Powers v. Tennessee Dept of Environment & Conservation, 2003-CAA-8 (ALJ Feb. 11, 2003)

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Powers v. Tennessee Dept of Environment & Conservation, 2003-CAA-8 (ALJ Feb. 11, 2003)

U.S. Department of Labor Office of Administrative Law Judges
800 K Street, NW, Suite 400-N
Washington, DC 20001-8002 DOL Seal

Issue Date: 11 February 2003

Case No.: 2003-CAA-8

In the Matter of

Coleen L. Powers,
Complainant

Tennessee Department of Environment &
Conservation (TDEC),
Respondent

DECISION AND ORDER GRANTING
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT
AND DISMISSING COMPLAINT

This proceeding began when the Complainant, Coleen L. Powers, filed a complaint against the Respondent, the Tennessee Department of Environment and Conservation (TDEC), under the employee whistleblower protections of the Clean Air Act, 42 U.S.C. Section 7622, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9610, the Solid Waste Disposal Act, 42 U.S.C. Section 6971, and the Toxic Substances Control Act, 15 U.S.C. Section 2622. Before her termination by the Respondent, the Complainant worked as a Compliance Inspector for the Respondent. On August 13, the Complainant received a due process letter from the Respondent, notifying her about a potential adverse action, up to and including termination. She was subsequently terminated on October 22, 2001. The Complainant filed a complaint of discrimination on August 26, 2001, with amendments on October 22, 2001, January 8, 2002, February 22, 2002, June 26, 2002, and August 5, 2002.

On November 14, 2002, the Occupational Health and Safety Administration (OSHA) issued its findings after investigating the Complainant's allegations. OSHA found that the Complainant was employed by the Respondent and that she engaged in protected activity when she alleged that there were improper relationships between Respondent and PCI, a regulated facility, when she complained about being removed as the assigned inspector at PCI, and when she filed complaints with EPA-OIG on July 21, 2001, and OSHA on August 26, 2001. OSHA found that the Complainant's complaint was timely filed, and that both the Complainant and Respondent were covered under the provisions of the above named Acts. OSHA also determined that the Claimant made a prima facie complaint under the provisions of these Acts, but that the Respondent showed by a preponderance of the evidence that the same unfavorable personnel action would have been taken in the absence of the protected activities.

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Specifically, OSHA found that the Complainant was insubordinate when she went to PCI on August 2, 2001, after she received clear and specific instruction in a memorandum dated July 30, 2001 not to go to the facility. OSHA found that the Complainant misrepresented herself as acting on behalf of Respondent in an official capacity when she was no longer responsible for, or permitted to, work on the PCI case. OSHA found that while she was at the PCI facility, the Complainant was denied access by the owner and the owner's legal counsel, and instructed to leave the facility. However, the Complainant refused, and continued to review documentation. OSHA found that by this and other conduct, the Complainant's actions put her outside the bounds of protected activity, and gave the Respondent a legitimate non-discriminatory reason for termination.

OSHA also noted that the Complainant requested that Kim Kirk, Assistant General Counsel for the Respondent, Commissioner Milton Hamilton, and PCI be added as respondents in her complaint. OSHA found that Ms. Kirk and Commissioner Hamilton are individuals, and thus do not meet the definition of employer, and that PCI was not the Complainant's employer, and thus did not meet the definition of employer. OSHA thus excluded Ms. Kirk, Commissioner Hamilton, and PCI from its findings.

