Date: September 20, 1995
Case No.: 95-ERA-1
In the Matter of:
C. D. VARNADORE,
Complainant
v.
OAK RIDGE NATIONAL LABORATORY,
MARTIN MARIETTA ENERGY SYSTEMS,
INC.(MMES); MARTIN MARIETTA CORP.
(MMC); MARTIN MARIETTA TECHNOLOGIES
(MMT); ORNL AND MMES MEDICAL,
HEALTH, HEALTH PHYSICS, OCCURRENCE
REPORTING, ENVIRONMENTAL MONITORING
AND INDUSTRIAL HYGIENE DEPARTMENTS;
MS. M. ELIZABETH CULBRETH, ESQ.;
WILBUR DOTREY SHULTS, PH.D.;
SECRETARY OF ENERGY HAZEL O'LEARY
AND DEPARTMENT OF ENERGY; OAK
RIDGE OPERATIONS,
Respondents
RECOMMENDED ORDER OF DISMISSAL
In his Complaint of August 2, 1994, the Complainant alleges
four counts, each of which contain several additional claims
alleging numerous violations by the multiple Respondents under
the employee protection provisions of the Clean Air Act (CAA), 42
U.S.C. § 7622, the Toxic Substances Control Act (TSCA), 15
U.S.C. § 2622, the Resource Conservation and Recovery Act
(RCRA, or as also known, the Solid Waste Disposal Act, SWDA), 42
U.S.C. § 6971, the Comprehensive Environmental Response
Compensation and
[PAGE 127]
Liability Act (CERCLA), 42 U.S.C. § 9610, the Safe Drinking
Water Act (SDWA), 42 U.S.C. § 300j-9(i), and the Energy
Reorganization Act (ERA), 42 U.S.C. § 5851 [hereinafter also
referred to collectively as "the
[PAGE 2]
Acts"]. The employee protection (whistleblower) provisions of
the above-referenced statutes, and implementing regulations
thereunder, unanimously proscribe any employer from taking any
adverse employment action against an employee, relating to the
employee's compensation, terms, conditions or privileges of
employment, in retaliation for the employee's assistance or
participation in proceedings or any other action that furthers
the purposes of the environmental statutes at issue. 29 C.F.R.
§ 24.2(a).
Respondent, the United States Department of Energy (DOE), on
November 21, 1994, filed a motion to dismiss the Complainant's
complaint, and all counts alleged therein, against the DOE.
Similarly, Respondent Martin Marietta Energy Systems (MMES) and
the other named respondents also filed a joint motion on November
21, 1994 requesting dismissal of all counts of the Complainant's
complaint. Complainant responded to these motions with a memo-
randum in opposition on December 27, 1994. The DOE filed supple-
ments to its motion to dismiss on April 24 and August 18, 1995.
Issues:
It is not in dispute that the Complainant's on-going litiga-
tion of multiple claims against MMES, et. al, constitutes
a protected activity under each of the whistleblower provisions.
Thus, the remaining issues are:
1) Whether the Complaint was timely filed;
2) Whether the named Respondents are liable under the
whistleblower provisions for the acts alleged in the Complaint;
3) Whether the acts alleged constitute adverse employment
actions which affected the Complainant's compensation, terms,
conditions, or privileges of employment; and,
4) Whether such acts were done in retaliation for the
Complainant's protected activities.
Jurisdiction:
The above-referenced statutory provisions give to the
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Secretary of Labor the responsibility to assign to the Office of
Administrative Law Judges employees' claims of discrimination
under these statutes, if requested by a party, after the initial
investigation of the claim by the Department of Labor (DOL). 29
C.F.R. § 24.1(a). The administrative law judge is instruct-
ed to conduct a hearing, if necessary, and to make a recommended
decision and order to the Secretary of Labor. 29 C.F.R. §
24.5 and 24.6(a).
[PAGE 3]
In appropriate cases, the administrative law judge may recommend
dismissal of a claim for cause. 29 C.F.R. § 24.5(e)(4).
After reviewing the recommended order, the Secretary of Labor
will issue a final order. 29 C.F.R. § 24.6(b).
Background:
The matter before me represents the Complainant's sixth
complaint against MMES. The first three claims (92-CAA-2, 92-
CAA-3, and 93-CAA-5) were consolidated into what is now known as
Varnadore I and were heard by Administrative Law Judge
Theodor Von Brand. The fourth and fifth claims (94-CAA-2 and
94-CAA-3) were consolidated into Varnadore II and were
heard by Administrative Law Judge David Clarke. Both
cases are presently before the Secretary awaiting a final
order.
