Turning to the second, and key, basis for dismissal presented by LMES, I observe that Ms. Gass' complaint specifically identifies DOE, rather than LMES, as the entity responsible for the purported destruction of investigative notes, which is indeed the subject of her complaint. In other words, her complaint lacks any specific allegation that LMES participated in any manner in the information destruction. At best, other than naming LMES as a respondent, and again without making a specific allegation of inappropriate conduct by LMES in this matter, Mr. Slavin simply states LMES' "knowledge of and involvement in DOE IG's evidence destruction is a question of fact for trial." The fact that LMES is presently engaged in other litigation with Ms. Gass and the possible inference that LMES may benefit from the absence of the requested DOE information are insufficient, in the absence of a specific allegation that LMES actually did anything in 2001 concerning the requested evidence in DOE's possession, to support a whistleblower complaint against LMES on the basis of document destruction by DOE. Consequently, I find dismissal of Ms. Gass' complaint as it relates to LMES is appropriate.

   The Motion to Dismiss on behalf of the two individuals should not be dismissed because a strong public interest exists to expose government wrongdoing. The current DOL law should be modified to address the destruction of information by individuals which is requested for a whistleblower trial. In particular, Ms. Schneider should be held personally responsible since she directed the destruction of the evidence. Because this issue involves an issue of truthfulness, a hearing, rather than a dismissal, is warranted.

   Prior to examining the various Motions to Dismiss relating to DOE and named individuals, I note that Ms. Gass in her complaint only specifically named three environmental statutes CAA, SWDA, and SDWA. Although Mr. Slavin included the phrase "other environmental statutes," I consider that language sufficiently vague to warrant the extension of my analysis beyond the three specifically referenced statutes.

   In Ms. Gass' complaint, Mr. Slavin included Mr. James Pugh and Ms. Sandy Schneider, DOE employees, as named respondents. When I issued the Notice of Hearing, I indicated in a footnote that neither had participated so far in the proceedings relating to Ms. Gass' May 2001 complaint through Judge Lesniak's consolidation hearing. I also stated that such individuals may not be considered "employers" under the environmental statutes and thus I did not include their names in the case caption. However, during the presentation of these motions, DOE has specifically asked that I dismiss these two named individuals as named respondents and Ms. Gass objects to such an order.

   Ms. Gass alleges that both Mr. Pugh and Ms. Schneider violated the employee protection provision of the CAA, SWDA, the SDWA. Based on the contents of the complaint, Mr. Pugh appears to be the DOE employee who informed Ms. Gass that information she had requested had been destroyed. The complaint identifies Ms. Schneider as an attorney in the Inspector General's ("IG") Office of DOE, and IG complaint manager, who allegedly ordered the destruction of the information.

   The Clean Air Act was enacted to create incentives and uniform regulation for pollution control of unregulated pollutants and unregulated sources of air pollution. Within the CAA, Section 7622 (a) states, "No employer may 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 a protected activity under the Act (emphasis added). The CAA indicates that "any employee who believes that he has been discharge or otherwise discriminated against by any person" in violation of the prohibition in Section 7622 (a) may file complaint with the Secretary of Labor ("Secretary") (emphasis added). Upon receipt of the complaint, the Secretary notifies "the named person in the complaint" (emphasis added). In terms of authorized relief, Section 7622 (b) (2) (B) provides that if the Secretary determines a violation has occurred:

[T]he Secretary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant (emphasis added).

   In the CAA definition section, which is applicable to all portions of the Act including both the environmental directives and the employee protection provisions, subparagraph 7602 (e) defines "person" as an individual, corporation, partnerships, association, State, municipality. . .and any agency, department or instrumentality of the United States and any officer, agent, or employee thereof." However, the term "employer" is not defined.

   When confronted with the issue of whether a federal employee could be named as a respondent in a CAA complaint, the Secretary in Stephenson v. National Aeronautics & Space Administration, 1994 TSC 5 (Sec'y July 3, 1995), Decision and Order on Remand, slip op. at page 2, observed that while several paragraphs in the CAA's whistleblower provisions reference "person," the "substantive prohibition" contained in 7622 (a) referenced "employer." The Secretary found that "the plain language of these employee protection provisions suggests that they were intended to apply to persons who are employers . . . Any other construction would require a clearer statement of intent . . ." As a result, the Secretary concluded that only employers are subject to the employee protection provisions of the CAA. Id. at page 3.

   Based on the employment status alleged in the complaint, Mr. Pugh and Ms. Schneider are DOE employees. Clearly if DOE never employed Ms. Gass, then neither Mr. Pugh nor Ms. Schneider were in position to be her employers. In light of the Secretary's determination in Stephenson, since Mr. Pugh and Ms. Schneider did not employ Ms. Gass, the employee protection prohibition provisions of the CAA do not apply to them. Consequently, the portion of Ms. Gass' complaint alleging violations under CAA against Mr. Pugh and Ms. Schneider must be dismissed.

