U.S. Department of Labor
Office of Administrative Law Judges
Seven Parkway Center
Pittsburgh, Pennsylvania 15220
DATE ISSUED: APR 7 1988
CASE NO. 88-WPC-1
In the Matter of
EARL W. ARTHRELL
v.
PITTSBURGH SPRING, INC.
& D.G.S. COMPANY
ORDER DENYING DEFENDANT'S SECOND MOTION FOR SUMMARY DECISION
This case was scheduled for hearing in December, 1987, but
was continued by order of December 23, 1987 to allow the
complainant some additional time in which to seek legal
representation. On January 14, 1988, counsel for the defendant
D. G. S. Company (D.G.S.) filed a Motion for Summary Decision.
In its Motion, D.G.S. contended that the action against it
should be dismissed for: 1) failure to state a claim under the
Federal Water Pollution Control Act, 33 U.S.C.A. § 1251 et seq.,
(FWPCA or Act) and 2) failure to comply with the thirty day
filing requirement of 33 U.S.C.A. § 1367(b) and 29 C.F.R.
§ 24.3(h).
An Order denying defendant's Motion was issued on February
8, 1988. With regard to the defendant's second argument, that
the complainant did not comply with the thirty day filing
requirement contained in the statute and regulations, I found
the complaint to he timely filed based upon equitable tolling
considerations.
However, with regard to the defendant's first argument,
that the complainant has failed to state a claim under the
Federal Water Pollution Control Act, I determined that the
evidence was insufficient to support such an allegation. I
stated that the defendant must provide more specific
allegations as well as evidence to support its contentions.
[Page 2]
Subsequently, on march 10, 1988, counsel for the defendant
filed a Second Motion for Summary Decision. The allegations
made in defendant's first Motion were incorporated by
reference, and an affidavit of Daniel G. Shuss, owner of
D.G.S., was attached as support for said allegations. In the
affidavit, Mr. Shuss stated that he has conducted inquiries
into whether any proceedings have been brought against either
D.G.S. or Pittsburgh Spring, Inc., in connection with the
alleged oil spill, and has found that no proceedings, under the
Federal Water Pollution Control Act or otherwise, have been
brought. Defendant therefore asks that the case against it be
dismissed because the complainant is not entitled to the
protection of the Act.
The employee protection provision of the FWPCA, which is
similar to those found in the other Federal environmental
protection statutes, states as follows in pertinent part:
No person shall fire, or in any other way
discriminate against, or cause to be fired
or discriminated against, any employee or
authorized representative of employees by
reason of the fact that such employee or
representative has filed, instituted, or
caused to be filed, instituted, or caused
to be filed or instituted any proceeding
under this chapter, or has testified or is
about to testify in any proceeding
resulting from the administration or
enforcement of the provisions of this
chapter.
33 U.S.C.A. § 1367(a)
The regulations at 29 C.F.R. § 241 et. seq. implement the
employee protection provisions for which the Secretary of Labor
has been given responsibility pursuant to several Federal
environmental statutes, including the FWPCA. To be protected
under these regulations is any employee who has:
(1) commenced, or caused to be commenced,
or is about to commence or cause to be
commenced a proceeding under one of the
Federal statutes listed in § 24.1 or a
proceeding for the administration or
[Page 3]
enforcement of any requirement imposed
under such Federal statute;
(2) testified or is about to testify in any
such proceeding; or
(3) assisted or participated, or is about
to assist or participate in any manner in
such a proceeding or in any other action to
carry out the purposes of such Federal
statute.
In its Motion, the defendant contends that because it has
not been the object of any proceeding instituted under the Act
in connection with the incident reported, the complainant is
unable to show that he is a protected employee thereunder.
This argument must be rejected. Protection under the Act and
its regulations should not turn on whether or not the
appropriate government agency has decided to take enforcement
action against an employer based on an employee's report.
In a case brought under the employee protection provision
of the Clean Air Act, 42 U.S.C. §7622 (1982), the Secretary of
Labor held that the complainant was within the scope of
protection provided by the Act when he made internal complaints
to his employer regarding practices which he believed could
cause air pollution. No. 86-CAA-1, Poulos v. Ambassador Fuel
Oil Co. (April 27, 1987). The Secretary reversed the
Administrative Law Judge's recommendation for dismissal, which
was based on his conclusion that the complainant had not
engaged in protected activity because his complaints had not
been made to a government agency, and therefore did not rise to
the level of initiation of an enforcement proceeding. Citing
NLRB v. Scrivener, 405 U.S. 117, 122 (1972), the Secretary
noted that the far ranging language of the provision, left
undefined by Congress, revealed an intent to afford broad
protection to employees who report violations of law. The
opinion goes on to state: "Furthermore, I do not believe that
these provisions can he read to limit protection only to
circumstances where a formal nexus between a 'proceeding' and
the employee's conduct is demonstrated." Poulos at 6. The
Secretary found further support for the holding in a series of
cases involving internal complaints under the Energy
Reorganization Act, the Mine Safety Act, and Fair Labor
[Page 4]
Standards Act, which held that such activity was protected.
See Mackowiak v. University Nuclear Systems, Inc., 735 F. 2d
1159 (9th Cir, 1984); Kansas Gas and Electric Co. v. Brock,
780 F. 2d 1505 (10th Cir. 1985) cert. denied, 106 S. Ct. 3311
(1986); Munsey v. Federal Mine Safety and Health Review
Commission, 595 . 2d 735 (D. C. Cir. 1978); Love v. Re/Max of
America, Inc., 513 F. 2d 179 (8th Cir. 1975). Because the
language or the employee protection provisions in these
statutes is so similar, case law developed under them is
instructive in interpreting the provision contained in the
FWPCA.
If the statutory language is broad enough to encompass
internal complaints, it must include the situation where a
complaint was made to the Pittsburgh Police Department, a
government entity, as well, which apparently failed to take any
action with regard to instituting legal proceedings against the
employer. The scope of the employee protection is defined by
the need for protection, rather than the discretionary actions
of enforcement agencies which result in bringing some but not
other complaints into formal proceedings. See Scrivener, 405
U.S. at 124. I therefore find that the complainant is a
protected employee within the ambit of the FWPCA.
ORDER
For the above reasons, IT IS ORDERED that the defendant's
Second Motion for Summary Decision is DENIED. The case will be
set for hearing at a later date.