The sixth claim was investigated by the Wage and Hour
Division, which found that:
[t]he Department of Labor has no jurisdiction over how
MMES, et. al funds its legal obligations, nor
with whom it contracts for advice in pursuing its legal
defense; we further have no jurisdiction over determin-
ing the proper organizational structure of the respon-
dent companies.
The alleged inadequate posting had no adverse effect on
Mr. Varnadore as previous investigations by this office
revealed that he was aware of the employee protection
provisions of these statutes.
None of the other alleged adverse actions occurred
within the 180-day time limit for filing a complaint
under the Energy Reorganization Act. Nor did any of
the alleged adverse actions occur during the 30-day
time period for filing complaints under the employee
protection provisions of the other referenced stat-
utes.
The Complainant appealed the Wage and Hour Division's
[PAGE 129]
findings and the matter was assigned by the Secretary of Labor to
the undersigned administrative law judge.
Discrimination Claim:
If the Complaint's alleged facts, even if proven, nonethe-
less fail to make out a prima facie case of discrimination
and thereby fail to entitle him to relief against the named
Respondents under any of the whistleblower provisions, then the
Complaint must be
[PAGE 4]
dismissed. In order to satisfy the prima facie case of
discrimination under any of the above-referenced environmental
whistleblower statutory provisions, the employee must demonstrate
that:
1) the party charged with discrimination is an employer
subject to the Act;
2) the employee engaged in protected conduct;
3) the employer took some adverse action against the
employee; and
4) the protected conduct was the likely reason for the
adverse action.
DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir.
1983) (ERA claim). The Secretary has held that the burden of
proof on the complainant under the ERA whistleblower provision is
applicable under all environmental whistleblower claims.
Wagoner v. Technical Products, Inc., 87-TSC-4 (Sec'y Nov.
20, 1990); Polous v. Ambassador Fuel Oil Co., Inc., 86-
CAA-1 (Sec'y April 27, 1987). Under the ERA as amended, the
Complainant must make out a "prima facie" case showing
that his protected conduct was a "contributing factor" in the
unfavorable personnel action alleged in the complaint. 42 U.S.C.
§ 5851(b)(3)(C). However, the Secretary has stated that a
complaint under the whistleblower provisions simply must present
evidence "sufficient at least to raise an inference" that the
protected activity was the likely motive for the adverse action.
Howard v. Tennessee Valley Authority, 91-ERA-36 (Sec'y
Jan. 13. 1993). If the Complainant does not make this prima
facie showing, the complaint must be dismissed. 42 U.S.C.
§ 5851(b)(3)(A).
Motion to Dismiss:
While the Rules for Practice and Procedure for Administra-
tive Hearings before the Office of Administrative Law Judges,
found at 29 C.F.R. § 18, govern the matter before me,
section 18.1(a) states that the Federal Rules of Civil Procedure
(FRCP)
[PAGE 130]
shall be applied in any situation not provided for or controlled
by these rules. Because the rules of practice and procedure do
not provide guidance on motions to dismiss, FRCP 12 will govern
the adjudication of the motion before me.
Only two provisions of FRCP 12 are applicable in this
matter. Subsection (b)(1) states that a complaint may be dis-
missed for lack of jurisdiction over the subject matter, and
subsection (b)(6) provides that a complaint may be dismissed for
failure to state a claim upon which relief can be granted. A
dismissal of a complaint for cause under FRCP 12(b)(6) does not
violate the due process rights of the Complainant. Rose v.
Dole, 945 F.2d 1331, 1338 (6th Cir. 1991).
[PAGE 5]
The Respondents also urge that the Complaint must be dis-
missed in its entirety because the statute of limitations for
filing such a claim under the above-mentioned provisions expired
before the Complainant's filing. Furthermore, some Respondents
contend that they are not the Complainant's "employer" as defined
by the whistleblower provisions, and therefore are not valid
parties to such claims. Finally, the Respondents' argue that the
Complaint itself fails to conform to the FRCP and should be
dismissed on that basis.
Timeliness:
With the exception of the ERA, the whistleblower provisions
under which this claim of discriminatory treatment is brought all
include a thirty-day statute of limitations for bringing a claim
of discrimination. See 42 U.S.C. § 7622(b)(1) (CAA);
15 U.S.C. § 2622(b)(1) (TSCA); 42 U.S.C. § 6971(b)
(RCRA or SWDA); 42 U.S.C. § 9610(b) (CERCLA); and 42 U.S.C.
§ 300j-9(i)(2) (SDWA). A claim under these provisions must
be filed within thirty days of the discriminatory treatment which
is the basis for the claim. The multiple acts of discrimination
alleged by the Complainant all pre-date the Complaint's filing
date by more than thirty days. Furthermore, no good cause has
been demonstrated which would allowing tolling the filing period.
