U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON. D.C.
DATE: June 4, 1987
CASE NO. 85-CAA-l
IN THE MATTER OF
DONALD J. WILLY,
Complainant,
THE COASTAL CORPORATION AND
COASTAL STATES MANAGEMENT CORPORATION,
Respondent.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Administrative Law Judge (ALJ) Theodor P. von Brand submitted
a Recommended Order that Respondent's Motion to Dismiss Be
Granted (R.O.) in this case arising under the employee
protection provisions of the Clean Air Act (CAA), 42 U.S.C. §
7622 (1982), and several other environmental protection laws.
See generally, 29 C.F.R. Part 24 (1986).[1] The
ALJ recommended dismissing the complaint in this case on the
grounds that Complainant did not engage in any protected
activity, but only reported possible violations of
environmental laws internally to his employer. The ALJ found
the reasoning persuasive in the Secretary's decision in
Mackowiak v. University Nuclear Systems, Inc., Case No.
82-ERA-8 (April 29, 1983), aff'd and remanded, 735 F.2d
1159 (9th Cir. 1984), and Wells v. Kansas Gas and
Electric Co., Case No. 83-ERA-12 (June 14, 1984),
aff'd sub nom Kansas Gas & Electric v. Brock, 780 F.2d 1505
(l0th Cir. 1985), cert. denied, 106 S.Ct. 3311 (1986), and would
have, quite properly, felt himself constrained to follow those decisions.
He held, however, that the protected activity issue here was governed by
the decision in Brown & Root, Inc. v. Donovan, 747
[PAGE 2]
F.2d 1029 (5th Cir. 1984), since this case arose in Texas, a
state which is within the appellate jurisdiction of the United
States Court of Appeals for the Fifth Circuit.
DISCUSSION
Before addressing the question of protection of internal
complaints, there was another allegation which, if proven at
the hearing on remand, would make it unnecessary to reach the
internal complaint question.
Complainant asserted in his brief before me that his complaint
was based, in addition to internal reports, on his contact with
an environmental agency before he was discharged. The ALJ
disposed of this assertion in a footnote, holding that, since
the nature of these contacts was not clear from the record, he
could not determine whether they constituted protected
activity. R.O. at 2, n.2. While I agree that the exact nature
of Complainant's contacts with the State environmental agency
are not clear on this record, that alone should not make his
complaint vulnerable to a motion to dismiss. The usual rule is
that a complaint should be liberally construed in the light most
favorable to the plaintiff, taking all factual allegations as true. 2A J.
Moore, W. Taggart & J. Wicker, Moore's Federal Practice ¶ 12.07
(2d ed. 1986) (citing numerous cases). This rule should be
applied with at least equal force in an administrative
proceeding such as this where the regulations do not require
formal pleadings. Dismissal should not be granted unless it is
clear that there is no set of facts under which the Complainant
could prevail. Conley v. Gibson, 355 U.S. 41, 48 (1957).
Here Complainant has raised allegations through his complaint
to the Department of Labor and statements given in the
investigation that he contacted government agencies seeking
enforcement of one or more of the environmental protection
laws. He should have an opportunity to prove, as it would be
his burden to do, that he made such contacts and that they were
a motivating factor in his discharge. I am, therefore,
remanding this case to afford Complainant that opportunity.
If Complainant is unable to carry his burden of proof based on
his complaints to the State environmental agency, the question
of protection of internal complaints under the Clean Air Act
and the other laws Complainant alleges were violated would be
presented.
I continue to be persuaded that reporting violations of the
environmental statutes enumerated in 29 C.F.R. § 24.1
internally to one's employer is a protected activity and that
[PAGE 3]
Mackowiak and Kansas Gas and
Electric, rather than Brown & Root, set forth
the appropriate resolution of this issue. For the reasons set
forth below, I respectfully decline to follow the Fifth
Circuit's decision in Brown & Root. Should it become
necessary to do so on remand, the ALJ is instructed to follow
Mackowiak and Kansas Gas and Electric on the
internal complaint issue.
