U.S. Department of Labor
Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105
Telephone (415) 744-6577
Fax (415) 744-6569
DATE: September 28, 1998
CASE NO: 98-CAA-10
98-CAA-11
In the Matter of
TOD ROCKEFELLER,
Complainant
v.
U.S. DEPARTMENT OF ENERGYand
WESTINGHOUSE ELECTRIC COMPANY, Respondents.
Appearances:
Edward Slavin, Jr.
Attorney at Law
35 SE 8th Terrace
Deerfield Beach FL 33441
For the Complainant
Cooper H. Wayman
Elizabeth Rose
Attorneys at Law
U.S. Department of Energy
Carlsbad Area Office
P.O. Box 3090
Carlsbad, NM 88221
For the Respondent, U.S. Department of Energy
Gloria J. Barnes
Attorney at Law
Westinghouse Electric Corporation
P.O. Box 2078
Carlsbad, NM 88221
For the Respondent, Westinghouse Electric Corporation
Before: Henry B. Lasky
Administrative Law Judge
[Page 2]
RECOMMENDED DECISION AND ORDER
This matter arises under the employee protection provisions of the Surface
Transportation Assistance Act, 49 U.S.C. §31101 et seq. and the Clean Air Act,
42 U.S.C. §7622. On August 17, 1998 Respondent, U.S. Department of Energy (DOE),
filed its Motion to Dismiss and To Stay All Discovery pending the resolution of its Motion to
Dismiss. On August 18, 1998 Respondent, Westinghouse Electric Company (WEC), filed its
Motion to Dismiss and To Stay All Discovery pending the resolution of its Motion to Dismiss.
On August 18, 1998 the undersigned issued multiple orders including
Orders to Show Cause to the Complainant as to why the Motions to Dismiss filed by each of the
Respondents should not be granted. Complainant was afforded 15 days from the date of the
orders to respond, which would have been by September 2, 1998. In addition, all discovery was
stayed pending the resolution of the Motions to Dismiss, and the trial scheduled for October 14,
1998 was continued pending the ruling of the Motions to Dismiss. On August 25, 1998 the
undersigned issued an additional order affording Complainant additional time until September
10, 1998 to respond to the previously issued Orders to Show Cause as to why the Motions to
dismiss filed by each Respondent should not be granted. On September 10, 1998 Complainant
filed his response to the Orders to Show Cause. The principal affidavits filed in this matter are
the sworn complaint of May 9, 1998, relied on by Respondents, and Complainant's Second
Declaration dated August 22, 1998.
RESPONDENT U.S. DEPARTMENT OF ENERGY'S
MOTION TO DISMISS
Respondent DOE first alleges that the Complainant has failed to state a
cause of action within the jurisdiction of the U.S. Department of Labor (DOL) under the Surface
Transportation Assistance Act (STAA), as such legislation does not apply to federal employees.
Complainant alleges in his sworn complaint dated May 9, 1998 and filed with the DOL on May
12, 1998 that he was employed by the U.S. Department of Energy as a GS-13 Environmental
Specialist from April 1993 to December 1997. (Paragraph 1, Complainant's complaint dated
May 12, 1998). This fact is undisputed.
An employee is defined under the STAA and the regulations enacted
thereunder as "any individual other than an employer; who is employed by a commercial
motor carrier and who in the course of his employment directly affects commercial motor vehicle
safety, but such term does not include an employee of the United States, any State, or a political
subdivision of a State who is acting within the course of such employment." 29 C.F.R.
§ 1978.101(d)(4); 49 U.S.C. §31101(2)(A)(B). An employer is defined under the
STAA as any person engaged in a business affecting commerce who owns or leases a
commercial motor vehicle in connection with that business, or assigns employees to operate it in
commerce, but such term does not apply to the U.S., state, or political subdivisions. 49 U.S.C.
§31101(3)(A)(B). Thus, the term "employer"
[Page 3]
under the STAA cannot include the United States, a State, or a political subdivision of a state.
Killcrease v. S&S Sand and Gravel, Inc. 92 STA 30 @ 2, n.1 (Sec'y, Feb. 2, 1993). As
Complainant was an employee of the U.S. Department of Energy, he is clearly statutorily exempt
from the protections of the STAA.