Consequently, all claims alleged under the CAA, TSCA, RCRA or
SWDA, CERCLA and SDWA must be DISMISSED as untimely. The claims
made under the ERA, which has a 180-day filing period, were filed
in a timely fashion and will be discussed further. Also, the
timeliness of specific allegations is discussed below.
Sovereign Immunity:[PAGE 131]
Initially, I note that, assuming the Complaint was timely
filed, dismissal of certain claims against the DOE would nonethe-
less be proper because the United States government has not
waived its sovereign immunity under the TSCA. Stephenson v.
National Aeronautics and Space Administration, 94-TSC-5
(Sec'y July 1, 1995). Furthermore, the Secretary has recently
found that the DOE has not waived its immunity under the ERA.
Teles v. U.S. Department of Energy, 94-ERA-22 (Sec'y Aug.
7, 1995). It is well settled that a waiver of the United States
government's sovereign immunity must be unequivocal. U.S.
Department of Energy v. Ohio, 112 S. Ct. 1627, 1633 (1992).
The Secretary has made clear that the DOE has not unequivocally
waived its sovereign immunity and thus made itself subject to the
whistleblower provisions of the TSCA or ERA. See
Stephenson, supra; Teles, supra.
Consequently, all claims against
[PAGE 6]
the DOE under the TSCA and ERA must be DISMISSED under the
doctrine of sovereign immunity.
Respondents:
Multiple parties have been named as Respondents in the
Complaint now before me. The Complainant contends that he
suffered from discriminatory and/or retaliatory treatment at the
hands of the following sources: Oak Ridge National Laboratory
(ORNL), Martin Marietta Energy Systems, Inc. (MMES), Martin
Marietta Corporation (MMC), Martin Marietta Technologies, Inc.
(MMT), the Medical, Health, Health Physics, Occurrence Reporting,
Environmental Monitoring and Industrial Hygiene Departments of
ORNL and MMES, and ORNL Division Director Dr. Wilbur D. Shults.
Reviewing each of the Respondents, I find that many of them
are improper parties and are not subject to individual liability
under the referenced whistleblower provisions. Initially, I find
that MMES represents the Complainant's employer and as such, MMES
is liable for any violations of the whistleblower provisions at
issue. ORNL is an unincorporated division of MMES and is not a
legal entity. Any violation of the statutes at issue alleged to
have occurred at or by ORNL will be attributed to MMES. Further-
more, the Medical, Health, Health Physics, Occurrence Reporting,
Environmental Monitoring, and Industrial Hygiene Departments are
unincorporated departments of MMES and as such, MMES is responsi-
ble for any statutory violations occurring at or by such depart-
ments. Also, MMT and MMC are the parent companies of MMES and
have no individual liability in this matter. See NLRB
v. Fullerton Transfer & Storage, 910 F.2d 331 (6th Cir.
1990);
[PAGE 132]
Armbruster v. Quinn, 711 F.2d 1332, 1337 (6th Cir. 1983).
Moreover, individuals who are not employers are not subject to
liability under the employee protection provisions of the TSCA
and the CAA. See Stephenson, supra.
Thus, I find that allegations against Dr. Shults took place in
the scope of his employment with MMES, and therefore all allega-
tions concerning Dr. Shults also will be attributed to MMES.
Consequently, all claims against Respondents MMC, MMT, ORNL, the
Medical, Health, Health Physics, Occurrence Reporting, Environ-
mental Monitoring, and Industrial Hygiene departments, and Dr.
Wilbur Shults are DISMISSED.
The Complainant also alleges discrimination by Ms. Elizabeth
Culbreth, former Director of the Office of Administrative Appeals
for DOL and currently a consultant for MMES. I find that no
facts alleged in the Complaint, even assuming complete veracity,
could make Ms. Culbreth individually liable under the
whistleblower provisions of the environmental statutes at issue.
She never
[PAGE 7]
employed the Complainant or controlled his employment. See
Stephenson, supra. Any acts allegedly commit-
ted by Ms. Culbreth took place during her consultant work with
MMES. Therefore, I find that any acts found discriminatory on
the part of Ms. Culbreth were committed in the scope of her
employment with MMES, and therefore, are properly attributable to
MMES. Therefore, all claims against Respondent Elizabeth
Culbreth individually are DISMISSED.
