U.S. Department of Labor Administrative Review Board
200 Constitution Ave., NW
Washington, DC 20210
ARB CASE NO. 96-173 (ALJ CASE NO. 95-CAA-0012) DATE: April 8, 1997
In the Matter of:
THOMAS JEFFERSON KESTERSON
COMPLAINANT,
v.
Y-12 NUCLEAR WEAPONS PLANT,
ET AL.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW
FINAL DECISION AND ORDER
The Administrative Law Judge submitted a Recommended Decision and
Order Granting Respondents' Motions to Dismiss and/or for Summary Decision (R. D. & O.)
in this case arising under the Clean Air Act, 42 U.S.C. § 7622 (1988) (CAA), the Toxic
Substances Control Act, 15 U.S.C. § 2622 (1988) (TSCA), the Solid Waste Disposal
Act, as amended, 42 U.S.C. § 6971 (1988) (SWDA), the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9610 (1988)
(CERCLA), and the Energy Reorganization Act of 1974, as amended, 42 U.S.C. §
5851 (Supp. V 1993) (ERA) (the Acts). The ALJ recommended that the complaint be
dismissed on numerous grounds, including untimeliness, sovereign immunity, improper
parties, lack of subject matter jurisdiction, failure to state a claim upon which relief can be
granted, and failure to raise a genuine issue of material fact for a hearing. We adopt and
append the ALJ's well reasoned recommend decision. R. D. & O. at 8. Complainant
excepted to the R. D. & O. on numerous grounds1 but, for the reasons discussed
below in addition to those set out in the ALJ's recommendation, the complaint will be denied.
- refusing requests of a supervisor to help "get rid of" another employee
by giving her as much work as possible and documenting her inadequate performance;
Even if Complainant was able to prove that each of these events
occurred as he alleged, we find that, with one exception, these activities are not protected
under the Acts. The Acts protect employees for making safety and health complaints
"grounded in conditions constituting reasonably perceived violations" of the
environmental laws, Johnson v. Old Dominion Security, Case Nos. 86-CAA-3,
4, and 5, Sec'y. Dec. May 29, 1991, slip op. at 15, but do not protect an employee simply
because he subjectively thinks the complained of employer conduct might affect the
environment. Crosby v. Hughes Aircraft Co., Case No. 85-TSC-2, Sec'y Dec.
Aug. 17, 1993, slip op. at 26. In Crosby, the Secretary distinguished between
protected acts, such as threatening to file a citizens' suit under the environmental laws, and
unprotected acts, such as contacting the government and the news media about mischarging
by a government contractor. Id. at 22-23 and n.15. The Secretary also held that
internal complaints about a technical issue which could only threaten the environment if many
speculative events all occurred was not protected. Id. at 28-29. See also
Minard v. Nerco Delamar Co., Case No 92-SWD-1, Sec'y. Dec. Jan. 25, 1994, slip
op. at 6 (holding "structure and purpose of the [Solid Waste Disposal] Act strongly
support a reasonableness test for whether an employee complaint . . . is protected under the
. . . Act," and finding employee protected for complaint about spill of substance a
layman reasonably could believe was covered by EPA regulations); Deveraux v.
Wyoming Association of Rural Water, Case No. 93-ERA-18, Sec'y. Dec. Oct. 1, 1993,
slip op. at 2 (employee complaints about inaccurate records, mismanagement and waste not
protected under ERA); DeCresci v. Lukens Steel Co., Case No. 87-ERA-113,
Sec'y. Dec. Dec. 16, 1993, slip op. at 5-6 (complaint about safety violations not related to
nuclear safety not protected under Energy Reorganization Act); Aurich v. Consolidated
Edison Co. of N.Y., Inc., Case No. 86-CAA-2, Sec'y. Dec. Apr. 23, 1987, slip op. at
3-4 (distinguishing complaints about public health and safety protected under Clean Air Act
from unprotected complaints about occupational safety and health).
Measured by these standards, most of Complainant's alleged protected
activity falls short as follows:
1) Mere friendship with another employee who is a whistleblower
has no relationship to any action to carry out the purposes of the Acts.
