1. Applicability and Scope of the Clean Air Act.

2. Complainant's Employment Status.

3. Respondent's alleged discriminatory conduct.

Testimonial Evidence

Complainant

   Complainant obtained a bachelor of science in medical technology. (Tr. 140). She has completed several courses in a master's of business administration program and the futures research program. She is a member of the American Society of Clinical Pathologists and belongs to the World Futures Society. (Tr. 141).

disability insurance, medical insurance, accident insurance, tuition reimbursement, and a 401(K) plan. (Tr. 153-154; RX-34).

   Later, Complainant worked on the "metabolics" project which involved making laboratory type items "space ready" to protect the integrity of the blood and urine samples. (Tr. 157). Dave Geaslin was Complainant's Martin Marietta supervisor. In Complainant's second year of employment, she took personal leave time approved by Martin Marietta to care for her mother. (Tr. 158).

   Complainant was assigned to a variety of other projects such as the "cardiac experiments" and "principal investigator [PI] in a box." Complainant received a commendation while working on the "PI in a box" project. (Tr. 159-160; See CX-6, CX-12).

sterile as possible. The personnel would be scrubbed, gowned, and wear gloves. (Tr. 171).

   According to Complainant, no standard procedure existed for the assembly of the PVPDs except the instructions she received from Mr. Richardson. (Tr. 176). Complainant testified that three separate individually packaged parts were assembled to make the individual PVPDs. (See RX-37). The seals on the packages were broken and the three parts were assembled to make a PVPD. (Tr. 173). The separate parts were removed from the manufacturer's sterile package and placed on a work table in the clean room. The parts were assembled and placed into a bucket of water. The pail came from the janitorial area, and the water was drawn from the tap and was not sterile. (Tr. 174-175). The PVPDs were injected with water to determine if the joints leaked. (Tr. 164-166). The PVPDs were then left on the table to air dry and later were packaged in "tie-vac type material" and sent to St. John's Hospital for ETO sterilization. (Tr. 175-176). Complainant testified that she was appalled that the separate parts were removed from the sterile packaging not using sterile technique. (Tr. 176).

   The PVPDs were used on the ground at Johnson Space Center and in the space shuttle to collect and compare data. (Tr. 172). They were used to detect blood pressure while on the vein. (Tr. 173).

   Complainant testified that the PVPDs were sent to St. John Hospital, a small community hospital located near Johnson Space Center, for ETO sterilization. (Tr. 176). Complainant explained that she learned from her experience as a medical technologist that ETO leaves residues which render medical devices unusable in microbiology and virology lab because the residue actually kills the organisms that are to be detected. In addition, there is a high rate of failure for sterilization. (Tr. 177).

   During the first week of November 1993, Complainant informed Angie Lee, Respondent's project leader, that she was concerned with the ETO sterilization process and that the current procedure for assembling the PVPDs was not normal medical practice. Complainant requested from Ms. Lee Respondent's documentation approving the current procedure used for assembling the PVPDs. (Tr. 177-178).

   Complainant stated that she stayed within the reception area of the green room which is less than twenty feet into the clean room. She did not touch anything, nor did she view any PVPDs. (Tr. 219). Complainant did not intend to destroy or damage any property. (Tr. 220). Once Complainant noticed the reactions of her co-workers, she immediately left the clean room and Building 36, going straight to her car. (Tr. 220.).

   Complainant testified that she was never instructed not to be in the clean room, Building 36, or on Johnson Space Center. Moreover, she maintained her parking sticker and badge until January 14, 1994. (Tr. 195, 217).

would use the library when asked by a manager to perform research, however, it was common to perform independent research. Complainant testified that she did not have a daily need to be in Building 36. (Tr. 266).

   Complainant complained to Martin Marietta management that the ban would hinder her ability to attend the on-site meetings. On one occasion, Complainant was escorted on-site with a "top-level" Martin Marietta manager to attend a company-wide Martin Marietta meeting being held on the Johnson Space Center in an auditorium not located in Building 36. She was not allowed to sit with her husband, a Martin Marietta employee, during the meeting. (Tr. 229). Complainant testified that she had "never been so embarrassed in my life." (Tr. 229, ln. 24).

   After receiving the January 14, 1994 memorandum, Complainant contacted Mr. Carrington to discuss her ban from Johnson Space Center and the investigation of the ETO sterilization process. He informed Complainant that the investigation was closed because the office determined that there was no problem with the ETO sterilization process based on the memorandum from Dr. Sam Pool, medical division chief at the Johnson Space Center. At the end of the conversation, Mr. Carrington informed Complainant that she had "whistleblower rights." Complainant could not recall if Mr. Carrington mentioned a specific act under which she had rights. (Tr. 233-234). Complainant contacted a lawyer after she spoke with Mr. Carrington. (Tr. 233-234).

   Complainant testified that she settled her claim with Martin Marietta. As a term of the settlement, Martin Marietta demanded that she quit her job position. Complainant resigned from Martin Marietta on June 1, 1994. (Tr. 235).

   Complainant attempted to obtain work at hospitals and diagnostic companies. She has worked part-time as a realtor. (Tr. 235). In addition, she has worked two temporary telemarketing job positions and one temporary lab position. (Tr. 236). She has not been able to obtain a full-time job position performing her usual employment. (Tr. 236).

   Complainant filed her complaint with the Department of Labor on February 11, 1994 and worked for Martin Marietta until June 1, 1994. (Tr. 234-235). She testified that the working environment was miserable from February until June 1994 because other employees did not want to associate with her since she filed a complaint with the Department of Labor. In addition, Complainant's home life was miserable because her husband was a Martin Marietta employee and he did not want her to file the complaint. (Tr. 244).

   Complainant continued to perform her job satisfactorily although she did not feel like she was producing much work because Martin Marietta did not assign her much work. (Tr. 244). Eventually, Complainant was transferred to a new division under the supervision of Dr. Vaughan Clift. (Tr. 245). The atmosphere was more friendly in the new department. (Tr. 246). At the time Complainant resigned from Martin Marietta, her annual salary was $34,500.00. (Tr. 246).

   Complainant testified that she raised concerns about the ETO sterilization process because it could endanger the astronauts and the public. Complainant explained that Respondent employed non-astronauts to test the experiments. In addition, Complainant raised concerns because the ETO offgassing levels could harm the astronauts while in the space capsule and the employees working in the lab. (Tr. 249-250; See CX-21, p. 3).

Richard Kitterman

Center on a regular basis. (Tr. 84-85). He explained that Complainant was transferred because of the written reprimand and her expressed desire not to work with the PVPDs anymore. (Tr. 85).

not reported to him or other managers. (Tr. 91). Mr. Kitterman did not provide salary increases as suggested by Respondent. (Tr. 100).

   Ms. Kramer and other managers regularly requested specific Martin Marietta employees be assigned to particular projects. According to Mr. Kitterman, Martin Marietta would not make an

assignment without the approval of Respondent's personnel, as Martin Marietta's customer. (Tr. 92). Mr. Kitterman testified that Respondent did not often suggest a person be removed from a particular project. Respondent's personnel would inform him that a person was not performing well, and he would investigate the matter and make an adjustment in response to Respondent's concern if in "our judgment" it "made sense to respond to the customer's desire or not." (Tr. 94). Mr. Kitterman "did not necessarily make all re-assignments" suggested by Respondent. (Tr. 100).

   During Mr. Kitterman's tenure at Respondent's Johnson Space Center, Complainant was the only person prohibited from entering the property of Johnson Space Center or speaking to Respondent's civil servant employees. (Tr. 95).

Catherine Kramer

   Catherine Kramer was the division chief of Building 36 at the Johnson Space Center in 1993. (Tr. 278). She was responsible for all United States flight equipment being processed in Building 36. (Tr. 305).

   In November 1993, Ms. Kramer was informed by Mr. Seitz that Complainant raised concerns regarding the ETO sterilization process for the PVPDs on the same day Complainant disposed of the PVPDs. (Tr. 294, 574). Ms. Kramer testified that she instructed Mr. Seitz to investigate the matter as soon as possible. (Tr. 294). Ms. Kramer did not participate in the investigation of Complainant's concerns, but Mr. Seitz supervised the investigation and worked with Ms. Villarreal to determine if the sterilization process was unsafe. (Tr. 575-576). According to Ms. Kramer, Ms. Villarreal and Mr. Seitz contacted the various vendors of the separate component parts to determine if ETO would properly sterilize the final product. (Tr. 576). Mr. Seitz and Ms. Villarreal were investigating other sterilization processes and the details of the ETO sterilization process performed at St. John's Hospital. (Tr. 576).