Counsel for the Complainant requested a formal hearing before an Administrative Law Judge. On January 22, 2003, the Respondent filed a Motion to Dismiss, arguing that the doctrine of sovereign immunity precludes the Complainant from filing a federal whistleblower claim against a state agency. Also on January 22, 2003, the Respondent filed a Motion to Dismiss TDEC Commissioner Milton H. Hamilton, Jr., and TDEC Attorney Kim L. Kirk, or in the alternative, for summary decision on the grounds of untimely filing. The Respondent argued that the Complainant's efforts to identify state officials or employees as individual respondents in this matter was an attempt to avoid the state's sovereign immunity from private suits in federal forums, by labeling their actions as "malicious," in an attempt to impose personal liability. The Respondent noted that the Complainant consistently referred to Ms. Kirk and Commissioner Hamilton by their official titles, indicating that they acted in their official capacities. The Respondent noted that under Tennessee law, state officers and employees are absolutely immune from liability for actions or omissions within the scope of their office or employment, except for willful, malicious, or criminal acts or omissions, or acts or omissions done for personal gain. The Respondent argued that the Complainant's labeling of all actions as "malicious" was not sufficient to overcome Ms. Kirk's and Commissioner Hamilton's immunity from liability. Additionally, the Respondent argued that the Complainant's March 15, 2002 request to add Ms. Kirk and Commissioner Hamilton as respondents was untimely.

On January 24, 2003, the Complainant filed a response to the Respondent's motions, and a Motion for Partial Summary Judgment. The Complainant argued that the Respondent waived its sovereign immunity by accepting federal funding, and that the legislative history of the Clean Air Act establishes a statutory waiver of sovereign immunity for federal whistleblower claims. The Complainant also argued that it is presumed that the whistleblower statutes are constitutional, and that the Department of Labor has no right or power to strike them down as unconstitutional. The Complainant argued that the Commerce Clause is irrelevant to environmental whistleblower jurisdiction, and implicated the First and Fourteenth Amendments to the Constitution, arguing that the Respondent's behavior was unconstitutional, which was sufficient to constitute a waiver of sovereign immunity by the Respondent. With respect to the Respondent's claim that the request to add Ms. Kirk and Commissioner Hamilton as Respondents was untimely, the Complainant's entire argument was "Ms. Powers' complaints are timely." Finally, the Complainant moved for partial summary judgment on the issue of sovereign immunity and timeliness.

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DISCUSSION

Applicable Standard for Summary Judgment

The Rules of Practice and Procedure for administrative hearings before the Office of Administrative Law Judges, found at Title 29 C.F.R. Part 18, provide that an administrative law judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery, or other materials show that there is no genuine issue of material fact. Title 29 C.F.R. Section 18.40; Federal Rule of Civil Procedure 56(c).¹ Summary judgment is appropriate when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). No genuine issue of material fact exists when the "record taken nas a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The party moving for summary judgment has the burden of establishing the "absence of evidence to support the nonmoving party's case." Celotex Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing a request for summary judgment, I must view all of the evidence in the light most favorable to the nonmoving party. Darrah v. City of Oak Park, 255 F.3d 301, 305 (6th Cir. 2001).

The Doctrine of Sovereign Immunity Precludes the Complainant from pursuing a Federal Whistleblower Complaint against the Respondent, which is a State Agency

The Eleventh Amendment to the United States Constitution provides:

[t]he Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced, or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Supreme Court has held for over a century that federal jurisdiction over suits against unconsenting states "was not contemplated by the Constitution when establishing the judicial power of the United States." Seminole Tribe of Florida et. Al., 517 U.S. 44, 54 (1996), citing Hans v. Louisiana, 134 U.S. 1(1890). The doctrine of sovereign immunity has also been addressed by the Supreme Court more recently in Federal Maritime Commission v. South Carolina State Ports Authority Maritime Commission, et. al., 122 S.Ct. 1864 (2002), where the Supreme Court found that a private citizen cannot file a complaint against a State with a federal agency, and that State sovereign immunity extends to proceedings before a federal Administrative Law Judge. In that case, South Carolina Maritime Services filed a complaint with the Federal Maritime Commission claiming that the South Carolina State Ports Authority violated the Shipping Act of 1984 by denying it permission to berth a cruise ship at the Authority's port facilities. In upholding the dismissal by an Administrative Law Judge, the Supreme Court held that the doctrine of state sovereign immunity barred the FMC from adjudicating complaints filed by a private party against a non-consenting state. The Supreme Court noted that the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.

