While incarcerated in a federal prison, Douglas Coupar filed with the
Department of Labor environmental complaints against the government corporation that
employed him. Coupar alleges that the corporation subsequently discriminated against him for
having made those complaints, thereby violating the employee protection
("whistleblower") provisions of the Clean Air Act, 42 U.S.C. § 7622, and the
Toxic Substances Control Act, 15 U.S.C. § 2622, ("the Acts"). The Secretary
of Labor dismissed Coupar's claim because he concluded that Coupar is not an
"employee" within the meaning of the Acts. We deny Coupar's petition for review.
I. BACKGROUND
Federal Prison Industries, Inc. ("FPI," also known by the trade
name "UNICOR") is a statutorily-created government corporation, 18 U.S.C. §
4121, whose purpose is to provide work to inmates confined in federal institutions, see
28 C.F.R. § 345.10. FPI is authorized, but not required, to pay the inmates it employs. 18
U.S.C. § 4121. All prisoners must work if ordered to do so, Pub. L. No. 101-647, §
2905, 104 Stat. 4914 (1990), but inmates may choose whether to work for FPI in particular.
Coupar began serving an 18-year sentence in 1983 for bank robbery. He
has worked for FPI in various correctional institutions where he has been incarcerated. In that
capacity, Coupar has performed tasks in the manufacture of helmets, chairs, and lockers. At each
institution where he has worked for FPI, he has been promoted to the highest pay grade.
Id.
While employed by FPI at the Federal Correctional Facility in El Reno,
Oklahoma, Coupar complained to the Labor Department of sewage leaking into a river and of
improper storage of toxic chemicals. He also requested a risk and health assessment. Coupar was
transferred administratively for nondisciplinary reasons to the Terminal Island facility in
California. According to FPI's Inmate Program Manual, "all inmates transferred
administratively for nondisciplinary reasons, and who claim credit as prior workers," are
"designated `priority workers' and are to be placed in the top ten percent of the . . . waiting
list at the time of their applications." Coupar alleged that upon his transfer to the Terminal
Island facility in California, FPI refused to place him on the waiting list for a job because Coupar
had made environmental complaints against the company. Coupar also alleges that he was
transferred in retaliation for his whistleblowing.
The United States Department of Labor, Employment Standards
Administration, Wage and Hour Division, denied Coupar's retaliation complaint. Coupar
requested a hearing before a Department of Labor Administrative Law Judge
("ALJ"). The ALJ scheduled the hearing. At the insistence of FPI, represented by
the Bureau of Prisons, the ALJ agreed to hold the hearing at the prison. The Bureau then refused
to allow a hearing to take place there, and instead called the proceeding a deposition. Refusing to
acknowledge the jurisdiction of the ALJ over Coupar's claim, the Bureau did not participate in
the proceeding.
The ALJ concluded that he did have jurisdiction over the claim. Because
of the Bureau's failure to appear at the proceeding, he recommended a default judgment in
Coupar's favor. He also addressed the merits of the case, concluding that Coupar was an
employee within the meaning of the Acts, and that FPI had discriminated against Coupar in
violation of the Acts.
The Secretary of Labor rejected the ALJ's recommended decision and
order. He concluded that Coupar is not an employee within the meaning of the Acts, and he
dismissed the complaint. Coupar petitioned this court for review of the Secretary's decision,
pursuant to 15 U.S.C. § 2622(c) and 42 U.S.C. § 7622(c).
II. ANALYSIS
A. Coupar is not an employee within the meaning of the whistleblower
provisions of the Clean Air Act, 42 U.S.C. § 7622, and the Toxic Substances Control Act,
15 U.S.C. § 2622.
[1] Under the whistleblower protection provisions of the Clean Air Act
and the Toxic Substances Control Act,"No employer may discharge any employee or
otherwise discriminate against any employee with respect to . . . compensation, terms,
conditions, or privileges of employment" because the employee engaged in protected
activities related to enforcement of the Acts. 15 U.S.C. § 2622(a) (Toxic Substances
Control Act); 42 U.S.C. § 7622(a) (Clean Air Act). Congress has not defined the term
"employee" in either of the Acts. Whether an inmate is an employee within the
meaning of these Acts is an issue of first impression in this or, so far as we know, any other
circuit.
[2] The Secretary of Labor is charged with administration
of the Acts' whistleblower provisions. See 15 U.S.C.
§ 2622(b); 42 U.S.C. § 7622(b). He has interpreted the term
"employee" not to encompass Coupar. We owe deference to
the Secretary's interpretation so long as it is not unreasonable.
See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
842-44 (1984); see also Kahn v. Secretary of Labor, _______ F.3d _______ (7th Cir.
1995) (Secretary's interpretation of whistleblower provisions of Energy Reorganization Act
entitled to deference); Bechtel Constr. Co. v. Secretary of Labor, 50 F.3d 926, 932 (11th
Cir. 1995) (same).
[3] We agree with the Secretary's interpretation of the Acts.
Coupar's status with regard to FPI prevents him from qualifying as an "employee"
within the meaning of the Acts. We reach that conclusion because we find the analogy between
Coupar's case and Hale v. Arizona, 993 F.2d 1387, 1393 (9th
Cir.) (en banc), cert. denied, 510 U.S. 946 (1993), to be so
close that Hale must control.
[4] In Hale, we concluded that inmates are not
"employees"
for the purpose of the minimum wage provisions of the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 21, et seq. We
said:
While we do not believe that prisoners are categorically excluded from the FLSA, we hold
that the
inmates in this case, who worked for programs structured by the prison pursuant to the state's
requirement that prisoners work at hard labor, are not
"employees" of the state within the meaning of the
FLSA.
Hale, 993 F.2d at 1389; accord, Nicastro v. Reno, 84 F.3d
1446, 1447 (D.C. Cir. 1996) (holding that federal prisoners
who work for FPI are not "employees" entitled to receive the
minimum wage under the FLSA). In reaching our conclusion
we employed an "economic reality" test:1
1 Although we used the economic
reality test, we determined that the specific factors set forth in Bonnette v. California Health
and Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983), were "not a useful
framework in the case of prisoners who work for a prison-structured program because they have
to." Hale, 993 F.2d at 1394.
2 We also reject Coupar's
argument that he qualifies as an "employee" under the Acts because Congress, in
establishing FPI, has directed it to "provide employment" for inmates. 18 U.S.C.
§ 4122(b). This term is synonymous with "provide work," and does not
establish status as an employee for purposes of the unrelated Acts. The same term often has
different meanings in different statutes. See Atlantic Cleaners & Dyers, Inc.
v. United States, 286 U.S. 427, 433 (1932).
3 The following factors are
important to the determination of whether a hired party is an employee under the general
common law of agency:
In determining whether a hired party is an employee under the
general common law of agency, we consider the hiring party's
right to control the manner and means by which the product is
accomplished. Among the other factors relevant to this inquiry
are the skill required; the source of the instrumentalities and
tools; the location of the work; the duration of the relationship
between the parties; whether the hiring party has the right to
assign additional projects to the hired party; the extent of the
hired party's discretion over when and how long to work; the
method of payment; the hired party's role in hiring and paying
assistants; whether the work is part of the regular business of the
hiring party; whether the hiring party is in business; the provision
of employee benefits; and the tax treatment of the hired party.
Reid, 490 U.S. at 751-52 (footnotes omitted).
4 It follows from our disposition
that we deny Coupar's request for attorney's fees.