Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995)

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Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y Apr. 3, 1995)

DATE: April 3, 1995
CASE NO. 93-CAA-4

IN THE MATTER OF
DR. WILLIAM K. REID,

COMPLAINANT,

METHODIST MEDICAL CENTER OF OAK RIDGE,
TENNESSEE MEDICAL MANAGEMENT, INC.,
RALPH LILLARD,MARSHALL WHISNANT,
DR. RICHARD BRANTLEY,MARTIN MARIETTA
ENERGY SYSTEMS, INC., MARTIN MARIETTA CORP.,
DR. DANIEL CONRAD,

RESPONDENTS.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

This case was brought pursuant to the employee protection
provisions of the Clean Air Act ("CAA"), 42 U.S.C. § 7622
(1988); the Toxic Substances Control Act ("TSCA"), 15 U.S.C.
§ 2622 (1988); the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9610
(1988); the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §
300j-9(i) (1988); the Water Pollution Control Act ("WPCA"), 33
U.S.C. § 1367 (1988); and the Solid Waste Disposal Act
("SWDA"), 42 U.S.C. § 6971 (1988) ("the environmental
whistleblower provisions"). [1] All parties have filed
extensive briefs before me, and the Office of the Solicitor of
Labor ("SOL") filed an amicus curiae brief. [2]
BACKGROUND
1. Procedural History.
On July 17, 1992, Dr. William K. Reid filed a complaint with
the Wage and Hour Division of the Department of Labor. [3] He
[PAGE 2]
alleged that he had been retaliated against for engaging in
activities protected by the environmental whistleblower
provisions. At various times almost two dozen respondents were
named in the complaint and its amendments. On December 18, 1992,
the Wage and Hour Division notified Dr. Reid of its finding that
he had not been retaliated against in violation of the
environmental whistleblower provisions. Dr. Reid thereafter
filed a request for a hearing before a Department of Labor
Administrative Law Judge ("ALJ"). Following the filing of a
series of prehearing motions and memoranda (including motions to
dismiss) and a non-evidentiary pre-hearing conference on
jurisdictional issues, the ALJ issued a Recommended Order of
Dismissal ("R.O.D."). Although I reach my conclusion for
different reasons, I concur with the ALJ's recommendation and
dismiss this case.
2. Facts.
The facts, as they are relevant to this decision, are as
follows. [4] Dr. Reid, a board certified internist and board
eligible oncologist and hematologist, was recruited in 1990 by
Respondents Methodist Medical Center of Oak Ridge ("MMCOR" [5] )
and its wholly-owned subsidiary, Tennessee Medical Management,
Inc. ("TMM"), to set up a medical practice in Oak Ridge,
Tennessee. [6] R.O.D. at 1; Complaint at 3. To facilitate that
practice, TMM and Dr. Reid entered into a written contract ("the
contract"), pursuant to which TMM provided Dr. Reid with office
space, equipment, and general administrative and managerial support. [7]
R.O.D. at 1-2.
Dr. Reid moved to Oak Ridge and began his practice in
November 1990. Dr. Reid was offered provisional staff privileges
at MMCOR on December 11, 1990, which he accepted on January 9,
1991. See Motion to Dismiss Submitted on Behalf of
Respondents Methodist Medical Center of Oak Ridge, et al., filed
with the ALJ, February 17, 1993 ("MMCOR Motion to Dismiss"), at 3
n.4 and TAB B.
Dr. Reid alleged that in January 1991 he began to notice a
number of renal cell carcinomas among his patients (Complaint at
5) and asked MMCOR's tumor registry to provide him with data
regarding any similar cancers previously diagnosed and treated at
MMCOR. Id. at 6. Dr. Reid never received the requested
information. Id. Between April and June 1991 Dr. Reid
treated a number of patients who appeared to be suffering the
consequences of heavy metal toxicity. Id. During the
summer of 1991 Dr. Reid began to suspect environmental causes for
the cancers and other diseases he had detected in his patients.
Id. On August 5, 1991, Dr. Reid called Respondent Dr.
Daniel Conrad, Director of the MMES Medical Division, and asked
him a variety of questions
[PAGE 3]
about employee exposure to heavy metals at MMES' facilities.
Id. [8]
Dr. Reid alleged that MMCOR, TMM, MMES, and the other
Respondents [9] retaliated against him in the following ways
because of his inquiries regarding the possible causes of renal
cell carcinomas and heavy metal toxicity among his patients:
1) During January 1991, Dr. Reid was called to a
meeting with Respondent Ralph Lillard, Vice President
of MMCOR, and McRae Sharpe, president of TMM. Both of
them expressed "vague concerns" and indicated that
unnamed physicians had questioned Dr. Reid's standard
of care. Id. at 6. They also expressed
concerns that Dr. Reid was "costing the hospital too
much money." Id.;

2) In the spring of 1991 Dr. Ronald Lands, an
oncologist, returned to Oak Ridge and joined the office
in which Dr. Reid maintained his practice pursuant to
his contract with TMM. [10] Id. at 8. Dr.
Reid asserted that Dr. Lands' return amounted to a
"hostile takeover" of his practice. Id.;

3) At a June 1991 meeting Ralph Lillard told Dr. Reid
that Dr. Lands wished to dissolve the relationship with
Dr. Reid, and that Lillard would like Dr. Reid to leave
Oak Ridge. Id.;

4) Shortly after Dr. Reid's August 5, 1991 conversation
with him, MMES' Dr. Conrad called Ralph Lillard and
asked him why "that quack" -- Dr. Reid -- was asking
questions about heavy metal toxicity.
Id. at 6-7. "Soon" after that phone call
MMCOR's Chief of Medicine informed Dr. Reid that eight
of his patient charts were to be reviewed as part of a
peer review of his standard of care. Id.
at 7;

5) This peer review process led to a recommendation by
the Credentials Committee [11] that Dr. Reid's patient
care at MMCOR be monitored. [12] Id.
That recommendation was adopted by MMCOR's Medical
Board on August 31, 1992. Motion to Dismiss at 14.
Pursuant to MMCOR's bylaws, Dr. Reid requested and
received a hearing on that recommendation.
Id. That hearing was in progress at the
time of the ALJ's decision in this case. [13]
3. The ALJ's Recommended Decision.
The ALJ recommended dismissal of this case on two grounds.
[PAGE 4]
First, he concluded that Dr. Reid was not an employee of any
Respondent employers within the meaning of the environmental
whistleblower provisions. R.O.D. at 3-7. Second, he concluded
that Dr. Reid had not alleged that he engaged in any activity
which would be protected under the environmental whistleblower
provisions. R.O.D. at 8-12. Because I conclude that
Respondents were entitled to dismissal on the first issue, I need
not address the second. For reasons that follow I affirm the
decision of the ALJ and order that the case be dismissed.
DISCUSSION
MMCOR, MMES and TMM all moved to dismiss Dr. Reid's
complaint on the jurisdictional ground that Dr. Reid was not an
employee within the meaning of the environmental whistleblower
provisions. MMCOR also moved to dismiss on the ground that
Dr. Reid had not engaged in protected activity within the meaning
of any of the environmental whistleblower provisions. [14] MMES
moved to dismiss on the ground that none of the MMES respondents
were Dr. Reid's employers. Dr. Reid defended against
these motions by filing two lengthy briefs. See
Complainant's Summary of Jurisdictional Reasoning, filed February
17, 1993; and Complainant's Supplemental Brief Supporting DOL
Jurisdiction, filed March 10, 1993. He also filed a Designation
of Discovery Requests Involving Jurisdictional Facts, filed
January 13, 1993, which identified over thirty of his previously
submitted interrogatories as "bearing upon employer and employee
issues under the environmental whistleblower statu[t]es," and
which requested "full and fair discovery regarding jurisdictional
facts." [15]
I. Dr. Reid's Employment Status.
The ALJ recommended dismissal of Dr. Reid's complaint on the
ground that the Department of Labor lacked jurisdiction because
Dr. Reid was not an employee within the meaning of the
environmental whistleblower provisions. As discussed below, the
ALJ correctly determined the proper test to be applied in
analyzing this issue. Moreover, because Dr. Reid has failed to
meet his burden to make a prima facie showing that he was
an employee within the meaning of the provisions, I conclude that
the case should be dismissed.
A. The Appropriate Test to Determine Whether Dr. Reid
is an "Employee".
The six environmental whistleblower provisions at issue in
this case require as a jurisdictional base that the individual
asserting retaliation be an "employee" or an employee's
representative. Thus, the WPCA provides:

