DATE: September 28, 1998
CASE NO: 98-CAA-10
    98-CAA-11

In the Matter of

TOD ROCKEFELLER,
    Complainant

    v.

U.S. DEPARTMENT OF ENERGY and
WESTINGHOUSE ELECTRIC COMPANY,
    Respondents.

Appearances:

Edward Slavin, Jr.
Attorney at Law
35 SE 8th Terrace
Deerfield Beach FL 33441
    For the Complainant

Cooper H. Wayman
Elizabeth Rose
Attorneys at Law
U.S. Department of Energy
Carlsbad Area Office
P.O. Box 3090
Carlsbad, NM 88221
    For the Respondent, U.S. Department of Energy

Gloria J. Barnes
Attorney at Law
Westinghouse Electric Corporation
P.O. Box 2078
Carlsbad, NM 88221
    For the Respondent, Westinghouse Electric Corporation

Before: Henry B. Lasky
    Administrative Law Judge

   This matter arises under the employee protection provisions of the Surface Transportation Assistance Act, 49 U.S.C. §31101 et seq. and the Clean Air Act, 42 U.S.C. §7622. On August 17, 1998 Respondent, U.S. Department of Energy (DOE), filed its Motion to Dismiss and To Stay All Discovery pending the resolution of its Motion to Dismiss. On August 18, 1998 Respondent, Westinghouse Electric Company (WEC), filed its Motion to Dismiss and To Stay All Discovery pending the resolution of its Motion to Dismiss.

   On August 18, 1998 the undersigned issued multiple orders including Orders to Show Cause to the Complainant as to why the Motions to Dismiss filed by each of the Respondents should not be granted. Complainant was afforded 15 days from the date of the orders to respond, which would have been by September 2, 1998. In addition, all discovery was stayed pending the resolution of the Motions to Dismiss, and the trial scheduled for October 14, 1998 was continued pending the ruling of the Motions to Dismiss. On August 25, 1998 the undersigned issued an additional order affording Complainant additional time until September 10, 1998 to respond to the previously issued Orders to Show Cause as to why the Motions to dismiss filed by each Respondent should not be granted. On September 10, 1998 Complainant filed his response to the Orders to Show Cause. The principal affidavits filed in this matter are the sworn complaint of May 9, 1998, relied on by Respondents, and Complainant's Second Declaration dated August 22, 1998.

   Respondent DOE first alleges that the Complainant has failed to state a cause of action within the jurisdiction of the U.S. Department of Labor (DOL) under the Surface Transportation Assistance Act (STAA), as such legislation does not apply to federal employees. Complainant alleges in his sworn complaint dated May 9, 1998 and filed with the DOL on May 12, 1998 that he was employed by the U.S. Department of Energy as a GS-13 Environmental Specialist from April 1993 to December 1997. (Paragraph 1, Complainant's complaint dated May 12, 1998). This fact is undisputed.

   An employee is defined under the STAA and the regulations enacted thereunder as "any individual other than an employer; who is employed by a commercial motor carrier and who in the course of his employment directly affects commercial motor vehicle safety, but such term does not include an employee of the United States, any State, or a political subdivision of a State who is acting within the course of such employment." 29 C.F.R. § 1978.101(d)(4); 49 U.S.C. §31101(2)(A)(B). An employer is defined under the STAA as any person engaged in a business affecting commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it in commerce, but such term does not apply to the U.S., state, or political subdivisions. 49 U.S.C. §31101(3)(A)(B). Thus, the term "employer"

under the STAA cannot include the United States, a State, or a political subdivision of a state. Killcrease v. S&S Sand and Gravel, Inc. 92 STA 30 @ 2, n.1 (Sec'y, Feb. 2, 1993). As Complainant was an employee of the U.S. Department of Energy, he is clearly statutorily exempt from the protections of the STAA.

