ARB CASE NO. 98-025
ALJ CASE NO. 94-TSC-5
DATE: July 18, 2000
In the Matter Of:
JUDY K. STEPHENSON,
COMPLAINANT,
v.
NATIONAL AERONAUTICS &
SPACE ADMINISTRATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Edward A. Slavin, Jr., Esq., St. Augustine, Florida
Lori A. Tetreault, Esq., Lawrence, Mutch & Tetreault, P.A., Gainesville,
Florida
For the Respondent:
David A. Samuels, Esq., NASA Lyndon B. Johnson Space Center
Houston, Texas
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Clean Air Act
(CAA), 42 U.S.C. §7622 (1994), which prohibits employers from discharging or otherwise
discriminating against employees because they have engaged in certain protected activities.
[Page 2]
Complainant, Judy K. Stephenson (Stephenson), was an employee of Martin Marietta Corp. and
worked at the Johnson Space Center in Texas under Martin Marietta's contract with Respondent, the
National Aeronautics and Space Administration (NASA). Stephenson filed this complaint against
NASA and Martin Marietta alleging that NASA violated the employee protection provision when
it barred her from the Space Center and from discussing her work with NASA employees, which she
asserted effectively prevented her from performing her job. She contended that NASA took these
actions because she made complaints about the safety of using a chemical, ethylene oxide (ETO),
to sterilize medical equipment that astronauts would employ on the space shuttle.
An Administrative Law Judge (ALJ) issued a Recommended Decision and
Order (RD&O) dismissing the complaint on the ground that NASA was not Stephenson's employer
and therefore could not be held liable under the CAA's employee protection provision. Under the
automatic review provision in the regulations then in effect, this case is before the Administrative
Review Board for final decision.1
1 At the time of the ALJ's decision, the
regulations governing complaints brought under the CAA's employee protection provision provided for
automatic review of an ALJ's recommended decision by the Administrative Review Board. 29 C.F.R.
§24.6 (1997).
2 The proper procedure would have
consisted of asking quality assurance personnel to write a "TPS" or Discrepancy Report
concerning the techniques being used and the possible off-gassing of toxic ETO. Any possibly contaminated
hardware would not have been used in flight until the TPS or Discrepancy Report had been resolved.
3 Stephenson's immediate
supervisor, Pat Hite, reported to Joe Mims, who in turn reported to Kitterman.
4 NASA supervisor Seitz agreed
with Kramer that Stephenson acted inappropriately by disposing of the PVPDs, and that it was
necessary to make sure that "this kind of thing didn't happen again." At the time he
testified, Seitz no longer worked for NASA and readily admitted that he had not gotten along well
with his former supervisor, Kramer. Despite his differences with Kramer, Seitz agreed with
Kramer's decision that Stephenson had to be kept away from flight hardware to prevent any similar
incidents from happening. Similarly, NASA's Villarreal was shocked by Stephenson's action; she
had never heard of anyone destroying flight hardware.
5 Prior to 1996 the Secretary of
Labor issued final agency decisions under the environmental statutes. On April 17, 1996, the
Secretary issued Secretary's Order 2-96, which delegated that authority to the newly created
Administrative Review Board. 61 Fed. Reg. 19978 (1996). Final procedural revisions to the
regulations (61 Fed. Reg. 19982) implementing the reorganization were promulgated simultaneously.
6 The United States has waived
its sovereign immunity and made itself subject to the TSCA only for certain defined lead-based paint
hazards. 15 U.S.C. §2688 (1994); seeBerkman v.United States
Coast Guard Academy, ARB Case No. 98-056, ALJ Case Nos. 97-CAA-2 and 97-CAA-9, Fin.
Dec. and Ord., Feb. 29, 2000, slip op. at 13-14.
7 The Board has explained that
four elements must be met for collateral estoppel to apply: "(1) the issues of both proceedings
must be identical, (2) the relevant issues must have been actually litigated and decided in the prior
proceeding, (3) there must have been 'full and fair opportunity' for the litigation of the issues in the
prior proceeding, and (4) the issues must have been necessary to support a valid and final judgment
on the merits." Agosto v. Consolidated Edison Co. of New York, Inc., ARB Case No.
98-007, ALJ Case No. 96-ERA-2, Ord. Of Consolidation and Fin. Dec. and Ord., July 27, 1999, slip
op. at 8.
8 Of course, on such a motion,
"all reasonable inferences are made in favor of the non-moving party. . . ." Tyndall
v. United States Environmental Protection Agency, Case Nos. 93-CAA-6 and 95-CAA-5, Sec.
Dec. and Rem. Ord., slip op. at 3, and cases there cited. Further, "dismissal should be denied
'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.'" Id. at 4, quoting Gillespie v.
Civiletti, 629 F.2d 637, 640 (9th Cir. 1980).
9 In reviewing an ALJ's
recommended decision, the Board acts with "all the powers [the Secretary] would have in
making the initial decision. . . ." 5 U.S.C. §557(b).
10 In the CAA
"Congress established a comprehensive state and federal scheme to control air pollution in the
United States." Natural Resources Defense Council, Inc. v. EPA, 725 F.2d 761, 764
(D.C. Cir. 1984). Thus, one of the stated purposes of the CAA is "to protect and enhance the
quality of the Nation's air resources so as to promote the public health and welfare and the productive
capacity of its population." 42 U.S.C. §1857(b)(1). See Chevron v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 845-846 (1984). The CAA implementing
regulations define "ambient air" as "that portion of the atmosphere, external to
buildings, to which the general public has access. 40 C.F.R. §50.1(e) (1999). SeeTrain v. Natural Resources Defense Council, Inc., 421 U.S. 60, 65 (1975) ("[A]mbient
air" "is the statute's term for the outdoor air used by the general public").
11 Of course, when the space
shuttle is in orbit it is not even in Earth's atmosphere.
12 The use and disposal of
freon, a chlorofluorocarbon, is regulated by the EPA. 42 U.S.C. §7671g (1994).