• removed him from training responsibilities and demoted him;

• subjected him to a hostile working environment;

• refused to reasonably accommodate his heart and diabetes conditions;

• removed him from supervising the K-25 training program;

• refused to let him see his 1991 performance evaluation for 18 months; and

• spread disinformation, including blacklisting in the form of defamatory and coercive negative references.

Interspersed throughout the complaint were myriad other alleged adverse actions, including "possible fraud and plagiarism"; "false imputation of protected activity"; "Life, Safety Risks to Security Personnel from Live Ammunition in Rounds Used for Training Exercises"; and "theft of weapons."

   The ALJ granted DOE's motion to dismiss the ERA and TSCA claims on sovereign immunity grounds, and dismissed the other claims against DOE because Williams failed to allege "any facts in his complaint which would support a finding that [LMES] and DOE are joint employers or that complainant is an employee of DOE." August 2, 1995 Order at 9.

• LMES management notified Williams that his security clearance was being changed from a "Q" to an "L" level;

• LMES failed properly to file a letter from Williams' physician indicating that his relationship with his supervisor was causing him stress; and

• LMES separated Williams from his "mentee" by transferring Williams (thereby allegedly undermining a "successful team").

RD&O at 5-7. The ALJ determined that there were no material facts in dispute with regard to these four alleged actions and that Respondents were entitled to a decision as a matter of law. The ALJ held:

• Based upon uncontested affidavits the alleged eavesdropping did not occur (Id. at 6-7);

• Uncontested affidavits demonstrated that LMES managers erroneously proposed to change Williams' security clearance; when their mistake was pointed out by Williams, LMES immediately reversed course and never changed the clearance level (Id. at 7-9);

• LMES' failure to place the letter in Williams' medical file did not constitute adverse action (Id. at 9-10);

• Williams' "separation from his friend was not an adverse action . . . but was made to accommodate Complainant's request for transfer and for legitimate business reasons . . . ." Id. at 10.

The ALJ also rejected Williams' arguments that the alleged adverse actions constituted a continuing violation of the ERA and Environmental Acts, as well as Williams' claim that Respondents had subjected him to a hostile work environment. Id. at 10-11. The ALJ therefore recommended that the case be dismissed. Id. at 11.

   Williams filed a timely appeal to this Board pursuant to 29 C.F.R. §24.8 (1998). We have jurisdiction pursuant to the ERA, the Environmental Acts, and 29 C.F.R. §24.8 (2000). We review the ALJ's recommended summary decision order de novo, and our review is governed by the same standard used by the ALJ. See Harris v. General Motors Corp., 201 F.3d 800, 802 (6th Cir. 2000).

considering a motion to reopen the record to admit new evidence, the Board ordinarily relies upon the same standard found in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, which provides:

Once the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record.

29 C.F.R. §18.54(c). See e.g., Duncan v. Sacramento Metro. Air Qual. Mgt. Dist., ARB Case No. 99-011, ALJ Case No. 97-CAA-12, Order, June 13, 2000. William has failed to meet this standard. Accordingly, we deny Williams' request to supplement the record.

   Third, Williams' argument that he was not given sufficient time to respond to the Motion for Summary Decision is ludicrous. LMES filed its supported motion in February 1996. After having failed to comply with numerous extensions of time, Williams finally submitted a two-page letter labeled a "Partial Response" on December 22, 1997, which the ALJ admitted into the record. Williams has advanced no plausible explanation why a period of almost two years was not sufficient to respond to LMES' motion.

ALJ noted that:

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 as the complainant is required only 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 . . . . The Secretary has held that a party defending a motion to dismiss that is supported with documents or affidavits cannot "rest upon the mere allegations or denials" of the pleadings.

Id. at 8.

Concurring and Dissenting Opinion at 18-19 (footnote ommitted). Although he does not explicitly say so, Member Brown appears to believe that the contract in and of itself is sufficient to establish that there exists a "joint employer" relationship between DOE and LMES. This is preposterous.

   As Lindemann and Grossman explain, the "joint employer" theory --

is used to obtain jurisdiction over a company that is unrelated to the employer-in-fact but which exercises sufficient day-to-day control over a [complainant's] work to be treated as a co-employer of the [complainant]. Factors that may result in joint employer status include control over the hiring, discipline, or discharge of employees; control over the work schedules and work assignments of such employees; and the obligation to train or to pay such employees.

