Department of Labor Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
Date: February 25, 1999
Case No.: 1998-TSC-8
In the Matter of:
LINDA L. PLUMLEE,
Complainant
against
DOW CHEMICAL COMPANY,
Respondent.
* * * * *
Case No.: 1998-TSC-9
In the Matter of:
LINDA L. PLUMLEE,
Complainant
against
CORPORATE EXPRESS DELIVERY SERVICE,
Respondent.
RECOMMENDED ORDER GRANTING DOW CHEMICAL
COMPANY'S MOTION
TO DISMISS OR FOR SUMMARY JUDGMENT FOR LACK OF
JURISDICTION
In a complaint filed with the Department of Labor on April 16, 1998 Linda
L. Plumlee (Complainant) alleged that Dow Chemical Company (Dow) and Corporate Express
[Page 2]
Delivery Systems (Corporate Express ) retaliated against her for reporting environmental
infractions in violation of four environmental protection statutes: the Clean Air Act (CAA), 42
U.S.C. §7622; the Toxic Substances Control Act (TSCA), 15 U.S.C. §2622; the
Water Pollution Control Act (WPCA), 33 U.S.C. §1367; and the Solid Waste Disposal Act
(SWDA), 42 U.S.C. §6971. On September 21, 1998 the Occupational Safety and Health
Administration dismissed the complaint against Dow finding that Complainant was not
employed by Dow at the time she filed her allegations. Complainant appeals that decision.
Dow has filed a Motion to Dismiss or for Summary Judgment for Lack of
Jurisdiction. Complainant has filed a Notice of Opposition and Dow has filed a Rebuttal. Dow
asserts Complainant cannot satisfy the common law test for "employee" to establish
DOL's jurisdiction over a claim filed under these statutes. For the reasons stated below, the
motion is granted and it is recommended that the case against Dow be dismissed .1
1 Dow has made a factual jurisdictional
challenge and has submitted affidavits and documents to support its motion. It is well settled that
the burden of establishing jurisdiction is on the Complainant. The burden placed on Complainant
is not an onerous one as Complainant is required only to demonstrate facts which support a
finding of jurisdiction in order to avoid the motion to dismiss. I have construed the proposed
evidence most favorably to Complainant, however Complainant cannot rest upon the mere
allegations or denials of the pleadings.
2In her Opposition, Claimant
alleges that Dow also provided a forklift, sideloader, personal computer, telephone, facsimile
machine, copying machine, hand tools, safety equipment and office supplies.
3 In her Affidavit, Complainant
states that her diary lists dates and times when Dow and Corporate Express supervisors provided
direct instruction for her to perform work other than delivery duties. Complainant does not provide
any further direction as to these instructions. A review of the diary only reveals two instances that
could arguable be classified as direct instructions to perform work other than delivery duties. The
first was on December 12, 1997 when Dewayne Bennett gave her a three page list of parts that
needed to be pulled and thrown away in the dumpster. It is not clear who employed Dewayne
Bennett. The second incident occurred on January 2, 1998 when Tommy Guynes, who appears to
occupy the same status with Corporate Express as Complainant "asked me to get the keys for
one of the tow motors and do the daily inspection on it. I told him "no" that I would not
do this.