Complainant attempts to circumvent the unambiguous language of the
STAA and its regulations exempting federal employees and the U.S. from the legislation by
citing Flor v. U.S. Department of Energy, 93 TSC 1 (Sec'y Dec. 9, 1994). It appears that
Counsel for Complainant in the case at bar was also counsel for Flor. In Flor, the issue
of the statutory exemption of the U.S. as an employer was never addressed. Such curious
omission is no reason for the undersigned to disregard the manifest language of the statute. The
reliance of Complainant on his cited authority, when the statute so clearly states that the STAA is
inapplicable to the undisputed facts herein, is clearly misplaced. The motion to dismiss the
complaint under STAA against the DOE is granted.
Respondent DOE relies on the Notice of Determination of DOL dated June
11, 1998 (Respondent DOE Ex. N attached to its Motion to Dismiss) as one basis that DOL has
no jurisdiction of the claim under the Clean Air Act (CAA), as the claim was not timely filed
within 30 days of the adverse employment action against the Complainant by the DOE. The law
is clear that complaints of discrimination under the CAA must be filed within 30 days of the
adverse action. 29 C.F.R. §24.3(b). No particular form of complaint is required except
that a complaint must be in writing and should include a full statement of the acts or omissions,
with pertinent dates, which are believed to constitute the violation. 29 C.F.R. §24.3(c).
The undisputed evidence in this case is that DOE issued a Notice of
Proposed Removal to Complainant on September 2, 1997. He filed an appeal with the Merit
Systems Protection Board (MSPB) on September 30, 1997. The MSPB dismissed the matter on
November 3, 1997. Complainant filed a Petition for Review by the full Board on November 17,
1997. Complainant was issued a Notice of Removal by DOE on December 9, 1997, with an
effective date of December 10 , 1997. (Complainant's complaint dated May 9, 1997, paragraphs
22 & 23). Complainant did not file a written complaint under the Clean Air Act within 30 days
of the three opportunities which presented adverse actions against him during the time periods
just noted.
In this case, Complainant filed his written complaint on May 12, 1998
(dated May 9, 1998) alleging that he filed his complaint on January 5, 1998 in the wrong forum,
and asserts that he is entitled to invoke the "wrong forum doctrine" by virtue of his
alleged complaint of retaliation to an agent of the Environmental Protection Agency (EPA) on
January 5, 1998 in Washington D.C. (Complainant's complaint dated May 9, 1997, paragraph
12). Complainant does not assert at any time that he filed a written complaint as required on
January 5, 1998. The investigation by the DOL determined that he mentioned the adverse
actions to an agent of EPA during a public meeting being held to accept comments regarding a
waste disposal site. The agent for the EPA expressed no opinion about Complainant's then
recent removal and the public meeting which Complainant attended was involved with issues
about the waste disposal site.
[Page 4]
These facts are not disputed. Further, where as here, a nonmoving party relies on his own
affidavit as evidenced by his sworn written complaint of May 9, 1998, to oppose summary
judgment or decision he cannot rely on conclusory allegations unsupported by factual data to
create an issue of material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993).
In Complainant's response to the Order to Show Cause he argues for
the first time that the filings before the MSPB entitle him to invoke the wrong forum doctrine.
This argument is fallacious as there is no prohibition against concurrent filings under the MSPB
and the CAA. The MSPB is not a "wrong forum" but merely a different remedial
forum.
Essentially, Complainant filed his written complaint under the CAA on
May 12, 1998, but alleges that he filed an oral complaint on January 5, 1998 in the wrong forum
and the equitable tolling doctrine applies. This rationale is patently absurd under the above
circumstances. To hold otherwise would render the requirement for a timely filing in writing
within 30 days of an adverse action a nullity. There is no basis for the invocation of the doctrine
of equitable tolling of the period of limitation based on Complainant's mere casual oral
comments at a public meeting to an agent of EPA who was involved with accepting public
comments regarding a waste disposal site. This is not disputed in either Complainant's sworn
complaint of May 9, 1998 or his Declaration of August 22, 1998.
The restrictions on equitable tolling must be scrupulously observed.
School District of City Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981). Tolling may be
appropriate only when (1) a defendant or respondent has actively misled a plaintiff or
complainant respecting the cause of action; (2) the plaintiff or complainant has in some
extraordinary way been prevented from asserting his rights; or (3) the plaintiff or complainant
has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.
Smith v. American President Lines, LTD, 571 F.2d 102, 109 (2nd Cir. 1978). None of
these factors exist herein. While these factors may not be exclusive, the tolling exception is not
an open ended invitation to disregard what may or may not be a meritorious cause. City of
Allentown, at 20. Certainly, conduct of a defendant or respondent that misleads a
complainant or gives rise to an estoppel may warrant equitable tolling.