No person shall fire, or in any other way discriminate
against or cause to be fired or discriminated against,
[PAGE 5]
any employee or any authorized representative
of employees by reason of the fact that
such employee or representative has
filed, instituted, or caused to be filed or instituted
any proceeding under this Act, or has testified or is
about to testify in any proceeding resulting from the
administration or enforcement of this Act.
33 U.S.C. § 1367 (1988) (emphasis supplied). The SWDA
whistleblower provision is in all relevant respects identical to
that contained in the WPCA. 42 U.S.C. § 6971 (1988). The
CERCLA provision, 42 U.S.C. § 9610 (1988) is similar to the
WPCA provision. [16] The SDWA provides:
No employer 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) has--

(A) commenced, caused to be commenced, or is about to
commence or cause to be commenced a proceeding under
this title . . . ,

(B) testified or is about to testify in any such
proceeding, or

(C) assisted or participated or is about to assist or
participate in any manner in such a proceeding or in
any other action to carry out the purposes of this
title.
42 U.S.C. § 300j-9(i) (1988)(emphasis supplied). The
whistleblower provisions of the CAA and TSCA are in all
significant respects identical to that contained in the SDWA. 42
U.S.C. § 7622 (1988); 15 U.S.C. § 2622 (1988). The
question to be resolved here is whether Dr. Reid is an "employee"
within the meaning of any of these environmental whistleblower
provisions.
The first step in this inquiry must be an analysis of the
statutory provisions themselves. None of the statutes defines
the term "employee," and the relevant legislative history is
scant. Thus, the Senate Report on the WPCA provision, which was
the first environmental whistleblower provision enacted, states
that "[t]his section offers protection to employees who believe
they have been fired or discriminated against as a result of the
fact that they may have testified or brought suit under this
Act." S.Rep. No. 92-414, 92d Cong., 2d Sess. (1972),
reprinted in 1972 U.S.C.C.A.N. 3668,
3748-49. The anti-retaliation provision is modeled on the
National Labor Relations Act and the Federal Coal Mine Safety and
Health Act. Id. "Under this
[PAGE 6]
section employees and union officials could help assure that
employers do not contribute to the degradation of our
environment." Id. The legislative histories of
all but one of the other whistleblower provisions do not shed any
more light on the meaning of "employee." See, for
example, H.R. Rep. No. 94-1491, pt.1, 94th Cong. 2d Sess. 68-69
(1976), reprinted in 1976 U.S.C.C.A.N. 6238,
6306-07 (SWDA); H.Conf. Rep. No. 94-1679, 94th Cong. 2d Sess. 99-
100 (1976), reprinted in 1976 U.S.C.C.A.N. 4539,
4584-85 (TSCA); H.R. Rep. No. 294, 95th Cong. 1st Sess. 325-326
(1977), reprinted in 1977 U.S.C.C.A.N. 1077,
1404-05 (CAA); H.Conf. Rep. 95-564, 95th Cong. 1st Sess.
180-181 (1977), reprinted in 1977
U.S.C.C.A.N. 1502, 1561-62 (CAA).
The CAA legislative history does provide a glimpse into
Congress' understanding of the term "employee." The House
Committee Report on the CAA cites with approval testimony given
in the committee hearings which recommended inclusion of an
employee protection provision similar to that contained in the
SDWA and the WPCA. "The best source of information about what a
company is actually doing or not doing is often its own
employees, and this amendment would insure that an employee could
provide such information without losing his job or otherwise
suffering economically from retribution from the polluter."
H.Rep. No. 294, 95th Cong. 1st Sess. at 325 (1977),
reprinted in 1977 U.S.C.C.A.N. 1077, 1404. This
lone discussion appears to focus the protections of these
environmental whistleblower provisions on workers
who observe alleged environmental violations in their
work places. [17] However, it is not
necessary to so limit the scope of the term "employee" in order
to decide this case.
Respondents argue that the proper test to use to evaluate
whether Dr. Reid is an employee within the meaning of the various
environmental whistleblower provisions is that contained in
Nationwide Mutual Ins. Co. v. Darden, 112 S.Ct.
1344 (1992). On the other hand, Dr. Reid argues that in the
absence of a statutory definition or clear legislative history,
the term "employee" should be construed in light of the "economic
realities" of Dr. Reid's employment situation. Opening
Br. of Dr. Reid ("Opening Br.") at 9, 17-19. The Solicitor of
Labor, while not directly adopting the "economic realities" test,
supports the use of a test which is more inclusive than the
common-law test articulated in Darden. SOL Br. at
13-21. I agree with the ALJ that the Darden test
is the appropriate one to apply to these environmental
whistleblower provisions. See Coupar v. Federal Correctional
Institution, El Reno, Oklahoma, Case Nos. 90-TSC-0001,
91-TSC-0003, Sec'y. Dec., Feb. 28, 1995. In
Darden a unanimous Supreme Court held that in the
absence of statutory guidance the term "employee" as used in the
Employee
[PAGE 7]
Retirement Income Security Act of 1974 (ERISA) should be
construed in accord with the common-law definition. In so
holding, the Court expressly rejected a previous line of cases
which had held that in similar circumstances the term "employee"
should be construed "'in light of the mischief to be corrected
and the end to be attained.'" Darden, 112 S.Ct. at
1349, quoting United States v. Silk, 331 U.S. 704,
713 (1947). The Court stated that in Silk and one
other case it had given an expansive reading to the meaning of
"employee" which Congress subsequently repudiated by amending the
statutes involved. Id. at 1349. The Court
concluded that although it was not required by this congressional
action to alter its analysis of the meaning of employee in other
statutes, it was adopting the position that, in the absence of
congressional guidance, it would assume that Congress intended
the common-law meaning of "employee" to be applied.
Darden, 112 S.Ct. at 1348-49. The Court noted that
although it had not been legislatively "overruled" in a strict
sense, "a principle of statutory construction can endure just so
many legislative revisions . . . ." Darden, 112
S.Ct. at 1349.
The Court explicitly distinguished cases construing the term
"employee" under the Fair Labor Standards Act ("FLSA"). The
FLSA, like ERISA, defines "employee" to include "any individual
employed by an employer." 29 U.S.C. § 203(e) (1988).
However, the Court found it significant that the FLSA at 29
U.S.C. § 203(g) (1988) defines "employ" to mean "suffer or permit
to work." Id.:
This latter definition, whose striking breadth we have
previously noted, . . . stretches the meaning of
"employee" to cover some parties who might not qualify
as such under a strict application of traditional
agency law principles. ERISA lacks any such provision,
however, and the textual asymmetry between the two
statutes precludes reliance on FLSA cases when
construing ERISA's concept of "employee."

Darden, 112 S.Ct. at 1350. The Court reiterated
its previously articulated common-law test for "employee:"
In determining whether a hired party is an employee
under the general common law of agency, we consider the
hiring party's right to control the manner and means by
which the product is accomplished. Among the other
factors relevant to this inquiry are the skill
required; the source of the instrumentalities and
tools; the location of the work; the duration of the
relationship between the parties; whether the hiring
party has the right to assign additional projects to
the hired party; the extent of the hired party's
[PAGE 8]
discretion over when and how long to work; the method of payment;
the hired party's role in hiring and paying assistants; whether
the work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of
employee benefits; and the tax treatment of the hired party.
Nationwide Mut. Ins. Co. v. Darden, 112 S.Ct. at 1348,
quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730,
751-752 (1989).
Dr. Reid and the Office of the Solicitor argue that the
principles of Darden should not be applied to the
interpretation of the term "employee" as used in the
environmental whistleblower provisions and advocate more
expansive definitions of the term than that accorded by common
law. Two such tests have been used to evaluate the employment
relationship in FLSA and Title VII [18] cases. The FLSA test,
which Dr. Reid argues should be applied here, looks to the
"economic realities" of the relationship and asks whether "the
individual so dominated in or by the organization that he or she
is really like an employee, with corollary susceptibility to
discrimination?" Wheeler v. Hurdman, 825 F.2d 257,
269 (10th Cir. 1987):
Control of employment opportunities is the linchpin of
the economic realities test, viewed from the
perspective of the employee's dependency on the
employer and vulnerability to discriminatory conduct.

