with "false
information and malicious gossip." Complaint at 2.
Flor complained of the above actions to the Department of
Labor in a letter dated September 23, 1992. She seeks
reinstatement of her security clearance, the purging of
derogatory information from her personnel security file,
restoration of duties providing oversight of "all intelligence
projects over which [she] had purview" at the time she rejected
the Los Alamos project, restoration of leave expended in
defending herself, an order prohibiting further retaliation and
defamatory remarks by DOE employees, compensatory damages, and
attorney's fees and costs.
II. Procedural Posture and ALJ's Decision
[PAGE 3]
An investigator of the Wage and Hour Administration
interviewed Flor, but did not notify DOE of the filing of Flor's
complaint. Based on the complaint and Flor's interview, the
Albuquerque District Director of the Wage and Hour Administration
advised Flor that she had not engaged in a protected activity as
defined under the TSCA and consequently that she had not stated a
valid complaint. [3] Flor promptly sought a de novo hearing on
her complaint.
Contending that the complaint was not timely filed, DOE
moved to dismiss. In the alternative, DOE moved for summary
judgment, contending that Flor could not have engaged in any
protected activities because she had not alleged that she had
commenced or participated in any proceeding brought under the
TSCA. DOE attached to its motion the affidavit of one of Flor's
supervisors. Flor opposed DOE's motion and filed motions to
compel discovery and for imposition of special conditions
concerning witness interviews.
Finding that the last significant alleged retaliatory action
occurred more than five months before Flor filed the complaint,
the ALJ recommended dismissal because the complaint was not
timely filed. R.D. and O. at 6. The ALJ also recommended
dismissal for failure to state a claim for relief because Flor
did not allege that she had commenced any proceedings under the
environmental acts prior to the adverse actions. Id. at
9. Finally, the ALJ recommended granting summary judgment to DOE
because there were no material issues of fact and DOE was
entitled to prevail as a matter of law. Id. at 11-14.
III. Timeliness
The STAA prohibits discrimination because an employee has
filed a complaint concerning "a violation of a commercial motor
vehicle safety regulation, standard, or order, or has testified
or is about to testify" in a proceeding concerning a motor
vehicle safety regulation. 49 U.S.C.A. § 31105(a)(1)(A).
The STAA allows an employee to file a complaint with the
Secretary of Labor within 180 days after an alleged violation.
49 U.S.C.A. § 31105(b)(1). [4] Flor alleged that she disapproved an intelligence community
project at the Los Alamos laboratory involving a "highly toxic
chemical" because, among other reasons:
the [statement of work] specified that a [Los Alamos
National Laboratory] employee could obtain the chemical
in the Washington, D.C. area and carry it to Los
Alamos, New Mexico. I had reason to believe that
Department of Transportation regulations would be
violated.
Complaint at 1. Flor's complaint did not state the means of
[PAGE 4]
transporting the toxic chemical. Since the Department of
Transportation has adopted safety regulations governing
transportation of hazardous materials by commercial motor
carriers, 49 C.F.R. Part 397, I find that Flor may have stated a
complaint under the STAA. [5]
The alleged adverse actions that occurred less than 180 days
prior to the filing of the complaint were the suspension of
Flor's security clearance in May 1992 and her learning of a
former supervisor's derogatory remarks in August 1992. [6] I
find that Flor timely complained about these actions under the
STAA.
Flor contends that under the continuing violation theory,
the complaint was timely as to the other acts that occurred more
than 180 days prior to filing the complaint. Comp. Br. at 14-15.
The Secretary has held in analogous cases that the timeliness of
a claim may be preserved under the continuing violation theory
"where there is an allegation of a course of related
discriminatory conduct and the charge is filed within thirty days
of the last discriminatory act." Garn v. Benchmark
Technologies, Case No. 88-ERA-21, Dec. and Order of Remand,
Sept. 25, 1990, slip op. at 6; Egenrieder v. Metropolitan
Edison Co./G.P.U., Case No. 85-ERA-23, Order of Remand, Apr.