The Respondent herein was in no way responsible for the failure of
Complainant to file a written claim within the statutory period. In City of Allentown,
Claimant filed his complaint with the EPA, the wrong forum, and the argument was made
that the EPA should have responded to his written complaint more promptly and accurately. The
court held that the statutory language was plain and direct, and that the claim had to be filed with
the Secretary of Labor as there was no basis for reliance on EPA in any respect. The claimant's
ignorance of the law is not enough to invoke equitable tolling. In the case at bar, Complainant in
paragraph 12 of his May 12, 1998 written complaint asserts that the EPA agent, who was
conducting a public meeting regarding other matters, should have essentially provided
Complainant with legal advice to file with the DOL and the failure to do so entitles him to
equitable tolling. This rationale is without merit. The failure of Complainant to file a written
complaint with the DOL within the required statutory time limit is sufficient grounds for the
granting of Respondent DOE's Motion to Dismiss
[Page 5]
under the Clean Air Act.
Respondent DOE additionally argues in support of it Motion to Dismiss
various other matters entitled Performance Issues and Reasons for Removal, Medical
Accommodations, and Whistleblower Allegations. However, all these matters involve
conflicting questions of fact and are inappropriate for disposition by Motion to Dismiss or
Motion for Summary Judgement.
As the matter against Respondent DOE is dismissed for lack of jurisdiction
under the STAA and untimeliness under the CAA, the issues raised by DOE regarding Collateral
Estoppel and Res Judicata need not be addressed.
RESPONDENT WESTINGHOUSE ELECTRIC COMPANY'S
MOTION TO DISMISS
Westinghouse Electric Company moves to dismiss the complaint herein
on the grounds that the Department of Labor lacks jurisdiction of the matter and the complaint
was not filed in a timely manner. WEC argues that the matter be dismissed as a matter of law.
Under the CAA and STAA, the complaint filed on May 12, 1998 alleges that he was an
employee of the Department of Energy from April 1993 to December 1997. In order to prevail
in a whistleblowing case, such as this, it is necessary to allege and prove that complainant was an
employee of a covered employer; that the complainant engaged in protected activity; that the
complainant was thereafter subjected to adverse action regarding his employment; that the
respondent knew of the protected activity when it took the adverse action; and that the protected
activity was the reason for the adverse action. See Saporito v. Florida Power and Light, 94
ERA 35 (1996); Mackowiack v. University Nuclear Systems, Inc. 735 F.2d. 1159, 1162 (9th Cir.
1984).
Complainant herein does not claim to be an employee of WEC; does
not allege that WEC did anything with reference to his employment with DOE; does not allege
that WEC retaliated against him for engaging in protected activity; does not allege that WEC
knew of any protected activity that he engaged in; does not allege that WEC took adverse action
against Complainant for his alleged protected activity; and finally, fails to allege that WEC is
capable of providing the employee remedies under the aforesaid statutes. Complainant merely
alleges in one line of his 16 page complaint, in paragraph 32, that WEC be investigated as a
"possible joint employer". When a complainant fails to allege the essential elements
of a violation of employee protection provisions, dismissal is appropriate. Saporito,
supra. By his own complaint, Complainant herein does not contradict the undisputed fact
that he was not at any relevant time an employee of Respondent WEC. He specifically alleges
that he was not.
Under CAA, the Department of Labor has jurisdiction in proceedings
alleging discriminatory conduct on the part of complainant's employer. 42 U.S.C. §7622.
29 C.F.R. Section 24.2(a) provides that "[n]o employer . . . may discharge any employee or
otherwise discriminate against any employee with respect to the employee's compensation,
terms,
[Page 6]
conditions, or privileges of employment because the employee" engaged in protected
activity under the statutes. Respondent WEC denies being an employer of Complainant, and
Complainant does not dispute that he was an employee of the Department of Energy. Where
there are no allegations such as here, in a complainant's complaint that the respondent exercised
power, control, authority over the terms and conditions of employment or controlled the manner
an means of employment, there is no joint employment and such theory is not applicable. See
Stephenson v. NASA, 94 TSC 5 (ALJ Nov. 13, 1997). Certainly, a respondent that acts in
the capacity of an employer, even though they do not pay or supervise an employee, may be an
employer under the statutes and thus, the employee protections my extend beyond the immediate
employer. However, a complaint requires an allegation of employment discrimination against
the respondent, and the Complainant fails to do so in the case herein against this Respondent.
Stephenson, supra.