* * * *

[T]he focus of the analysis must be on whether the
employer controls employment opportunities because of
its position in the employment marketplace or because
of its ability to determine the terms and conditions of
employment.

Dowd, The Test of Employee Status: Economic Realities
in Title VII, 26 Wm. & Mary L.Rev. 75, 112-113 (1984)
(footnote omitted).
Courts have generally looked at five factors in applying this
test:
(1) the degree of control exerted by the alleged
employer over the worker; (2) the worker's opportunity
for profit or loss; (3) the worker's investment in the
business; (4) the permanence of the working
relationship; and (5) the degree of skill required to
perform the work.
Doty v. Elias, 733 F. 2d 720, 722-28 (10th Cir. 1984),
citing Trustees of Sabine Area Carpenters' Health & Welfare
Fund v. Don Lightfoot Home Builder, Inc., 704 F.2d 822, 825
(5th Cir. 1983). [19] The test developed under the FLSA cannot
[PAGE 9]
appropriately be applied to environmental whistleblower
provisions, which do not possess either the exceedingly broad
language of the FLSA itself or its expansive legislative history.
Therefore, I reject Dr. Reid's assertion that the "economic
realities" test should be applied to the term "employee" in the
environmental whistleblower provisions.
Taking a slightly different tack, the Office of the
Solicitor relies heavily on a line of cases decided under Title
VII to support its argument for a more liberal meaning of the
term "employee." SOL Br. at 13-21. The Supreme Court did not
address the Title VII cases in Darden. However,
they are inapposite here.
Title VII provides in relevant part:

(a) It shall be an unlawful employment practice for an
employer--
(1) to fail or refuse to hire . . . any
individual, or otherwise discriminate
against any individual with respect to
his compensation, terms, conditions, or privileges of
employment . . . .

42 U.S.C. § 2000e-2(a) (1988)(emphasis supplied). By
its own terms, Title VII reaches more than "employee[s];" it
protects "individual[s]" who suffer discrimination at the hands
of employers. Several courts have relied upon the inclusive
nature of the term "individual" in ruling that Title VII protects
a more expansive class than common-law employees. "It is clear
from the language of the statute that Congress intended that the
rights and obligations it created under Title VII would extend
beyond the immediate employer-employee relationship."
Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291,
294 (11th Cir. 1988). See also Sibley Memorial
Hospital v. Wilson, 488 F. 2d 1338 (D.C. Cir. 1973)
(hospital's interference with private duty nurse's employment
with hospital patients on the basis of sex would violate Title
VII). Section 2000e-2 also explicitly applies to unions and
employment agencies, "whose actions might interfere with a
person's access to employment opportunity with other employers
though these organizations might not be serving as an employer."
Christopher v. Stouder Memorial Hospital, 936 F.2d 870,
871 (6th Cir. 1991). The court in Sibley, 488 F.2d at
1342, stated:
We think it significant that [Title VII] has addressed
itself directly to the problems of interference with the
direct employment relationship by labor unions and
employment agencies--institutions which have not a remote
but a highly visible nexus with the creation and continuance
of direct employment relationships between third parties.

[PAGE 10]
For example, an employment agency might steer a person away from
certain employers based upon some prohibited factor. Similarly,
a labor union might discriminate in its membership, thereby
limiting an individual's ability to gain employment with certain
prospective employers. Because of the significant language difference between Title
VII and the environmental whistleblower provisions, there is a
"textual asymmetry" similar to that which exists between ERISA
and the FLSA. See Darden, 112 S.Ct. at 1350. It
would be inappropriate under the circumstances to read the
breadth of Title VII's coverage into the environmental
whistleblower provisions. The Solicitor argues, however, that
the fact that Title VII and some of the environmental
whistleblower provisions prohibit, among other things,
discrimination regarding "privileges of employment," should lead
to an expansive reading of the term "employee" in the
environmental whistleblower provisions. SOL Br. at 13-21. Thus,
the argument goes, anyone who is deprived of privileges of
employment, and therefore possessed privileges of employment,
should be deemed to possess the characteristics of an employee.
The Solicitor cites Doe on Behalf of Doe v. St.
Joseph's Hosp., 788 F. 2d 411 (7th Cir. 1986), in support of
this theory. The terms of Doe cannot be stretched
that far. Doe involved a doctor whose staff
privileges were summarily suspended by defendant
hospital. The district court dismissed her claim on
the ground that one must be an employee to state a claim under
Title VII. The court of appeals reversed. The court emphasized
that Title VII on its face applies to "any individual," not to an
"employee." Doe, 788 F.2d at 422. The court
concluded that cases such as Sibley provided
sufficient basis for the plaintiffto survive a motion to dismiss at the pleading stage.
Id. In addition, the court stated:
. . . Title VII prohibits discrimination not only with
respect to conditions of employment, but also with respect
to "privileges of employment." 42 U.S.C.
§ 2000e-2(a)(1) (emphasis supplied). The courts have
held that Title VII should be construed "liberally so as to
further the goals and purposes of eliminating discrimination
in employment."
Doe, 788 F.2d at 422 (citations omitted). The
Solicitor also cites LeMasters v. Christ Hospital,
777 F.Supp. 1378 (S.D. Ohio 1991), in support of his proposition.
In LeMasters, which involved allegations similar to
those in Doe, the court also noted in dicta Title
VII's use of the phrase "privileges of employment" in ruling that
a doctor's Title VII claim against a hospital should not be
dismissed. LeMasters v. Christ Hospital, 777 F.Supp. at
1380.
The "privileges of employment" discussion in
Doe and its
[PAGE 11]
progeny is not essential to the courts' analyses of the reach of
Title VII. Neither Doe nor any subsequent case has
offered any reasoned discussion to support the assertion that the
"privileges of employment" language is linked to the scope of
coverage under Title VII. Rather, the examination in
Doe as well as LeMasters is cursory
and unnecessary to the holding that Title VII protects
"individuals" and not just common-law "employees." I conclude
that the "privileges of employment" language is used in some of
the environmental whistleblower provisions as an example ofaspects of employment an employer may not adversely affect, not
as an aid to the meaning of the term "employee." [20]
This case also is distinguishable from several previous
Secretarial decisions dealing with the meaning of the term
"employee." For example, in Cowan v. Bechtel
Construction, Inc., Case No. 87-ERA-29, Sec. Dec. and Ord. of
Remand, August 9, 1989, the Secretary held that a
former employee shall be considered an employee for
purposes of the Energy Reorganization Act of 1974, as amended
(ERA), 42 U.S.C. § 5851 (1988). See also, Chase
v. Buncombe County N.C., Case No. 85-SWD-4, Sec. Dec. and
Ord. of Remand, Nov. 3, 1986 (same, Solid Waste
Disposal Act). Of course, it would be nonsensical to exclude
former employees (e.g., fired employees) from the
protections of an anti-retaliation provision.
A few other cases present more complex situations. Thus, in
Hill, et al. v. TVA and Otney v. TVA,
Case Nos. 87-ERA-24 and 87-ERA-23, Sec. Dec. and Ord. of
Remand, May 24, 1989, the Secretary held that employees of a
contractor of a covered employer were employees under the ERA.
The Secretary noted, however, that there is legislative history
under the ERA that certain contractors and subcontractor
employees were to be protected under the ERA whistleblower
provision. Hill & Otney, slip op. at 5. A more
recent ERA case stated that independent contractors
"may be covered employees under the employee protection
provisions of the ERA and analogous statutes." Crosier
v. Portland General Electric Co., Case No. 91-ERA-2, Sec.
Dec. and Order, January 5, 1994, slip op. at 6 n.2.
However, the question whether the complainant was an employee
within the meaning of the ERA was not disputed,
Crosier, slip op. at 5-6, and the Secretary did not
consider the issue. Moreover, the legislative history of the ERA
may distinguish it from the environmental whistleblower
provisions at issue here. In any event, the Darden
decision has changed the focus of the discussion in environmental
whistleblower cases.
Although Darden is not controlling law, in the
absence of a clear expression of congressional intent regarding
the meaning of "employee" I conclude that it is appropriate to
apply the test used in Darden to the environmental
whistleblower provisions at
[PAGE 12]
issue here. Coupar v. Federal Correctional Institution, El
Reno, Oklahoma, Case Nos. 90-TSC-0001, 91-TSC-0003, Sec'y.
Dec., Feb. 28, 1995.
B. Application of Darden to This Case.
Respondents argue that: by their terms, the environmental
whistleblower provisions only apply to "employees;" Dr. Reid is
not an "employee" within the meaning of those provisions; and
therefore the Department of Labor lacks jurisdiction to
adjudicate his claim under the environmental whistleblower
provisions. Resolution of this issue within the Darden
framework requires an understanding of the procedural posture
of the case and the burdens that are placed upon the parties.
1. Proper Treatment of Respondents' Motions to
Dismiss. [21]
The rules of practice and procedure applicable to
administrative hearings under the environmental whistleblower
provisions do not contain a provision regarding motions to
dismiss. See 29 C.F.R. Part 18 (1994). However, the
rules do require that, in situations not provided for by Part 18,
the Federal Rules of Civil Procedure are to be applied. 29
C.F.R. §18.1(a) (1994). The Federal Rules in turn provide
for motions to dismiss under several circumstances, including
dismissals for lack of subject matter jurisdiction. Rule
12(b)(1), Fed.R.Civ.P. Two types of Rule 12(b)(1) motions have
been recognized and discussed by the courts. The first is
commonly referred to as a "facial" 12(b)(1) motion, which attacks
the adjudicator's jurisdiction over the case based solely on the
allegations in the complaint. The second is a "factual" attack,
in which facts outside the complaint are relied upon to argue
that the decisionmaker lacks subject matter jurisdiction:
[W]hen a court reviews a complaint under a factual
attack . . . no presumptive truthfulness applies to
the factual allegations. . . . When facts presented
to the district court give rise to a factual
controversy, the district court must therefore weigh
the conflicting evidence to arrive at the factual
predicate that subject matter jurisdiction exists or
does not exist.

