DATE: OCTOBER 23, 1992.

CASE NO: 92-CAA-4

In the Matter of

BILLIE AUSTIN BRYANT,
    Complainant

    v.

UNICOR/FEDERAL PRISON INDUSTRIES,
    Respondent

Billie Austin Bryant, Pro Se

Hope Moro, Esq.
    For the Respondent

Before: THOMAS M. BURKE
    Administrative Law Judge

    This is a proceeding brought under the Clean Air Act Amendments of 1977 ("CAA"), 42 U.S.C. § 7622, the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2622, the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (Title VII). These statutes prohibit an employer from discharging or otherwise discriminating against an employee who has engaged in activity protected under the CAA, TSCA, FLSA, and Title VII. The CAA,

TSCA, and FLSA are implemented by regulations designed to protect so-called "whistleblower" employees from retaliatory or discriminatory action by their employers. (29 C.F.R. Part 24). An employee who believes that he or she has been discriminated against in violation of these acts may file a complaint within 30 days after the occurrence of the alleged violation.

    Billie Bryant ("Complainant") in a prisoner at the United States Penitentiary in Lewisburg, Pennsylvania. At all times relevant hereto he worked in the Metal Products Development Center at the prison. The Center in operated by Federal Prisons Industries ("FPI" or "Respondent"). On February 20, 1992, Complainant filed a complaint with the Employment Standards Administration, United States Department of Labor ("ESA") alleging that he had been harassed in his work place by Respondent because he assisted a follow worker with a lawsuit against Respondent under the CAA and TSCA.

    The District Director of the Wilkes-Barre, Pennsylvania, regional office of the Employment Standard's Administration dismissed the complaint without an investigation on the grounds that Complainant is not an employee within the meaning of the "whistleblower" statutes.

    Complainant appealed the ESA's dismissal to the Office of Administrative Law Judges by letter dated march 31, 1992. By order dated April 27, 1992, the parties were given 30 days to submit briefs addressing the issue of whether Complainant had stated a cause of action under the CAA, TSCA, FLSA and Title VII. On June 26, 1992, Respondent moved that the appeal be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil procedure for lack of subject matter jurisdiction. It submitted its memorandum of law in support of its Motion For Dismissal on the same day. Complainant submitted his reply brief on August 12, 1992. In addition, the Acting Administrator of the Wage and Hour Division submitted an amicus brief pursuant to 29 C.F.R. 18.12.

    The determinative issue is whether the Complainant is an "employee" within the meaning of the TSCA or CAA. It is noted at the outset that Complainant in not asserting that he was discriminated against for assisting in an action brought under the FLSA or Title VII. An such, the CAA and TSCA are the only

statutes relevant to this claim, although analogy to case law interpreting the term employee, under the FLSA and Title VII is informative regarding the issue before this Court.

    Both the TSCA and the CAA provide that an employer may not discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because he has "commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter...[or] assisted or participated or is about to assist...in any manner...to carry out the purposes of this chapter...." 15 U.S.C. § 2622 (a); 42 U.S.C. § 7622 (a). The FLSA provides that it shall be unlawful for any person "to discharge or in any manner discriminate against any employee because such employee has filed a complaint or instituted or caused to be instituted any proceeding under or related to this chapter...." 29 U.S.C. § 215 (a) (3). The statutes do not define employee or employer and there is no legislative history of the statutes which directly sheds light on how the terms should be interpreted in this instance.

    There is no case law regarding the issue of whether a prisoner can have employee status under the CAA or TSCA. However, this issue has been addressed under the FLSA and Title VII.

    In Emory v. United States, 2 Cl. Ct. 579, (1983), plaintiff brought an action claiming that he was employed by defendant FPI and had been employed in a prison at rates below those prescribed under the FLSA. The Court determined that plaintiff was not an employee within the meaning of the FLSA. In reaching its conclusion, the Court analogized plaintiff's work performance to involuntary servitude. It noted in this regard that "[o]f course, the thirteenth amendment; in abolishing slavery and involuntary servitude, specifically adds the phrase, 'except as a punishment for crime whereof the party shall have been duly convicted.' Emory, 2 Cl. Ct. at 580. The Court further explained that Congress had enacted specific legislation allowing for federal prison inmates to be provided employment. It stated that "even if the general language in the Fair Labor Standards Act of 1938 might otherwise be construed as covering federal prisoners, the specific language on the employment of federal prisoner's in 18 U.S.C. § § 4121-4128 would preclude application to them of the general language found in the Fair Labor Standards

Act of 1938." Emory, 2 Cl. Ct. at 580, citing Unites States v. Demko, 385 U S. 149, 152 (1966); Morton v. Mancari, 17 U.S. 535, 550-51 (1974).

    Under 18 U.S.C. § 4122 (a), to which Emory makes reference, FPI determines the manner in which and the extent to which industrial operations are carried out for the production of commodities for consumption in the institution. The Board of Directors of FPI provides employment for the greatest number of inmates in the United States penal and correctional institutions eligible to work. A prisoner does not voluntarily enter a contract with FPI, but is assigned work based on the needs of the federal penal institution at which he is incarcerated as mandated by statute.

