Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 20 November 2002
CASE NO.: 2002 CAA 2
In the Matter of
LINDA GASS
Complainant
v.
U.S. DEPARTMENT OF ENERGY;
OFFICE OF THE INSPECTOR GENERAL, U.S. DEPT. OF ENERGY;
MR. JAMES PUGH; MS. SANDY SCHNEIDER;
LOCKHEED MARTIN CORPORATION; and,
LOCKHEED MARTIN ENERGY SYSTEMS, INC.
Respondents
Appearances:
Mr. Edward A. Slavin, Jr.
For the Complainant
Ms. Jacqueline M. Becker
For the U.S. Department of Energy ("DOE")
Mr. Robert M. Stivers, Jr.
For Lockheed Martin Energy Systems, Inc. ("LMES")
Before:
Richard T. Stansell-Gamm
Administrative Law Judge
RECOMMENDED DECISION AND ORDER -
APPROVAL OF MOTION TO DISMISS LMES; APPROVAL OF MOTION TO DISMISS MR. JAMES PUGH; APPROVAL OF MOTION TO DISMISS MS. SANDY SCHNEIDER; and APPROVAL OF MOTION TO DISMISS DOE
This case arises under Section 322 (a) of the Clean Air Act, ("CAA"), 42 U.S.C. 7622; Section 1450 (i) (1) (A-C) of the Safe Drinking Water Act, ("SDWA"), 42 U.S.C. 300j-9; and, Section 7001 (a) of the Solid Waste Disposal Act, (SWDA"),42 U.S.C. 6971; as implemented by 29 C.F.R. Part 24.
[Page 2]
Pursuant to a Notice of Hearing, dated July 24, 2002, I set a hearing date for this case on September 10, 2002 in Jacksonville, Florida. On August 6, 2002, I received Motions for Summary Decision or Dismissal from Ms. Becker and Mr. Stivers, on behalf of the U.S. Department of Energy ("DOE") and Lockheed Martin Energy Systems ("LMES"), respectively. After granting Mr. Slavin a couple of time extensions due to his litigation schedule and other factors, I received his response opposing the motions on November 1, 2002.
Background
On May 14, 2001, Mr. Slavin, on Ms. Gass' behalf, sent a letter to the Occupational. Safety and Health Administration ("OSHA"), U.S. Department of Labor ("DOL"), alleging that the Respondents were jointly and severally liable for violations against Ms. Gass of the whistleblower protection provisions of several environmental statutes. According to Mr. Slavin, Ms. Gass had filed a Freedom of Information Act ("FOIA")/Privacy Act request with the U.S. Department of Energy as part of her discovery process associated with a whistleblower case against LMES before Administrative Law Judge Michael P. Lesniak. Just a few days before Mr. Slavin's letter to OSHA, Ms. Gass had learned that the requested information was not available because it had allegedly been destroyed by a DOE employee(s). This purported action amounted to further retaliation against Ms. Gass due to her pursuit of whistleblower protection since the loss of the information had potentially adverse effect on her pending litigation against LMES. By the alleged acts of its employee, DOE had become a "joint" employer of Ms. Gass and perpetuated "the hostile working environment."
In response, on October 25, 2001, OSHA indicated to Mr. Slavin that it initially did not consider his letter another whistleblower complaint. However, upon consideration of the letter, OSHA concluded it did not have jurisdiction to investigate an alleged loss of potentially material evidence. Instead, OSHA believed that issue should be addressed by an administrative law judge. OSHA also concluded it lacked authority to investigate any asserted Federal agency's FOIA/Privacy Act violation. Consequently, OSHA dismissed Ms. Gass' complaint.
On November 1, 2001, Mr. Slavin submitted three requests for Ms. Gass to the Chief Administrative Law Judge, Office of Administrative Law Judges ("OALJ"). First, Ms. Gass requested a hearing on her whistleblower complaint against all Respondents. Second, Ms. Gass requested that her complaint be remanded to OSHA for investigation. And, third, in the event a remand was denied, Ms. Gass wanted her case to be consolidated with the case pending before Judge Lesniak, 2000 CAA 22.