Martin Marietta and he was her point of contact for the contractor and the contracted work. (Tr. 571-572). Ms. Kramer testified that she did not request Mr. Kitterman to discipline Complainant nor was she aware that Complainant received a letter of reprimand. (Tr. 502, 509, 573). However, Ms. Kramer's statement to Sam Perez of the Wage and Hour Division of the Department of Labor indicates that she met with Mr. Kitterman to discuss the PVPDs, and he informed her that he was going to discipline Complainant. According to Ms. Kramer's statement, she instructed Mr. Kitterman to "get back with me" concerning the disciplinary action. Later, Mr. Mims and Mr. Hite informed Ms. Kramer that a letter of reprimand was issued to Complainant. Ms. Kramer was aware Complainant was going to be issued a letter of reprimand. On redirect examination, Ms. Kramer testified that she forgot she had knowledge of Complainant's letter of reprimand. (Tr. 1229; See CX-68, p. 2).

   Ms. Kramer's statement to the Wage and Hour Division indicates that Mr. Kitterman informed her that he was going to discipline Complainant and "get back with" her. Mr. Kitterman thereafter informed her that he was going to issue a letter of reprimand to Complainant. Ms. Kramer instructed Mr. Mims to "get Clay Shadeck or Bob Frost because I couldn't have someone that I couldn't trust around the hardware . . . " Mr. Shadeck and Mr. Frost informed Ms. Kramer that they would move Complainant to a job position off the Johnson Space Center. (CX-68).

   On February 11, 1994, Mr. Seitz and Mr. Barnett wrote a memorandum indicating that Mr. Kitterman's January 14, 1994 memorandum was incorrect. (Tr. 282, 284; See CX-2; CX-30). According to Ms. Kramer, Mr. Seitz and Mr. Barnett wrote the memorandum because they were present when she informed Mr. Kitterman that she did not want Complainant around the flight hardware. Ms. Kramer did not co-author the February 11, 1994 memorandum or author her own corrective memorandum because she believed it would not be helpful since it was her word against Mr. Kitterman's word. (Tr. 284). She did not sign the Seitz/Barnett memorandum to otherwise express agreement with its contents. Ms. Kramer did not know the reason Mr. Seitz and Mr. Barnett decided to write the February 11, 1994 memorandum. (Tr. 531). In addition, Ms. Kramer was unaware of the reason Mr. Seitz and Mr. Barnett's waited twenty-eight days to correct the mistake in the January 14, 1994 memorandum. (Tr. 289).

   Ms. Kramer testified that she had weekly meetings with the contract managers in accordance with the contract between Respondent and Martin Marietta. (Tr. 572). She denied requesting the contractor to raise their employee salaries. In addition, she denied giving broad hints to the contractors to raise employee salaries. (Tr. 515).

information that led to a larger investigation. (Tr. 594).

engineer for Martin Marietta at Johnson Space Center. (Tr. 723-724). Mr. Hite was the acting manager of hardware engineering from October 1993 through January 1994. (Tr. 744). His responsibilities included managing the engineering development of flight hardware for life sciences as well as the employees working on those tasks. (Tr. 745). Mr. Hite was Complainant's second line supervisor. (Tr. 746).

   According to Mr. Hite, Complainant worked for Martin Marietta under the SPDEO contract between Respondent and Martin Marietta. The purpose of the contract was for Martin Marietta to develop flight hardware for Respondent's Life Sciences Directorate and to support their science efforts under the life sciences. (Tr. 746). The SPDEO contract was split into large tasks which were then divided into subtasks. The SPDEO contract listed the requirements, objectives, and "manloading" to be performed by Martin Marietta. Mr. Hite testified that Martin Marietta wrote the plans for each subtask detailing the objectives, the manloading, and the schedule for each project. As a second line supervisor, Mr. Hite assigned Martin Marietta employees to the various subtasks. Mr. Hite explained that Respondent was not responsible for assigning Complainant or other Martin Marietta employees to the various subtasks although Respondent did request certain Martin Marietta employees be assigned to particular projects. (Tr. 747-748, 750). Mr. Hite testified that Respondent made most of the employee requests "in person" rather than by e-mail or in writing. In addition, he did not recall any specific request made for Complainant. (Tr. 751).

   Mr. Hite was responsible for completing the performance evaluations for all of the employees he supervised. (Tr. 748). He was responsible for monitoring Complainant's compliance with Martin Marietta's company policy including her scheduled work hours, leave time from work, and completion of assigned work. Mr. Hite had no knowledge whether Respondent supervised Complainant while she worked for Martin Marietta. (Tr. 749).

   Mr. Hite testified that Complainant was not an employee of Respondent but of Martin Marietta. She received her salary and the standard employee benefits of medical and dental insurance from Martin Marietta. Mr. Hite explained that Complainant was eligible to participate in Martin Marietta's retirement plan, however, he was unaware whether Complainant participated in the plan. (Tr. 746).

   In November 1993, Ms. Villarreal asked Mr. Hite to investigate the rumor that Complainant removed the PVPDs from the clean room to the hallway. (Tr. 727, 754). Once Mr. Hite determined that Complainant did remove the PVPDs from the clean room, he met with Complainant to discuss her actions with the PVPDs. Mr. Hite informed Complainant that she would receive a written reprimand and that she could be dismissed. (Tr. 724-725; See CX-14). Later, Mr. Hite testified that he informed Complainant the letter of reprimand was a "slap on the wrist." (Tr. 736). Mr. Hite testified that he informed Complainant his job position required him to issue the written reprimand. (Tr. 725, 737). At the time the reprimand was issued, Mr. Hite believed no further action would be taken against Complainant for her actions with the PVPDs. (Tr. 740).

   Mr. Hite testified that Respondent did not instruct him to issue a reprimand to Complainant. He did not personally notify Respondent of the reprimand issued to Complainant and could not recall whether anyone else informed Respondent of the reprimand. (Tr. 738). He later testified that he may have informed Ms. Villarreal of the reprimand issued to Complainant. (Tr. 741).

   Complainant was reassigned to the Agena Building. Mr. Hite testified that Complainant requested to be reassigned to another project and taken off the medical hardware. (Tr. 740). In addition, Mr. Kitterman directed that Complainant be reassigned away from the PVPDs. (Tr. 742). According to Mr. Hite, Dr. Huntoon and Ms. Villarreal did not inform him that they wanted Complainant reassigned. Mr. Hite did not speak with Ms. Kramer regarding Complainant. (Tr. 742).

   Mr. Hite testified that he was not instructed to remove Complainant from access to medical hardware, Building 36, Johnson Space Center, or to prohibit her from talking with Respondent's civil servants in the Life Sciences Directorate. (Tr. 740).

Angelene Lee

   Angelene Lee has been the experiment systems manager in the payload and experiment management office of NASA since January 1992. She was responsible for developing experiments proposed by various investigators, working with a team of contractors to refine their scientific requirements, preparing equipment used by the contractors, documentation of procedures, and crew training. (Tr. 801-802).

   In November 1993, Ms. Lee worked on a metabolic life sciences experiment set to fly on Mission STS-60. Complainant was assigned by Martin Marietta to the contractor team under Ms. Lee's direction. She explained that Complainant's responsibilities as an experiment engineer were to help finish preparing hardware for the experiment and other various activities. (Tr. 802).

   In mid-November 1993, Complainant informed Ms. Lee of her concerns with the preparation of the PVPDs. (Tr. 803). Moreover, Complainant was concerned whether Respondent's human research procedures and policies committee (HRPPC) approved of the procedure regarding the sterility of the hardware. Complainant explained that the procedure for leak testing might have been contaminating the PVPDs more than could be accounted for or corrected with the ETO sterilization. In addition, Complainant mentioned to Ms. Lee her concerns regarding liability. Ms. Lee testified that Complainant used terms like "non-standard medical procedures" and "FDA approvals." (Tr. 804). According to Ms. Lee, Complainant did not raise any environmental concerns with regard to the ETO sterilization process. (Tr. 806). Because Ms. Lee was not involved with designing the procedure to assemble and re-sterilize the

PVPDs, she informed Ms. Villarreal of Complainant's concerns. (Tr. 805). Ms. Lee testified that she "passed off" Complainant's concerns to Ms. Villarreal and did no more than some preliminary checking of her own records. (Tr. 806).

   On November 15, 1993, Ms. Lee learned that Complainant disposed of the PVPDs that morning. Ms. Lee did not speak to Complainant about her action with the PVPDs. (Tr. 805).

   In December 1993, Ms. Lee became further involved with Complainant's concerns when NASA received a request from the Inspector General's office to investigate the methods of sterilization. (Tr. 807). Ms. Lee contacted the vendors of the various component parts and spoke to their technical representatives. She requested information concerning the sterilization process used at the vendors' facilities. Ms. Lee did not recall whether she discussed with the vendors the re-sterilization process used by Respondent. (Tr. 809). She researched documentation and gathered further information to send to the Inspector General's office. (Tr. 807-808).

   Ms. Lee testified that she was not upset to perform the research. (Tr. 808). Ms. Lee spent less than thirty hours gathering the necessary research. (Tr. 815). She explained that she was concerned with the safety of the astronauts and the proper function of the experiments. She wanted to insure they did not "miss something." (Tr. 808). Ms. Lee explained that the research performed proved helpful and NASA made improvements to increase the level of safety in the PVPDs. (Tr. 809). The research was given to Dr. Pool. (Tr. 810-811).