The First Circuit Court of Appeals relied on this decision in holding that the doctrine of sovereign immunity prevented state agency employees from seeking monetary and injunctive relief for alleged violations of the whistleblower provisions of the Solid Waste Disposal Act. Rhode Island Department of Environmental Management v. United States, 304 F.3d 31 (1st Cir. 2002). Other federal circuit courts have upheld the immunity of state agencies from suit by individuals under federal whistleblower statutes, including the District Court of Connecticut, which granted a preliminary injunction enjoining OSHA from investigating, hearing, or adjudicating a whistleblower complaint filed by a state employee against a state agency for allegedly discriminating against her in violation of the employee protection provisions of the Clean Air Act. State of Connecticut Department of Environmental Protection v. OSHA, 138 F.Supp.2d 285 (S.D. Ohio 2000).

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The Complainant argues that the federal whistleblower statutes are presumed to be constitutional, and that this court does not have the jurisdiction to rule on their constitutionality. The Complainant misses the point - the Respondent has not challenged the constitutionality of the federal whistleblower provisions at issue, but the jurisdiction of this Court to hear a claim under federal statutes against a sovereign state agency. That is an issue this Court most assuredly has the power to decide.

It is well settled that there are only two exceptions to the doctrine of sovereign immunity under the Eleventh Amendment. The first applies when Congress expressly authorizes such a suit through enforcement of Section Five of the Fourteenth Amendment, and the second applies when a state unequivocally consents to being sued. The Claimant's arguments to the contrary, there is no evidence either that Congress abrogated any state's sovereign immunity for federal whistleblower claims, or that the State of Tennessee unequivocally waived its sovereign immunity.

Congress may abrogate a State's constitutionally secured immunity from federal suit only if it makes its intention unmistakably clear in the language of the statute. Kimel v. Fla. Bd. Of Regents, 528 U.S. 62, 73 (2000). The Claimant argues that the legislative history of the Clean Air Act establishes that Congress intended to abrogate state sovereign immunity to claims filed under the employee protection provision of the Act, citing language in a Committee Proposal stating: "[t]his section is applicable, of course, to Federal, State, or local employees to the same extent as any employee of a private employer." H.R. Rep. No. 294, 1977 USCANN 1077, 1404-05. However, the Complainant has not identified any language in the Clean Air Act itself (or in any of the other environmental protection acts under which she filed her claim) that unequivocally establishes a waiver of sovereign immunity for federal whistleblower claims. It is well settled that a statute's legislative history cannot supply a waiver that does not appear clearly in the statutory text. Lane v. Pena, Sec'y of Transportation, et. al., 518 U.S. 187 (1996), and thus the language in the Committee Proposal is not a clear abrogation of states' immunity to suit under the Clean Air Act.

I also note that there is a waiver clause in Section 7418 of the Clean Air Act, authorizing state suits against federal facilities for recovery of civil penalties assessed under state clean air statutes. However, contrary to the Complainant's argument, this waiver provision does not apply to claims filed under the employee protection provisions of the Clean Air Act. This provision provides for a waiver of Federal, not State sovereign immunity. It also expressly states that it only applies to Section 7418; the employee protection provision appears at Section 7622, which does not contain a similar waiver provision. If Congress intended to provide for a waiver of state sovereign immunity for the employee protection provision at Section 7622, it clearly knew how to do so, but chose not to. It is a well-settled theory of statutory interpretation that "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposefully in the disparate inclusion or exclusion." Bates v. United Staters, 522 U.S. 23, 29-30 (1997).

