U.S. Department of Labor
Office of Administrative Law Judges
211 Main Street
San Francisco, California 94105
(415) 744-6577
FTS 8-484-6577
FAX (415) 744-6569
FAX FTS 8 484-6569
Dated: NOV 21 1991
Case No. 91-TSC-1
In the Matter of:
GUY HELMSTETTER
Complainant
v.
PACIFIC GAS & ELECTRIC COMPANY
Respondent
Guy Helmstetter
2129 Randolph Drive
San Jose, California 95128
In Pro Per
Maureen L. Fries, Esq.
Pacific Gas & Electric
77 Beale Street
San Francisco, California 94106
For the Respondent
Before: ALEXANDER KARST
Administrative Law Judge
DECISION AND ORDER
This is an appeal from a decision of the U.S. Labor Department
Wage and Hour Division to take no action on a complaint filed by
Mr. Guy Helmstetter under the Toxic Substance Control Act, 15
U.S.C. § 2601 et seq (TSCA), and the Solid Waste Disposal Act, 42
U.S.C. § 6901 et seq (SWDA). Mr. Helmstetter, a law school
graduate, appears pro se and alleges that his employer, Pacific Gas
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and Electric Company (PG&E), violated the employee protection
provisions of the two statutes by ill-treating him following his
"investigation" of a PG&E oil spill.
The background of the events pertinent here is set forth in my
Decision and Order in Mr. Helmstetter's previous action against
PG&E, (86-SWD-2), a copy of which is appended hereto. Suffice it to
say that after his unhappy transfer from PG&E's environmental
department to marketing in 1985 described in that Decision, Mr.
Helmstetter continued on his own to attempt to police PG&E's
environmental practices.
Mr. Helmstetter alleges he "heard a rumor" in August 1990
that
PG&E spilled some oil at the premises of LMC Metals. TR 19.
Although that firm's marketing account was not assigned to him, and
without being instructed to do so, Mr. Helmstetter went to LMC on
August 13, 1990 to "investigate" the rumored spill. He alleges that
in the course of his "investigation", he saw a wooden box, a debris
dumpster, and some oil and drums with warning labels. He says the
warning labels were too small or improper and that the area was not
barricaded as it should have been. Mr. Helmstetter advised the PG&E
environmental department that the clean-up was "botched and
incomplete" and asked for detailed information. The supervisor of
the environmental department, a Mr. Promani, told Mr. Helmstetter
that there was a spill which was cleaned up, that all appropriate
authorities were notified, and declined to give Mr. Helmstetter the
information he sought because it was none of his business.
Complainant's Opening Brief, p. 5. Mr. Helmstetter advised Mr.
Promani that unless he was given details on the spill he would
contact local authorities. Promani declined, and Complainant
informed the San Jose Fire Department of the spill. Although the
Santa Clara County District Attorney's office talked to Mr.
Helmstetter later, the authorities apparently took no further action
and no public agency asked Mr. Helmstetter to testify in any
proceeding.
Mr. Helmstetter says he learned from the District Attorney's
office that the spilled material contained PCBS. Although he does
not think he was hurt by the contaminated oil, Complainant alleges
that he got oil on his hands, arms and clothing, [and] that he
"exposed [himself] to a danger ... [he] was not fully aware of...".
TR 43-44.
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Complainant contends that his report of his "investigation" of
the spill to his employer and to the authorities were protected
activities under TSCA and SWDA. He avers that PG&E retaliated
against him for his protected activities in violation of 15 U.S.C.
§ 2622 and 42 U.S.C. § 6971 by denying him the information he
sought, and treated him disparately by not affording him the
cleaning-up services afforded to the clean-up crew, or giving him
sufficient information about the spilled substance so he could
protect his health. It is unclear what clean-up services, if any,
were provided to the clean-up crew.
PG&E moves to dismiss this complaint on the grounds that Mr.
Helmstetter's allegations do not state a cause of action under TSCA
or SWDA within the jurisdiction of this tribunal.