* * * *

    Allegations that a company is a joint employer most often arise in situations where the [complainant] works for an independent contractor commissioned to perform certain work for the alleged joint employer, and the [complainant] claims that the alleged joint employer caused the discrimination.

prison school where school district alone hired and could fire her, paid her salary and benefits, and established work hours), aff'd, 79 F.3d 1024 (10th Cir. 1996); Astrowsky v. First Portland Mortgage Corp., 881 F.Supp 332 (D. Me. 1995) (employee leasing agency that managed commissions and tax withholding of leased employee but exercised no other control over employee not joint employer). Application of the law on the "joint employer" issue must lead to the conclusion that a contract such as that between DOE and LMES cannot, without more, establish a joint employer relationship. In this case there is nothing more to support the existence of such a relationship, and as the ALJ held, there are quite a few uncontradicted facts which support the opposite conclusion. DOE does not:

• employ Williams, or have a contract with him;

• manage or supervise Williams, or his work;

• have any right to assign work to Williams;

• pay Williams or pay his benefits;

• withhold taxes on Williams' behalf;

• evaluate Williams performance; or

• have the authority to terminate Williams.

In sum, the uncontested facts show that DOE did not "act as an employer with regard to complainant[ ]." Stephenson, supra. Under these circumstances the ALJ correctly dismissed Williams' claims against DOE.

   For the foregoing reasons we AFFIRM the ALJ's orders of August 2 and 8, 1995, and the RD&O and DISMISS this case.

   SO ORDERED.

       CYNTHIA L. ATTWOOD
       Member

Paul Greenberg, Chair, concurring:

   I agree fully with the opinion of Member Attwood and its conclusion that this complaint must be dismissed because Williams did not meet the basic threshold evidentiary requirements of a whistleblower case. I also agree with Member Attwood's comments regarding the separate concurrence/dissent of our colleague, Member Brown. I write separately to add an additional note regarding Williams' litigation of his case and to emphasize the authority of administrative law judges to regulate the conduct of litigants and their attorneys.

   As the ALJ noted in his recommended decision (slip op. at 2), Lockheed Martin Energy Systems filed its Motion for Summary Decision in this case on February 16, 1996. Between February and September 1996, Williams requested and was granted six extensions of time for filing an opposition to the Motion. No response was filed by the final December 1996 deadline. In September 1997 fully ten months later the ALJ issued an Order to Williams allowing him 25 additional days to file an opposition. Although Williams had known of the Motion for Summary Decision for more than 18 months, he failed to produce any response even within the extended time frame granted by the ALJ. Belatedly, Williams produced only a partial response. Even then, the partial response was ineffectual.

   As a general proposition, an administrative law judge has broad latitude in regulating the conduct of a trial, 29 C.F.R. §18.29 (2000), and will be reversed by this Board only for errors in discretion. Robinson v. Martin Marietta Servs., Inc., ARB No. 96-075, ALJ No. 94-TSC-7 (ARB Sept. 23, 1996). Cf. Khandelwal v. Southern California Edison, ARB No. 98-159, ALJ No. 97-ERA-6 (ARB Nov. 30, 2000). In this case, the ALJ was extraordinarily generous to Williams, repeatedly extending the time limit for filing a response to Lockheed Martin's dispositive pleading even to the point of giving Williams "one last chance" to submit a response almost a year after Williams had missed the December 1996 filing deadline. While such patience by a trial court may be commendable, it is not required. Williams' repeated failure to file pleadings could be viewed as a failure to

prosecute his claim. As we have noted previously,

Courts possess the "inherent power" to dismiss a case for lack of prosecution. Link v. Wabash R.R., 370 U.S. 626, 630 (1962). This power is "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Id. at 630-31. Accord Tri-Gem's Builders, Inc., ARB Case No. 99-117, Order of Dismissal (Feb. 25, 2000). Like courts, this Board necessarily must manage its docket in an effort to "achieve the orderly and expeditious disposition of cases." Thus, given [Complainant's] unexplained failure to submit a brief, notwithstanding the Board's every effort to allow him sufficient time to do so, we find that he has failed to prosecute his petition for review . . . [and dismiss it].

Mastrianna v. Northeast Utilities Corp., ARB No. 99-012, ALJ No. 98-ERA-33 (ARB Sept. 13, 2000). Accord, Curley v. Grand Rapids Iron & Metal Co., ARB No. 00-013, ALJ No. 99-STA-39 (ARB Feb. 9, 1999). Just as this Board has the authority and obligation to manage its docket, so too do the Labor Department's administrative law judges. Under the facts before us, the ALJ would have been fully justified to dismiss this case as early as December 1996 for lack of prosecution.