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The Complainant also argues that the State of Tennessee has waived its sovereign immunity by accepting millions of dollars in federal funding for environmental programs. However, the Supreme Court has made it clear that such a waiver may be found only where it is stated by the most express language, or by such overwhelming implications from the text as leave no room for any other construction. Edelman v. Jordan et. al., 415 U.S. 651, 673 (1974). The Complainant has not offered any evidence that the State of Tennessee has waived its immunity from suit under the federal environmental whistleblower laws. Moreover, the Supreme Court has expressly held that the fact that a state participates in a program wherein the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent by the State to be sued in Federal courts. Id.

The Claimant also seeks to avoid the bar of sovereign immunity by attempting to cloak her claim in the First and Fourteenth Amendments, and characterizing it as a civil rights claim.² However, despite the Complainant's arguments to the contrary, the environmental acts on which the Claimant relies are not civil rights legislation. The Supreme Court, in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), held that the Eleventh Amendment bars an action by a private party against a state in federal court if the action is based upon a federal statute enacted pursuant to Article I of the Constitution. The Supreme Court further held that an act of Congress passed pursuant to its Interstate Commerce powers does not operate to waive the sovereign immunity enjoyed by the states. The Eleventh Amendment, passed after the original Constitution, limits the power of Congress to legislate and otherwise create claims which may be brought by private parties in federal court against a state. The Fourteenth Amendment vests in Congress the right to enforce various constitutional guarantees against the States, and to this extent, the Eleventh Amendment is limited by the subsequently ratified provisions of the Fourteenth Amendment. State of Ohio Environmental Protection Agency v. USDOL, No. C2-00-1157 (N.D.Ohio, November 14, 2000). As that Court stated:

The Supreme Court has recognized that Congress may enforce its authority under Section 5 of the Fourteenth Amendment by authorizing suit in federal court against the state by a private party. Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); College Savings Bank v. Florida Prepaid Post Secondary Education Expense Board, 527 U.S. 666 (1999). Jayco asserts that the environmental whistleblower statutes are valid Congressional enactments authorizing private action against the state insofar as such statutes protect an employee's constitutional rights under the First Amendment as incorporated through the due process clause of the Fourteenth Amendment. Pennekamp v. Florida, 328 U.S. 331 (1946). If Congress has validly enacted legislation creating a private cause of action against the state, such legislation must be based upon the Fourteenth Amendment, rather than the interstate commerce clause, in order to pass constitutional muster.

Id. at p. 9.

As the Court noted in State of Ohio, supra, before a valid exercise of Congress' Section 5 authority may be found, it must first be determined that Congress unequivocally intended to abrogate the states' sovereign immunity under the Eleventh Amendment. Slip op. At 11; Florida Prepaid Secondary Education Expense Fund v. College Savings Bank, 527 U.S. 627, 635 (1999). However, there is no indication that Congress intended to abrogate the states' sovereign immunity by the promulgation and enactment of the environmental whistleblower statutes invoked by the Complainant. There is no expression of Congressional intent that these statutes were enactments under the Fourteenth Amendment, designed to abrogate Eleventh Amendment immunity. As noted by the Court in State of Ohio, supra, in all other statutes where Congress expressly acted to abrogate the immunity of states from private suits, the available remedies include recourse to a full trial in federal court. However, under the federal environmental whistleblower statutes, a claimant has no right to a trial de novo in a federal court. Rather, enforcement of these statutes requires recourse to an administrative proceeding, in which an administrative agency, the U.S. Department of Labor, plays a critical role in conducting the investigation of disputed facts and creating the only factual record in the proceedings. Finally, an administrative law judge does not have the legal authority to consider constitutional issues, and indeed, there is serious doubt as to whether Congress may authorize a non-Article III judicial officer to adjudicate constitutional claims.