Ohio Nat. Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th
Cir. 1990) emphasis supplied. See Mortensen v. First Federal
Savings and Loan Association, 549 F.2d 884, 891 (3d Cir.
1977)("Because at issue in a factual 12(b)(1) motion is the trial
court's jurisdiction -- its very power to hear the case -- there
is substantial authority that the trial court is free to weigh
the evidence and satisfy itself as to the existence of its power
to hear the case."). Respondents have made a "factual"
jurisdictional challenge and submitted affidavits and documents
in support of their motions to dismiss on the employee status
[PAGE 13]
issue.
It is axiomatic that the burden of establishing jurisdiction
is on the plaintiff. Weller v. Cromwell Oil Co., 504 F.2d
927 (6th Cir. 1974). However, where the party seeking dismissal
on grounds of lack of subject matter jurisdiction makes a
factual attack and presents the trier of fact with
affidavits or documents, the burden placed upon the party
defending jurisdiction is not an onerous one:
[I]f the district court determines to decide the issue
solely on the basis of written materials, the plaintiff
should be required only to make a prima facie case of
jurisdiction, that is, he need only "demonstrate facts
which support a finding of jurisdiction in order to
avoid a motion to dismiss."

Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir. 1980)(citation
omitted). See also, Data Disc, Inc v. Systems Technology
Associates, Inc., 557 F.2d 1280, 1285 (9th Cir. 1977)("[I]f a
plaintiff's proof is limited to written materials, it is
necessary only for these materials to demonstrate facts which
support a finding of jurisdiction in order to avoid a motion to
dismiss."). Moreover, the trier of fact must consider facts in
the light most favorable to the plaintiff. Welsh v.
Gibbs, 631 F.2d at 438. Dr. Reid had ample opportunity to
counter Respondents' documentary and sworn fact-based argument
that the Department of Labor lacked jurisdiction over the case.
He filed two extensive briefs before the ALJ arguing
jurisdictional issues. He failed to support his allegations with
affidavits or documentary evidence. Had he provided such factual
support for his position Dr. Reid arguably might have overcome
Respondents' motions to dismiss. However, based upon the
documentary and sworn evidence that was properly before the ALJ,
I conclude that Dr. Reid failed to establish a prima facie case
that he was an "employee" of any of the Respondents within the
meaning of the environmental whistleblower provisions. Therefore
he failed to meet his burden to establish that the Department of
Labor has jurisdiction over his claim.
2. Dr. Reid's relationship to TMM.
The events leading up to, and immediately following,
Dr. Reid's arrival in Oak Ridge are critical to an analysis of
Dr. Reid's relationship to TMM. MMCOR was in need of an
oncologist, and MMCOR and/or TMM hired a professional
search firm to recruit an oncologist to move to Oak Ridge and set
up a medical practice. Complaint at 3. The person located was
Dr. Reid, who at the time was practicing in High Point, North
Carolina. MMCOR did not "hire" Dr. Reid, however. [22] Rather,
TMM, a for-profit wholly owned subsidiary of MMCOR, [23] entered

[PAGE 14]
into a contract with Dr. Reid. R.O.D. at 1-2. In broad outline
that contract provided that Dr. Reid would render medical
services to patients and TMM would provide administrative,
managerial, and organizational support to Dr. Reid. R.O.D. at 2.
The specifics of the contract are crucial to an
understanding of this case. TMM agreed to operate the "business,
financial and administrative affairs of a medical office" on the
MMCOR campus. Contract at 2:

* TMM would operate customary office hours.
Id.

* "Subject to the approval" of Dr. Reid and any
other physician in the office, TMM would employ
non-physician personnel who were "reasonable, ordinary
and necessary to conduct its business and provide the
necessary personnel" for Reid to practice medicine.
Id.

* All non-physician personnel were to be under the
"administrative, business and executive control of TMM"
and under the medical and technical supervision of Dr.
Reid and any other physician in the practice.
Id.

* TMM would provide Dr. Reid with the necessary
equipment, facilities, supplies and personnel to
conduct his medical practice. "The decisions regarding
the required equipment, facilities, supplies and
personnel shall be determined from time to time and
acquired by TMM subject to the approval of Dr.
Reid" and any other physicians in the practice.
Id.

* Dr. Reid was to determine the fees to be charged for
his medical services "subject to adjustments as a
result of suggestions by TMM in order to enhance the
probable collectability of accounts and assure the
sound financial management of TMM."
Id.

* "Subject to [Dr. Reid's] approval" TMM would bring
lawsuits to collect accounts receivable.
Id. at 3.

* TMM agreed to provide Dr. Reid with a variety of
reports and records regarding the operation of the
practice. Id. at 7.

Dr. Reid made the following contractual commitments:

* Dr. Reid was to assign irrevocably to TMM all cash
collections and rights to cash collections for services
rendered to patients in his practice.
Id. at 2-3.

[PAGE 15]

* Dr. Reid would execute the necessary legal documents
to allow TMM to collect amounts from third-party
payers. Id. at 3.

* Dr. Reid would turn over any payments received for
his services to TMM. Id. at 3. * Dr. Reid would maintain a license to practice
medicine in the State of Tennessee. Id.

* Dr. Reid would maintain active full-time staff
membership and privileges at MMCOR and abide by the
rules and regulations relating to such privileges.
Id.

* Dr. Reid would maintain full-time practice hours
that were normal for a medical practice such as Reid's,
and provide for after hour call service.
Id. at 4.

* Dr. Reid would obtain medical malpractice insurance
of specified minimum amounts with an insurance carrier
subject to the approval of TMM. Id.

* Dr. Reid would assist "in developing standards for
the acceptance of patients of the Office subject to the
approval from time to time by TMM as required."
Id.

* Dr. Reid would provide professional supervision and
training to the employees of the office.
Id.
The financial arrangements contained in the contract are also
significant to the analysis:
* Dr. Reid was to be paid a minimum guaranteed "annual
professional fee" of $110,000, payable in monthly
installments. Id. at 4.