   The Safe Drinking Water Act was enacted to establish criteria and quality control testing procedures to insure a safe supply of drinking water to protect the public welfare. In a manner nearly identical to the CAA provisions, Section 300j-9 (i) (1) states that no "employer" (emphasis added) may discharge or adverse affect any employee's employment status. Likewise, Section 300j-9 (i) (2) (A) provides any employee who believes he has suffered prohibited discrimination "by any person" may file a complaint with the Secretary of Labor (emphasis added). As a remedy for an established violation, Section 300j-9 (i) (2) (B) (ii) directs the Secretary to order the person who committed the violation to take affirmative action abating the violation including reinstatement to former position, compensation (including back pay), restoration of the terms, conditions, and privileges of employment, compensatory damages and where appropriate exemplary damages (emphasis added).

   The SDWA definitions, Section 300f-12, includes individual, Federal agency, and employees of a Federal agency within the meaning of "person." Similar to the CAA, the term "employer" is not defined.

   Although the remedy section in the SDWA is slightly more expansive than the language in the CAA, the prohibition and complaint sections, with reference to "employer" and "person," parallel the language in the CAA. As indicated above, the Secretary has interpreted that similar statutory language with references to both terms in the CAA to mean only employers are subject to the employee protection provisions. Consequently, for the same reason concerning the complaints under the CAA, Ms. Gass' complaints under the SDWA against Mr. Pugh and Ms. Schneider should be dismissed.

   The Solid Waste Disposal Act was enacted to ensure that discarded materials be disposed of in an environmentally sound manner and to regulate and upgrade all current open dump sites and provide incentives to upgrade landfills and resource recovery facilities. In this statute, the prohibition provision differs from the CAA and SDWA in two ways. First, in place of the term, "employer," Section 6971 (a) states, "No person shall fire, or in any manner discriminate, or cause to be fired or discriminated against, any employee. . ." because the employee engaged in a protected activity under the Act (emphasis added). Second, in addition to prohibiting acts of discrimination, the statute prohibits a person "causing" the employee to be fired or discriminated against.

   The remedy section of the SWDA also differs from the CAA and SDWA. Under the SWDA, no specific remedy of compensatory or exemplary damages is set out. Instead, Section 6971 (b) indicates that if a violation has occurred, the Secretary shall require "the party committing such violation to take such affirmative action to abate the violation as the Secretary of Labor deems appropriate, including, but not limited to, the rehiring or reinstatement of the employee. . . to his former position with compensation."

   The SWDA definition provision, Section 6903 (15), contains no definition for employer and describes the meaning of "person" as "an individual. . .corporation. . .partnership. . .association. . .State, municipality. . .[and includes] each department, agency, and instrumentality of the United States."

   The analysis of whether Mr. Pugh and Ms. Schneider are subject to the employee protection provisions of the SWDA is more involved than under the CAA or SDWA, in part, due to the notable substitution of the term "person" for the word "employer" in the prohibition provision. Additionally, although the ARB has not definitively address the issue of individual responsibility under SWDA for employee discrimination, at least one member of the ARB believes the SWDA's employee discrimination prohibition may apply to an individual who is not the complainant's employer.

   In the remedy section, the SWDA sets out two specific examples of relief required of a "person" who commits discrimination: rehiring or reinstatement. If that term "person" is read as "employer," the remedy section makes sense. However, the stated remedies becomes non-effective if "person" includes an "individual" who is not also an employer since only an employer has the power to abate an employee protection violation by rehiring or reinstating the aggrieved complainant. I believe this apparent conflict between the prohibition section and the remedy provision produces a sufficient ambiguity to warrant an interpretation based on the entire section as a whole rather than the defined meaning of "person" as an "individual."

   In the same scenario, under the SWDA, if the term "person" includes individuals who are not employers, then the SWDA looks to Mr. Pugh and Ms. Schneider for remediation in the event of a whistleblower protection violation. Yet, as federal employees of DOE, they do not appear to have any authority to provide the mandated remedies of re-employment or reinstatement. On the other hand, if "person" under the SWDA, in a manner consistent with the CAA and SDWA, does not include such individuals as Mr. Pugh and Ms. Schneider, then the SWDA, again in a similar fashion as the CAA and SDWA, holds DOE responsible for the appropriate remedies which DOE does have the power to accomplish.

   In summary, for the reasons stated above, I find the whistleblower discrimination prohibition provision of the SWDA does not apply to individuals who are not the complainant's employer. Likewise, as previously determined, neither Mr. Pugh nor Ms. Schneider ever employed Ms. Gass. Consequently, Ms. Gass' complaints under the SWDA against Mr. Pugh and Ms. Schneider should be dismissed since they were never her employers.