       PAUL GREENBERG
       Chair

E. Cooper Brown, Member, concurring in part and dissenting in part:

   I concur in that part of the Majority's opinion affirming the ALJ's Recommended Decision and Order barring Complainant's complaint pursuant to the applicable statutes of limitations. I dissent from the Majority's affirmation of ALJ's ruling that the Department of Energy (DOE) is not a covered employer subject to liability under the environmental acts herein at issue, and the determination that the individual Respondents are not liable under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the Solid Waste Disposal Act (SWDA). While resolution of the statute of limitations issue in Respondents' favor is determinative of this case, I nevertheless address whether the DOE and the individual Respondents should have been held liable because of the significance of these issues to the cases that come before the Board under the environmental whistleblower protection laws.

   The ALJ dismissed Williams' claims against the DOE under the Energy Reorganization Act (ERA) and the Toxic Substances Control Act (TSCA) because under neither of these acts has Congress waived the government's sovereign immunity. Decision & Order Granting Respondent Department of Energy's Motion to Dismiss, slip op. at 4-5 (Aug. 2, 1995). Relying upon Reid v. Methodist Medical Center of Oak Ridge, 93-CAA-4 (Sec'y, April 13, 1995), and Nationwide Mutual Insurance v. Darden, 503 U.S. 318, 112 S.Ct. 1344 (1992), the ALJ dismissed Williams' claims against DOE under the remaining environmental whistleblower acts (the Clean Air Act (CAA), SWDA and CERCLA) because no employer- employee relationship between DOE and Complainant was found to exist. Id. at 5-6.

   Relying upon Stephenson v. NASA, 94-TSC-5 (Sec'y, July 3, 1995), the ALJ also dismissed Williams' claims against individual Respondents Sam Thompson and Lorry Ruth on the grounds that they were not employers of Complainant and thus not subject to suit under the various whistleblower protection laws cited as the jurisdictional basis for Williams' complaint. Order Granting in Part and Denying in Part Respondent Lockheed Martin Energy Systems' Motion to Dismiss, slip op. at 4 (Aug. 8, 1995).

common law employer may nevertheless be held liable for retaliation under the CAA employee protection provision." Id.

   As previously noted, the whistleblower protection provisions of both the SWDA and CERCLA extend liability coverage to any "person." The SWDA provides that: "No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee . . . ." 42 U.S.C. §6971(a) (emphasis added). Similarly, CERCLA provides: "No person shall fire or in any other way discriminate against, or cause to be discriminated against, any employee . . . ." 42 U.S.C. §9610(a) (emphasis added). This language has been held, both by the Secretary and by the courts, to impose individual liability.

   For example, in Ass't Sec. of Labor v. Bolin Associates, 91-STA-4, Sec'y D&O, slip op. at 5-6 (Dec. 30, 1991), the Secretary interpreted similar language found in section 405 of the Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105 (1994), to hold the principal officer within the company responsible for discharging the complainant personally liable. "Bolin, as the person who discharged Complainant, is liable under the express language of Section [31105] . . . . The ALJ properly pointed out that the express language of the STAA permits individual liability. [citation omitted] The statute provides that '[n]o person shall discharge' an employee for conduct protected by the STAA, and defines a person as 'one or more individuals' . . . ." Bolin, slip op. at 4. The Secretary noted that her interpretation of the STAA provision was not only consistent with that taken under the analogous employee protection provision of the Occupational Safety and Health Act, 29 U.S.C. §660(c) (1988), "but the approach also finds support in other substantive law areas with similar statutory language, i.e. Section 107 of [CERCLA], 42 U.S.C. §9607." Id.

   Interpreting the analogous provision of OSHA, the district court in Donovan v. Diplomat Envelope, Inc., 587 F.Supp. 1417 (E.D. N.Y. 1984), aff'd. 760 F.2d 253 (2d Cir. 1985) (table), concluded that, "it is clear that the defendant in an action under 29 U.S.C. §660(c) need not be an employer." 587 F. Supp. at 1425. And while the court recognized that the remedial provisions of OSHA appeared primarily designed for relief against the employer, it nevertheless concluded: "We cannot rule out the possibility that damages might under some circumstances be appropriately imposed upon an employer's officer responsible for a discriminatory discharge." Id; cf. Kelley v. Thomas Solvent Co., 727 F. Supp. 1532, 1541-44 (W.D. Mich. 1989) (holding individual corporate officers or directors personally liable in certain circumstances under section 107 of CERCLA).