The Complainant also alleges discrimination by the United
States Department of Energy (DOE), its Oak Ridge Operations
Office and the Secretary of Energy Hazel O'Leary. Initially, I
find that the Oak Ridge Operations Office is simply a satellite
office of the DOE and thereby cannot constitute an independent
party. Thus, the alleged actions of the Oak Ridge Operations
Office will be attributable to the DOE. Additionally, I find
that the alleged acts of Secretary O'Leary were taken in her
position of Secretary and in the scope of her employment with
DOE, and therefore are attributable to the DOE. Further,
Secretary O'Leary was never the Complainant's employer and thus
is not individually liable.SeeStephenson,
supra. As a result, I find that all claims against the
Oak Ridge Operations Plant and Hazel O'Leary individually are
DISMISSED.
The merits of all claims alleged by the Complainant will be
considered regarding MMES and DOE, as all other named Respondents
have either been consolidated with either MMES or DOE or dis
[PAGE 133]
missed from the matter.
The Complaint:
Initially, I must note that the Complainant's Complaint
consists of thirty-three rambling and disorganized pages, and as
such, fails to conform with the FRCP. However, under the liberal
rules which govern filing a complaint under the whistleblower
provisions, such lack of conformity will not disqualify a com-
plaint, as was urged by the Respondents. The Complaint contains
multiple allegations of misconduct by the various Respondents,
but fails to identify with any specificity which law, statute, or
regulation such acts supposedly violated.
In order to provide complete fairness to all parties, I will
consider whether each specific act of misconduct as alleged by
the Complainant, if true, would establish an adverse employment
action from which I could infer retaliation by the Respondent for
the Complainant's prior litigation. The Complaint's various
allegations of unlawful activity by the Respondents will be
considered in the order in which they appeared in the Complaint
and, for the sake of
[PAGE 8]
clarity, references to the specific paragraph in which such
allegations were found will be included. Notwithstanding my
prior findings on the issues of timeliness and sovereign immuni-
ty, I will discuss the merits of the Complaint fully.
Count One: Squandering Vast Sums on Anti-Whistleblower
Legal Defense
Under Count One, the Complainant alleges the following
violations of law:
1) the wrongful funding of contractor litigation by the
United States Department of Energy. Complaint, ¶ 3-6.
2) the violation of agency ethics rules by allowing Eliza-
beth Culbreth to be employed by MMES one year after leaving the
Office of Administrative Appeals for the United States Department
of Labor. Complaint, ¶ 11.
DOE Funding of MMES Litigation
The Complainant alleges that the DOE's funding of contractor
litigation, as provided for under the Allowable Cost and Fees
clause contained in DOE contract no. DE-AC05-940R21400 with MMES,
somehow constitutes an adverse employment action which discrimi
[PAGE 134]
nates against him. In making such a claim, however, the Com-
plaint fails to establish how the DOE is the Complainant's
employer, as defined in the relevant statutory provisions, and
thereby accountable for its actions regarding the Complainant
under the various environmental whistleblower provisions. The
Complainant argues that the whistleblower provisions use the
terminology "person" throughout and not "employer."
Complainant's Response, p.1. However, as shown, the Sixth
Circuit has interpreted the environmental whistleblower provi-
sions to require that the Complainant's "employer" take discrimi-
natory action in order for the claim to succeed under such
provisions. DeFord, supra. Additionally, the
Secretary of Labor has found this "person" argument to be without
merit. Tales v. United States Dept. of Energy, 94-ERA-22
(Sec'y Aug. 7, 1995). Parties not "employers" of the complainant
should be dismissed on that basis from suits under the
whistleblower provisions at issue. SeeStephenson v.
National Aeronautics and Space Administration, 94-TSC-05 (ALJ
Rec. D. & O., June 27, 1994).
Complainant cites to Jenkins v. EPA, 92-CAA-06 (Sec'y
May 18, 1994), in support of his claim that DOE should be held
liable for its actions relating to his whistleblower litigation.
While the Secretary held in Jenkins that a United States
government agency
[PAGE 9]
could be found liable as an employer under the whistleblower
provisions in CERCLA, SDWA, CAA, and SWDA, the Jenkins
decision is not strictly applicable to the matter before me.
Jenkins was an employee of the EPA, whereas the Complainant
before me is not an employee of DOE or any government agency.
Rather, the Complainant is an employee of MMES. Simply because
MMES operates the Oak Ridge facility, i.e. the
Complainant's place of employment, under a contract from DOE,
does not make the Complainant a DOE employee in any sense of the
word.
Next, the Complainant contends DOE should be found to be his
employer under the "economic realities" test. The "economic
realities" test holds that an employer/employee relationship
exists whenever one party controls the employment opportunities
of another party. Behalf of Doe v. St. Joseph's Hospital,
788 F.2d 41, 422-23 (7th Cir. 1986). According to the Complain-
ant, because DOE issues the contract to MMES under which MMES
hires employees to operate the Oak Ridge facility, DOE controls
his employment because without such contract, his employment at
Oak Ridge with MMES would be terminated.