   Ms. Lee assumed that Complainant filed the complaint regarding ETO sterilization with the Inspector General's office since she had voiced these concerns to Respondent's personnel in the recent past. (Tr. 811, 813).

Nancy Kennamer

   Nancy Kennamer was the contracting officer for the Science Payload Development Engineering and Operations (SPDEO) contract between Respondent and Martin Marietta. As a contract officer, Ms. Kennamer has the "signature authority to authorize the government in contractual actions." The purpose of the SPDEO contract was for Martin Marietta to provide payload experiment management, science management, and payload integration for the science experiment. (Tr. 818-819; See RX-28).

   The SPDEO contract is a task order contract. It consists of a statement of work which details everything the contractor is expected to do over the period of the contract. Respondent would issue task orders with specific task direction. The contractor would then respond with a plan detailing the resource used, a time schedule, the projected cost, and a statement explaining how the work would be completed. (Tr. 820; See RX-29). Respondent had to approve the plan. (Tr. 821).

   Ms. Kennamer testified that Martin Marietta was responsible for ensuring that the work was performed within the scope of the contract. (Tr. 822). In addition, Martin Marietta's project manager was responsible for hiring and assigning personnel to perform the work required to complete the task ordered. (Tr. 823). The work performed by Martin Marietta under the SPDEO contract was to be performed at the Johnson Space Center and a reasonably close facility. (Tr. 824; RX-30). Ms. Kennamer explained that the work was performed at Respondent's Johnson Space Center because the specific facilities required to perform the work were available. (Tr. 824). Martin Marietta was required to supply all necessary materials to perform the task orders under the SPDEO contract. (Tr. 829).

   The SPDEO contract required Martin Marietta to appoint someone as a project manager to have management responsibility for the total contract effort and to receive technical direction from Respondent. In addition, Martin Marietta was required to appoint a functional representative for each of the primary work areas who was responsible for receiving work requests for each particular area. (Tr. 828; RX-31). Under the SPDEO contract, Martin Marietta was required to submit a management plan which described the manner in which Martin Marietta was going to fulfill its requirements of the contract. (Tr. 829; RX-38).

   Ms. Kennamer testified that she interfaced only with Martin Marietta's project manager and the business manager. She learned the status of the task orders and provided feedback to them. (Tr. 830). She explained that Respondent and Martin Marietta personnel worked together under approved task orders. (Tr. 832).

Glenda Allmond

   Glenda Allmond was an experiment coordinating specialist while working for Martin Marietta from December 1990 until July 1994 as a permanent employee. She worked in the metabolic lab designing the hardware, preparing for training, and other various activities to prepare for a flight mission. (Tr. 885).

   On December 16, 1993, Ms. Allmond learned from Mr. Fitzgerald that Complainant called him requesting information about the number of PVPDs used for training. Moreover, Mr. Fitzgerald told Ms. Allmond that Complainant was trying to stop the next flight mission. (RX-14; See Tr. 849).

   Ms. Allmond observed Complainant in Building 36 on January 13, 1994. Later, upon seeing Ms. Kramer in the hallway, Ms. Allmond asked her why Complainant was in the building. (Tr. 851-852). Ms. Allmond testified that she resented Complainant for disposing of the PVPDs because Ms. Allmond was responsible for the PVPDs . (Tr. 864).

   Although Ms. Allmond testified that Mr. Seitz instructed her to document her conversation with Mr. Fitzgerald, she testified that she was never asked to observe or make reports

about Complainant. (Tr. 857).

David White

   David White testified that he was Respondent's contracting officer technical representative for the Martin Marietta contract in 1994. His responsibilities were to ensure that Martin Marietta abided by the contract to support Respondent's Johnson Space Center effort. (Tr. 893-894). Moreover, Mr. White monitored Martin Marietta's compliance with the technical statement of work and the task orders associated with it. (Tr. 895).

   Mr. White testified that Complainant was never an employee of Respondent but was an employee of Martin Marietta. (Tr. 898). According to Mr. White, Respondent was not responsible for, nor did it perform, the following personnel duties with regard to the Martin Marietta employees: (1) assign employees to the specific tasks, (2) supervise, (3) participate in the hiring process, (4) determine salaries, (5) establish working hours, or (6) approve vacation or sick leave. Respondent was responsible for the working conditions under which the Martin Marietta employees performed the work because the work was conducted at Respondent's Johnson Space Center. (Tr. 899-900). Mr. White stated that both Respondent and Martin Marietta conformed to the SPDEO contract and did not attempt to issue work assignments in a manner not approved under the contract. (Tr. 907).

   Mr. White explained that personnel of Respondent and Martin Marietta worked together to develop the flight hardware. (Tr. 901). He further explained that the SPDEO contract required them to work together since the work was conducted at Respondent's facility. In addition, Respondent's personnel usually monitored Martin Marietta's work at specific periods during the year and wrote evaluations concerning the performance of Martin Marietta within the contract orders. (Tr. 902-903).

   Mr. White testified that the January 14, 1994 memorandum issued to Complainant was not given to him. (Tr. 906).

   The SPDEO contract does not permit Ms. Kramer to prohibit anyone from entering Building 36 nor Dr. Huntoon from prohibiting anyone from entering the Johnson Space Center. Mr. White explained that the SPDEO contract does not address such matters because they are administrative activities associated with the administration of the Johnson Space Center. (Tr. 909-910).

Fred Spross

   Fred Spross testified that he is the deputy of the bioengineering hardware development office at Respondent's Johnson Space Center. (Tr. 912). In 1994, Mr. Spross was a branch chief of the science operations branch. Mr. Spross was responsible for the operation of the

space lab mockup and for developing integration hardware which was used to integrate experiments into the space lab "racks." (Tr. 913).

   On January 14, 1994, Mr. Spross attended a meeting to discuss recent budget cuts and the affect on the operational branches. Mr. Spross recalled that Ms. Kramer, Mr. Seitz, and Mr. Proctor attended the meeting. (Tr. 914). In addition, Mr. Spross recalled that Ms. Kramer was upset when she joined the group. She read the January 14, 1994 memorandum to the group and explained to the group that she was upset because Mr. Kitterman put her name in the memorandum. Mr. Spross did not remember whether Ms. Kramer stated that the memorandum was inaccurate. (Tr. 915-916). He later testified that based on Ms. Kramer's words and mannerisms, he inferred that she was upset because the memorandum contained untrue statements along with her name. (Tr. 923).

   According to Mr. Spross, Ms. Kramer neither appeared to be boasting about the memorandum nor claim, contrary to Mr. Proctor, that she would have Complainant fired. Moreover, Mr. Spross testified that Ms. Kramer did not mention Complainant's name. (Tr. 916).

Hugh Fitzgerald

   Hugh Fitzgerald worked for Martin Marietta in November 1993 at Respondent's Johnson Space Center. On November 15, 1993, upon arriving at work, Mr. Fitzgerald asked Complainant if she knew where the PVPDs were located. She informed him that she threw them away. Mr. Fitzgerald found the PVPDs in a box in the hall outside of the clean room near a recycle box. (Tr. 925). He did not recall whether Complainant explained the reason she placed the PVPDs in the hallway. (Tr. 926). Mr. Fitzgerald informed Mr. Geaslin and Ms. Villarreal of Complainant's actions. (Tr. 926). Mr. Fitzgerald testified that he was unhappy with Complainant's actions because she disposed of the PVPDs by placing them in the hallway. (Tr. 936).

   In mid-December 1993, Complainant telephoned Mr. Fitzgerald at home to discuss the sterilization problems and the hardware. According to Mr. Fitzgerald, Complainant made a statement that implied she would get the mission stopped because the sterilization process was not adequate. Mr. Fitzgerald testified that he did not take any action with regard to Complainant's phone call. (Tr. 926-927).

   He explained that he considered reporting Complainant's phone call to Martin Marietta management because Complainant could hurt the company "by causing problems without having enough information to justify it." (Tr. 935, ln. 22). Mr. Fitzgerald was not concerned with Complainant's questions to him but he was concerned that she was putting forth an effort to stop the upcoming mission. (Tr. 937-938). Mr. Fitzgerald was concerned about Complainant's concerns because he believed she was questioning an established and accepted procedure of re-sterilization. He was unaware of the different sterilization processes and guidelines used by industry and hospitals. (Tr. 941). Mr. Fitzgerald testified that if he was aware of the

different sterilization processes and guidelines, he would have been more understanding of Complainant's concerns. (Tr. 942).

   Mr. Fitzgerald testified that neither Mr. Seitz nor anyone else asked him to observe Complainant and report her actions. (Tr. 939). Mr. Fitzgerald believed that Complainant was removed from on-site at the Johnson Space Center before the January 14, 1994 memorandum was issued. (Tr. 949-950). He further testified that he did not see the January 14, 1994 memorandum until the time of the hearing. (Tr. 950). He did not recall distributing the memorandum in Building 36. (Tr. 951).