   One final comment concerning the complaint against Mr. Pugh. Even if I had interpreted the SWDA in a manner that would permit holding a non-employer individual liable, Ms. Gass' SWDA complaint against Mr. Pugh should still be dismissed because she alleges no wrong doing on his part. As set out in her complaint, Mr. Pugh's only stated transgression is informing Ms. Gass that the documents she had requested had been destroyed. Notably, the complaint does not allege that he destroyed the requested information.

   DOE asserts that since it never employed Ms. Gass, the agency is not an "employer" within the meaning of the environmental statute. While never asserting direct employment with DOE, Ms. Gass believes DOE's act of destroying documents makes the agency a joint employer with LMES.

   DOE maintains that in the absence of an traditional employer-employee relationship, it is not subject to the environmental statutes and the respective whistleblower complaints by Ms. Gass. However, as the ARB has explicitly stated in Stephenson v. NASA, 1994 TSC 5 (ARB July 18, 2000) consideration of the traditional employer-employee factors set out in the Darden decision is not the end of the analysis in these cases. Reiterating its remand language to an administrative law judge, the Board stated:

[I]n a hierarchical employment context, an employer that acts in the capacity of employer with regard to a particular employee may be subject to liability under the environmental whistleblower provisions, notwithstanding the fact that employer does not directly compensate or immediately supervise the employee. A parent company or contracting agency acts in the capacity of an employer by establishing, modifying or otherwise interfering with an employee of a subordinate company regarding the employees's compensation, terms, conditions or privileges of employment. (Stephenson, slip op. at page 8, (emphasis in original text)).

   Upon consideration of the ARB's directive in Stephenson, two possible avenues exist for finding DOE an employer of Ms. Gass despite the absence of a direct employer-employee relationship. The first possibility is that the DOE/LMES contract itself gave sufficient authority to DOE to establish, modify, or interfere with LMES employees' conditions and privileges of employment. Any detailed evaluation in that regard has been cut short by the ARB.

   As most of the parties in this case are aware, DOE, LMES, and Mr. Slavin have previously presented to the ARB the question of whether the DOE/LMES contract renders DOE an employer of LMES employees. In Williams v. Lockheed Martin Energy Systems, Inc., 1995 CAA 10 (ARB Jan. 31, 2001), the Board determined in a two to one decision that the contract standing alone was an insufficient basis to conclude DOE was also an employer of a LMES employee for the purposes the environmental statutes. Although the dissenting appellate judge believed DOE's "overriding authority" under the contract brought the contracting agency within the "scope of employer coverage" (Id., slip op., page 16), the other two Board Members concluded the doctrine of joint employer indicated the LMES/DOE contract, "without more," did not establish a joint employer relationship (Id., slip op., pages 10-11 (emphasis in original text)).

   A second potential way DOE could be become an employer of Ms. Gass beyond the common law meaning requires DOE to have taken some definitive action that affected Ms. Gass' employment with LMES. To set the stage for evaluating this premise, I must first piece together portions of Ms. Gass' complaint and the parties' briefs, and respective declarations and affidavits.

   As I reconstruct the events leading to the present complaint, while employed by LMES, Ms. Gass engaged in an alleged protected activity which resulted in an alleged retaliatory, adverse personnel action by LMES. At some time, Ms. Gass pursued a remedy through the DOE IG complaint process and was apparently dissatisfied with the result. Ms. Gass stopped physically working for LMES in October 1996 and LMES eventually terminated Ms. Gass' employment in April 1997 due to her long term disability. Ms. Gass initiated a whistleblower complaint against LMES, 2000 CAA 22, which based on its case number was received by the Office of Administrative Law Judges sometime between October 1999 and September 2000. Around August 2000, DOE did not renew its contract with LMES. As her whistleblower complaint against LMES proceeded through the administrative investigative and adjudicative process, Ms. Gass submitted a FOIA request to DOE seeking documents related to the DOE IG's inquiry of her complaint. In May 2001, Ms. Gass learned that the requested information has been destroyed.

   Ms. Gass alleges the missing documents are relevant in her pending whistleblower complaint against her former employer, LMES, and their destruction interferes with her right to fair trial and full discovery in that case. While those concerns are not insignificant, the central inquiry in relation to her environmental whistleblower complaint against DOE is whether DOE, in this setting may be considered a "joint employer." As set out by the ARB, two factors must be present to hold a contracting agency responsible, for purposes of the environmental statutes, as an employer of a subcontractor's employee.

   In Ms. Gass' situation relating to the purported destruction of investigative notes, DOE did not exercise control over the production of her work. Likewise, in regard to the lost documents, DOE did not establish or modify the terms, conditions and privileges of her employment. Thus, DOE will be found to be an employer only if its act relating to the documents interfered with the terms, conditions or privileges of employment.