20, 1987, slip op. at 4 [in both cases, under the employee
protection provision of the Energy Reorganization Act of 1974
(ERA), 42 U.S.C. § 5851 (1988)].
For guidance concerning whether alleged discriminatory acts
are sufficiently "related" to constitute a course of
discriminatory conduct, the Secretary has turned to a case under
Title VII of the Civil Rights Act of 1964, Berry v. Board of
Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983),
cert. denied, 479 U.S. 868 (1986). See,
e.g., Thomas v. Arizona Public Service Co., Case
No. 89-ERA-19, Final Dec. and Order, Sept. 17, 1993, slip op. at
13; McCuistion v. Tennessee Valley Authority, Case No. 89-
ERA-6, Sec. Dec. and Ord., Nov. 13, 1991, slip op. at 16. The
Berry court listed three factors: (1) whether the alleged
acts involve the same subject matter, (2) whether the alleged
acts are recurring or more in the nature of isolated
decisions, and (3) the degree of permanence. 715 F.2d at 981.
Concerning the degree of permanence, in English v.
Whitfield, 858 F.2d 957, 962 (4th Cir. 1988), the Court of
Appeals held that an ERA complainant must file the complaint
within the prescribed 30 days after an alleged discriminatory act
if the employer's notice concerning that act was sufficiently
"final and unequivocal" in form.
One of the alleged adverse acts in this case that occurred
more than 180 days prior to the filing of the complaint was the
November 1991 interview that reflected an investigation
[PAGE 5]
concerning Flor's security clearance. The initial interview was
not a permanent, final action. Rather, DOE took final action
when it suspended Flor's security clearance some six months
later. Under Berry and English, I find that the
interview and the investigation into Flor's security clearance
involved the same subject matter and were closely connected to
suspension of the clearance, an action about which Flor timely
complained under the STAA. Accordingly, I find that the
allegations concerning the interview and security investigation
were timely under the continuing violation theory.
In Berry, the court mentioned that a trial judge
should make a fact specific inquiry in cases where the plaintiff
alleges a continuing violation. 715 F.2d at 981. Flor attempted
to discover information concerning adverse actions that occurred
outside the 180 day limit, the reorganization of her department
and her transfer to the Kirtland Area Office. [7] In view of
DOE's failure to respond to the discovery request, Flor may have
been prohibited from obtaining information that would show a
similarity between these adverse actions and those of which she
timely complained.
Accordingly, I find that it was error to dismiss the
complaint on grounds of timeliness and I will remand to the ALJ
to permit Flor to obtain discovery. On remand, the ALJ should
separately find whether, under the continuing violation theory,
Flor complained timely under the environmental acts concerning
adverse actions that occurred more than 30 days prior to the
filing of the complaint. This separate finding is necessary
because the TSCA provides an additional remedy that the STAA does
not provide: exemplary damages. See 15 U.S.C.
§ 2622(b)(2)(B)(iv) (1988).
IV. Summary Judgment
The ALJ also dismissed the complaint for failure to state a
claim upon which relief can be granted. Since DOE relied on the
affidavit of one of Flor's supervisors in its motion to dismiss,
Memorandum in Support of Motion to Dismiss (DOE Memorandum) at 2,
the ALJ's ruling will be treated solely as a recommendation to
grant summary decision pursuant to the Office of Administrative
Law Judges rules of practice, 29 C.F.R. § 18.40, 18.41
(1994). SeeEisner v. United States Environmental
Protection Agency, Case No. 90-SWD-2, Dec. and Ord. of Rem.,
Dec. 8, 1992, slip op. at 4-5.
The standard for granting summary decision under 29 C.F.R.