Dr. Sam Lee Pool

   Dr. Sam Pool has been the chief of the medical division at Respondent's Johnson Space Center since 1977. The medical division is responsible for crew health, certification of astronauts for duty as crew members on board airplanes and spacecraft, occupational health for the Johnson Space Center and research into the space physiology of humans in space. (Tr. 967). In addition, Dr. Pool is the alternate chairman of the human research policy and procedures committee. (Tr. 968). Dr. Pool is licensed to practice medicine in Oklahoma and Texas. (Tr. 967).

   Dr. Pool managed the activities in Building 37. He testified that for a number of years he has routinely sent hardware to St. John's hospital for re-sterilization although Building 37 houses an ETO sterilization machine. (Tr. 1014).

   Dr. Pool reviewed material relating to the toxicity, carcinogenicity, and other effects of ETO, however, he relied primarily on Respondent's toxicological expert and other laboratory personnel for that type of information. (Tr. 981).

   Dr. Pool testified that he performed his investigation of the ETO sterilization process in an unbiased and objective manner. (Tr. 982, 1021). According to Dr. Pool, Dr. Huntoon and Ms. Kramer selected the ETO sterilization method for re-sterilizing the PVPDs. (Tr. 984).

   At the beginning of the investigation, he met with Ms. Kramer and the employees working on the PVPD project. Ms. Kramer instructed the employees that she wanted the investigation to proceed and to cooperate fully with Dr. Pool. (Tr. 987). Dr. Pool testified that he did not know with absolute certainty that Complainant filed concerns with the Inspector General's office, however, he indicated that he was aware Complainant filed concerns about ETO sterilization. (Tr. 1006). Dr. Pool further testified that he was not concerned with the Inspector General's source of information. (Tr. 1007).

   Dr. Pool testified that Complainant's concerns with the levels of ETO on the PVPDs were reasonable based on her education and experience. (Tr. 1042).

John Thorpe James

   John James has been the chief scientist in toxicology at Respondent's Johnson Space Center since 1989. He is primarily responsible for toxicological issues as they relate to space flight and protecting the astronauts. Dr. James is certified in toxicology. (Tr. 1044-1045).

   Dr. James was not accepted as an expert witness but instead as a fact witness. Dr. James supervised the testing of PVPDs to determine their level of offgassing. (Tr. 1053; See CX-18). The tests were conducted in May 1994 but were not performed on the PVPDs which Complainant moved from the clean room. (Tr. 1054-1055). In June 1994, the same tests were conducted using the same samples. Dr. James testified that the second tests were run to produce greater detailed findings. (Tr. 1093).

Bill Seitz

   Bill Seitz testified that he worked for Respondent as a project engineer and later became a technical manager for the space and life sciences director. (Tr. 1151). Mr. Seitz was the branch chief of the project engineering branch. (Tr. 1152). Ms. Kramer was his supervisor in 1993. (Tr. 1155).

   In November 1993, Complainant informed Mr. Seitz that Respondent was processing flight hardware in such a way that placed the astronauts in jeopardy. (Tr. 1151). Although Mr. Seitz believed the procedures being used were proper, he listened to Complainant's concerns and requested her to obtain additional information to insure the procedures were proper. (Tr. 1152). Mr. Seitz testified that he met with some of Respondent's personnel working on the experiment, including Ms. Villarreal, to inform them of Complainant's concerns. He instructed them to investigate the matter fully by checking with the vendors and insuring the procedures were proper for the PVPDs and any other like device. (Tr. 1152).

   Based on the research performed by Respondent's personnel, Mr. Seitz determined that the procedures for assembling and re-sterilizing the PVPDs was proper. (Tr. 1154).

   At an undetermined time, Mr. Seitz learned that Complainant removed the PVPDs from the clean room. Mr. Seitz did not recall who told him of Complainant's actions with the PVPDs. (Tr. 1153). Mr. Seitz testified that he spoke with management personnel of Respondent and Martin Marietta concerning Complainant's actions instructing them to insure that "this kind of thing didn't happen again." (Tr. 1154).

   Mr. Seitz also testified that at an undetermined time he spoke with Complainant regarding her actions with the PVPDs. (Tr. 1163). Mr. Seitz did not become upset with Complainant, but merely informed her that she was in error to remove the PVPDs from the clean room. (Tr. 1164).

   Although Dr. Huntoon was the principal investigator of the PVPD project, she did not recall selecting the ETO sterilization process to be used for the PVPDs. (CX-65a, p. 16). She explained that the project was divided and two divisions were performing the work. The various teams working on the project, which include Respondent and Martin Marietta employees, worked on the project and eventually chose the ETO sterilization process. (CX-65a, p. 17).

   Dr. Huntoon was not informed of the specific procedure used to assemble the PVPDs. (CX-65a, p. 38). According to Dr. Huntoon, Respondent developed the procedures for purchasing the hardware, storing and packing it for flight, sterilization, crew training, and testing. Respondent gave this information to Martin Marietta to complete. Because she was never on-site when the work was being performed, she was unaware whether Martin Marietta was performing the work according to the procedures. (CX-65a, pp. 39-40). She testified that she was unaware that there were no written procedures for assembling the PVPDs at the time Complainant filed her complaint with the Inspector General's office. (CX-65a, p. 95).

   In February 1994, Dr. Huntoon received a memorandum from Ms. Kramer regarding Complainant's prohibition from entering Building 36 and the Johnson Space Center. (CX-65a, pp. 41-42; See CX-4). Dr. Huntoon believed Ms. Kramer's memorandum indicated that she wanted Dr. Huntoon to contact Mr. Ron Wade, security personnel, and offer her support to Ms. Kramer's directive prohibiting Complainant from entering Building 36. (CX-65a, p. 43).

   Sometime in January 1994, Ms. Kramer informed Dr. Huntoon that Complainant was reassigned to work off-site. (CX-65a, pp. 26, 100, 105).

   Dr. Huntoon did not recall Ms. Kramer expressing any opinion regarding the complaint filed by Complainant with the Inspector General's office. (CX-65a, p. 62).

Daniel S. Goldin

   Daniel Goldin testified, by deposition, that he has been the Administrator for Respondent since April 1, 1992. (CX-66a, p. 6). Mr. Goldin was not informed of the concerns and complaints about the use of ETO and its potential affect on the space shuttle. (CX-66a, pp. 7, 31, 32, 35). In addition, Mr. Goldin testified that he had not seen any documents related to Complainant's concerns with ETO or her removal from Building 36 and Johnson Space Center. (CX-66a, pp. 19, 38). Mr. Goldin had no knowledge of Ms. Kramer or her position within Respondent's agency. (CX-66a, p. 12).

Expert Testimony

James Gibson, Jr.

   James Gibson, Jr., testified that he has a bachelor of science degree in chemical engineering. (See CX-32). His prior job positions from the time he obtained his

equipment, and performing tests to monitor the ETO residual levels and sterility. Hospitals are not required to perform the ETO residual and sterility tests. (Tr. 368-369).

   Mr. Gibson testified that there are a number of health risks involved when a person is exposed to a certain level of ETO. Acute exposure to high levels will cause nausea, vomiting, redness of the skin, and chemical burns. (Tr. 346). Mr. Gibson explained that there have been reports of spontaneous abortions, breast cancer, and neurological problems. In addition, ETO is known to cause chromosomal aberrations. (Tr. 347).

   There are two health risks which may occur if a medical device is not properly sterilized when used. The first health risk is that the patient can become infected. The second health risk occurs when the ETO residuals from the hardware are injected into the body or remain on the skin. The patients on which the non-sterile hardware is used can develop any of the problems associated with ETO. (Tr. 348-349).

   Mr. Gibson testified that the industrial practices for ETO sterilization consists of performing a validation of the process. The validation process consists of running repetitive cycles in the sterilizer with defined product loads, and demonstrating that by reproducing this process the accepted level of sterility is reached. (Tr. 347-348).

   The sterilization cycles are usually monitored by biological indicators. Biological indicators are preparations of large numbers of very resistant microorganism spores. A relationship is drawn between the death of those biological indicators and the sterility of the product. (Tr. 348). According to Mr. Gibson, this process guarantees sterility. (Tr. 348).

   Mr. Gibson testified that almost all materials absorb ETO gas when they are ETO sterilized. (Tr. 349). The gas must be removed from the medical hardware and reduced to safe levels. The gas is usually removed in a separate room or chamber from the sterilizer. The devices are stored for extended periods of time at higher temperature. (Tr. 349). In industry, manufacturers test the hardware to determine the levels of offgassing. (Tr. 350). The amount of time the hardware offgasses is dependent on the material composition of the device sterilized, the thickness of the material, the temperature at which offgassing occurs, and the type of packaging used for the hardware. (Tr. 352, 355). Mr. Gibson explained that certain plastics retain ETO better than other materials. (Tr. 352). Depending on the composition of the product, offgassing, as part of the sterilization procedure, could take hours, days, or weeks. (Tr. 355).