As Complainant points out, the legislative history of section
5851 of the Energy Reorganization Act of 1974, as amended,
states that it is substantially identical to provisions in the
Clean Air Act and the Federal Water Pollution Control Act. The
legislative history of those acts indicated that
such provisions were patterned after the National Labor
Management Act [sic] and a similar provision in Pub. L. No. 91-
173 [the Coal Mine Health and Safety Act of 1969 (CMSHA), 30
U.S.C. § 801 et seq. (1976)] U.S. Rep. No. 848, 95th Cong., 2d
Sess. 29, reprinted in 1978 U.S. Code Cong. & Ad. News 7303
(emphasis added). It seems clear that Congress intended all of
these laws to be interpreted in a parallel manner. See
Poulos v. Ambassador Fuel Oil Co., No. 86-CAA-l, Decision
and Order of Remand of the Secretary, slip op. at 5-7 (Apr. 27, 1987).
The comparable provision in the Coal Mine Health and Safety
Act, which was on its face apparently more narrow than section
5851, was interpreted to protect miners who report safety
problems internally. Phillips v. Interior Board of Mine Operations
Appeals, 500 F.2d 772 (D.C. Cir. 1974), cert. denied, 420
U.S. 938 (1975). Phillips was decided before Section 5851 was
passed and before the Coal Mine Health and Safety Act was amended to
add language explicitly protecting internal safety reports. 30 U.S.C.
§ 815(c) (1982). At the time of the drafting of the Committee
Report stating that Section 5851 was patterned after the 1969 CMSRA,
Congress had explicitly approved and adopted the
Phillips interpretation as the correct interpretation of
the 1969 CMSRA. Indeed, the same Congress that enacted Section
5851, amended the 1969 CMSRA to clarify expressly its approval
of Phillips as properly interpreting existing law. S. Rep. 181, 95th
Cong., 1st Sess. 36, reprinted in 1977 U.S. Code Cong. & Ad.
News 3401, 3436, (explaining that amending the 1969 CMSRA to
include internal complaints expressly is "intend[ed] to insure the
continuing vitality of the various judicial interpretations of
[PAGE 4]
the 1969 Act] . . ., e.g., Phillips v. IBMA, 500 F.2d 772; Munsey v.
Morton, 507 F.2d 1202.") Congress's patterning of Section 5851 on the
1969 CMSRA, and its express approval of Phillips as the correct
interpretation of that Act, makes clear that Section 5851 is to be interpreted in
accordance with Phillips. See Cannon v. University of Chicago,
441 U.S. 677, 696-701 (1979); Oscar Mayer & Co. v. Evans, 441 U.S.
750, 756 (1979).
Moreover, the National Labor Relations Act, one of the other
models for Section 5851, often had been interpreted broadly by
both the courts and the National Labor Relations Board in a
variety of circumstances to protect employees who had not been
in contact with a governmental entity. Thus, the Board has held
that merely threatening to go to the NLRB is protected.
See First National Bank & Trust Co. and Darlene M. Snyder, 1974
CCR NLRB ¶ 26,231; Austell Box Board Corp. and
Truckdrivers and Helpers Local Union No. 728, 1980 CCH NLRB ¶
17,002; Orkin Exterminating Co., Inc. and Tony C. Allen, 270 NLRB
No. 75 (1984); Midtown Service Center and James W. Wagner, 271 NLRB
No. 170 (1984). The United States Court of Appeals for the Sixth Circuit
has held that an employee's refusal to testify falsely for an
employer in an NLRB hearing is protected conduct, although the
employee did not appear or participate in the hearing at all
and never spoke to an agent of the Board. NLRB v.
Retail Store Employees Union, Local 876, 570
F.2d 586, 590, 591 (1978), cert. denied, 439 U.S. 819 (1978).
The Fifth Circuit itself has held that an employee who appears at an
NLRB hearing but does not testify is protected. NLRB v. Dal-Tex
Optical Co., 310 F.2d 58, 62 (1962).