The hearing was limited to sorting out Complainant's
allegations and to argument on PG&E's motion for what amounts to a
judgment on the pleadings. Both parties filed briefs.
For the purposes of ruling on PG&E's motion to dismiss, I am
assuming, without deciding, that all the allegations of Mr.
Helmstetter are true.
It should be noted at the onset that whether PG&E was legally
obligated to disclose the information which Mr. Helmstetter wants is
not at issue here. Moreover, PG&E correctly argues that whether
PG&E has violated the substantive provisions of any environmental
laws is irrelevant here because this is not an action to enforce
substantive provisions of such laws. This proceeding is only
concerned with the question whether PG&E discriminated against Mr.
Helmstetter in retaliation for his protected activities.
There is no allegation here of firing, demotion or
discrimination with respect to employment other than PG&E's denial
to Mr. Helmstetter of the information he was seeking about the spill
and of clean-up services.
Mr. Helmstetter contends that his report and request to the
PG&E environmental department were protected activities because they
were analogous to the report of the quality control inspector to his
employer in Mackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159 (9th Cir. 1984). PG&E argues that Mackowiak, an Energy
Reorganization Act case, is inapposite here because that case turned
on the special role of inspectors in nuclear plants. The Court
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there reasoned that "every action by quality control inspectors
occurs 'in an NRC proceeding,' because of their duty to enforce NRC
regulations." Ibid., at 1163. It does not appear to me that Mr.
Helmstetter was in a position analogous to the Mackowiak inspector.
He was a marketing employee who on his own attempted to monitor the
activities of PG&E's environmental department from which he was
involuntarily transferred. He was a volunteer acting outside the
scope and course of his employment. He was not charged with a duty
to investigate oil spills or otherwise monitor the enforcement of
environmental laws. While Mr. Helmstetter says that PG&E's
chairman asked all employees to "do the right thing" about the
environment, I do not construe this general admonition to be an
invitation to marketing employees to make on-site "investigations"
of rumored oil spills. TR 28. I therefore conclude that Mackowiak
is inapplicable here, and that Mr. Helmstetter's report that the
clean-up was "botched" and his threat that he would report PG&E's
presumed derelictions to the city and county unless PG&E complied
with his requests, was not tantamount to participating in a
proceeding under TSCA or SWDA.
The only alleged activity of Mr. Helmstetter which may be
protected under TSCA or SWDA is his report to the fire department
and his cooperation with the district attorney thereafter. But the
alleged discriminatory acts, i.e. the withholding of information and
of clean-up services, occured before and not after the protected
activity. TSCA and SWDA contemplate the retaliatory discrimination
to follow rather than precede the protected activity. Nor can it be
said that PG&E retaliated for an anticipated protected activity.
The allegation is that Mr. Helmstetter went to the authorities
because his request for information was denied. I construe the
allegation to be that the denial of information necessarily preceded
the protected activity, and that the protected activity would not
have occured unless it was provoked by the alleged discriminatory
act of denial. Thus, there is merit in PG&E's elegant argument that
its refusal to yield to Mr. Helmstetter's demand to supply him with
data on the spill, which dared him to report a presumed violation to
the city and county, encouraged his attempt to safeguard the
environment. It therefore had the effect desired by the SWDA and
TSCA, and was not retaliatory.
Mr. Helmstetter's allegation of disparate treatment is also
inadequate. PG&E correctly argues that Mr. Helmstetter's treatment
was not disparate with that of employees involved in the clean-up. To
allege disparity in treatment, Mr. Helmstetter must allege that he
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was similarly situated with other employees who were differently
treated. The allegation is that Complainant was not in the clean-up
crew and indeed was employed in a different department which had no
role in the clean-up.
Accordingly, I find that the facts alleged by Complainant do
not state a cause of action under TSCA or SWDA. Therefore, PG&E's
motion is granted, and this complaint is dismissed.