§ 18.40 is the same as that for summary judgment under the
analogous Fed. R. Civ. P. 56(e): the moving party must show that
there is no material issue of fact and that he is entitled to
prevail as a matter of law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Eisner, slip op. at 5
and cases there
[PAGE 6]
cited.
DOE contends that it is entitled to judgment because Flor
had not commenced a proceeding under any of the environmental
statutes and did not allege that she was about to commence such a
proceeding. DOE Memorandum at 1. I find that the complaint
raises a number of genuine issues of material fact concerning
whether Flor engaged in activities protected under the STAA and
the environmental acts. As discussed above, there is a question
whether Flor's disapproval of the Los Alamos project on the
grounds of unsafe transportation of a toxic chemical constituted
a protected activity under the STAA. If the disapproved proposal
contemplated transportation of a toxic chemical by commercial
motor carrier, it is possible that disapproval was protected
under the STAA. That would not be the case if the proposed
transportation method were not covered by the STAA.
Similarly, it is possible that disapproval of the project on
the ground of safety constituted protected activity under the
environmental acts. It is well established that internal
complaints to management constitute protected activities under
the environmental acts and the related employee protection
provision of the ERA. Passaic Valley Sewerage
Comm'rs v. Department of Labor, 992 F.2d 474, 478 (3d
Cir.), cert. denied 114 S. Ct. 439 (1993); Jones v.
Tennessee Valley Authority, 948 F.2d 258, 264 (6th Cir.
1991); Kansas Gas & Elec. Co. v. Brock, 780 F.2d
1505, 1513 (10th Cir. 1985), cert. denied, 478 U.S. 1011
(1986) [8] ; Mackowiak v. University Nuclear Systems,
Inc., 735 F.2d 1159, 1163 (9th Cir. 1984). But see,
Brown & Root, Inc. v. Donovan, 747 F.2d 1029, 1036 (5th
Cir. 1984) (internal complaints not protected activity under the
ERA). For example, in Passaic Valley, 992 F.2d
474, an employee's internal complaints about possible violations
of the Clean Water Act constituted protected activities under the
Act's employee protection provision.
I am mindful that a party opposing summary judgment under
the analogous Fed. R. Civ. P. 56(e) "may not rest upon mere
allegations or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for trial. .
. . Instead, the [party opposing summary judgment] must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment." Anderson, 477 U.S. at 256-
257 (1986). DOE supported its motion with the affidavit
of one of Flor's supervisors stating that he was unaware that
Flor engaged in any protected activity. Therefore it was
incumbent upon Flor to set forth specific facts demonstrating the
existence of a genuine issue for trial.
The Department's rules of practice provide that an ALJ may
deny a motion for summary decision "whenever the moving party
denies access to information by means of discovery to a party
[PAGE 7]
opposing the motion." 29 C.F.R. § 18.40(d). Flor submitted
interrogatories and an associated request for production of
documents regarding the identity of managers and supervisors to
whom she voiced concerns about the safety of the planned use of
toxic chemical (No. 3) and the substitution of a different
chemical in the performance of the project about which she voiced
concerns (No. 8). Answers to these interrogatories could
possibly establish protected activity and management's knowledge
of the protected activity. DOE did not answer the
interrogatories and consequently Flor moved to compel responses.
The absence of answers to Flor's discovery requests may well have
prevented her from obtaining evidence to counter DOE's affidavit.
The existence of genuine issues of material fact, coupled
with DOE's failure to answer discovery requests seeking
information relevant to statements in DOE's affidavit, compels
the conclusion that the grant of summary judgment to DOE was not
correct.
Accordingly, I will remand this case to the ALJ for a
denovo hearing on the timely allegations in Flor's
complaint.
V. Outstanding Motions and Requests
Flor asks me to grant her Motion Regarding Witness
Interviews and Access to the Workplace, to order DOE to answer
her discovery requests, and to hold that DOE has waived any
discovery objections by failing timely to answer her discovery
requests. Comp. Br. at 27. The ALJ has all powers necessary to
conduct fair and impartial proceedings prior to and during a
hearing. SeeCarter v. B & W Nuclear Technologies,
Inc., Case No. 94-ERA-13, Order Denying Interlocutory Appeal,
Sept. 28, 1994, slip op. at 3. On remand, the ALJ should rule on
the outstanding motions and requests concerning discovery.