Conversely, the Supreme Court has stated that unless Con
[PAGE 135]
gress clearly indicates otherwise, the common-law definition of
"employee" must be used. Nationwide Mut. Ins. Co. v.
Darden, 112 S. Ct. 1344, 1349 (1992) (Title VII claim).
Because the economic realities test is based on the premise that
the term "employee" should be construed in light of the Act's
purpose to eliminate discrimination and because such construction
is broader, the Supreme Court has precluded its application.
Id.; See alsoWilde v. County of Kandiyohi,
15 F.3d 103, 106 (8th Cir. 1994). In Darden, the Supreme
Court summarized the common-law test for determining a employ-
er/employee relationship as follows:
In determining whether a hired party is an employee
under 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 skills re-
quired; the source of the instrumentalities and tools;
whether the hiring party has the right to assign addi-
tional projects to the hired party; the extent of the
hired party's 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.
[PAGE 10]
Darden, supra, at 1347 (quotingCommunity
for Creative Non-Violence v. Reid, 490 U.S. 730, 751-52
(1989) (citing Restatement (Second) of Agency §
220(2) (1958).
It is indisputable under the Darden test that only
MMES can be considered the Complainant's employer. MMES controls
the Complainant's employment assignments, hours, compensation,
and employee benefits. Furthermore, MMES represents the
Complainant's "hiring party" as used throughout the Darden
test. In no way does DOE constitute the "hiring party" of the
Complainant so as to be liable as an employer under the
whistleblower provision under which the Complaint is based.
Finally, Complainant contends that the Secretary's decision
in Hill & Ottney v. Tennessee Valley Authority allows for
a party other than the complainant's employer to be found liable
under the ERA's whistleblower provisions. 87-ERA-23, 24 (Sec'y
May 24, 1987). However, the Secretary specifically limited her
ruling in
[PAGE 136]
Hill to the narrow facts and circumstances of that case.
Therefore, Complainant's reliance on Hill in this case in
misplaced. Consequently, all claims in Count One against the DOE
must be DISMISSED on the basis that DOE is not the Complainant's
employer and, therefore, is not a proper party to a claim of
discrimination under the whistleblower provisions at issue.
See DeFord, supra.
Even assuming arguendo that the DOE could be found to
be liable to the Complainant under the Acts, nowhere in the Com-
plaint does the Complainant articulate how the DOE's funding
policies adversely affected his employment with MMES. The
Complaint alleges no facts indicating discriminatory or retalia-
tory motive by the DOE in contracting with MMES, wherein DOE
agreed to compensate MMES for certain litigation expenses. In
fact, Counsel for Complainant admits that the Complainant "cannot
prove that DOE's decision [to fund MMES litigation] was motivated
in part by discriminatory animus." Complaint, ¶ 61.
Without these necessary facts, even assuming all other alleged
facts to be true, Count One of the Complaint fails to state a
claim for which relief can be granted and must be DISMISSED under
FRCP 12(b)(6).
Furthermore, as discussed above, the DOL's jurisdiction
under the statutes at issue relates to claims under such
statutes' employee protection provisions. 29 C.F.R. §
24.1(a). DOL maintains no jurisdiction to decide claims contest-
ing the DOE's, or any other government agency's, use of funds ap-
propriated to it by Congress. Therefore, Count One of the Com-
plaint, so far as it relates to the DOE's funding of litigation,
is also DISMISSED for lack of subject
[PAGE 11]
matter jurisdiction under FRCP 12(b)(1).
Culbreth's Consultation with MMES
The Complainant also alleges, as an impropriety, Elizabeth
Culbreth's association with MMES. While 29 C.F.R. § 2.2
prohibits former DOL Washington D.C. employees from appearing as
an attorney before the DOL in connection with any case that was
pending before the Department during her employment, the Office
of Administrative Law Judges has no jurisdiction to determine the
validity of a claim alleging that a former employee is acting
unethically. The jurisdiction of this office in this matter is
limited to the whistleblower provisions of the above-referenced
statutes and does not extend to claims of possible ethical
violations by former government employees. Accordingly, the
[PAGE 137]
portion of the Complaint relating to Ms. Culbreth's employment
with the Respondent MMES, and the DOE's alleged inaction with
regard to such, also is DISMISSED for lack of subject matter
jurisdiction.
Furthermore, the Complainant fails to articulate how Ms.
Culbreth's activities in the private sector constitute discrimi-
natory or retaliatory acts against him which adversely affected
his compensation, terms, conditions or privileges of employment.