* Dr. Reid would be entitled to additional
professional fees based on the difference between Dr.
Reid's net cash collections for each six-month period,
minus the expenses allocated to Dr. Reid during that
period to the extent that number exceeded the six-month
guaranteed fee. "Expenses" were detailed in the
contract, and included rent, depreciation on equipment,
and a monthly fee of ,000 for TMM's management and
accounting functions. Id. at 4, 7.

Finally, several miscellaneous provisions are notable:

* Dr. Reid was entitled to a "leave of absence" of
[PAGE 16]
four and one-half weeks during each full year of the
contract without any alteration of his fee. Longer
absences would result in a specified reduction of his
fee. Id. at 4.

* Dr. Reid was "under no circumstances to be treated
as an employee and is not an employee of TMM but
instead is an independent contractor providing professional services in accordance with the terms" of
the contract. Id. at 7-8.

* TMM was not to withhold payroll or unemployment
taxes, and Dr. Reid was responsible for payment of all
taxes "including but not limited to, self-employment
tax and federal income tax on the fees provided for"
under the Agreement. Dr. Reid was to hold TMM harmless
should the Internal Revenue Service or any other agency
successfully contend that Dr. Reid was not an
independent contractor. Id. at 8.

* Dr. Reid was to be solely responsible for his
medical practice, and TMM was to exercise no control or
direction over the medical judgment, medical practice,
and professional services of Dr. Reid, except as
provided in the contract. Id.

* All records generated by Dr. Reid were the exclusive
property of TMM, but upon termination of the contract
patient files would be turned over to Dr. Reid upon the
request of individual patients. Id.

* The contract had a term of two years, "commencing on
or about September 1, 1990 and ending on or about the
last day of August, 1992." Id. The
contract contained no reference to renewal.
I do not think that this case falls clearly at either end of
the "employee" - "non-employee" spectrum. However, viewing the
facts in a light most favorable to Dr. Reid, I conclude that
Dr. Reid did not meet his prima facie burden by showing
that he was an employee of TMM within the meaning of that word as
articulated by the Supreme Court in Darden. Therefore he
is not subject to the protections of the environmental
whistleblower provisions. The key element of the common-law
definition of employee, as explained in Darden and
Community for Creative Non-Violence v. Reid before
it, is "the hiring party's right to control the manner and means
by which the product is accomplished." Reid, 490
U.S. 751-752. Therefore, the question
[PAGE 17]
to be explored is the degree of control TMM possessed over the
manner and means by which Dr. Reid's delivery of medical services
(the product) was accomplished. "Among other factors" which are
relevant to the inquiry regarding control are: 1) the degree of
skill required; 2) the source of the instrumentalities and tools;
3) the location of the work; 4) the duration of the relationship
between the parties; 5) whether the hiring party has the right to
assign additional projects to the hired party; 6) the extent of
the hired party's discretion over when and how long to work; 7)
the method of payment; 8) the hired party's role in hiring and
paying assistants; 9) whether the work is part of the regular
business of the hiring party; 10) whether the hiring party is in
business; 11) the provision of employee benefits; and 12) the tax
treatment of the hired party. See Community for
Creative Non-Violence v. Reid, 490 U.S. at 751-752.
A weighing of the facts in light of these criteria leads me
to conclude that Dr. Reid failed to make a prima facie showing
that he was an employee of TMM within the meaning of the
environmental whistleblower provisions. As a preliminary matter
it is important to note that, because Dr. Reid is a physician,
the level of control exercised over him must be reviewed in the
context of a professional who has an overriding ethical
obligation to his patients. Dr. Reid's position requires an
extremely high level of skill, one which TMM did not possess or
claim to possess. However:
[W]hen a professional person such as an attorney or a
physician and surgeon is required by a professional
code of ethics to exercise his or her independent
judgment in the best interest of his or her client or
patient respectively, the professional may not be
controlled by the employer. If the employer were to
control the independent judgment in the decision-making
process and the performance of the professional's
duties, the employer's control might conflict with the
professional's primary and unequivocal duty to exercise
his or her independent judgment.

Quilico v. Kaplan, 749 F.2d 480, 484-485 (7th Cir. 1984).
See also, Professional & Exec. Leasing v. Commissioner,
862 F.2d 751 (9th Cir. 1988)(extent of control of professionals
under the Tax Code). Thus, the fact that the contract explicitly
provided that Reid would "be solely responsible for his medical
practice conducted at the Office and TMM shall exercise no
control or direction over the medical judgment and medical
practice and professional services of the Physician except as
provided herein . . ." does not, in and of itself resolve the
issue of the extent of the control TMM exercised over Reid.

[PAGE 18]
I note further that several aspects of the contract were
apparently written with the clear intent of preventing a
determination that Reid was an employee of TMM. Thus, the
contract states:
Physician is under no circumstances to be treated as an
employee and is not an employee of TMM but instead is
an independent contractor providing professional
services in accordance with the terms of this
Agreement. Physician shall be entitled to no rights,
privileges or benefits established for common law
employees of TMM.

Contract at 7-8. The parties' statement that Dr. Reid is an
independent contractor and not an employee does not carrypreclusive weight. However, I have given this provision
appropriate weight along with other provisions of the contract.
Dr. Reid's practice was in an office set up by TMM for the
express purpose of providing office space for Dr. Reid and any
other physicians who contracted with TMM. Dr. Reid paid rent as
part of the expenses set off against net proceeds.
Contract at 5. The contract was time-limited and for a
relatively short time period for a professional contract -- two
years. Id. at 8-9. It had no provision for automatic
renewal; in fact it contained no renewal provision whatsoever.
The contract did not allow TMM to assign Dr. Reid additional
projects. He had one function only: to practice medicine.
Although the contract required Dr. Reid to provide office hours
that were reasonable and customary in his field, he had
discretion over the number of patients he saw. Because of the
financial agreement between the parties Dr. Reid would have been
able to increase his income by increasing the number of patients
he treated. The contract provided that
Dr. Reid had the right to approve the hiring of any support staff
for the practice. Id. at 2. TMM provided Dr. Reid with
most of the instrumentalities and tools of his work.
Id. However, the acquisitions made pursuant to
that contract provision were subject to consultation and approval
by Dr. Reid, and Dr. Reid paid depreciation on that equipment.
Id. at 7. TMM's business is not to provide a
medical practice; rather it is to provide the structure within
which a medical practice can be carried on. Finally, TMM
provided Dr. Reid with no benefits and paid none of his taxes.
Id. at 7-8. [24] All of these factors tend to weigh
against consideration of Dr. Reid as an employee. [25]
On the other hand, the contract provided that all patient
files were the "exclusive property" of TMM. Id. at 8.
Although it also provided that upon the contract's termination
any patient files which individual patients requested that Dr.
Reid receive would be "transferred to" to Dr. Reid, documents in
the record
[PAGE 19]
indicate that TMM did not comply with that provision. Instead it
attempted to charge Dr. Reid a one dollar per page copying fee
for any patient files that were to be turned over to him. Second
Amendment to Complaint at 2; TMM Motion to Dismiss at Tabs B and
C. TMM's apparent refusal to "transfer" files of patients who so
requested to Dr. Reid undercuts TMM's argument that it was merelyengaged in administrative and managerial activities and that
medical matters were in Dr. Reid's domain.
In addition, under the contract Dr. Reid was required to
"[a]ssist in developing standards for the acceptance of patients
of the Office subject to the approval from time to time by TMM as
required." Contract at 4. This contract provision is not
explained in the record, and its meaning remains obscure.
Presumably, either Dr. Reid was to develop standards subject to
approval by TMM, or TMM was to develop standards with assistance
from Dr. Reid. However, both of these interpretations ignore
significant language of the contractual provision. I must
assume, given the posture of this case, that the provision
allowed TMM, with Dr. Reid's assistance, to develop standards for
the acceptance of patients. As TMM did not have the expertise to
develop medical standards for the acceptance of patients, the
only logical explanation for this provision is that TMM was to
develop financial standards for the acceptance of patients. It
appears that this provision may have impinged upon Dr. Reid's
medical responsibilities if it were interpreted to allow TMM to
reject prospective patients. Thus I conclude that this
provision, interpreted in a light most favorable to Dr. Reid,
must weigh in favor of a determination that Dr. Reid was TMM's
employee.
Dr. Reid made other allegations related to his employment
status. Thus, Dr. Reid alleged that TMM refused to hire his wife
as a nurse in the practice, although it hired Dr. Ronald Lands'
wife. Complaint at 9. He alleged that TMM fired support
staff without consulting him. Id. Dr. Reid also
alleged that at the time he entered into the contract, TMM and/or
MMCOR stated that the contract was intended to be of indefinite
length. Supplemental Brief Supporting Jurisdiction at 10. Dr.
Reid alleged that the addition of Dr. Lands to the practice
amounted to a hostile takeover of his practice (Complaint at
8), and
Dr. Reid's counsel alleged at the pre-hearing conference that
Dr. Lands took patients away from Dr. Reid. T. 44. However,
none of these allegations are supported by affidavit or
documentary evidence, and crucial facts relating to all of them
were within the personal knowledge of Dr. Reid. Although the
burden placed upon a complainant when confronted with a
factual 12(b)(1) motion is not onerous, a complainant
cannot defend against documentary and sworn facts with unadorned
allegations of
[PAGE 20]
counsel. For that reason I cannot give these allegations weight
in determining whether the 12(b)(1) motion should be granted. I
conclude that Dr. Reid has not made a prima facie showing
that he was TMM's employee, and therefore has failed to meet his
burden on TMM's motion to dismiss.
3. Dr. Reid's Relationship
to MMCOR.

