DATE: January 12, 1994
CASE NO. 92-CAA-3
IN THE MATTER OF
MICHAEL R. CROSIER,
COMPLAINANT,
v.
WESTINGHOUSE HANFORD COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Recommended Decision and Order
Denying the Complaint (R.D. and O.) issued by the Administrative
Law Judge (ALJ) in this case arising under the employee
protection provisions of the Clean Air Act (CAA), 42 U.S.C.§
7622 (1988), the Solid Waste Disposal Act (SWDA), [1] 42 U.S.C.
§ 6971 (1988), and the Energy Reorganization Act of 1974,
as amended (ERA), 42 U.S.C. § 5851 (1988) (collectively,
"the three Acts"). Complainant Michael Crosier alleges that
Respondent Westinghouse Hanford Company (Westinghouse) violated
the three Acts when it denied him access to its Hanford facility
at Richland, Washington. The denial of access prevented Crosier
from working as an independent contractor at the Hanford
facility. [2]
The ALJ denied the complaint on several grounds, and Crosier
appealed. Respondent filed a brief before the Secretary. I
agree with the ALJ's conclusion that the complaint must be
dismissed. I write to clarify the issues of jurisdiction under
the Acts, the timeliness of the complaint and request for a
hearing, and the burden of proof.
[PAGE 2]
The ALJ's findings of fact, R.D. and O. at 3-5, are based on
substantial evidence in the record, and I adopt them. The facts
are recounted here briefly to focus the discussion.
I. Facts
DLD Technical Services (DLD) contracted with Westinghouse to
provide contract designers, drafters, and engineers. RX 3.
Under the terms of the contract, Westinghouse reserved the right
to obtain background information from, and investigate, DLD-
provided employees. RX 3 p. 4. It further stated that if the
results of the background investigation were not satisfactory to
either Westinghouse or the Department of Energy for any reason,
"any offer or contract may be terminated." Id.
DLD notified Crosier in June 1991 that he had an assignment
to work at Westinghouse beginning July 15, 1991. RX 1. Crosier
submitted a Non-Employee Background Investigation form in which
he listed recent past employment in a number of locations, but
gave an address in Othello, Washington as his only "actual
physical place of residence - permanent or temporary" for the
prior seven years. RX 4p. 4.
Westinghouse routinely investigated Crosier's background
upon receiving the completed investigation form. T. 104; RX 5.
The administrator for pre-employment and access investigations,
Guy Lobdell, noted inconsistencies in the sole address Crosier
provided on the investigation form and the listed places of his
employment, some of which were a great distance from Othello,
Washington. T. 105-107.
An investigative company's report indicated that through
Pacific Engineering Company, Crosier had worked as an independent
contractor at the Trojan nuclear facility in Oregon in 1990.
RX 5 p. MRC-10006. A Pacific Engineering representative told the
investigator that it would not give a reason for the termination
of Crosier's employment without obtaining a release of liability
from Crosier. T. 111; RX 5 p. MRC-10006. Lobdell telephoned the
Manager of Personnel Security at the Trojan plant to inquire
about Crosier's work there. The manager reported that Crosier
stated that he had carried a .45 caliber automatic pistol in his
briefcase past the security checkpoints into and out of the
secured area at the Trojan nuclear plant. T. 112-113.
In view of the gun incident at the Trojan plant, Lobdell
concluded that for security reasons, Crosier should be denied
access to the Westinghouse Hanford facility. T. 113.
Westinghouse's General Counsel concurred. T. 114. Westinghouse
denied Crosier a badge permitting access when he reported for
work on July 15, 1991.
Pursuant to normal procedure, Lobdell sent a memorandum
notifying the appropriate departments that Crosier would not be
allowed access. T. 115. On August 29, 1991, DLD sent a letter
[PAGE 3]
informing Crosier that Westinghouse refused to give him a badge
permitting access and that his services were not required by
Westinghouse. RX 2. Crosier then filed this complaint.