The courts have also interpreted the employee protection provisions
of other labor laws broadly to protect internal complainants and
former employees. Love v. Re/Max of America, Inc., 738 F.2d
383, 387 (l0th Cir. 1984) ("The [FLSA employee protection provision]
applies to the unofficial assertion of rights through complaints at work.");
Marshall v. Parking Co. of America Denver, Inc., 670 F.2d
141, 143 (l0th Cir. 1982) (refusing to release a backpay claim after a
Wage and Hour investigation is protected, even though the employee never
spoke to a government investigator); Dunlop v. Carriage Carpet Co.,
548 F.2d 139, 142-147 (6th Cir. 1977) (a former employee who is given a
bad reference by his former employer is protected under section 15(a)(3)
of the Fair Labor Standards Act, even though
[PAGE 5]
that section says "[i]t shall be unlawful . . . to discharge or
discriminate against any employee . . . .") (emphasis
added); Rutherford v. American Bank of Commerce,
565 F.2d 1162, 1165 (l0th Cir. 1977) (a former employee is
protected under section 704(a) of Title VII of the Civil Rights
Act of 1964 although that section on its face protects only
employees and applicants); Brennan v. Maxey's
Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975)
(refusal to endorse a back-wage check back to the employer
after the government ordered payment of back wages is
protected, even though the employee never contacted a
government investigator); Smith v. Columbus Metropolitan Housing
Authority, 443 F. Supp. 61, 64 (S.D. Ohio 1977) (section
704(a) of Title VII of the Civil Rights Act of 1964 protects
an otherwise uninvolved employee who refuses to cooperate in an
employer's defense of a race discrimination charge). See
also Daniel v. Winn-Dixie of Atlanta, Inc., 611 F. Supp.
57, 59-63 (N.D. Ga. 1985); Legutko v. Local 816,
International Brotherhood of Teamsters, 606 F. Supp.
352, 358 (E.D. N.Y. 1985); Hayes v. McIntosh, 604
F. Supp. 10, 16-18 (N.D. Ind. 1984); Poulos v. Ambassador
Fuel Oil Co., No. 86-CAA-l, Decision and
Order of Remand of the Secretary, slip op. at 10-11.
I recognize that administrative agencies are bound to follow
the law of the circuit in which a case arises, conflicting
decisions of other circuits notwithstanding, unless and until
the Supreme Court resolve the conflict. The Supreme Court has
denied a petition by an employer for a writ of certiorari to
the Tenth Circuit to review the question of whether internal
complaints are protected under the ERA, thus leaving standing
a decision by that Circuit in favor of the Department of Labor
holding that internal complaints are protected. Kansas
Gas Electric v. Brock, 780 F.2d 1505 (1985), cert. denied,
106 S.Ct. 3311 (1986).
With deference to the Court of Appeals for the Fifth Circuit
and due respect for its authority, I believe that the Fifth
Circuit should be given another opportunity to consider whether
internal complaints are protected, in light of the Tenth
Circuit's more recent decision and based upon full exposition
of the legislative history of the statutes as discussed above.
[PAGE 6]
For the reasons discussed above, therefore, I hold that
Complainant's raising questions to his employer about
violations of various environmental laws was a protected
activity. If it is necessary to decide this issue upon
consideration of Complainant's presentation of his case on
remand, the ALJ shall resolve the merits of the issue in
accordance with the foregoing discussion.
Respondents' motion to dismiss on the grounds that the
employee protection provisions of the statutes involved here do
not protect attorneys employed by covered employers is denied.
There is nothing in any of the statutes or their legislative
histories to indicate an intention on the part of Congress to
place any limitation on the usual meaning of the word
"employee".
For the reasons discussed above, this case IS REMANDED to
Administrative Law Judge von Brand for further proceedings
consistent with this decision.
SO ORDERED.
WILLIAM E. BROCK
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Complainant did not file a claim, however, under section
5851 of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1982).