Based on the allegations and documentary evidence before the
ALJ, I conclude that Dr. Reid did not make a prima facie showing
that he was an employee of MMCOR. It is true that MMCOR provided
the physical location in which Dr. Reid could treat his
hospitalized patients, and that MMCOR provided support staff such
as nurses to care for his patients while they were in the
hospital. MMCOR Motion to Dismiss, Tab H at 2 (Lillard
Affidavit). However, MMCOR did not pay Dr. Reid anything, it did
not provide Dr. Reid with any benefits, or pay any of his taxes.
Id. at 3. Dr. Reid possessed provisional staff privileges
at MMCOR. MMCOR could not assign projects to Dr. Reid beyond
those normally assigned to physicians with staff privileges, such
as working in the emergency room. See Bylaws,
MMCOR Motion to Dismiss, TAB E; Tab H at 3.
Dr. Reid argues that the critical factor which should lead
to the conclusion that he is an "employee" of MMCOR is that MMCOR
had the power to carry out peer review of his treatment of his
patients at the hospital. [26] Vulnerability to peer review
does not constitute the kind of control that would render an
individual serving on the staff of a hospital an employee. Peer
review is not a process of ongoing supervision and management of
an individual doctor. Rather, it is an after-the-fact mechanism
to deal with concerns about behavior that has already occurred.
As such it constitutes control of an individual only in the most
attenuated sense. Moreover, peer review only relates to a
physician's treatment of his or her patients while they are
admitted to the hospital in question; it does not relate to a
physician's out-of-hospital care. I conclude that the peer
review process and the other aspects of the relationship between
MMCOR and Dr. Reid do not create an employment relationship
between MMCOR and Dr. Reid such that Dr. Reid could be considered
MMCOR's "employee" within the meaning of the environmental
whistleblower provisions. See Marino v.
Ballestas, 749, F.2d 162, 166 n.2 (3d Cir. 1984);
Lurch v. United States, 719 F.2d 333, 337-38 (10th Cir.),
cert. denied, 466 U.S. 927 (1984); Smith v. Cleburne
County Hosp., 870 F.2d 1375, 1380 (8th Cir.), cert.
denied, 493 U.S. 847 (1989).
4. Dr. Reid's Relationship to MMES.

Dr. Reid neither alleged an employment relationship nor
articulated any theory under which he could be held to be an
[PAGE 21]
employee of the MMES Respondents. Under no acceptable
definition of the term "employee" can Dr. Reid be considered an
employee of MMES, MMC, or Dr. Daniel Conrad within the meaning of
the environmental whistleblower provisions. As the Tenth Circuit
has stated in another context:
The word "employee," however broadly defined, is still
"employee," and circumscribed by meanings reasonably
related to that word. Drafters of [Title VII] gave no
indication that they were departing from the common
discourse of the republic when fashioning a law to be
understood by and applied to its citizens.
Wheeler v. Hurdman, 825 F.2d 257, 276 (10th Cir. 1987).
II. The ALJ's Stay of Discovery.
Dr. Reid also raises a procedural objection to the ALJ's
R.O.D.; he challenges the ALJ's refusal to order discovery prior
to ruling on the jurisdictional underpinnings of the case. Opening Br. at 3-6. As I believe that the ALJ did not commit
reversible error, I reject this argument.
The factual setting for this argument is as follows:
Dr. Reid was notified on December 18, 1992, that the Wage and
Hour Division had determined that he had not been discriminated
against by Respondents. On December 23, 1992, he filed a request
for a hearing with the Office of Administrative Law Judges. On
the same day, Dr. Reid served Respondents with his First
Interrogatories and Associated Request For Production of
Documents and First Request for Entry Upon Land for Physical
Inspection to Group One Respondents Methodist Medical Center of
Oak Ridge (MMCOR), Tennessee Medical Management, Inc.[,] Marshall
Whisnant, Ralph Lillard & Richard Brantley, M.D.
("interrogatories"). There were 89 interrogatories and requests
for production, many with several subparts. Dr. Reid also served
a notice of his intent to depose Dr. Daniel Conrad, Dr. Richard
Brantley, Ralph Lillard, and Marshall Whisnant. MMCOR moved to
strike the interrogatories, document requests, and notices of
deposition, and the request for entry upon land for physical
inspection.
On January 13, 1993, the ALJ issued an order in which he set
a pre-hearing conference for February 24, 1993, and ordered the
filing of pre-hearing briefs. He informed the parties that the
issues to be addressed at the pre-hearing conference included:
1. Whether this case shall be split up into two or
more separate cases; 2. General discovery issues (as opposed to specific
objections to individual items listed in
interrogatories, requests for production, and other
discovery);

[PAGE 22]
3. Motions to dismiss any or all of the respondents;
and

4. Jurisdiction under the various statutes listed in
the complaint.

Other issues raised by the parties in their
respective pre-hearing briefs may also be considered.
Pre-Hearing Order at 1-2. The ALJ stayed discovery until further
notice but "urged" the parties "to cooperate with each other in
providing information which may be relevant to issues to be
addressed at the pre-hearing conference." Id. at
2.
In response to the ALJ's order Dr. Reid's counsel served the
ALJ and the Respondents with Complainant's Designation of
Discovery Requests Involving Jurisdictional Facts, which
identified 36 of his interrogatories as "involving jurisdictional
facts bearing upon employer and employee issues under the
environmental whistleblower statutes . . . ." Designation at 1,
emphasis supplied. Following the pre-hearing conference and
further submissions by Dr. Reid the ALJ issued his R.O.D. on
March 29, 1993.
Under certain circumstances it is necessary and proper to
allow a party to engage in discovery of facts related to
jurisdictional issues prior to ruling on jurisdiction:
It is true that the factual determinations decisive to
a motion to dismiss for lack of jurisdiction are within
the court's power, and that no right to a jury trial
exists with regard to such issues . . . . But still the
district court must give the plaintiff an opportunity
for discovery and for a hearing that is appropriate to
the nature of the motion to dismiss. Thus, some courts
have refused to grant such a motion before a plaintiff
has had a chance to discover the facts necessary to
establish jurisdiction . . . . Other courts have
refused to uphold such a motion where -- absent an
incurable defect in the complaint -- the plaintiff has
had no opportunity to be heard on the factual matters
underlying jurisdiction . . . .

Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir. 1981).
Here Dr. Reid argues that the ALJ's refusal to order discovery of
the facts contained in his 36 designated interrogatories was
reversible error.
I disagree for two reasons. First, the facts necessary to
make a determination whether Dr. Reid is or is not an "employee"
within the meaning of the environmental whistleblower provisions
either were contained in the contract or were within the personal

[PAGE 23]
knowledge of Dr. Reid. As discussed above, Dr. Reid's failure to
use the ample tools available to him in the form of affidavits
cannot be transposed into error on the part of the ALJ.
Second, the interrogatories which Dr. Reid's counsel claimed
involved "jurisdictional facts bearing upon employer and employee
issues under the environmental whistleblower statutes . . . "
(Designation at 1) largely are relevant only to other issues in
the case, or have no clear relevance to the case at all. Several
interrogatories relate to proof of retaliatory action by the
Respondents (See Requests 4, 22C, 47, 49, 55B, 55C,
55D). Several seek to explore possible links among the various
Respondents (See Requests 4A, 4B, 4C, 14A, 15 2.a.,
18, 37). Others relate to issues of hospital governance
(See Requests 4D, 19A, 19B). [27] Several
interrogatories request information about physician recruitment
to the Oak Ridge area (See Requests 13A1, 13A3,
13A4, 13A5, 14A, 68A1).
A variety of miscellaneous requests are unrelated in any
possible way to questions regarding Dr. Reid's employment status
(See, e.g. Request 40, whether MMCOR and TMM have
"market power"; Request 62, personnel histories of Respondents
Brantley, Lillard and Whisnant, including medical and
psychological files; Request 65, whether Respondents had evidence
that Dr. Reid had been insubordinate; Request 68A3, the steps
involved in deciding whether to initiate the peer review process;
Request 73, the role of Respondents' employees in research,
"including human experimentation with radiation," for various
federal agencies and contractors; Request 87, which physicians on
MMCOR's staff or contracted with TMM had Q clearances from the
Department of Energy; Request 88, all injuries or diseases
treated at MMCOR for exposures to toxins, radiation or classified
substances and all physicians who participated in treatment,
admission and followup care of patients with such injuries or
diseases; Request 89, arrangements with MMCOR and TMM and
"participating physicians" for the examination of biopsy
material; Request 55, Respondent's policies regarding employee
falsification of evidence or documents; Request 16, the names of
management agents who could articulate hospital policy regarding
relationships with various federal agencies, including the CIA,
and the treatment of suspected cases of industrial diseases
involving manufacture of thermonuclear weapons; Request 26,
whether MMCOR and TMM have any lawful business other than
provision of medical care or management of medical practices, and
if so, what it is and whether it involved financial institutions
in Panama and the Cayman Islands.
Finally, some requests sought information which might have
been relevant to issues of jurisdiction, but which were already
in Dr. Reid's control. For example, he requested information
[PAGE 24]
regarding all contacts among TMM, MMCOR and Dr. Reid. Request
23. Since Dr. Reid was present during all such contacts, he knew
what occurred, and he could have included relevant matters in an
affidavit. Similarly, Dr. Reid requested his "salary history."
Request 52. It is likely that Dr. Reid had access to records
regarding the income he received while he had a contractual
relationship with TMM. And it is undisputed that MMCOR paid
Dr. Reid nothing. Dr. Reid also requested information
from TMM regarding the office staff persons assigned to his
practice, the nature of their assigned work duties, and the date
and reason for changes in each assignment. Request 22. Although
he may not have been in possession of all of this information, he
certainly had first hand knowledge sufficient to prepare an
affidavit regarding what he perceived was happening to the office
staff. Request 43 sought all documents that described the
procedures
Dr. Reid was required to follow during his contract with and work
for Respondents. Dr. Reid was in possession of MMCOR's Bylaws
and his contract with TMM. He also had knowledge of what he had
been told, and what had happened to him. Dr. Reid's failure to
swear to any of these facts undercuts his plea that he was
unfairly deprived of discovery of jurisdictional facts. Dr. Reid
also asked if Respondents contended that Dr. Reid was indebted to
them in any way and to describe such indebtedness. Request 52.
Request 50 asked for the names of persons who supervised Reid
since his arrival in Oak Ridge.
On the whole Dr. Reid's discovery requests focused on
irrelevancies. Moreover, Dr. Reid made no attempt to justify the
specifics of his requests. [28] Rather, he made ultimately
unpersuasive arguments--sometimes supported by language in the
contract, sometimes bolstered by unsupported allegations of
counsel [29] -- that Dr. Reid was an employee of TMM and MMCOR.
See, e.g. Complainant's Supplemental Brief Supporting DOL
Jurisdiction at 5-15. I conclude that under the circumstances
the ALJ did not err in failing to order the discovery which
Dr. Reid asserted related to jurisdictional issues.
CONCLUSION
Dr. Reid failed to make a prima facie showing that he was an
"employee" within the meaning of the environmental whistleblower
provisions in response to Respondents' motions to dismiss. It is
not necessary to reach the other recommended conclusion of the
ALJ, that Dr. Reid did not allege that he had engaged in
protected activity under the whistleblower provisions, and I
express no opinion on that issue.
The ALJ's Decision is AFFIRMED as modified and the case is
DISMISSED.
SO ORDERED.

[PAGE 25]

ROBERT B. REICH
Secretary of Labor

Washington, D.C.

[ENDNOTES]

[1]
Complainant also alleged violation of the Energy Reorganization
Act of 1974, as amended, 42 U.S.C. § 5851 (1988 and Supp.
V). However, that claim was dropped at the pre-hearing
conference. Recommended Order of Dismissal at 2; Pre-Hearing
Conference Transcript ("T.") at 75.

[2]
SOL limited its argument to whether Dr. Reid was an employee of
Methodist Medical Center of Oak Ridge and/or Tennessee Medical
Management, Inc., and whether Dr. Reid had alleged that he had
engaged in protected activity. SOL Br. at 11 n.7.

[3] The complaint was amended several times. For simplicity's
sake I will sometimes refer to the complaint and its amendments
collectively as "the complaint."

[4]
Because the ALJ ordered that the case be dismissed prior to the
taking of any testimony, the facts relevant to the decision are
taken from the complaint, affidavits, and documents presented to
the ALJ.

[5]
I have adopted the abbreviations assigned to the parties by the
ALJ for consistency's sake.

[6]
Oak Ridge has one dominant industry--the Oak Ridge National
Laboratory, the Oak Ridge Y-12 Plant, and the K-25 Site--which is
owned by the U.S. Government and operated on contract by
Respondent Martin Marietta Energy Systems ("MMES"), a wholly
owned subsidiary of Respondent Martin Marietta Corp. ("MMC").
MMCOR's Response to the Office of the Solicitor's Amicus Brief at
9.

[7]
The contract is appended to the R.O.D.

[8]
Dr. Reid also alleged that in January 1992 he contacted
Congressman John Dingell, the Department of Energy, the
Environmental Protection Agency, and the State of Tennessee
regarding his health concerns, and that he made a presentation to
a Tennessee State government body relating to his observations
regarding cancers and other diseases on June 7, 1992. Complaint
at 7.

[9]
The following persons and institutions remain as Respondents:
MMCOR, MMCOR Executive Vice President Ralph Lillard, MMCOR
President Marshall Whisnant, Dr. Richard Brantley, a physician
with medical privileges, and prior to January 1, 1993, voluntary
Chairman of MMCOR's Credentials Committee (collectively referred
to as "MMCOR"); TMM; and MMES, Martin Marietta Corporation, and
Dr. Daniel Conrad (collectively referred to as "MMES").

[10]
There is nothing in the record to indicate the circumstances
under which Dr. Lands began to work in the TMM-provided office.
However, the contract clearly provided for the addition of other
doctors to the practice. Contract at 10.

[11]
The Credentials Committee is the MMCOR body which deals, among
other things, with complaints about a staff physician's work.
See Medical and Dental Staff Bylaws, MMCOR Motion to
Dismiss at Tab E, p. 16-17. It is made up of five members who
have active medical staff privileges at MMCOR. Id.
at 16.

[12]
On February 25, 1992, Dr. Reid and two of his patients filed
suit against MMCOR, various MMCOR officials, and the Secretary of
Health and Human Services in the United States District Court for
the Eastern District of Tennessee to enjoin the peer review
process. See Motion to Dismiss at TAB C. On
February 28, 1992, the District Court refused to grant a
Temporary Restraining Order and in November 1992 dismissed the
suit. MMCOR Motion to Dismiss at 4 n.6.