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I find that the environmental whistleblower statutes relied on by the Complainant were enacted by Congress pursuant to its authority under the Interstate Commerce clause. The Complainant has offered no evidence that Congress intended to abrogate the States' sovereign immunity with the enactment of the federal whistleblower provisions relied on by the Complainant. Nor is there any evidence that the State of Tennessee has waived its sovereign immunity from suit under these provisions, either expressly or constructively. Relying on the Supreme Court's decision in Federal Maritime Commission, supra, I find that the Complainant's complaint for relief under the above-named federal environmental whistleblower statutes is precluded by the doctrine of state sovereign immunity. As a matter of law, the Respondent is entitled to summary judgment on this issue.

The Doctrine of Equitable Estoppel Does Not Apply

The Complainant argues that an employee of the Environmental Protection Agency Office of the Inspector General assured her that there was a federal remedy for state employees who were retaliated against for making reports to the EPA OIG, and that these statements establish "estoppel" against the federal government. The doctrine of equitable estoppel is generally invoked against a party who misleads another party, and thus induces that party to act in reliance, to his or her detriment. Even accepting the truth of the facts as alleged by the Complainant, her argument of estoppel is misplaced. Neither the EPA nor any other branch of the federal government are parties to this claim, and a statement by a federal employee cannot act as any kind of estoppel against the Respondent, which is a state agency.

It is also unclear exactly what the Complainant did in reliance on the alleged statements of the EPA employee. In any event, the Complainant has offered no support for her claim, which is essentially that a statement by a federal employee that the Complainant was protected under the federal whistleblower laws for making complaints against a state agency rescinds the jurisdictional bar of sovereign immunity.

The Complainant's Allegations Against Kim Kirk, Commissioner Hamilton, and PCI Were Untimely

The Complainant has offered no factual or legal arguments to rebut the Respondent's claim that her allegations against Ms. Kirk and Commissioner Hamilton were untimely, and therefore that they must be dismissed.³ Ms. Kirk is an attorney employed by the Respondent, and Commissioner Hamilton is the Commissioner of the Respondent, with the authority to dismiss an employee with the approval of the Commissioner of the Tennessee Department of Personnel. PCI is a regulated facility. The Complainant filed her complaint on August 26, 2001. She was dismissed by a letter dated October 18, 2001, which she has indicated that she received on October 22, 2001. The Complainant amended her complaint on October 29, 2001, on January 8, 2002, and again on February 21, 2002. In a "supplemental complaint" dated March 15, 2002, the Complainant first identified Ms. Kirk, Commimssioner Hamilton, and PCI as respondents.

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Each of the federal whistleblower statutes on which the Claimant relies provides that complaints of discrimination must be filed within thirty days. Here, the Complainant first attempted to name Ms. Kirk, Commissioner Hamilton, and PCI as respondents almost five months after she filed her complaint. Clearly, this was outside the time limits prescribed by the federal whistleblower statutes, and the Complainant's allegations against Ms. Kirk, Commissioner Hamilton, and PCI must be dismissed.⁴

ORDER

Accordingly, IT IS HEREBY ORDERED that the Respondent's Motion to Dismiss is GRANTED and this matter is DISMISSED with prejudice.

LINDA S. CHAPMAN
Administrative Law Judge

[ENDNOTES]

¹ Title 29 C.F.R. Part 18 provides that the Federal Rules of Civil Procedure apply to situations not controlled by Part 18 or rules of special application, and that an administrative law judge may take any appropriate action authorized by the Rules of Civil Procedure for the District Courts.

² Thus, the Complainant refers to her allegations as charges of "environmental racism," and characterizes the employee protection provisions of the whistleblower statutes as "human rights" laws.

³ The Complainant sought to add these parties as Respondents when this matter was being investigated by OSHA; OSHA determined that they were not proper parties. After this matter was referred to the Office of Administrative Law Judges, the Complainant sought leave to add numerous additional individuals as respondents.

⁴ Thus, it is not necessary to address the Employer's claims that Ms. Kirk and Commissioner Hamilton are not subject to suit under the federal whistleblower statutes, or OSHA's conclusion that since the Complainant was not employed by PCI, PCI does not qualify as an "employer" under the federal whistleblower acts.