2) Complainant implies that allegedly illegal surveillance equipment
obtained by LMES could have been used at some future time to spy on
whistleblowers and that his truthful answers to questions about the
[Page 4]
purchase of the equipment therefore are protected. This is as speculative as the activity found
unprotected in Crosby v. Hughes Aircraft.
3) Objecting to allegedly illegal orders to remove computer files
from a computer held in evidence in a state criminal case may be
protected under some states' common law public policy exception to the
employment at will doctrine, but not under the Acts.4
The ALJ's well reasoned analysis of Complaint's failure to allege
activities protected under the environmental whistleblower Acts gives additional basis for this
result. The only alleged activity which, if proven, would be protected under the Acts was
Complainant's interview, some time after August 2, 1994, with LMES attorneys investigating
another whistleblower's complaint. Because Complainant did not engage in any protected
activity before August 1994, none of the alleged acts of discrimination before that date could
have been motivated by conduct protected by the Acts.5 For the same reason, none
of the alleged acts of reprisal could have formed part of a continuing course of conduct
creating a hostile work environment.
1 Complainant did not except to
several of the ALJ's recommended grounds for dismissal:
1. That DOE should be dismissed as a party under the ERA and the
TSCA on the grounds of sovereign immunity. We note that the
Secretary has held that the United States has waived sovereign
immunity under the CERCLA, SWDA, and CAA. See Jenkins v.
Environmental Protection Agency, 92-CAA-6, Sec'y. Dec. May
18, 1994; Marcus v. Environmental Protection Agency, 92-TSC-5, Sec'y. Dec. Feb. 7, 1994; Pogue v. U.S. Department of
the Navy, Case No. 87-ERA-21, Sec. Dec. May 10, 1990.
2. That Respondents Y-12 Nuclear Weapons Plant, K-25 Plant,
Martin Marietta Corporation and Martin Marietta
Technologies, Inc. should be dismissed on the grounds that
they are not the employer of Complainant. We note, however,
that as the Secretary found in Hill and Ottney v.
Tennessee Valley Auth., Case Nos. 87-ERA-23 and 24,
Sec'y. Dec. May 24, 1989, slip op. at 2-10, a person who
discriminates against employees of another employer, for
example, by directing a subcontractor to fire its employees for
whistleblowing, is subject to the provisions of the employee
protection laws. Cf. Christopher v. Stouder Memorial
Hosp., 936 F.2d 870, 875 (6th Cir. 1991), cert.
denied, Stouder Memorial Hosp. v. Christopher, 502
U.S. 1013 (holding anti-retaliation provision of Title VII of
Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e-3, prohibiting retaliation by an employer against
"any of his employees or applicants for
employment," protects persons whose employment
opportunities may be affected by an employer's actions, even
those not employed by that employer). We also note, however,
contrary to Complainant's characterization, Hill and
Ottney was not based on the joint employer
doctrine.
2Curiously, in his complaint filed in
1994, Complainant claims he has been discriminated against for four years beginning in 1992. ALJ
1, ¶ 3.
3Complainant's complaint alleges this
incident occurred on July 21, 1991 and that he complained about it on July 22, 1991 and July 22,
1994, and that the supervisor criticized him for "going over my head" on July 22, 1994.
ALJ 1, ¶¶ 26, 27, and 28. We assume these were simply typographical errors and that
these events took place on July 21 and 22, 1991.
4 Complainant himself states in his
complaint that the purpose of the order to destroy the computer files was "to destroy evidence
of [LMES] criminal copyright infringement."
5 Under the ERA as amended, our
conclusion is the same but would be phrased slightly differently: before August 1994, Complainant did
not engage in any behavior protected by 42 U.S.C. § 5851(a)(1)(A) through (F), and such
behavior could not have been a "contributing factor" in any alleged acts of retaliation
before that date. 42 U.S.C. § 5851(b)(3)(C).
6 This decision is replete with
colorful language, including this perhaps unfortunate reference to the traditional Czechoslovakian
method of assassination of high government officials.
7In summary judgment cases,
"the nonmovant is entitled to a fair opportunity to discover and produce evidence before the
summary judgment record may be closed." Armstrong v. City of Dallas, 997 F.2d
at 67. Ten months is enough.