II. Analysis
A. Jurisdiction
Crosier testified that in the past, he made reports and
complaints to various government agencies concerning a pesticide
dump, T. 55, and explosive devices (land mines or practice land
mines) located in a public access area of the Hanford
reservation. T. 40-42. In 1990, Crosier supposedly filed a
"minority report" to an environmental assessment concerning
unexploded ordnance at the Hanford site. T. 50-51. He did not
introduce into the record copies of any reports. Even if Crosier
made the alleged complaints or reports, they do not appear to
come within the sphere of activities protected under the Clean
Air Act, since there was no allegation or evidence that the
ordnance or the pesticides might cause a deterioration in air
quality. SeeAurich v. Consolidated Edison Co. of New
York, Inc., Case No. 86-CAA-2, Remand Order, Apr. 23, 1987,
slip op. at 3-4 (complainant may state a case under CAA employee
protection provision where he alleges that employer violated
Environmental Agency Protection regulations governing
handling of asbestos in work places, since emissions to
the outside air could occur). In view of the lack of any
connection in the record between ordnance, pesticides, and
emissions or air quality, I find that Crosier has not stated a
cause of action under the CAA.
In addition, I agree with the ALJ that the Department of
Labor does not have jurisdiction over this complaint under the
ERA, since Westinghouse is a contractor to the Department of
Energy, the regulator of the Hanford site. R.D. and O. at 6. [3]
SeeWensil v. B.F. Shaw Co., Case No. 87-ERA-12,
Dec. and Order, Mar. 29, 1990 (ERA employee protection provision
did not cover activities at a nuclear facility regulated solely
by the Department of Energy), aff'd, Adams v. Dole,
927 F.2d 771 (4th Cir.), cert. denied, 112 S. Ct. 122
(1991).
The ALJ found that the allegation of finding and reporting
unexploded ordnance on portions of the Hanford site that are
accessible to the public "is more compatible with the coverage
criteria of the SWD[A] as enumerated at 40 C.F.R. 255.1."
R.D. and O. at 6. The SWDA defines "solid waste" to
include "discarded material, including solid, liquid, semisolid,
or contained gaseous material resulting from industrial,
commercial, mining, and agricultural activities," with certain exclusions. [4]
42 U.S.C. § 6903(27) (1988). A pesticide dump would appear
to come within the definition, and ordnance also could be
covered, if it resulted from commercial activities and if it were
discarded.
[PAGE 4]
Moreover, a complainant under an employee protection
provision need not prove an actual violation of the underlying
statute. SeeYellow Freight System, Inc. v.
Martin, 954 F.2d 353, 357 (6th Cir. 1992) (protection under
Surface Transportation Assistance Act not dependent upon whether
complainant proves a safety violation). Rather, an employee's
complaint must be "grounded in conditions constituting reasonably
perceived violations" of the environmental acts. Johnson v.
Old Dominion Security, Case Nos. 86-CAA-3, 86-CAA-4, and 86-
CAA-5, Final Dec. and Order, May 29, 1991, slip op. at 15.
Courts have construed employee protection provisions broadly
in order to give effect to the remedial purposes of the
provisions. See, e.g., Mackowiak v. University
Nuclear Systems, 735 F.2d 1159, 2263 (9th Cir. 1984);
Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th
Cir. 1985). Accordingly, construing the SWDA broadly in this
case, I find that Crosier's complaint was grounded in conditions
constituting reasonably perceived violations of the SWDA and that
he stated a valid complaint under the SWDA.
B. Timeliness
1. Complaint
The employee protection provision of the SWDA provides that
a complainant must file a complaint within 30 days after a
violation occurs. 42 U.S.C. § 6791(b); 29 C.F.R. §
24.3(b) (implementing regulations). In this case, Westinghouse
initially denied Crosier access when he reported for work on July
15, 1991. Resp. Memorandum in Support of Motion for Sanctions
("Sanctions Memo"), Ex. B. When Crosier inquired, Westinghouse
did not tell him the reason for the denial. T. 137. According
to Crosier, DLD's President informed him that "it was going to
take some additional time" to obtain access to the Hanford
facility. Sanctions Memo, Ex. B. DLD sent Crosier a letter on
August 29, 1991, advising that Westinghouse refused him access
and did not require his services. RX 2. Crosier received the
DLD letter on September 5, 1991. Sanctions Memo, Ex. B.