Therefore, even assuming the complete veracity of the
Complainant's allegations regarding Ms. Culbreth, I must find
that the Complaint fails to state a claim for which relief can be
granted concerning the alleged actions of Ms. Culbreth, as well
as DOE's alleged consent, and is thereby DISMISSED in accord with
FRCP 12(b)(6).
Count Two: DOE and Its "Old Culture" Hostility Toward
Complainant and Protected Activity
Under Count Two, the Complainant addressed several alleged
acts and/or omissions that he contends constitute discriminatory
or retaliatory conduct by the DOE and MMES. Such alleged inci-
dents of discrimination include:
1) DOE Secretary Hazel O'Leary's contempt for Complainant
as expressed through her "facial expressions and tone of voice"
at the Oak Ridge Stakeholder meeting on April 29, 1994. Com-
plaint, ¶ 17.
2) Secretary O'Leary's "derision" of Complainant on April
29, 1994 which was "open, notorious and without apparent basis."
Complaint, ¶ 18.
3) Secretary O'Leary's "cold treatment" of Complainant by
refusing to answer his question on April 29, 1994.
Complaint, ¶ 19.
[PAGE 12]
4) U. S. Senator James Sasser and U. S. Rep. Marilyn Lloyd
avoided the Complainant "as if he were a pariah" after the Oak
Ridge Stakeholder meeting on April 29, 1994. Complaint,
¶ 21.
5) Complainant was stigmatized by Secretary O'Leary at the
April 29, 1994 meeting. Complaint, ¶ 22.
6) When Complainant was introduced at the April 29, 1994
meeting, a group of MMES employees made "multiple, audible
[PAGE 138]
murmurs expressing disdain and ridicule, including but not
limited to grunts and groans." Complaint, ¶ 23.
7) At the April 29, 1994 meeting, the Complainant was
introduced is a stigmatizing fashion, "we all know him." Com-
plaint, ¶ 24.
8) MMES manager Will Minter "interrupted Secretary
O'Leary's rapport with [the Complainant] by stating that he was
'in litigation'" at the April 29, 1994 meeting. Complaint,
¶ 24.
9) "Blacklisting in the form of defamatory statements or
bad references spread by phone or in writing, including to the
Secretary of Energy herself" by MMES which led to the allegedly
improper conduct of the Secretary and others at the April 29,
1994 meeting. Complaint, ¶ 36.
DOE Secretary O'Leary's Alleged Conduct
Initially, I note that all claims against the DOE alleged in
Count Two of the Complaint must be DISMISSED for reasons dis-
cussed above.
Assuming arguendo that DOE was Complainant's employer
and subject to liability under the above-referenced provisions, I
nonetheless find that the Complaint does not adequately articu-
late how the alleged actions or omissions by Secretary O'Leary
constitute discriminatory conduct which adversely affected the
terms or conditions of his employment. No claim for relief is
stated if the complaint fails to plead facts sufficient to show
that a legal wrong has been committed. Sutton v. Eastern Viavi
Co., 138 F.2d 959, 960 (7th Cir. 1943). Furthermore, there
is no duty on the undersigned to conjure up unpleaded facts that
might turn a frivolous claim into a substantial one. O'Brien
v. DiGrazia, 544 F.2d 543 (1st Cir. 1976), cert. de-
nied 431 U.S. 914. Finally, although pleadings should be
given liberal construction, general allegations of wrongdoing are
insufficient to state a claim for which relief may be granted.
Huey v. Barloga, 277 F.Supp. 864, 871
[PAGE 13]
(D.C. Ill. 1967). Secretary O'Leary's comments, if true, may
have been inappropriate, but the Complaint fails to establish how
such comments affected his compensation, terms, conditions or
privileges of employment. Thus, based on the facts pleaded in
Count Two, the Complainant fails to state a claim for which
relief can be granted against the DOE based on Secretary
O'Leary's actions and accordingly, all claims against DOE con
[PAGE 139]
tained in Count Two are DISMISSED pursuant to FRCP 12(b)(6).
Additionally, as previously stated, all claims leveled
against DOE under all statutes other than the ERA must be dis-
missed as untimely. From the alleged instances of discrimina-
tion by the DOE Secretary at the April 29, 1994 meeting until the
filing of the Complaint over 100 days passed. Thus, the Com-
plainant failed to submit his claim regarding these acts within
statutorily mandated 30 day filing period (the ERA, as amended,
allows 180 days to file). As the Complainant has alleged no
facts which justify tolling the filing period, all claims relat-
ing to the April 29, 1994 meeting under all statutes other than
the ERA must be DISMISSED as untimely.