   Mr. Gibson explained that in industry, medical hardware is safe for patient use when the manufacturer ships it to the user. The safe standard for the acceptable amount of ETO offgassing depends on the use of the hardware. The standard for ETO is no more than twenty-five parts per million if the device will come in contact with blood or "compromised tissue." The standard is 250 parts per million when the device will come in contact with mucosa or uncompromised tissue. (Tr. 350). According to Mr. Gibson, manufacturers are required to

guarantee the sterility of a device. (Tr. 360).

   Hospitals use ETO for sterilization of medical hardware. Hospitals use sterilizers which usually have one or two pre-programmed cycles. The sterilizers have a set of generic instructions and pre-programmed cycles which do not enable the users to make any changes with the sterilization process except to select a different exposure time. (Tr. 356). Hospital personnel do not generate any data to prove when the biological indicator is killed and the hardware is actually sterile. (Tr. 357). Mr. Gibson explained that the manufacturer of the sterilizer builds in a cycle that is acceptable for most typical devices for sterilization, however, there is no guarantee that any particular device is sterile. He explained that hospitals do not generate the data to determine sterility because it is time consuming and expensive. (Tr. 358). In addition, hospital personnel do not monitor the residual levels of ETO that remain on the hospital equipment. (Tr. 367).

be deficient based on the ETO exposure time and aeration time. He explained that St. John's sterilization process probably results in too high ETO residual levels on the devices which may result in problems associated with ETO exposure as discussed above. (Tr. 370). Mr. Gibson further explained that St. John's Hospital does not provide adequate time for proper offgassing to occur. Because the manufacturer of the separate component part required a longer aeration time, Mr. Gibson testified that he had to assume the longer amount of time was required because a business would not delay inventory for any longer than is necessary. (Tr. 372).

   According to Mr. Gibson, in the industry, medical hardware is removed from the "manufacturing flow" when its sterility is compromised or questioned. The device is removed to insure that it does not accidently continue in the manufacturing process and get used. Similarly, the standard practice in hospitals is to segregate a medical device to a "controlled condition" when its sterility is compromised or questioned. (Tr. 384).

   Mr. Gibson testified that assembling the PVPDs in a room other than an operational clean room would not be acceptable in the industry because the assembled final product would be contaminated such that the contamination level could not be determined and it would be difficult to determine if the sterilization process was effective. In addition, placing the assembled product in non-sterile water and using employees not properly garbed to assemble the product would be poor practice for the reasons mentioned above. (Tr. 395-396). Mr. Gibson expressed concern with the sterility of the device and the residual ETO level unless the devices were tested after the sterilization process to determine the residual ETO levels. (Tr. 396).

   Mr. Gibson expressed concern about using medical hardware in a space shuttle cabin that contained sixty-five cubic meters of air if it was not adequately offgassed during the sterilization process. (Tr. 396). If the device was not adequately offgassed, it would continue to offgas in the shuttle cabin which would expose personnel to a concentrated amount of ETO in a room with restricted air volume. (Tr. 397). According to Mr. Gibson, a person with a reasonable degree of knowledge could reach the same conclusions he did and in good faith be concerned about the sterility, the residual ETO level and offgassing if the PVPDs were assembled in a non-operational clean room and re-sterilized using a hospital sterilization process. (Tr. 397-398, 418, 420). Moreover, Mr. Gibson agreed that it would be reasonable for a person to remove the devices from the "flow of material" such that they would not be used because the manner of assembly and re-sterilization process was questioned. (Tr. 398).

   Mr. Gibson explained that St. John's Hospital's certificate of compliance does not guarantee that the PVPDs were sterile or contained a safe level of ETO residuals. (Tr. 420). The certificate merely indicates that the hospital was using a standard sterilization cycle. The biological indicator only indicated that the sterilizer is working properly but does not indicate whether a particular device was adequately sterilized because there was no data to prove proper sterilization. (Tr. 420).

Lavonna Bonnie Sapp

   Lavonna Sapp testified that she has been the director of "perioperative" services at St. John's Hospital for eleven years. She supervises five departments, including sterile processing. She is a registered nurse. For the past thirty-two years, Ms. Sapp has worked in various hospitals with sterilization processes. (Tr. 1100-1101). Ms. Sapp further testified that she has been a member of an association of operating nurses which is a nationally recognized authority for sterilization processes. (Tr. 1115). At an undetermined time, Ms. Sapp worked with the commercial application of ETO when she worked with "Davis & Geck." (Tr. 1148).

   Ms. Sapp testified that in 1993, Respondent used St. John's Hospital to sterilize PVPDs. (Tr. 1102). Ms. Sapp explained that because the hardware came from a place outside of the hospital, she contacted the manufacturers of the component parts, Hewlett-Packard and Baxter, to validate the method of ETO sterilization. (Tr. 1103). According to Ms. Sapp, she sterilized the PVPDs as recommended by two of the three manufacturers of the component parts. (Tr. 1103). Ms. Sapp did not discuss approval of the ETO sterilization process by Becton Dickinson, the third manufacturer of the component parts.

   St. John's Hospital is a Joint Commission fully accredited hospital and follows regulated standards for sterilization. Ms. Sapp explained that the Joint Commission is a national accrediting body that accredits health facilities, including its sterilization procedures. (Tr. 1110, 1127).

   The PVPDs are sterilized for one hour and forty-five minutes after which ETO is evacuated and the chamber aerated in two processes which lasts a total of three hours and forty-five minutes. Ms. Sapp explained that the PVPDs were aerated according to a standard set by OSHA. (Tr. 1104-1105, 1127). According to Ms. Sapp, OSHA set such standards for ETO sterilization as the type of sterilant used, the time and temperature used for sterilization, the shelf-life of the device, the monitoring process for use of the devices, the process by which the ETO filled tanks are changed, and other various procedures. (Tr. 1128).

   Ms. Sapp testified that because ETO could permeate the internal orifices of the PVPD, it could reach the entire interior of the PVPDs extending through the tubes and into the dome. (Tr. 1135). However, she explained that the PVPDs would not be sterile after the sterilization process if any amount of water remained in them from the leak test performed by Respondent. (Tr. 1136).

   According to Ms. Sapp, the PVPDs were sterile based on the bacteriological monitoring item that was placed in the sterilizer along with the PVPDs. The biological monitoring is a bacillus stearothermophilus that was in a biological tube subjected to the ETO sterilization process. She explained that the bacteriological monitoring item was prepared in a manner similar

to the PVPDs and placed in a similar type environment as the PVPDs. Once the sterilization cycle was completed, there should be a 100 percent kill in the biological item. The biological item was then monitored against a biological monitor that had "no kill" at twelve, twenty-four, and forty-eight hours. (Tr. 1106, 1132).

   The hospital could not determine, by testing the devices, whether the PVPDs were sterile or proper offgassing was accomplished. Instead, the hospital personnel performing the ETO sterilization wore a badge that monitored whether there was an ETO leak in the environment. (Tr. 1107). In addition, the sterilizer has an automatic shutdown function and alarm system if too much sterilant was present or a leak occurred. (Tr. 1108). The unit performed a self-check as it went through the sterilization cycle. (Tr. 1144).

   Ms. Sapp testified that the ETO sterilizer was commonly used at St. John's Hospital to sterilize products such as lenses inserted into the eye, prostheses, and glass. (Tr. 1108). She further testified that different standards for ETO sterilization apply to industry and to hospitals. Because the chambers used in industry are larger, they hold more devices and require more ETO for the sterilization process, however, the coefficient would remain the same per item. (Tr. 1109). According to Ms. Sapp, the quality of sterility is the same from the hospital and industry. (Tr. 1110).

   Ms. Sapp testified that industry and hospital ETO sterilization procedures should not be compared because the factors which affect the processes vary and cannot be accurately compared to reflect a difference in the quality of sterilization between hospital and industry procedures. The number of devices being sterilized and the size of the sterilization chamber affect the sterilization process such that varying processes are used to sterilize the devices. (Tr. 1113-1114). The amount of sterilant is determined by the size of the chamber and the amount of devices being sterilized. (Tr. 1130). The manufacturer of the hospital sterilization ETO unit pre-sets the parameters for injection of ETO into the chamber and provides an instruction booklet for sterilizing devices. (Tr. 1129). The instruction booklet indicates the proper parameters for various devices. (Tr. 1130).

   According to Ms. Sapp, the certificate of compliance, issued by an unknown agency, indicates that St. John's Hospital operated the ETO sterilization unit in accordance with the manufacturer's instructions and the monitoring process. Moreover, Ms. Sapp testified that the certificate of compliance indicates that the item would be sterile. (Tr. 1132).

   According to Ms. Sapp, "reuse" of an item is anything that has been contaminated by being "used in the field." She testified that this standard definition of reuse of medical devices is found in the "Operating Room Nurses Association, Standards of Policies and Procedures, 1997." (Tr. 1114-1116).