Crosier sent a written complaint to the headquarters of the
Wage and Hour Division on September 30, 1991. Sanctions Memo,
Ex. A. The appropriate District Director sought further
information from Crosier on the nature of his complaint, and
Crosier promptly responded. Seeid., Ex. B. The
District Director treated the complaint as timely filed, because
he investigated it and issued a determination on the merits.
Id., Ex. C. Compare, Rose v. Nuclear Fuel
Services, Inc., Case No. 87-ERA-19, Final Dec. and Order,
June 29, 1990, aff'd, Rose v. Dole, 1991 U.S. App. LEXIS
11783, 933 F.2d 1009 (6th Cir. 1991) (noting that Wage and Hour
Administrator refused to investigate complaint because it was not
timely filed).
[PAGE 5]
Westinghouse initially took the position that the complaint
in this matter was filed on September 30, 1991. See
Sanctions Memo at 2; Resp. Memo. in Support of Motion to Deny
Request for Hearing and to Enter Final Order of the Secretary at
2; Resp. Prehearing Statement at 4. The ALJ, however, considered
the complaint to be filed on the date the District Director
received Crosier's further information, November 7, 1991. [5]
See date stamp on Sanctions Memo, Ex. B.
Consequently, the ALJ found that the complaint was untimely.
R.D. and O. at 7.
I find that Crosier's letter of September 30, which he filed
prose, was sufficiently clear to constitute a
valid complaint under the SWDA. SeeDoyle v. Bartlett Nuclear Services, Case No. 89-ERA-18,
Dec. and Order of Dis., May 2, 1990, slip op. at 5 n.3
(prose litigant not held to same standards for
pleadings as those represented by counsel), aff'd, 949
F.2d 1161 (11th Cir. 1991). Accordingly, I find that Crosier
filed his complaint on September 30, 1991.
Under the ERA's analogous employee protection provision, a
complainant must file the complaint within a specified time after
an alleged discriminatory act if the employer's notice concerning
that act is sufficiently "final and unequivocal" in form.
English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988);
Thomas v. Arizona Public Service Co., Case No. 89-ERA-19,
Final Dec. and Order, Sept. 17, 1993, slip op. at 11. I find
that the July 15, 1991, denial of a badge and of site access was
not sufficiently final and unequivocal to trigger the start of
the 30-day period for two reasons: Westinghouse admittedly did
not tell Crosier why it denied him access, and DLD told Crosier
it would take some time to gain access, which implied that access
would be forthcoming.
Crosier received final and unequivocal notice of the denial
of access when he received DLD's letter on September 5, 1991.
I therefore find the September 30, 1991, complaint was timely
filed.
2. Hearing request
Westinghouse contends that the District Director's
determination in Westinghouse's favor became the Secretary's
final decision because Crosier did not timely request a hearing
before an ALJ. Resp. Br. to Sec. at 9-20; see 29 C.F.R.
§ 24.4(d)(2)(i). The applicable regulation requires that a
complainant file a request for a hearing by telegram to the Chief
Administrative Law Judge within five calendar days of receiving
the District Director's notice of determination that the
complaint is without merit. Id.
The District Director mailed Crosier a determination notice
on February 24, 1992. The record does not reveal when Crosier
actually received the notice. Accordingly, the notice is deemed
[PAGE 6]
to have been received on the fifth day, which was Saturday,
February 29. See 29 C.F.R. §18.4(c)(3) (which adds
five days to time computations when documents are served by
mail). Under the applicable rules, when the prescribed time
period is less than seven days, it does not include Saturdays,
Sundays, or holidays. 29 C.F.R. § 18.4(a). Accordingly,
the determination notice may be deemed to have been received on
Monday, March 2. The five days for filing a telegram requesting
a hearing expired on Monday, March 9 (March 7 was a Saturday).