Blacklisting by MMES
The Complaint also alleges blacklisting by MMES, including
phone calls to DOE, which played a part in the Secretary's and
others' alleged mistreatment of the Complainant at the April 29,
1994 meeting. Regarding the alleged acts by MMES leading up to
the Complainant's interaction with Secretary O'Leary on April 29,
1994, the Complainant fails to articulate any specific instance
of discrimination within the filing period, i.e. July 2,
1994 to August 2, 1994 for all statutes except the ERA; 180 days
under the ERA. General allegations, without well-pleaded facts
of a specific discriminatory act within the limitations period,
are not sufficient to raise the inference of discrimination.
Howard v. Tennessee Valley Authority, 91-ERA-36 (Sec'y
Jan. 13, 1993). Without a sufficiently specific allegation that
the Respondent committed any act of discrimination within thirty
(or 180) days of the Complainant filing his complaint, his
general claim of blacklisting must be dismissed as untimely.
Rodolico v. Venturi, Rouch and Scott Brown, 89-CAA-4
(Sec'y, Feb. 21, 1992). Accordingly, the claim of blacklisting
against MMES is DISMISSED as untimely.
Furthermore, even assuming all facts in Count Two to be
true, the Complaint fails to adequately express how such acts by
MMES, such as allegedly bad-mouthing him to DOE officials,
adversely effected the Complainant's compensation, terms, condi-
tions or privileges of employment. Consequently, all claims
against MMES
[PAGE 14]
alleged in Count Two are hereby DISMISSED under FRCP 12(b)(6) for
failing to state a claim for which relief can be granted.
Count Three: Apparent Ethical Violations In Releasing Mr.
[PAGE 140]
Varnadore's Employee Medical Records
The Complaint next alleges that the Respondent MMES dis-
criminated and retaliated against him by releasing his employee
medical records. Complaint, ¶ 39. As a result, the
Complainant was forced to relive his son's death and his own
experience with cancer during his examination in depositions and
hearings in connection with Varnadore I and II. Com-
plaint, ¶ 37. The Complainant's allegations of retaliatory
conduct by MMES relate to MMES allegedly providing its attorneys
and other employees working on the Varnadore II case
access to the Complainant's personnel file which included his
medical records.
Initially, I note that the Complainant does not articulate
how, if at all, such actions by MMES adversely affected his
compensation, terms, conditions or privileges of employment.
Secondly, the Complaint is devoid of any facts that suggest that
retaliatory or discriminatory animus fueled MMES's examination of
the Complainant's medical records in preparation for the
Varnadore II hearing. As the Complainant made workplace
stress and his physical condition issues in Varnadore I and
II, his employee medical records constituted discoverable
material under the FRCP. Therefore, without facts supporting a
discriminatory or retaliatory motive, a general allegation of
wrongdoing is not sufficient to state a claim for which relief
may be granted. The Complaint must plead facts that, if proven,
would entitle the Complainant to relief. Even if the truth of
his allegations is proven, the Complainant has failed to state a
claim for which relief may be granted. Consequently, all allega-
tions made in Count Three of the Complaint must be DISMISSED
under FRCP 12(b)(6).
Additionally, because the Complainant's knowledge of MMES's
review of his medical records dates back to his deposition
relating to Varnadore II, the statute of limitations has
expired on the Complainant's right to file a timely complaint
regarding MMES's allegedly discriminatory examination of his
medical records. Thus, Count Three must also be DISMISSED as
untimely under all of the above-referenced statutes.
Count Four: Failure to Make Proper Postings on ERA
In Count Four, the Complainant alleges that MMES failed "to
make proper postings regarding the ERA as required by law."
Com
[PAGE 15]
plaint, ¶ 47 & 51. As a result of MMES's allegedly in-
adequate postings, the Complainant has allegedly suffered dis-
crimination by continuing to be "isolated and stigmatized by
[the] Respon
[PAGE 141]
dents." Complaint, ¶ 52. Furthermore, the allegedly
inadequate postings "diminish [the Complainant's] free speech
rights." Id.
First, assuming that Complainant's allegations regarding
inadequate postings [the Complaint is not clear as to what
postings the Complainant alleges are inadequate] relate to the
order from Varnadore I, which required the Respondent MMES
to make postings regarding the ERA, I find that such order was
only a "recommended decision and order." As the Secretary has
yet to rule on the Respondent's appeal of Varnadore I, the
order requiring postings is not yet final and the Respondent is
under no obligation to make such postings. See 29 C.F.R.
§ 24.6. Thus, MMES's postings, or lack thereof, cannot be
considered inadequate nor the basis for a charge of discrimina-
tion under any of the statutes' employee protection provisions.