   The hospital ETO sterilization unit is monitored monthly to observe the entire sterilization cycle. Air samples are tested weekly to determine whether a leak of ETO has occurred. The sterilization personnel are monitored quarterly. Ms. Sapp did not explain the monitoring process

for the sterilization personnel. (Tr. 1117).

   Contrary to Mr. Gibson, Ms. Sapp testified the hospital can guarantee the sterility of a medical device based on the biological monitoring which is sterilized along with the product. Ms. Sapp explained that the medical device packaging after sterilization, before being opened, can indicate that the device has been exposed to ETO and that the temperature has been reached for this exposure. (Tr. 1130).

   Ms. Sapp testified that AAMI establishes the standards for medical devices such as the ETO sterilization unit. (Tr. 1143). She further testified that St. John's Hospital's ETO sterilization unit meets the standards set by AAMI. (Tr. 1143). The machine is calibrated every month by the vendor. (Tr. 1143). The machine has never been recalibrated. (Tr. 1144).

Other Evidence

Science Payload Development Engineering and Operations Contract (SPDEO)

   The Science Payload Development Engineering and Operations Contract (SPDEO) is the services/work contract between Respondent and Martin Marietta. The SPDEO contract is divided into three parts: Part one is "Schedule" and includes such sections as the statement of work, contract administration data, and special contract requirements; Part two is "Contract Clauses"; and Part three is "List of Documents, Exhibits, and Other Attachments." (RX-38).

   Upon review of the entire SPDEO contract, including modifications, the "Statement of Work" listed the major functions for which Martin Marietta provided support services: (1) project management and control, (2) project payload management and development, (3) flight systems engineering, (4) data systems development and operations, (5) project science support, (6) project payload integration and verification, (7) operational training, (8) mission operations support, and (9) facility/ground systems engineering and operations. (RX-38, Part 1, clause 1.0). Martin Marietta was responsible for completing task orders which consisted of all activities necessary to perform all assigned missions for both the Space and Life Sciences Directorate and the New Initiatives Office, including any current and future manned and man-tended missions. The contract listed the following typical missions for which Martin Marietta was to provide support: (1) dedicated life sciences missions; (2)Space Station mission increments, (3) the biomedical monitoring and counter-measures project, (4) small and rapid response payloads, (5) crew healthcare system, and (5) cosmic dust collection facility. The following activities were required of Martin Marietta to be performed for the Life Sciences Project Division: (1) develop and provide flight hardware, ground support equipment, and data systems and facilities, (2) support payload design, test, and integration, and (3) support all operational aspects of NASA-approved programs for flight missions. (See RX-38, Pt. 1, Introduction, p. C-1-A).

   In accordance with the SPDEO contract, Martin Marietta was responsible for project management, administration, and performance of the tasks to be completed under Part one of the contract. (RX-38, Pt. 1, cl. 2.2.1). Martin Marietta was to provide "strong management control over each area to assure that all work" was accomplished on time, within budget, and to assure that all work met program requirements. In order to provide management control, Martin Marietta was to provide Respondent with a "Life Sciences Project Management Plan and individual task management/implementation plans for specific subtasks." (RX-38, Pt. 1, cl. 2.1). Martin Marietta was required to continually develop, operate, maintain, upgrade, and improve management control systems. In addition, Martin Marietta was required to analyze anticipated trends and problems, and make recommendations to increase efficiency, improve operations, and reduce costs. (RX-38, Pt. 1, cl. 2.2.4).

   Martin Marietta was responsible for providing all resources needed to plan, schedule, prepare, and process concurrent payloads on multiple missions. Payload planning consisted of developing payload schedules and profiles to optimize the use of mission resources to achieve program objectives. Martin Marietta was required to perform "planning analysis and requirements definition for approved life sciences experiments." In addition, Martin Marietta had to perform engineering analysis of candidate life sciences experiments. This included "the definition of new flight hardware and assessing the compatibility of proposed experiments with existing or planned hardware." (RX-38, Pt. 1, cl. 3.1).

   The SPDEO contract required Martin Marietta to assist the principal investigators in experiment definition, including collection of engineering data, flight interface information, and developing pre-flight experiment data requirements and validation criteria. (RX-38, Pt. 1, cl. 3.1.1; See cls. 3.1.4, 5.1). Because the life sciences experiments were generally proposed and conducted by scientists who were unfamiliar with Respondent's requirements and management techniques, Martin Marietta was to assist the principal investigators to . . . assure proper use of flight hardware equipment, and compatibility between science requirements, program requirements, mission resources, vehicle interfaces, and vehicle/crew resource limitations. (RX-38, Pt. 1, cl. 3.1.2). Martin Marietta was the functional contact with investigators with regard to experiment data requirements. This function required extensive coordination with experiment technical monitors, support scientists, the data groups within the Life Sciences Project Division, and Martin Marietta employees. (RX-38, Pt. 1, cl. 5.1). Martin Marietta was to provide the appropriate training for data systems and other personnel on the use of the hardware and software with which Martin Marietta worked. (RX-38, Pt. 1, cl. 5.3.2).

   All Life Sciences Project Division flight experiments were to be managed by Martin Marietta. (RX-38, Pt. 1, cl. 3.2). Martin Marietta was to provide experiment support teams for each project to assure it met the science requirements, Respondent's safety requirements, and was delivered timely and within budget. (RX-38, Pt. 1, cl. 3.2.1). The experiment manager from the experiment support team was required to submit periodic status reports to Respondent for all experiment activities. (RX-38, Pt. 1, cl. 3.2.2.6).

   As part of the design and development process, Martin Marietta was required to prepare a reliability plan to evaluate hardware reliability through analysis, review, and assessment. The plan was to be submitted monthly to Respondent. (RX-38, Pt. 1, cl. 2.3.5(b)). In addition, Martin Marietta was required to develop, implement, and manage a comprehensive quality program, including quality assurance and engineering. (RX-38, Pt. 1, cl. 2.3.5(c)).

   Martin Marietta was responsible for operating and maintaining the Management Information System to insure that the data for all tasks was current. Martin Marietta was required to maintain division and branch action logs, configuration control logs, logistics, tracking and status reports, and other required data. (RX-38, Pt. 1, cl. 2.2.4; See cl. 2.3.3). In addition, Martin Marietta was required to develop an information management plan to identify the documentation requirements that defined, managed, and supported life sciences payloads. Furthermore, Martin Marietta was required to establish, operate and maintain a documentation control system which identified, controlled, prepared, reproduced, stored, and distributed Life Sciences Project Division documents, including all experiment related scientific, engineering, technical, management, and program administration. (RX-38, Pt. 1, cl. 2.3.2; See cl. 2.3.7.2).

   In accordance with the SPDEO contract, Martin Marietta was responsible for providing management, professional, scientific, and engineering staffs necessary to perform the listed tasks in Part one of the contract. Although Marietta reported this information to Respondent, Martin Marietta was specifically required to determine the required skill mix, skill level, and manpower for the tasks to be completed. (RX-38, cl. 2.2.5). The contract does not indicate that Respondent had authority to request particular employees be assigned to the tasks performed by Martin Marietta. (RX-38). Martin Marietta was responsible for managing all of the Life Sciences Project Division flight experiments and to provide expertise in several scientific and engineering disciplines. (RX-38, cl. 3.2). Martin Marietta was responsible for developing and maintaining a plan to assure the compliance of flight equipment to level 1 through level 3 requirements including safety and design standards. A requirements review guide was to be developed to help the evaluation of critical design factors associated with the development of life sciences flight hardware/software. (RX-38, Pt. 1, cl. 2.3.8).

   The SPDEO contract required Martin Marietta to develop, manage, and operate an inventory control system for Life Sciences Projects Division equipment in accordance with approved standards for government property. Martin Marietta served as property custodian of Government property and was required to follow established procedures for controlling, managing, and accounting for government property. (RX-38, Pt. 1, cl. 4.5.2). Martin Marietta was required to perform tasks in such a manner to insure the protection of personnel, property, hardware, and the environment. In accordance with Respondent's policies and requirements for hazard reduction, Martin Marietta was required to develop and implement risk management techniques, including risk assessment. (RX-38, Pt. 1, cl. 2.3.5).

   Martin Marietta was required to develop and implement a procurement management system capable of supporting procurement activity as needed to perform the assigned tasks. The procurement management system was to provide for the selection and technical direction of all types of procurements including inter-divisional, subcontractor, and vendors. Moreover, Martin Marietta was required to evaluate potential suppliers, maintain procurement records, submit small business and small disadvanged business reports, and assure the technical, quality, business, and management performance of all subcontractors and suppliers. (RX-38, Pt. 1, cl. 2.3.4).

activity nor did it take adverse action against Complainant.