A party opposing a motion to dismiss which is essentially a motion for
summary decision must set forth specific facts showing that there is a genuine issue of material
fact. On the issue of whether WEC was complainant's employer there is no genuine issue of
material fact, and thus Respondent WEC is entitled to dismissal as a matter of law. The Supreme
Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986) has held that:
In cases . . . where the nonmoving party will bear the burden of proof at trial on a dispositive
issue, a summary judgment motion may properly be made in reliance solely on the
"pleadings, depositions, answers to interrogatories, and admissions on file." Such a
motion . . . requires a nonmoving party to go beyond the pleadings and by her own affidavits, or
by the "depositions, answers to interrogatories and admissions on file," designate
"specific facts showing that there is a genuine issue for trial."
The ARB followed this ruling in Saporito, supra. Here,
Complainant, the nonmoving party with the burden of proof on the dispositive issues, failed to
even assert that at the time of the adverse action there was an employment relationship between
himself and WEC. In Complainant's response to the Order to Show Cause he does not address or
dispute such fact. Complainant must allege a set of facts which, if proven, could support his
claim of entitlement to relief. For failure to meet that very elemental requirement, the complaint
against Respondent WEC is dismissed under the CAA.
In addition, no written complaint under the CAA was ever filed within 30
days as required and previously discussed. As such, the written complaint filed May 12, 1998 is
untimely and provides another basis for dismissal of the claim herein against Respondent WEC.
Certainly the oral communication allegedly made to an EPA agent at a public meeting regarding
his employment termination by DOE is patently insufficient for the invocation of the wrong
forum doctrine against this Respondent. The aforesaid discussion regarding timeliness with
reference to the CAA claim against DOE is incorporated herein by reference. Complainant's
filing of MSPB appeals against DOE does not constitute a "wrong forum" against a
Respondent
[Page 7]
which is a private corporation and not an employer of Complainant. The claim against
Respondent WEC under the CAA is additionally dismissed as untimely.
With reference to the claim against Respondent WEC under STAA, there
are no allegations of violations against WEC of this statute in the claim filed May 12, 1998.
Complainant is not and has never even alleged that he was an employee of WEC; he is not an
employee as defined by the STAA; and WEC is not an employer as defined by the STAA. Such
fact is undisputed. As such, there are no issues of genuine material fact with reference to these
matters and discovery is absolutely unessential to resolve these matters of law. Although it
appears that the written complaint filed May 12, 1998 is not untimely under STAA, the
complaint simply fails to allege any violation of the act against Respondent WEC, or that
Complainant and Respondent WEC fall within the coverage of the Act. The Declaration of
Complainant dated August 22, 1998 does not create any genuine issue of fact with reference to
this claim. The claim under the STAA against Respondent WEC is dismissed as a matter of law.
Complainant in his response to the Order To Show Cause alleges a litany
of charges, theories, and facts, none of which are supported by affidavit, the sworn complaint, or
the Declaration of Complainant of August 22, 1998. Counsel's multiple conclusory arguments
by themselves are insufficient to show that there is a genuine issue of material fact to be decided
in the case herein.
In spite of the undersigned's Order disallowing either party from filing
further motions until the pending Motions to Dismiss were resolved, Complainant included
multiple motions in his response to Respondents' Motions to Dismiss. Such motions are
addressed accordingly. Based on the foregoing Recommended Decision dismissing the matter
herein against Respondent DOE and Respondent WEC, Complainant's Motions for Partial
Summary Judgement and to add a claim under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. §9610 (CERCLA) need not be addressed. In
addition, on September 10, 1998, Complainant moved this court for leave to file a motion for
judicial recusal. Before the undersigned was given the opportunity to respond to such motion,
Complainant submitted to the undersigned a Motion for Judicial Recusal on September 25, 1998.
As this matter is being dismissed, both of Complainant's motions regarding judicial recusal
similarly need not be addressed herein.
[Page 8]
ORDER
All claims herein against Respondent U.S. Department of Energy and
Respondent Westinghouse Electric Company are dismissed.
HENRY B. LASKY
Administrative Law Judge
Dated: September 28, 1998
San Francisco, California
NOTICE: This Recommended Decision and Order regarding the matter of the
Surface Transportation Assistance Act will be forwarded for review by the
Administrative Review Board, United States Department of Labor, Room S-4309, 200
Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. §
1978.109(a); 61 Fed. Reg. 19978 (1996).However, the Recommended Decision and
Order regarding the matter of the Clean Air Act will automatically become the final
order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely
filed with the Administrative Review Board, United States Department of Labor, Room S-4309,
Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a
petition for review must be received by the Administrative Review Board within ten business
days of the date of this Recommended Decision and Order, and shall be served on all parties and
on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as
amended by 63 Fed. Reg. 6614 (1998).