He asserts that these statutes are broader than the statutes that use the term "employer", as they contain no employer-employee requirement. This statement is clearly erroneous. The Secretary of Labor has held that individuals are not covered "persons" under the environmental whistleblower provisions unless they are also employers within the meaning of the applicable statutes. Stephenson v. NASA , 94-TSC-5 (Secy July 3, 1995); See also Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 (ARB June 14, 1996). Respondents Robert ODette and Ross M. Patten do not employ complainant and therefore cannot be liable under these statutes.
Complainant further cites to dicta in Stephenson for the proposition that high officials in corporations that are employers may be liable when they act in a way consistent with an "employer". 94-TSC-5 (ARB July 18, 2000). Dicta in Stephenson states:
A parent company or contracting agency acts in the capacity of an employer by establishing,
modifying or otherwise interfering with an employee of a subordinate company regarding the employees compensation, terms, conditions, or privileges of employment. For example, the president of a parent company who hires, fires or disciplines an employee of one of its subsidiaries may be deemed an "employer" for purposes of the whistleblower provisions. A contracting agency which exercises similar control over the employees of its contractors or subcontractors may be a covered employer . . .
Stephenson v. NASA , 94-TSC-5 (ARB July 18, 2000).
Although the ARBs dicta in Stephenson may extend liability to corporate individuals, the dicta discussion does not apply in the instant complaints. Respondent Synagro is not a covered employer under the environmental whistleblower provisions and individual respondents ODette and Pattens alleged actions towards complainant were not consistent with that of an employer. As stated previously, liability under the applicable statutes does not extend to ODette and Patten.
Respondents next argue that complainant failed to establish a prima facie case and the complaints should be dismissed under the Federal Rule of Civil Procedure 12(b)(6). Complainant cites the United States Supreme Court case of Swierkiewcz v. Sorema , 122 S.Ct. 992 (2002), holding that a complaint in an employment discrimination lawsuit need not plead specific facts establishing a prima facie case of discrimination, but must contain only a short and plain statement of the claim showing that the pleader is entitled to relief. Id .
In the instant complaints, respondents move for dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim for which relief may be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The difference between a 12(b)(1) motion and a 12(b)(6) motion is that the 12(b)(6) motion involves a ruling on the merits of the complaint. A 12(b)(1) motion involves a procedural defect in the claim, specifically, if the court has the authority to hear the case. In a 12(b)(6) motion, the moving party has the burden of showing there are no genuine issues as to any material facts, and if the court considers matters outside the pleadings, the motion will be treated as one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. To the contrary, where subject matter jurisdiction is challenged under 12(b)(1), the plaintiff has the burden of proving jurisdiction. See Barnett v. Okeechobee Hospital , 2002 WL 261950, C.A. 11 (Fla) 2002; See also RMI Titanium Co. v. Westinghouse Electric Corp , 78 F.3d 1125, 1134 (6th Cir. 1996) (citing Mortensen v. First Federal Savings and Loan Assn , 549 F.2d 884, 890 (3rd Cir. 1977)).
In order for this court to rule on the merits of these complaints, the court must first have jurisdiction to hear the complaints. Since the complainant has failed to establish an employment relationship with respondents, this court does not have jurisdiction to hear the complaints. As there is no jurisdiction to hear the complainants, respondents 12(b)(6) motion and the issue of whether respondents conduct is protected under the Petition Clause of the First Amendment will not be addressed.
Because it has been established that this court does not have jurisdiction over complainants complaints filed against respondents, respondents Motion to Dismiss and Motion to Strike Discovery Pleadings is granted and complainants Motion to Compel Discovery is denied.
2002-CAA-8
On March 13, 2002, complainant submitted a letter stating that in December 2001 complainant and respondent Synagro reached a settlement agreement. Complainant formally withdrew the complaint before OSHA. Therefore, this complaint is not currently before the Office of Administrative Law Judges. Accordingly, the complaint is dismissed.
IT IS ORDERED that 2002-CAA-8 is DISMISSED.
IT IS FURTHER ORDERED that respondents Motion to Dismiss the Complaints is GRANTED.
IT IS FURTHER ORDERED that respondents Motion to Strike Discovery Pleadings is GRANTED.
AND IT IS FURTHER ORDERED that complainants Motion to Compel Discovery is DENIED.
DANIEL L. LELAND
DLL/es/lab
NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8. a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties, and on the Chief Administrative Law Judge, the Assistant Secretary, Occupational Sa fety and Health Administration, and the Associate Solicitor, Division of Fair Labor Standards. See 29 C.F.R. §§ 24.7(d) and 24.8.
[ENDNOTES]
1
2
In determining where a hired party is an employee under the general common law of agency, we consider the hiring partys 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 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 partys discretion over when and how long to work; the method of payment; the hired partys 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.
Nationwide Mutual Insurance v. Darden , 503 U.S. 318, 323 (1992) (citing Community for Creative Non-Violence v. Reid , 490 U.S. 730 (1989)).
3
No person shall fire or in any other way discriminate against, or cause to be fired or discriminate against, any employee or authorized representative of employees . . .
42 U.S.C. § 9610(a) (1988).
The SWDA whistleblower provision is similar to the CERCLA provision. 42 U.S.C. § 6971(a) (1988).