[Page 3]
The Associate Chief Administrative Law Judge, OALJ, forwarded the case to Judge Lesniak on November 14, 2001 for consideration of Ms. Gass' consolidation request.
After conducting a hearing on June 25, 2002 concerning the consolidation issue, Judge Lesniak determined on July 8, 2002 that consolidation was not appropriate because the two complaints involved separate and distinct issues and different respondents. As a result, Judge Lesniak returned the case to OALJ and, as noted above, I issued a Notice of Hearing and then cancelled the scheduled hearing pending resolution of the motions for summary decisions and dismissals.
A. MOTION TO DISMISS LMES
Parties' Positionsand Supporting Documentation
LMES
At the time of alleged violation of Ms. Gass' purported employee protection under the environmental statutes, LMES was neither her employer nor engaged in the activity claimed as the violation. Specifically, since Ms. Gass last worked for LMES in October 1996 and was terminated by the company in April 1997 due to long term disability, LMES was no longer her employer when she discovered the alleged violation in May 2001. Additionally, the claimed violation involves the asserted failure of DOE to properly response to a FOIA request and DOE's alleged destruction of evidence. LMES was not involved in either action. LMES' submission of a Motion for a Summary Judgment in Ms. Gass' other case pending before Judge Lesniak, 2000 CAA 22, does not amount to an adverse personnel action. Further, Ms. Gass has failed to identify any other alleged adverse personnel action taken against her by LMES in the relevant time frame of her present complaint. As a result, Ms. Gass' present complaint against LMES fails to state a viable employee protection claim and should be dismissed.
In support of its motion, LMES submitted excerpts from Ms. Gass' June 29, 1999 deposition. In her testimony, Ms. Gass indicated the she last time she was employed and worked was October 1996 for LMES. In a June 21, 2002 affidavit, Ms. Maureen M. Mendez, Director, Human Resources, as custodian of employment records for LMES, stated she reviewed Ms. Gass' employment records and determined that Ms. Gass' last day of active employment with LMES was October 17, 1996. When she stopped work, Ms. Gass went on short-term disability for six months. After that period disability, Ms. Gass started the long-term disability program. At that time, LMES terminated her employment effective April 17, 1997.
Ms. Gass
The Motion to Dismiss and Motion for Summary Decision should be denied because LMES is jointly and severally liable with DOE for the destruction of evidence. That destruction has violated Ms. Gass' right to full discovery and a fair hearing concerning her whistleblower complaint against LMES, 2000 CAA 22. Before Judge Lesniak, Mr. Slavin suggested that the 2001 destruction of discoverable information relating to the other case against LMES, 2000 CAA 22, is consistent with LMES' demonstrated pattern of retaliation, delay and destruction of
[Page 4]
evidence. Clearly, as the named respondent in Ms. Gass' other complaint, 2000 CAA 22, LMES was aware of that litigation and complaint and had demonstrated continued hostility against Ms. Gass. In the complaint presented by Mr. Slavin, he explains LMES' hostility stems from Ms. Gass' re-initiation of her whistleblower complaint in the DOL forum after Ms. Gass was "ensnared" by first submitting her complaint to DOE for consideration. Finally, LMES' knowledge of, and involvement in , the destruction of evidence by DOE is a question of fact for trial.
Supporting Mr. Slavin's response to the motions is Ms. Gass' May 14, 2001 sworn verification that a representative of DOE on May 8 and 9, 2001 told her the material she had requested from DOE had been destroyed. Ms. Gass, individually, and through Mr. Slavin, also sent a June 24, 2002 letter to Judge Lesniak expressing her frustration with getting action taken on her environmental concerns. She indicates that after spending four years within LMES in an attempt to address the issues, she had to file a whistleblower complaint with DOL in 1995 and is still waiting for a resolution.
2Observing that the environmental statutes do not define the term "employee," the Secretary followed the U.S. Supreme Court determination in Nationwide Mutual Ins. Co. v Darden., 112 S.Ct. 1344 (1992) that the term should be construed under common law principles.