   Complainant attempts to circumvent the unambiguous language of the STAA and its regulations exempting federal employees and the U.S. from the legislation by citing Flor v. U.S. Department of Energy, 93 TSC 1 (Sec'y Dec. 9, 1994). It appears that Counsel for Complainant in the case at bar was also counsel for Flor. In Flor, the issue of the statutory exemption of the U.S. as an employer was never addressed. Such curious omission is no reason for the undersigned to disregard the manifest language of the statute. The reliance of Complainant on his cited authority, when the statute so clearly states that the STAA is inapplicable to the undisputed facts herein, is clearly misplaced. The motion to dismiss the complaint under STAA against the DOE is granted.

   Respondent DOE relies on the Notice of Determination of DOL dated June 11, 1998 (Respondent DOE Ex. N attached to its Motion to Dismiss) as one basis that DOL has no jurisdiction of the claim under the Clean Air Act (CAA), as the claim was not timely filed within 30 days of the adverse employment action against the Complainant by the DOE. The law is clear that complaints of discrimination under the CAA must be filed within 30 days of the adverse action. 29 C.F.R. §24.3(b). No particular form of complaint is required except that a complaint must be in writing and should include a full statement of the acts or omissions, with pertinent dates, which are believed to constitute the violation. 29 C.F.R. §24.3(c).

   The undisputed evidence in this case is that DOE issued a Notice of Proposed Removal to Complainant on September 2, 1997. He filed an appeal with the Merit Systems Protection Board (MSPB) on September 30, 1997. The MSPB dismissed the matter on November 3, 1997. Complainant filed a Petition for Review by the full Board on November 17, 1997. Complainant was issued a Notice of Removal by DOE on December 9, 1997, with an effective date of December 10 , 1997. (Complainant's complaint dated May 9, 1997, paragraphs 22 & 23). Complainant did not file a written complaint under the Clean Air Act within 30 days of the three opportunities which presented adverse actions against him during the time periods just noted.

   In this case, Complainant filed his written complaint on May 12, 1998 (dated May 9, 1998) alleging that he filed his complaint on January 5, 1998 in the wrong forum, and asserts that he is entitled to invoke the "wrong forum doctrine" by virtue of his alleged complaint of retaliation to an agent of the Environmental Protection Agency (EPA) on January 5, 1998 in Washington D.C. (Complainant's complaint dated May 9, 1997, paragraph 12). Complainant does not assert at any time that he filed a written complaint as required on January 5, 1998. The investigation by the DOL determined that he mentioned the adverse actions to an agent of EPA during a public meeting being held to accept comments regarding a waste disposal site. The agent for the EPA expressed no opinion about Complainant's then recent removal and the public meeting which Complainant attended was involved with issues about the waste disposal site.

These facts are not disputed. Further, where as here, a nonmoving party relies on his own affidavit as evidenced by his sworn written complaint of May 9, 1998, to oppose summary judgment or decision he cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993).

   In Complainant's response to the Order to Show Cause he argues for the first time that the filings before the MSPB entitle him to invoke the wrong forum doctrine. This argument is fallacious as there is no prohibition against concurrent filings under the MSPB and the CAA. The MSPB is not a "wrong forum" but merely a different remedial forum.

   Essentially, Complainant filed his written complaint under the CAA on May 12, 1998, but alleges that he filed an oral complaint on January 5, 1998 in the wrong forum and the equitable tolling doctrine applies. This rationale is patently absurd under the above circumstances. To hold otherwise would render the requirement for a timely filing in writing within 30 days of an adverse action a nullity. There is no basis for the invocation of the doctrine of equitable tolling of the period of limitation based on Complainant's mere casual oral comments at a public meeting to an agent of EPA who was involved with accepting public comments regarding a waste disposal site. This is not disputed in either Complainant's sworn complaint of May 9, 1998 or his Declaration of August 22, 1998.

   The restrictions on equitable tolling must be scrupulously observed. School District of City Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981). Tolling may be appropriate only when (1) a defendant or respondent has actively misled a plaintiff or complainant respecting the cause of action; (2) the plaintiff or complainant has in some extraordinary way been prevented from asserting his rights; or (3) the plaintiff or complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. Smith v. American President Lines, LTD, 571 F.2d 102, 109 (2nd Cir. 1978). None of these factors exist herein. While these factors may not be exclusive, the tolling exception is not an open ended invitation to disregard what may or may not be a meritorious cause. City of Allentown, at 20. Certainly, conduct of a defendant or respondent that misleads a complainant or gives rise to an estoppel may warrant equitable tolling.