[13]
Dr. Reid alleged that the following actions on the part of
various respondents also constituted retaliation in violation of
the environmental whistleblower provisions: 1) In January 1992
Mr. Lillard and members of MMCOR's Credentials Committee
threatened Dr. Reid with summary suspension. Complaint at 7; 2)
As the contract between TMM and Dr. Reid was expiring, TMM
informed Dr. Reid in writing that he was only entitled to copies
of his patients' charts if they requested that he receive them,
and told him that it would charge him one dollar per page for
such records. Second Amended Complaint at 2; 3) For a few
months in 1992 Dr. Reid's patient care at MMCOR was monitored by
two other doctors pursuant to the peer review process. Complaint
at 9; 4) TMM refused to allow Dr. Reid's wife, who is a nurse, to
work in his office, although it allowed Dr. Lands' wife to work
in the office. Id.; and 5) TMM fired members of
Dr. Reid's staff. Id. Dr. Reid did not allege in
any of his six complaints that TMM's refusal to renew his
contract when it expired on August 31, 1992, was retaliatory.
However, counsel for Dr. Reid apparently considered that action
retaliatory as well. See T. 24-25.

[14]
MMCOR also moved to dismiss on six other grounds which the ALJ
did not reach, and which I have not considered in light of my
decision.

[15] The discovery issue is dealt with in Part II of this
decision.

[16]
Thus, CERCLA provides:

No person shall fire, or in any other way discriminate
against or cause to be fired or discriminated against,
any employee or any authorized representative
of employees by reason of the fact that such
employee or representative has provided information to
a State or to the Federal Government, filed,
instituted, or caused to be filed or instituted any
proceeding under this Act, or has testified or is about
to testify in any proceeding resulting from the
administration or enforcement of this Act.

42 U.S.C. § 9610 (1988) (emphasis
supplied).

[17]
The same report also states that an
employee is protected from retaliation from
his or her employer "even if the employee's
action was not directed against the employer
(e.g., the filing of a citizen suit against
the Administrator or against another
company)." H.Rep. No. 294, 95th Cong. 1st
Sess. at 325-326, reprinted in 1977
U.S.C.C.A.N. at 1404-1405.

[18]
Title VII of the Civil Right Act of 1964,
42 U.S.C. § 2000e et seq. (1988).

[19]
In addition to advocating the use of the
"economic realities" test, Dr. Reid also
appears to argue (Opening Br. at 15) that
because "some patients might reasonably have
assumed Dr. Reid was a hospital employee . .
. ," MMCOR should be found to have held
itself out as Dr. Reid's employer. The
"holding out" theory upon which Dr. Reid
relies was crafted in the context of medical
malpractice cases in which it might be
relevant whether the injured patient
perceived that the physician was an agent of
the hospital. See, e.g, Adamski v.
Tacoma General Hospital, 20 Wash. App.
98, 579 P.2d 970, 973-979 (1978). Whether
patients perceive Dr. Reid to
be employed by MMCOR and/or TMM is irrelevant
to the issue presented here.

[20]
There is disagreement among the circuits as
to whether Title VII covers doctors on staff
at hospitals. Compare Diggs v.
Harris Hospital-Methodist, Inc., 847 F.2d
270 (5th Cir. 1988) (physician not employee
of anyone, therefore not protected by Title
VII), with Doe, 788 F.2d 411.

[21]
As I discuss more fully below, I have
treated the employment status issue presented
here as jurisdictional. Although it appears
that the Respondents and the ALJ couched the
issue in jurisdictional terms below, in
briefs before me some Respondents have
treated the issue as one which calls for
summary decision pursuant to 29 C.F.R.
§§ 18.40 and 18.41, while Dr. Reid
considers the issue from both perspectives.
See, e.g., Opening Brief of Dr.
William K Reid, M.D. to the Secretary of
Labor, filed May 21, 1993, at 3. I believe
that the issue is jurisdictional and have so
treated it.

However, I do not think that the outcome
would be different if the employment status
issue were analyzed under the summary
decision rules. Whether complainant is
defending jurisdiction or is defending
against a motion for summary decision, where
the moving party has placed facts into the
record in the form of documents and
affidavits, the complainant may not sit idle.
As I discuss in the body of this decision, on
a motion to dismiss accompanied by documents
and affidavits, the complainant must make a
prima facie showing of jurisdiction. In the
same vein, the summary decision rules state
that the party defending a motion supported
by documents or affidavits "may not rest upon
the mere allegations or denials" of his or
her pleading. The response must set forth
specific facts showing that there is a
genuine issue of fact for the hearing. The
party opposing summary judgment "must present
affirmative evidence in order to defeat a
properly supported motion for summary
judgment." Anderson v. Liberty Lobby,
Inc., 477 U.s. 242, 256-257 (1986)

[22]
Indeed, MMCOR asserted that it did not "hire" any doctors.
MMCOR "employs none of the physicians on its medical staff. Nor
does it have individual employment contracts with any physicians
who have staff privileges." MMCOR Motion to Dismiss at 6.
Rather, the medical staff of the hospital is made up of private
practitioners in the community, who must apply for and be granted
staff privileges. See Bylaws, MMCOR Motion to
Dismiss, TAB E.

[23]
Dr. Reid alleged that TMM was a wholly owned for-profit
subsidiary of MMCOR. Complaint at 1. As neither TMM nor
MMCOR has disputed this allegation, for purposes of deciding the
motions before me I assume that such a relationship exists.

[24]
TMM attached documents to its Motion to Dismiss, filed with the
ALJ on February 16, 1993, regarding an IRS inquiry into the
employment status of physicians who practiced at the East
Tennessee Family Clinics, a wholly owned subsidiary of TMM. The
contracts under which the physicians practiced appear to have
been similar to the one between Dr. Reid and TMM. See IRS
revenue agent's description of the contract, TMM Motion to
Dismiss, Tab D at 12-13. The revenue agent initially determined
that payments to the East Tennessee Family Clinics physicians
were taxable wages. Id. Tab D. TMM appealed.
Id., Tab E. On September 25, 1992 an IRS Tax Appeals
Officer determined that the case should be closed and that "[n]o
further action need be taken because there is no deficiency or
overassessment." Id., Tab F. The IRS determination is
not controlling in this case. However, because of the similarity
of the contracts involved and the similarity of the IRS test for
employment status to the common law test, I think that it is
worthy of some consideration.

[25] In an affidavit attached to TMM's Motion to Dismiss, TMM
President, McRae Sharpe stated that the "contractual allocation
of responsibilities between TMM and Dr. Reid was consistent with
the actual practice by TMM and Dr. Reid." Sharpe Affidavit at 3.

[26]
Peer review procedures at MMCOR are detailed and are spelled
out in its bylaws. See MMCOR Motion to Dismiss,
TAB E at 15-16, 30-40.

[27]
Although the structure and staffing of MMCOR might be related
to the question of Dr. Reid's employment status at MMCOR, the
facts related to Dr. Reid are undisputed and in the record.
Thus, for example, MMCOR's bylaws are attached to MMCOR's Motion
to Dismiss at TAB E, and Dr. Reid certified in his application
for staff privileges at MMCOR that he had read the bylaws.
Id. at TAB A p. 83.

[28]
Complainant's Summary of Jurisdictional Reasoning at 45 states
that fundamental fairness required discovery of the information
contained in the 36 designated interrogatories. However Dr.
Reid made no attempt to support this general assertion with
reference to the specific information he sought to gain through
those interrogatories. As described above, at best only a
handful had any relevance whatsoever to the issue of Dr. Reid's
employment status.

[29]
For example, counsel stated that "MMCOR and TMM spent money on
capital equipment that Dr. Reid did not need and did not want
(like new x-ray equipment, when he had never had an x-ray machine
in his practice before), without justification of [sic] excuse."
Complainant's Supplemental Brief supporting DOL Jurisdiction at
9. This information, if it had been supported by Dr. Reid's
affidavit, would have been relevant to the issue of Dr. Reid's
employment status. As it stands, it is nothing more than
unsupported assertions by counsel.