Crosier sent a mailgram, as opposed to a telegram, to the
Chief ALJ's Office on March 12, 1992, which that office received
on March 19, 1992. CX 2. [6] Therefore, I agree with the ALJ
that the request for a hearing was not timely filed. R.D. and O.
at 8.
I further agree that Crosier's asserted reason for not
timely filing the request, that he received the determination
notice late because he had been "on travel," does not fit within
the prescribed reasons for equitable modification of the time
deadlines in the employee protection provision regulations.
SeeCity of Allentown v. Marshall, 657 F.2d 16, 20
(3d Cir. 1981) (noting that tolling may occur where (1) employer
has concealed or misled the employee; (2) complainant in some
extraordinary way has been prevented from asserting his rights;
or (3) complainant raised the precise statutory claim in the
wrong forum). I find that being on travel does not come within
the only arguable basis for tolling the limit, that a complainant
has been prevented in some extraordinary way from asserting his
rights. See, e.g., Ellis
v. Ray A. Schoppert Trucking, Case No. 92-STA-28, Final Dec.
and Order, Sept. 23, 1992, slip op. at 5 (complainant seeking
tolling of employee protection provision time limit due to ill
health must show legal incapacity). Therefore, I find that
pursuant to 29 C.F.R. § 24.4(d)(2)(i), the February 24,
1992, Notice of the District Director of the Wage and Hour
Administration became the final order of the Secretary denying
the complaint. Accordingly, the complaint is DISMISSED.
C. The Merits
Assuming for the sake of argument that the request for a
hearing was timely filed, I will examine the merits of Crosier's
complaint under the SWDA. The employee protection provision
provides:
No person shall fire, or in any other way
discriminate against, or cause to be fired or
discriminated against, any employee . . . by
reason of the fact that such employee . . .
has filed, instituted, or caused to be filed
or instituted any proceeding under [the SWDA]
. . . or has testified or is about to testify
[PAGE 7]
in any proceeding resulting from the administration or
enforcement of the provisions of this chapter. . . .
42 U.S.C. § 6971(a).
To establish a prima facie case of a violation of the
employee protection provision, a complainant must show that he
engaged in protected activity, that he was subjected to adverse
action, and that respondent was aware of the protected activity
when it took the adverse action. Helmstetter v. Pacific Gas &
Electric Co., Case No. 86-SWD-2, Final Dec. and Order, Sept.
9, 1992, slip op. at 4-5. Complainant also must raise the
inference that the protected activity was the likely reason for
the adverse action. Id.; Dartey v. Zack Co. of
Chicago, Case No. 82-ERA-2, Sec. Ord., Apr. 25, 1983, slip
op. at 8. [7]
If the complainant succeeds in establishing a prima facie
case, the respondent has the burden of articulating a legitimate,
nondiscriminatory reason for the adverse action. Dartey,
slip op. at 8. The complainant has the ultimate burden of
persuading that the legitimate reason articulated by the
respondent was a pretext for discrimination, either by showing
that the unlawful reason more likely motivated it or by showing
that the proffered explanation is unworthy of credence.
Dartey, slip op. at 8. At all times, the complainant has
the burden of showing that the real reason for the adverse action
was discriminatory. St. Mary's Honor Center v. Hicks, 113
S.Ct. 2742, 125 L.Ed. 2d 407 (1993); Thomas v. Arizona Public
Service Co., Case No. 89-ERA-19, Final Dec. and Order, Sept.
17, 1993, slip op. at 20.
The evidence concerning Crosier's engaging in protected
activities was his testimony that he made reports to various
government agencies about unexploded ordnance and a pesticide
dump at the Hanford site. T. 50-55. Unauthenticated photographs
of what Crosier claimed were ordnance and related packaging found
at the Hanford site also were admitted into evidence. CX 3-7.
Although Crosier stated that he had copies of the reports and
provided them to counsel for Westinghouse, T. 54-55, he did not
offer any of the documents into evidence.
I agree with the ALJ that Crosier's uncorroborated testimony
and unauthenticated photographs did not establish that he engaged
in protected activities. [8] R.D. and O. at 10. If Crosier
possessed copies of the documents that show his protected
activities, he should have offered them into evidence.