   The Respondent herein was in no way responsible for the failure of Complainant to file a written claim within the statutory period. In City of Allentown, Claimant filed his complaint with the EPA, the wrong forum, and the argument was made that the EPA should have responded to his written complaint more promptly and accurately. The court held that the statutory language was plain and direct, and that the claim had to be filed with the Secretary of Labor as there was no basis for reliance on EPA in any respect. The claimant's ignorance of the law is not enough to invoke equitable tolling. In the case at bar, Complainant in paragraph 12 of his May 12, 1998 written complaint asserts that the EPA agent, who was conducting a public meeting regarding other matters, should have essentially provided Complainant with legal advice to file with the DOL and the failure to do so entitles him to equitable tolling. This rationale is without merit. The failure of Complainant to file a written complaint with the DOL within the required statutory time limit is sufficient grounds for the granting of Respondent DOE's Motion to Dismiss

under the Clean Air Act.

   Respondent DOE additionally argues in support of it Motion to Dismiss various other matters entitled Performance Issues and Reasons for Removal, Medical Accommodations, and Whistleblower Allegations. However, all these matters involve conflicting questions of fact and are inappropriate for disposition by Motion to Dismiss or Motion for Summary Judgement.

   As the matter against Respondent DOE is dismissed for lack of jurisdiction under the STAA and untimeliness under the CAA, the issues raised by DOE regarding Collateral Estoppel and Res Judicata need not be addressed.

   Westinghouse Electric Company moves to dismiss the complaint herein on the grounds that the Department of Labor lacks jurisdiction of the matter and the complaint was not filed in a timely manner. WEC argues that the matter be dismissed as a matter of law. Under the CAA and STAA, the complaint filed on May 12, 1998 alleges that he was an employee of the Department of Energy from April 1993 to December 1997. In order to prevail in a whistleblowing case, such as this, it is necessary to allege and prove that complainant was an employee of a covered employer; that the complainant engaged in protected activity; that the complainant was thereafter subjected to adverse action regarding his employment; that the respondent knew of the protected activity when it took the adverse action; and that the protected activity was the reason for the adverse action. See Saporito v. Florida Power and Light, 94 ERA 35 (1996); Mackowiack v. University Nuclear Systems, Inc. 735 F.2d. 1159, 1162 (9th Cir. 1984).

   Complainant herein does not claim to be an employee of WEC; does not allege that WEC did anything with reference to his employment with DOE; does not allege that WEC retaliated against him for engaging in protected activity; does not allege that WEC knew of any protected activity that he engaged in; does not allege that WEC took adverse action against Complainant for his alleged protected activity; and finally, fails to allege that WEC is capable of providing the employee remedies under the aforesaid statutes. Complainant merely alleges in one line of his 16 page complaint, in paragraph 32, that WEC be investigated as a "possible joint employer". When a complainant fails to allege the essential elements of a violation of employee protection provisions, dismissal is appropriate. Saporito, supra. By his own complaint, Complainant herein does not contradict the undisputed fact that he was not at any relevant time an employee of Respondent WEC. He specifically alleges that he was not.

   Under CAA, the Department of Labor has jurisdiction in proceedings alleging discriminatory conduct on the part of complainant's employer. 42 U.S.C. §7622. 29 C.F.R. Section 24.2(a) provides that "[n]o employer . . . may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms,

conditions, or privileges of employment because the employee" engaged in protected activity under the statutes. Respondent WEC denies being an employer of Complainant, and Complainant does not dispute that he was an employee of the Department of Energy. Where there are no allegations such as here, in a complainant's complaint that the respondent exercised power, control, authority over the terms and conditions of employment or controlled the manner an means of employment, there is no joint employment and such theory is not applicable. See Stephenson v. NASA, 94 TSC 5 (ALJ Nov. 13, 1997). Certainly, a respondent that acts in the capacity of an employer, even though they do not pay or supervise an employee, may be an employer under the statutes and thus, the employee protections my extend beyond the immediate employer. However, a complaint requires an allegation of employment discrimination against the respondent, and the Complainant fails to do so in the case herein against this Respondent. Stephenson, supra.