    In Amos v. United States, 13 Cl. Ct. 442 (1987), the Court addressed the issue of whether a prisoner could be an employee within the meaning of the FLSA. The Court reviewed Emory and other opinions regarding this issue and set forth the following principle:

Economic reality is the test of employment as bearing on the applicability of the FLSA.... The economic reality is that inmates are convicted criminals incarcerated in a penitentiary....They are not civil servants....Inmates are not free to set their wages through negotiation or bargaining; they may not form unions or strike; and they may not quit work. Their service is vocational programs and their right to compensation is solely by legislative grace, primarily for their own benefit and rehabilitation...

The Court held that prison inmates are not prison employees and could not benefit from the provisions of the FLSA.

    In Young v. Cutter Biological, 694 F.Supp 651 (D. Ariz. 1998), a federal district court was faced with the question of whether plaintiffs, inmates at Arizona State Prison; were entitled to minimum wages under the FLSA for the hours they worked at a plasma center located at the institution and operated by defendant, Cutter Biological, during their term of incarceration. The Court held that the FLSA did not apply

because the plaintiff inmates were not employees of the defendant. The court reasoned that "inmate labor belongs to the institution and inmate laborers do not lose their primary status as inmates simply because they work." Young, 694 F.Supp at 657, citing Alexander v. Sara, Inc., 559 F.Supp. at 44, Hudgins v. Hart, 323 F.Supp at 899; Priveur v. D.C.I. Plasma Center of Nevada, 726 7.2d at 1373. The Court acknowledged that control was vested with and remained with the Arizona Department of Corrections to assign and approve inmates to the Cutter defendants.

    Finally, in Williams v. Meese, 926 F.2d 994 (10th Cir. 1991), the Court of Appeals for the tenth circuit held that a federal inmate is not provided substantive rights under Title VII or the Age Discrimination in Employment Act. The Court concluded:

[H]e does not have any employment relationship with the Federal Bureau of Prisons or any of the defendants. Title VII protections apply only where there is some connection with an employment relationship...Plaintiff is not an employee under either Title VII or the ADEA because his relationship with the Bureau of Prisons...arises out of his status as an inmate, not an employee....The primary purpose of their association is incarceration, not employment. Williams at 997, citing Prisoner Not Protected From Racial Job Bias, 2 Empl. Prac. Guide (CCH) § 6865, at 7099 (April 18, 1986) (EEOC Decision No. 86-7).

    Complainant finds support for his position that the whistleblower statutes apply to prison inmates in Plumley v. Federal Bureau of Prisons, 86-CAA-6 (December 31, 1986) and Baker v. McNeil Island Corrections Center, 859 F.2d 124 (9th Cir. 1988).

    In Plumley, an administrative law judge held that federal prison inmate workers are entitled to the employment protection provisions of the CAA and the TSCA. This is an unpublished opinion in a case which appears to have been settled before a trial on the merits.

    The Baker decision involved an action by an inmate at the McNeil Island Corrections Center Annex ("Corrections Center" against the Corrections Center under Title VII of the Civil Rights Act alleging that he had been denied employment as a library aid at the Corrections Center solely because of his race. The district court dismissed Baker's complaint finding that no employment relationship existed between Baker and the Corrections Center. The Court of Appeals for the ninth circuit reversed the district court. The appellate court stated that the lower court, in determining whether Baker was an employee under the act, had applied a tent developed by the District of Columbia Circuit Court of Appeals to distinguish employees from independent contractors. In this regard, the magistrate had stated that the employer's right to control the means and manner of the worker's performance suggested because of the prison context that the plaintiff was an employee under Title VII. Baker, 859 F.2d at 128. However in considering the economic realities of the situation, the lower court concluded that "common sense differences exist between inmate work assignments and ordinary employment relationships, in that the former are more in the nature of rehabilitation and employment training than in the nature of commercial employment." Id. at 128. The Court of Appeals held that because the district court recognized that the most important factor to determine whether an employment relationship existed strongly suggested that Baker was an employee, it "could not be convinced beyond doubt that no set of facts could be proven to entitle Baker to relief." Id.

    The Plumley and Baker decisions are neither precedent nor persuasive. The holdings in Amos, supra, Young, supra, and Williams, supra, that a prison inmate does not have the status of an employee are accepted as better reasoned. Here, Complainant is incarcerated by FPI for a set term. During his imprisonment he is under a legislative mandate to perform such work as FPI assigns him. His relationship with Respondent arises out of his incarceration. After being committed to imprisonment for a set time, Complainant was assigned work in the MPDC-Office by FPI. He did not voluntarily enter a contract to work nor was he entitled to compensation for his work. 18 U.S.C. § 4126. Thus, his performing such work for FPI does not establish an employment relationship between the parties. The economic reality is that he has not contracted with FPI nor is he in a position to negotiate or bargain with FPI. There are no expectations or dependency which exists between Complainant and FPI. When Complainant is released from prison he will no longer perform work for FPI.

    Because no employer/employee relationship exists between Complainant and Respondent, Complainant is not entitled to protection under the anti-discrimination provisions of the CAA or TSCA. Respondent's motion to dismiss for lack of subject matter jurisdiction pursuant to 12(b)(1) is granted.

    It is HEREBY RECOMMENDED that:

1. Respondent's motion to dismiss for lack of subject matter jurisdiction be granted, and

2. The complaint of Billie Austin Bryant be dismissed.

       THOMAS M. BURKE

       Administrative Law Judge

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