Assuming for the sake of argument that he established his
protected activities, Crosier also needed to establish that
Westinghouse was aware of his protected activities when it denied
him site access. The Westinghouse employees who recommended and
approved the denial testified convincingly that they did not know
[PAGE 8]
about Crosier's purported environmental activities and reports to
the government. T. 127-128 (Lobdell), 143 (McLeod). Thus, I
find that Crosier did not establish that Westinghouse knew of his
protected activities when it took the adverse action against him.
In light of the deficiency in establishing that he engaged
in protected activities and that Westinghouse was aware of those
activities when it denied site access, Crosier did not establish
a prima facie case of discrimination. The complaint therefore
must be DISMISSED.
Since Crosier did not establish a prima facie case,
Westinghouse did not have the burden of proffering a legitimate
reason for the denial of site access. Nevertheless, it provided
a reason through the testimony of Lobdell, who learned that
Crosier admitted having taken a pistol into and out of the
secured area at Trojan. T. 112-113, 136. For legitimate
security reasons, Lobdell decided to deny access to the Hanford
facility, T. 113, and a member of the Westinghouse General
Counsel's office concurred. T. 114, 136.
Crosier did not persuade that the reason Westinghouse gave
for denying site access was not credible. Crosier argued that he
was treated differently from other employees who purportedly
carried guns onto the Hanford site and were employed there.
T. 21. However, neither Lobdell, T. 129, nor McLeod, T.139, knew
of any individuals working at the Hanford site who had taken
firearms or explosive devices onto the site in the past. And
Lobdell denied having given security access to any persons who
previously brought firearms onto the site. T. 129. In the
absence of any evidence that other employees were granted site
access even though they had carried guns or explosives onto the
Hanford site, Crosier did not show that the reason Westinghouse
gave for denying him access was not believable. Nor did he show
that Westinghouse denied him access for impermissible reasons
under the SWDA. Accordingly, the complaint must be DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The SWDA is also known as the Resource Conservation and
Recovery Act. See T. 39.
[2] Since mid-1987, Westinghouse Hanford Company has been the
principal managing contractor to the Department of Energy, the
regulator of the Hanford nuclear reservation. T. 80.
[3] Section 2902(a)(5) of the Energy Policy Act of 1992, Pub.
L. No. 102-486, 106 Stat. 2776, 3123, amended the definition of
an employee under the ERA to include employees of contractors or
subcontractors of the Department of Energy. The amendment
applies to complaints filed on or after the date of its
enactment, October 24, 1992. See. Section 2902(i) of Pub. L.
102-486. Crosier filed this complaint in 1991.
[4] One of the stated exclusions is "source, special nuclear,
or byproduct material as defined by the Atomic Energy Act of
1954, as amended." 42 U.S.C. § 6903(27) (1988). Neither
pesticides, ordnance (land mines), nor packaging appear to come
within the definitions of "source, special nuclear, or byproduct
material" at 42 U.S.C. § 2014(e), (z), and (aa).
[5] Westinghouse contested the timeliness of the complaint only
after the ALJ found that the complaint was not timely filed.
See Resp. Br. to Sec. at 9.
[6] The record also contains a mailgram confirming that on
March 12, 1992, Crosier sent a telegram to the Seattle office of
the Wage and Hour Administration, indicating that he appealed the
determination notice. Even if the Seattle office received such a
hearing request, it was not the proper place for filing and the
request was not timely in any event. See Sanctions Memo,
Ex. C (determination notice).
[7] Westinghouse argued before the ALJ that it was not an
"employer" under the employee protection provision of the CAA.
See R.D. and O. at 9. It has dropped that contention before
the Secretary. I have found jurisdiction under the SWDA, which
applies to "persons," 42 U.S.C. § 6971(a), and "persons" is
defined to include corporations. 42 U.S.C. § 6903(15).
[8] I note that at an earlier phase of this complaint, Crosier
cited different protected activities in which he engaged and
which purportedly motivated the denial of site access at issue
here. See Westinghouse Prehearing Statement, Ex. C.