A. Applicability of the Clean Air Act

   Respondent contends that Complainant is not protected by the employee protection provisions of the Clean Air Act because her claim is not prescribed in the scope of the Clean Air Act. Respondent argued that the Clean Air Act was enacted by Congress to regulate and control air pollution by regulating emissions into the atmosphere at particular sources and Complainant's concerns did not involve air pollution or a release of contaminants into the atmosphere, but rather into a space capsule and a laboratory. Respondent further argued that Complainant did not have a reasonable belief that her concerns and activities relating to the release of ETO were protected under the employee protective provisions of the Clean Air Act.

   Complainant contends that her claim is regulated by the Clean Air Act because of the potential harmful effects to the astronauts and laboratory workers from the inhalation or absorption of ETO which offgassed into the shuttle cabin air and the laboratory. In addition, Complainant argues that her claim is regulated by the Clean Air Act because she, in good faith, reasonably believed that Respondent violated the Clean Air Act by allowing St. John's Hospital to improperly sterilize the PVPDs which were later destined to be placed on the space shuttle for space flight.

   Prior to the administrative hearing, the Secretary ruled that Complainant stated a claim under the Clean Air Act when she filed her complaint against Respondent. Stephenson v. NASA, et. al., Case No. 94-TSC-5 (Sec'y July 3, 1995). The Secretary held that Complainant's consolidated complaint was sufficient to bring this matter within the purview of the Clean Air Act because it indicated her concern for the astronauts based on the potential exposure to ETO and Freon gas within the space capsule.

joint employer with Martin Marietta, or Respondent had control over her direct employer, Martin Marietta, such that Respondent controlled the terms and conditions of her employment. Complainant argued that during the operation of the SPDEO contract, Respondent actually controlled several aspects of her employment conditions such that Respondent was her common law employer. Complainant contends that she is protected from Respondent's retaliatory actions under the employee protection provision of the Clean Air Act as an employee of Respondent.

   Respondent contends that Complainant is not a common law employee within the employee protection provision of the Clean Air Act. Moreover, Respondent contends that it did not have control over the terms and conditions of Complainant's employment. Respondent argued that under the SPDEO contract, Martin Marietta was an independent contractor providing support services for Respondent. Respondent further argued that Martin Marietta was solely responsible for performing the effort under the contract.

   The Clean Air Act prohibits an "employer" from discharging or discriminating against any employee because the employee engaged in protected activities. 42 U.S.C. § 7622(a). The Clean Air Act, in pertinent part, states:

(a) 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 (or any person acting pursuant to a request of the employee) [participated in whistleblower activities]...

(1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may . . . file a complaint with the Secretary of Labor alleging such discharge or discrimination . . . .

   Initially, it must be resolved whether Complainant may file a complaint against "any person" as defined by the Clean Air Act, or whether she can file a complaint against only her employer. If Complainant can only file a remediable complaint against an employer, it must be determined whether Respondent is Complainant's employer within the meaning of the Clean Air Act. If Complainant's complaint is proper, the last question to be resolved is whether Respondent discriminated against her for any participation in whistleblower activity.

   The plain language of the employee protection provision of the Clean Air Act suggests that Congress intended to protect employees from discriminatory acts of their employers. The section is titled "Employee protection," and the substantive portion of the section uses the terms "employee" and "employer" throughout the paragraph. Next, the prohibitions contained in § 7622(a) relate to employment activities which occur in an employer/employee relationship. Lastly, the remedies provided by the statute are employment-related such that a complainant who successfully litigated her case against a non-employer could not be granted any or all of the remedies provided. The Clean Air Act provides that the Secretary of Labor shall order the person who committed the violation to (1) take affirmative action to abate the violation, and (2) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of her employment. 42 U.S.C. § 7622(b)(2)(B). The Secretary may order such person to provide compensatory damages to the complainant. Id.

   In addition to the plain language of the Clean Air Act, the legislative history of the employee protection provision of the Clean Air Act provides some assistance in determining whether Congress intended to protect an employee from their employer or a non-employer. The legislative history of the employee provision suggests that Congress intended to protect an employee from the discriminatory acts of an employer when the employee was involved in whistleblower activity.

   A House Committee Report indicates that the best source of information for a company's activity is its own employees. The history appears to focus the protection of the provision on workers who observe alleged environmental violations in their work places. H.R. Rep. No. 294, 95th Cong. 1st Sess. at 325 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1404; Reid v. Methodist Medical Ctr. of Oak Ridge et. al., Case No. 93-CAA-4 (Sec'y April 3, 1995). Furthermore, a second House Committee Report consistently refers to protecting employees from discriminatory acts in their employment. H.R. Rep. No. 564, 95th Cong. 1st Sess. 1977; reprinted in 1977 U.S.C.C.A.N. 1502. In addition, the report repeatedly refers to an employee, an employer, and to employment related activities and remedies. Id.

   I find that the plain language of the substantive provision in the employee protection provision, § 7622(a), along with the legislative history, are more reliable expressions of Congress' intent than the plain language of the procedural sections, § 7622(b)-(e), which use the word person rather than employer. No clear legislative expression has been found

to explain the use of the broader term "person" in the procedural sections rather than the more limiting use of employer in the substantive section. Notwithstanding the reference to "person" in the employee protection section of the Clean Air Act, I find and conclude that employees are protected from discriminatory acts committed only by their employers.

   In the present matter, Respondent entered into a written contract with Martin Marietta, Complainant's direct employer, to perform special services. After analyzing the contract, it is evident that Respondent contracted with Martin Marietta to perform certain tasks, and that Respondent and Martin Marietta intended to remain separate employers. In accordance with the contract, Martin Marietta was responsible for furnishing the necessary management and personnel to complete the tasks. Furthermore, it was Martin Marietta's responsibility to supervise, control, and direct the performance of its own employees in fulfilling the contract requirements. However, notwithstanding the foregoing, the written intent of Respondent and Martin Marietta does not entirely resolve the issue of the scope and extent of control Respondent may have exercised over Complainant in daily practice during the operation of the contract. Each pertinent factor requires individual and collective analysis.

1. Respondent's authority to hire or dismiss Complainant from her job position.

   In accordance with the SPDEO contract, Martin Marietta was responsible for providing all of the required staff, and their necessary skill level, to perform the work to be completed. Complainant testified that she was hired by Martin Marietta in 1991 and resigned on June 1, 1994 from Martin Marietta as part of a settlement agreement.

   The record is devoid of evidence showing that Respondent was authorized or involved in Martin Marietta's hiring process or the termination process of Complainant. Complainant did not introduce any evidence to show that Respondent was involved with the termination process of Martin Marietta. Thus, I find that Respondent did not exercise authority to hire or dismiss Complainant from her job position with Martin Marietta.

2. Method of payment; salary determination; authority to set work hours; provision of employee benefits; tax treatment.

4. Duration of the relationship between Complainant and Respondent

   Complainant testified that she began working for Martin Marietta in April 1990 and resigned in June 1994. Complainant's testimony indicates that she was consistently assigned to work on projects for which Martin Marietta was contracted to complete for Respondent. It is clear from Complainant's testimony that she conducted her work on Respondent's property or at a Martin Marietta site after reassignment to the Agena Building sometime in November or December 1993. (Tr. 155). She testified that she worked at the Johnson Space Center in Building 36 upon being assigned to work on the PVPD project in November 1993. She worked with both Martin Marietta employees and Respondent's employees. Complainant was prohibited from entering the Johnson Space Center on January 14, 1994. I find that Complainant worked at Respondent's Johnson Space Center under the SPDEO contract from April 1990 through an undetermined time in November or December 1993.

5. Respondent's authority to discipline Martin Marietta employees; assign work.

   Complainant contends that Respondent controlled Martin Marietta personnel such that Respondent directed the disciplinary actions of Martin Marietta employees. Complainant argued that Respondent instructed Martin Marietta to issue her a written reprimand, prohibit her from entering Johnson Space Center and speaking with Respondent's personnel concerning her work.

   a. Written reprimand

   Based on the credible testimony of Mr. Kitterman and Mr. Hite, I find that Respondent did not instruct Martin Marietta management to issue Complainant a written reprimand for moving the PVPDs. According to Mr. Hite, Respondent did not instruct him to issue a reprimand to Complainant for improperly removing the PVPDs from the clean room. In addition, Mr. Kitterman testified that Respondent did not instruct or request him to discipline Complainant. Although Mr. Kitterman believed Ms. Kramer's reaction to Complainant's removal of the PVPDs warranted a disciplinary response from Martin Marietta management, I find that Ms. Kramer's reaction does not rise to a level such that she controlled the terms and conditions of Complainant's employment. I find the testimony of Mr. Kitterman and Mr. Hite to be credible and consistent. The record is devoid of any other evidence that Respondent controlled Martin Marietta's management decisions such

for the MIR project, there is no record evidence that Respondent directed the re-assignment. Based on the testimony of Complainant and Mr. Kitterman, I find that Respondent did not direct Martin Marietta to re-assign Complainant to a position off-site.

   b. Prohibition from Johnson Space Center.

