U.S. Department of Labor
Office of Administrative Law Judges
Suite 201
55 West Queens Way
Hampton, Virginia 23669
804-722-0571
DATE ISSUED: May 6, 1985
CASE NO.: 85-CAA-1
In the matter of
DONALD J. WILLY,
Complainant
v.
THE COASTAL CORPORATION AND
COASTAL STATES MANAGEMENT, INC.
Respondents
RECOMMENDED ORDER THAT RESPONDENT'S MOTION
TO DISMISS BE GRANTED
Respondents, on February 18, 1985, moved to dismiss the the
complaint
urging (1) that Complainant, as a former attorney for Respondents, lacks
standing to bring the proceeding, and (2) that the activity for which
Complainant was allegedly discharged is not protected activity under the
applicable statutes.
[Page 2]
Complainant's Standing to
Sue
The argument that Complainant lacks standing to sue rests essentially
on
the contention that permitting suits of this nature, under the Environmental
Acts in question, would deprive Respondents of their right to representation by
counsel which violates the Sixth Amendment.
Complainant, although an attorney, is an employee of Respondents
within
the meaning of the relevant statutes. Congress, in enacting these laws, did not
distinguish between employees based on their status and has provided no
exemption for lawyers on corporate staffs. Whatever the validity of
Respondent's policy arguments, an administrative agency may not supply an
exception to a law which the legislature has omitted.
We believe that Phillips' notification to the foreman of possible
dangers is an essential preliminary stage in both the notification
to the Secretary (A) and the institution of proceedings (B), and
consequently brings the protection of the Safety Act into play.
1See Respondents' Reply Brief and
Comments on Tenth Circuit Briefs in
Support of Motion to Dismiss dated April 19, 1985, p. 12.
2Complainant suggests that his
termination was not exclusively for internal
activities but also because of contact with the Texas Department of Water
Resources concerning environmental matters with respect to the Corpus Christi
facility. (See Letter of Termination, dated October 1, 1984, attached to
Complainant's Response and Brief in Opposition to Respondent's motion to
Dismiss). The termination letter alleges Complainant was dismissed for
concealing such contact.
The pretrial record available to the undersigned does not disclose with
any particularity the substance of such contact with the State agency.
Accordingly, no determination can be made whether such contact constituted
protected activity. This is a matter primarily within the knowledge of
Complainant. Under the circumstances, the motion to dismiss should be
determined on the basis of the allegations in the complaint, and the
Administrator's decision of November 26, 1984, referring to internal
complaints by Mr. Willy.
No employer, including a Commission licensee, an applicant for a
Commission license, or a contractor or a subcontractor of a Commission
licensee or applicant, may discharge any employee or otherwise
discriminate against any employee with respect to his compensation,
terms, conditions, or privileges of employment because the employee (or
any person acting pursuant to a request of the employee)--
(1) commenced, caused to be commenced, or is about to
commence
or cause to be commenced a proceeding under this chapter or the Atomic
Energy Act of 1954, as amended [42 U.S.C.A. § 2011 et seq.], or a
proceeding for the administration or enforcement of any requirement
imposed under this chapter or the Atomic Energy Act of 1954, as amended;
(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 manner in such a
proceeding or in any other action to carry cut the purposes of this
chapter or the Atomic Energy Act of 1954, as amended [42 U.S.C.A. § 2011
et seq.]
4 This provision was amended later to
expressly cover internal complaints.
The Phillips decision, however, is concerned with the pre-amendment
version of the Mine Safety Act's whistleblower provision.
5 "The administrative law judge
concluded that complainant's reporting of
quality discrepancies and safety problems constituted protected activity
under Section 5851 albeit such reporting was within the scope of
complainant's official duties as a quality assurance inspector and was
communicated only internally and not to NRC. I accept this finding. It
is in complete accord with my holding on the same issue in Mackowiak v.
University Nuclear Systems, 82-ERA-8, slip op. pp. 8-11." (Ibid.).