3Examples of cognizable former employee claims are the refusal of re-employment and negative employment references. Flanagan v. Bechtel Power Corp, 81 ERA 7 (Sec'y June 27, 1986).
4The Clean Air Act, the Solid Waste Disposal Act, and the Safe Drinking Water Act.
6For example, see Varnadore v. Oak Ridge National Laboratory, 1992 CAA 2 and 5, 1994 CAA 2, and 3, and1995 ERA 1, slip op. at 35 (ARB June 14, 1996);. Freels v. LMES, 1995 CAA 2 and 1994 ERA 6 (ARB Dec. 4, 1996) and Kesterson v. Y-12 Nuclear Weapons Plant, 1995 CAA 12 (ARB April 8, 1997).
7Stephenson v. National Aeronautics & Space Administration, 1994 TSC 5 (ARB July 18, 2000).
8DOE also objected to consideration by DOL of the FOIA issues raised by Ms. Gass. As discussed later, I view the gravamen of the complaint as the destruction of documents and do not address the FOIA issue.
9In his response, Mr. Slavin also requested that I require DOE to submit a sworn response and remand the case for an OSHA investigation. I note the absence of any stated authority for the first request. Additionally, considering OSHA has already declined to further pursue the complaint, I see little utility in a remand at this time.
11See Rockefeller v. U.S. Department of Energy, 1998 CAA 10, slip op. at page 10 (ARB Oct 31, 2001).
12Whether Ms. Gass has a separate cause of action relating to DOE's purported non-compliance with FOIA is a question for some other forum.
13In his brief opposing the motions, Mr. Slavin incorporates a portion of Ms. Gass' complaint. In footnote 4 of that referenced complaint, Mr. Slavin lists a series of cases (without specific case comment, holdings or page numbers) to support his proposition that managers who commit violations of the whistleblower provisions should be held personally liable for their conduct. The footnote introduces the series as cases holding individual managers responsible for work place harassment. None of the cited cases involve environmental whistleblower protection provisions.
14The appellate judge did not reference any environmental case to support his position. He did cite a case under the Surface Transportation Assistance Act ("STAA"), Ass't Sec. of Labor v. Bolin Associates, 1991 STA 4 (Sec'y Dec. 30, 1991) which included an observation that the administrative law judge did not have to pierce the corporate veil to hold a company CEO personally liable since the statute referenced "person." In regards to that case, I note that at the time of the case the U.S. Government did not waive sovereign immunity for itself or its employees under the STAA and specifically excluded itself and its employees from the definition of "person," see 49 U.S.C. § 2301 (4)5 (b). The present definition section of the STAA, 49 U.S.C. § 31101, no longer contains a definition for "person" and the U.S. Government is expressly defined as not being an "employer."
15In Reid v. Methodist Medical Center of Oak Ridge, 1993 CAA 4 (Sec'y Apr. 3 1995), slip op., page 6, the Secretary observed that a Congressional committee comment on the CAA reflected the belief that "the best source of information about what a company is actually doing or not doing is often its own employees. . .[an inclusion of an employee protection provision] would insure that an employee could provide such information without losing his job or otherwise suffering economically from retribution from the polluter."
16In other words, based on the Secretary's interpretation of the CAA statute, if Congress intended only employers to be subject to the discrimination prohibitions of the CAA and SDWA, why would Congress then expand the prohibition to persons who are not employers under the SWDA while at the same time emphasizing in the SWDA re-employment and reinstatement as remedies and not specifically mentioning compensatory damages found in the CAA and the compensatory and exemplary damages remedies in the SDWA?
17I will discuss that issue next concerning the Motion to Dismiss DOE.
18See Jenkins v. U.S. Environmental Protection Agency, 1992 CAA 6 (Sec'y May 18, 1994).
19Arguably, if that hierarchial relationship did not exist at the time of the information destruction by DOE, then the first requisite for jurisdiction over DOE is missing and the claimed status of "employer" for DOE becomes even more tenuous. It is not clear whether the case law previously discussed concerning former employers and post-employment acts would also apply to a former contracting agency.
20Stephenson, slip op. page 11 (emphasis in the original text).