   Based on Mr. Kitterman's testimony relating to the January 13, 1994 discussion with Ms. Kramer, I find that he was led to believe Ms. Kramer wanted Complainant banned from the Johnson Space Center facility and from speaking to Respondent's civil servants concerning Complainant's duties as a contractor rather than merely prohibited from access to the flight hardware. Mr. Kitterman testified that Ms. Kramer informed him she wanted Complainant away from the flight hardware and the facility. He explained that Ms. Kramer's voice was raised and she was very emotional during their conversation. Furthermore, I find Ms. Kramer's inaction to correct the January 14, 1994 memorandum belies the inaccuracy of the memorandum and that she directed Martin Marietta to instruct Complainant to surrender her badge and parking decal.

   In addition, I find that the memorandum authored by Mr. Seitz and Mr. James Barnett is self-serving and does not diminish the credibility of Mr. Kitterman's testimony. Mr. Seitz provided inconsistent and varied explanations for the delay that occurred between the January 14, 1994 memorandum and the corrective February 1994 memorandum. Moreover, it should be noted that Mr. Barnett did not provide testimony to further support the information in the memorandum or to explain the reason for the delay that occurred between the January 14, 1994 memorandum and his memorandum. I credit Mr. Kitterman's testimony over the incredulous denials of Ms. Kramer. Thus, I find that Ms. Kramer ordered Complainant "banned" from the Johnson Space Center and "gagged" from engaging in any work discussions with NASA employees.

   c. Direction by Respondent for Complainant to attend meetings and accomplish "to do" lists.

   Complainant contends that Respondent directed her to attend meetings during an undetermined time while she worked at the Johnson Space Center. Ms. Villarreal testified that she instructed Complainant to attend meetings in her place, however, neither Complainant nor Ms. Villarreal described with specificity the number of meetings Complainant attended, if any, the location of the meetings, the purpose of the meetings, nor the time period in which Complainant attended the meetings. I find that the record evidence does not establish Respondent exercised control over the terms and conditions of Complainant's employment.

   Complainant further contends that she received daily "to do" lists from Respondent. Complainant testified that Ms. Villarreal and Ms. Lee sent "to do" lists by e-mail on a daily basis. Because of Respondent's failure to produce all documents with Complainant's name and failure to persuade the undersigned that a proper search was conducted for e-mail records and documentary evidence, an adverse inference was invoked against Respondent

such that the production of e-mail records or additional documentary evidence would have been adverse to Respondent's position. (Tr. 787). Notwithstanding the adverse inference, I find, based on Complainant's testimony, that the lists were not work assignments issued by Respondent, but requests for information concerning the status of the PVPD project. Complainant characterized the e-mail messages as "to do" lists, however, when asked to provide specific details of the lists, she testified that the lists contained questions asking whether certain tasks were completed. Thus, I find that Respondent did not assign daily work to Complainant or any other Martin Marietta employee but rather sought current production status.

   d. Respondent's authority to assign work projects to Martin Marietta employees.

   Mr. Kitterman testified that he assigned Martin Marietta employees to specific projects at the request of Respondent's supervisors. I find that Mr. Kitterman provided vague recollections of events without specific details about such assignments, the Martin Marietta employee involved and the specific project to which assigned. Based on the lack of specific evidence contained in the record, I find that Respondent did not request Martin Marietta management to assign or re-assign specific Martin Marietta employees to particular projects.

6. Complainant was expected to follow Respondent's policies and procedures at Johnson Space Center.

   Complainant contends that she is an employee of Respondent because she was required to follow their policies and procedures when she determined that the PVPDs should not be used because of the potential ETO exposure. Under the SPDEO contract, Martin Marietta was responsible for developing and maintaining an inventory control system for Life Sciences Project Division equipment and hardware that was in accordance with approved standards for government property, inclusive of Respondent's policies. The inventory system was to insure that Respondent's property could be accounted and controlled in accordance with Respondent's policies. I find that under the SPDEO contract, Martin Marietta was responsible for controlling and managing Respondent's property and hardware in accordance with Respondent's policies. I further find that Respondent did not act in practice inconsistently with the SPDEO contract in such a manner as to exercise any control over the terms and conditions of Complainant's employment.

7. Complainant's Performance Evaluations

   Complainant's Martin Marietta personnel file showed that she received three performance evaluations from April 1990 through June 1994. The performance evaluations were completed by both Complainant and her Martin Marietta supervisor. In addition, Complainant received three commendation letters. The first letter was received in October 1991 from Floyd I. Booker, Respondent's SLS-1 Metabolic Experiment Manager. The second letter was received in November 1992 from Dr. Lyman Hazelto, chief scientist for the "principal investigator in a

box" project. Complainant received the third letter in January 1994, from Silvano P. Colombano, Respondent's project leader for the artificial intelligence research branch. One letter was addressed to Complainant and the remaining two letters were addressed to Complainant's Martin Marietta supervisors. Based on Complainant's personnel file and the evaluations and commendations filed therein, I find that Martin Marietta, and not Respondent, conducted all of Complainant's yearly employee performance evaluations. I further find that the three letters of commendation concerning Complainant's work activity were not performance evaluations written by Respondent's personnel, but episodic letters praising Complainant's job performance on particular projects. Thus, I find that Respondent did not conduct performance evaluations of Complainant's work activity.

8. Respondent's usual type of business

   The SPDEO contract indicates that Martin Marietta's usual business is providing support services for other organizations. In this matter, Martin Marietta provided support services for Respondent's Space and Life Sciences Directorate and the New Initiatives Office. The support services included project management, administration, and performance of tasks including project science support, flight systems engineering, data systems development, and other various tasks to support current and future manned and man-tended missions. In addition, Mr. Hite testified that Martin Marietta was responsible for developing flight hardware for Respondent's Life Sciences Directorate and to support their science efforts under the life sciences.

   Neither Complainant nor Respondent introduced evidence to show Respondent's usual type of business. However, I find that Respondent's usual business did not include developing flight hardware for the Space and Life Sciences Directorate nor performing any of the various tasks required of Martin Marietta under the SPDEO contract. Under the SPDEO contract, Martin Marietta had substantial authority and responsibility to provide the necessary support services to develop, implement, manage, and administer flight hardware for the Space and Life Sciences Directorate and the New Initiatives Office.

C. Conclusion

   Based on the record evidence, I find and conclude that Complainant has failed to establish that Respondent was her joint employer, exercised power, control, and authority over the terms and conditions of her employment, or controlled the manner and means by which the ultimate product was accomplished.

   From an analysis of Respondent's exhibit 38, which purports to be the pertinent provisions of the SPDEO contract, it is apparent that the parties intended to remain separate employers. Thus, Martin Marietta was responsible for furnishing the necessary management and personnel to complete the contracted work. Martin Marietta was responsible for supervising, controlling, and directing the performance of its own employees, including Complainant, in fulfilling

the contract requirements. Except to approve the proposed plans submitted by Martin Marietta, Respondent was not responsible for the development or management of flight hardware.

   Furthermore, the actual performance of the contract by Respondent and Martin Marietta does not show that Respondent was Complainant's joint employer, or controlled the terms and conditions of her employment, or the manner and means by which the product was accomplished. It is true that Respondent provided a work location for Complainant and directed Martin Marietta to prohibit Complainant from entering the Johnson Space Center, however, Respondent did not hire Complainant, pay her salary, withhold her taxes, set her work hours, provide employee benefits, evaluate her job performance, have the authority to grant leave time, to re-assign or discipline Martin Marietta employees, or determine the necessary skills required by the employees to complete the tasks. See Robinson v. Martin Marietta, Inc., Case No. 94-TSC-7 (ARB Sept. 23, 1996)(Applying the Darden factors, the Administrative Review Board held that Martin Marietta, and not NASA, was the complainant's employer. Only Martin Marietta evaluated the complainant's work, assigned him additional work, provided employee benefits, and paid his salary.)

   I find that the work location provided by Respondent was in accordance with the SPDEO contract and did not affect the terms and conditions of Complainant's employment. I further find that Respondent's instruction to prohibit Complainant from the Johnson Space Center or to speak to Respondent's employees was a single event that does not convert Complainant from an employee of Martin Marietta to an employee of Respondent in view of the record as a whole and the employment indicia which clearly establishes Martin Marietta as Complainant's employer. Accordingly, I find and conclude that the record evidence does not establish Respondent was Complainant's employer within the meaning of the Clean Air Act.

   In view of the foregoing, an analysis of Complainant's prima facie case of alleged unlawful discrimination committed by Respondent is moot.

   Based upon the foregoing Findings of Fact, Conclusions of Law, and upon the entire record, I find and conclude that Respondent is not Complainant's employer within the meaning of the Clean Air Act and accordingly Respondent did not violate the employee protective provision of the Clean Air Act as alleged. Therefore, it is recommended that Complainant's complaint be DISMISSED.

   ORDERED this 13th day of November 1997, at Metairie, Louisiana.

      LEE J. ROMERO, JR.
      Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See Fed. Reg. 13250 (1990).