   A party opposing a motion to dismiss which is essentially a motion for summary decision must set forth specific facts showing that there is a genuine issue of material fact. On the issue of whether WEC was complainant's employer there is no genuine issue of material fact, and thus Respondent WEC is entitled to dismissal as a matter of law. The Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) has held that:

In cases . . . where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion . . . requires a nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories and admissions on file," designate "specific facts showing that there is a genuine issue for trial."

   The ARB followed this ruling in Saporito, supra. Here, Complainant, the nonmoving party with the burden of proof on the dispositive issues, failed to even assert that at the time of the adverse action there was an employment relationship between himself and WEC. In Complainant's response to the Order to Show Cause he does not address or dispute such fact. Complainant must allege a set of facts which, if proven, could support his claim of entitlement to relief. For failure to meet that very elemental requirement, the complaint against Respondent WEC is dismissed under the CAA.

   In addition, no written complaint under the CAA was ever filed within 30 days as required and previously discussed. As such, the written complaint filed May 12, 1998 is untimely and provides another basis for dismissal of the claim herein against Respondent WEC. Certainly the oral communication allegedly made to an EPA agent at a public meeting regarding his employment termination by DOE is patently insufficient for the invocation of the wrong forum doctrine against this Respondent. The aforesaid discussion regarding timeliness with reference to the CAA claim against DOE is incorporated herein by reference. Complainant's filing of MSPB appeals against DOE does not constitute a "wrong forum" against a Respondent

which is a private corporation and not an employer of Complainant. The claim against Respondent WEC under the CAA is additionally dismissed as untimely.

   With reference to the claim against Respondent WEC under STAA, there are no allegations of violations against WEC of this statute in the claim filed May 12, 1998. Complainant is not and has never even alleged that he was an employee of WEC; he is not an employee as defined by the STAA; and WEC is not an employer as defined by the STAA. Such fact is undisputed. As such, there are no issues of genuine material fact with reference to these matters and discovery is absolutely unessential to resolve these matters of law. Although it appears that the written complaint filed May 12, 1998 is not untimely under STAA, the complaint simply fails to allege any violation of the act against Respondent WEC, or that Complainant and Respondent WEC fall within the coverage of the Act. The Declaration of Complainant dated August 22, 1998 does not create any genuine issue of fact with reference to this claim. The claim under the STAA against Respondent WEC is dismissed as a matter of law.

   Complainant in his response to the Order To Show Cause alleges a litany of charges, theories, and facts, none of which are supported by affidavit, the sworn complaint, or the Declaration of Complainant of August 22, 1998. Counsel's multiple conclusory arguments by themselves are insufficient to show that there is a genuine issue of material fact to be decided in the case herein.

   In spite of the undersigned's Order disallowing either party from filing further motions until the pending Motions to Dismiss were resolved, Complainant included multiple motions in his response to Respondents' Motions to Dismiss. Such motions are addressed accordingly. Based on the foregoing Recommended Decision dismissing the matter herein against Respondent DOE and Respondent WEC, Complainant's Motions for Partial Summary Judgement and to add a claim under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9610 (CERCLA) need not be addressed. In addition, on September 10, 1998, Complainant moved this court for leave to file a motion for judicial recusal. Before the undersigned was given the opportunity to respond to such motion, Complainant submitted to the undersigned a Motion for Judicial Recusal on September 25, 1998. As this matter is being dismissed, both of Complainant's motions regarding judicial recusal similarly need not be addressed herein.

   All claims herein against Respondent U.S. Department of Energy and Respondent Westinghouse Electric Company are dismissed.

      HENRY B. LASKY
      Administrative Law Judge

Dated: September 28, 1998
San Francisco, California

NOTICE: This Recommended Decision and Order regarding the matter of the Surface Transportation Assistance Act will be forwarded for review by the Administrative Review Board, United States Department of Labor, Room S-4309, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996). However, the Recommended Decision and Order regarding the matter of the Clean Air Act 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, N.W., Washington, D.C. 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. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).