Consequently, the claims alleged in Count Four must be DISMISSED.
Secondly, assuming the Respondents failed to comply with a
final order, the Department of Labor has no jurisdiction to
enforce such an order. 29 C.F.R. § 24.8(b) states that,
"any person . . . may commence a civil action against
the person to whom such order was issued to require
compliance with such order. The appropriate United
States district court shall have jurisdiction . . .
to enforce such order. (emphasis added)
Thus, I find that the Department of Labor lacks subject jurisdic-
tion over any of the claims included in Count Four of the Com-
plaint as they relate to the postings ordered upon MMES in
Varnadore I and must be DISMISSED accordingly.
Finally, even assuming that the Complainant's allegation of
inadequate posting concerns MMES's posting requirements under 42
U.S.C. § 5851(i), the Complaint nonetheless fails to state a
claim for which relief can be granted. The Complainant contends
that because MMES allegedly failed to make proper postings, his
working environment remained hostile because "diminishing the
free speech rights of other employees diminishes [the Complain-
ant]'s free speech rights." Complaint, ¶ 52. Regard-
less of MMES's postings, MMES employees maintained awareness of
their right to sue their employer through the Complainant's prior
suits of the past three years. Thus, the Complainant cannot
blame any lack of knowledge of other MMES employees on the
allegedly inadequate postings. Regardless, I find the
Complainant's contention that because other
[PAGE 16]
employees have not exercised their right to sue under the
[PAGE 142]
whistleblower provisions he somehow has suffered an adverse
employment action at the hands of MMES strains credulity. Even
if MMES's ERA-required postings were proven to be inadequate, the
Complaint fails to articulate how the Complainant has suffered in
his employment because of such inadequacy. Thus, the Count Four
of the Complaint must be DISMISSED under FRCP 12(b)(6) for
failure to state a claim.
Furthermore, the Complainant cannot rely on MMES's allegedly
inadequate postings to toll the filing period for his other
claims. The complaint for relief for lack of adequate postings
only tolls the thirty day filing period if the Complainant is
unaware of his rights in absence of such postings. Gabbrielli
v. Enertech, 92-ERA-51 (Sec'y, July 13, 1993); Hancock v.
Nuclear Assurance Corp., 91-ERA-33 (Sec'y Dec. 4, 1992);
Rose, supra, at 1333. Clearly, as evidenced by his
five prior claims under the whistleblower provisions at issue,
the Complainant was well-aware of his rights under such provi-
sions with or without such postings, adequate or inadequate.
Consequently, MMES's allegedly inadequate postings will not serve
to toll the filing requirements for the Complainant for any of
his multiple claims.
Conclusion:
In his response to the Respondents' Motions to Dismiss,
Counsel for Complainant makes the self-serving argument that his
complaint represents "a precedential case of first impression"
and that he is "helping the Secretary of Labor to make new law."
Complainant's Response, p. 11. However, after extensive
review of each and every allegation contained in the
Complainant's rambling and disorganized 33 page complaint, I
cannot discern a single claim that can withstand the motions to
dismiss. As discussed above, each claim fails for multiple
reasons such as: untimeliness, sovereign immunity, improper
parties, lack of subject matter jurisdiction, and/or failure to
state a claim for which relief can be granted.
Additionally, I take notice of the findings of Administra-
tive Law Judge Quentin McColgin in Stephenson,
supra. Regarding another complaint filed by Complainant's
Counsel on behalf of complainant Stephenson, Judge McColgin found
that his 44 page complaint was deficient for failing to allege or
state facts showing the basis for a claim. Furthermore, Judge
McColgin found that the Complainant had ample opportunity to cure
such deficiency by amendment and that her counsel had extensive
knowledge of the how such
[PAGE 17]
proceedings operate.
Likewise, I find that the Complainant has filed a deficient
complaint and subsequently failed to cure this deficiency through
amendment even though he had ample opportunity over the past ten
months. Furthermore, Complainant's Counsel has extensive knowl-
edge of these proceedings and has been notified, at the very
least by the Stephenson decision, of what is required of a
well-pleaded complaint that would withstand a motion to dismiss.
Nonetheless, Counsel for Complaint has failed to heed the admoni-
tions of Judge McColgin, and as a result, has filed another
deficient complaint. Accordingly,
RECOMMENDED ORDER
IT IS RECOMMENDED that the Complainant's complaint, and all
claims of unlawful activity contained therein, be DISMISSED.
ORDER
IT IS ORDERED that the hearing heretofore scheduled in this
matter be and it hereby is, CANCELLED.
________________________
DANIEL J. ROKETENETZ
Administrative Law Judge