   While the loss of the documents does not appear to affect the terms and conditions of her former employment with LMES (especially if she was no longer employed by LMES at the time of the destruction), one of Ms. Gass' privileges of employment with LMES was the right to engage in whistleblower protected activities without adverse consequences. However, upon extended consideration of the alleged relationship between the destroyed information and Ms. Gass' privileges of employment as a basis for jurisdiction over DOE, I conclude the complaint is insufficient to hold DOE as an employer within the meaning and interpretations of the environmental whistleblower protection provisions.

   The initial defect in the complaint is the absence of an allegation that DOE acted within the parameters of its hierarchical employment relationship with LMES. DOE's action concerning IG investigative notes must fall within the bounds of the hierarchical employment relationship between DOE/LMES such that DOE was acting in place of LMES as Ms. Gass' employer at the time the documents were destroyed. I reach this conclusion based on the ARB's emphasis on the requirement for active exercising of control over the complainant's work environment. Although the DOE/LMES statement of work gave DOE "general" control over LMES' work, the information presented in the complaint, even in light of reasonable inference, is insufficient to conclude the activities of the DOE IG office and the subsequent action concerning DOE IG documents were meant to be part of, or accomplished under authority of, the LMES/DOE contract and a joint employer relationship. As a result, I conclude that DOE's actions relating to the documents eventually sought by Ms. Gass occurred outside, rather than within, the context of the DOE/LMES hierarchical employment relationship.

   Additionally, again based on ARB interpretations and guidance, for DOE to be considered Ms. Gass' employer in this case, DOE's alleged interference with a privilege of Ms. Gass' employment with LMES must be substantial. In an attempt to establish the requisite substantial interference with a work privilege, Ms. Gass presents two inferences. First, she claims the missing documents were relevant and material to her litigation against LMES. To make this point, Mr. Slavin presents a series of cases and quotations setting out the policy of adverse inference. That is, arguably, because DOE destroyed the documents and thus is unable to produce them, an adverse inference must be drawn that the documents contained information against both the interests of DOE and, more importantly, LMES. Although such an inference against DOE may be appropriate, as I have noted before, there is no allegation that LMES participated in the destruction of the documents in any manner. Consequently, an inference that the missing documents were detrimental to LMES' interests is neither warranted nor particularly reasonable.

   To complete the substantial work privilege interference connection, a second, and even more speculative, inferential jump is necessary. Ms. Gass asserts that the loss of the documents in DOE's possession will have an adverse effect on the success of her litigation against LMES. Of course, this inference itself rests on the first inference that the documents were adverse to LMES, which I have found lacking. Significantly, even if the missing material was adverse to LMES' interest, the second inference that the loss of such information would prove sufficiently detrimental to Ms. Gass' whistleblower case against LMES, and thus amount to substantial interference by DOE of a work privilege, is exceptionally speculative, indeterminable, and thus unreasonable.

   Ms. Gass' complaint against DOE, and the jurisdictional basis for finding DOE her employer in this case, rests on both an unwarranted inference and a highly speculative inference. Consequently, in the absence of reasonable inferences, I find the complaint insufficient to establish DOE's act of disposing of documents rose to the requisite "substantial" or "intense" level of involvement with Ms. Gass privilege of LMES employment contemplated by the ARB in Stephenson and Williams.

   In summary, because DOE did not change, alter, or otherwise interfere with Ms. Gass' employment with LMES within the DOE/LMES contractual framework, and the complaint relies on unwarranted and unreasonable inferences, DOE is not Ms. Gass' employer, or a joint employer. Accordingly, since at the time of the purported adverse action DOE was not an employer of Ms. Gass either under the Darden common law standard or the Stephenson joint employee standard, the complaint against DOE must be dismissed.

1. Ms. Linda Gass' whistleblower complaints under the Clean Air Act, Safe Drinking Water Act, and Solid Waste Disposal Act against Lockheed Martin Energy Systems are DISMISSED.

2. Ms. Linda Gass' whistleblower complaints under the Clean Air Act, Safe Drinking Water Act, and Solid Waste Disposal Act against Mr. James Pugh are DISMISSED.

3. Ms. Linda Gass' whistleblower complaints under the Clean Air Act, Safe Drinking Water Act, and Solid Waste Disposal Act against Ms. Sandy Schneider are DISMISSED.

4. Ms. Linda Gass' whistleblower complaints under the Clean Air Act, Safe Drinking Water Act, and Solid Waste Disposal Act against the U.S. Department of Energy are DISMISSED.

SO ORDERED:

       RICHARD T. STANSELL-GAMM
       Administrative Law Judge

Date Signed: November 19, 2002
Washington, D.C.

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §§ 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§§§ 24.7(d) and 24.8.