Flor also asks that I remand this case to a different ALJ
for hearing. Id. at 24-26. A provision of the
Administrative Procedure Act, 5 U.S.C. § 556(b) (1988),
requires that the functions of presiding ALJs shall be conducted
in an impartial manner. Thus, an ALJ may be disqualified upon a
substantial showing of personal bias. Roach v. National
Trans. Safety Bd., 804 F.2d 1147, 1160 (10th Cir. 1986),
cert. denied, 486 U.S. 1006 (1988); Spearman v. Roadway
Express, Inc., Case No. 92-STA-1, Order Vacating Procedural
Orders, etc., Aug. 5, 1992, slip op. at 1. The standard for
establishing improper bias is that the ALJ in some measure has
adjudged the facts and the law of a case in advance of hearing
them. City of Charlottesville, VA v. FERC, 774 F.2d 1205,
1212 (D.C. Cir. 1985), cert. denied, 475 U.S. 1108 (1986);
Spearman, slip op. at 1.
[PAGE 8]
Although recommending the grant of summary judgment was an
error of law, there is no indication in the record that the ALJ
has prejudged the facts or the law of this case. Unlike
Spearman, slip op. at 2, where the Secretary reassigned
the case to a different ALJ upon remand, the ALJ in this case did
not show prejudgment by ruling on any motions prior to the
expiration of the period for a response. Rather, he heard from
both parties before issuing the R.D. and O. Consequently, I will
deny the request for reassignment to a different ALJ.
ORDER
This case is remanded to the ALJ for disposition of
outstanding motions and requests, a hearing, and a recommended
decision on the merits of the timely allegations in the
complaint.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
The RCRA is also known as the Solid Waste Disposal Act.
[2]
In reciting Complainant's allegations, I expressly make no
findings.
[3]
The District Director did not explain why there was no finding
under the CERCLA or the RCRA. The regulations implementing the
STAA provide that complaints are to be filed with the
Department's Occupational Safety and Health Administration.
29 C.F.R. § 1978.102(c). But the regulations implementing
the employee protection provisions of the three environmental
acts require filing with the Department's Wage and Hour
Administration. 29 C.F.R. § 24.3(d). In view of the mixed
nature of Flor's complaint under the environmental acts and the
STAA, I deem the entire complaint to have been filed properly
with the Wage and Hour Administration.
[4]
In contrast, the TSCA, 15 U.S.C. § 2622(b)(1), CERCLA, 42
U.S.C. § 9610(b), and RCRA, 42 U.S.C. § 6971(b),
provide that complaints must be filed within 30 days of the
alleged discriminatory action.
[5]
I have read the prose complaint liberally.
SeeHelmstetter v. Pacific Gas & Electric
Co., Case No. 91-TSC-1, Dec. and Remand Ord., Jan. 13, 1993,
slip op. at 4 and cases there cited. I note that under the STAA,
an employee's internal safety complaints are protected
activities. Reemsnyder v. Mayflower Transit, Inc., Case
No. 93-STA-4, Dec. and Ord. on Recon., May 19, 1994, slip op. at
6-7 and cases there cited.
[6]
The allegation that Flor learned of a former supervisor's
derogatory remarks on August 25, 1992 was timely under the
environmental acts as well. I expressly make no finding that a
former supervisor's derogatory remarks constituted adverse action
cognizable under the STAA or the environmental acts.
[7]
See Interrogatory Nos. 14, 24, 25, and 34 in Complainant's First
Interrogatories, etc.
[8] Decisions of the Tenth Circuit are binding in this case
which arose in New Mexico.
