Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 96-075
ALJ CASE NO. 94-TSC-7
DATE: SEP 23 1996
In the Matter of:
JESSE J. ROBINSON, II,
MARTIN MARIETTA SERVICES, INC.;
This case arises under the employee protection provisions of the
Toxic Substance Control Act (TSCA), 15 U.S.C. § 2622 (1988), and the Clean Air Act
(CAA), 42 U.S.C. § 7622 (1988) (collectively, the environmental acts). Complainant,
Jesse
J. Robinson, II, complained that the Martin Marietta respondents violated the
environmental acts when Martin Marietta took certain adverse actions against him, and that the
remaining respondents, the National Aeronautics and Space Administration (NASA) and its
Office
of Inspector General (OIG), violated the environmental acts when NASA's OIG declined to
investigate a safety problem that Robinson brought to its attention.
The Administrative Law Judge (ALJ) found that NASA and OIG
were immune from suit under the TSCA's employee protection provision because the United
States has not waived its sovereign immunity. Nov. 18, 1994 Recommended Order at 2.
In a later Recommended Decision and Order (R. D. O.), the ALJ
found that NASA was not a joint employer of Robinson and dismissed the CAA complaint
against
the NASA respondents as well. Concerning the claims against the Martin Marietta respondents,
the ALJ recommended dismissing the complaint on the ground that Robinson did not establish a
prima facie case of a violation of the environmental acts.
Although we agree with the dismissal recommendation, we reach that
conclusion through a different legal analysis as explained below.
Robinson was employed by Respondent Martin Marietta Services,
Inc. as a development engineer and worked at NASA's Johnson Space Flight Center. T. 70. In
September 1992, two scientists disclosed to NASA that they had invented a Dried Blood
Collection System (DBCS) and would be seeking a patent for it. CX 13. The next month,
Robinson was assigned to work on the DBCS, which was a method to preserve blood serum and
plasma samples on board a space flight. T. 328, 613-614, 618, 631.
Fellow engineer Skip Todd expressed concern in December 1992
that a catalyst expected to be used as an oxygen scavenger in the DBCS might be a safety hazard.
T. 723-724; RX 76. Robinson expressed similar concerns to his superiors at Martin Marietta. T.
98-101. In March 1993, after Robinson complained to his management that Todd had been
promoted to Job Order Manager on the DBCS project, RX 88, Robinson was also promoted to
that
position. T. 262-263. A July 1993 performance evaluation praised Robinson's engineering skills
but stated that he needed to improve his interpersonal skills. RX 99.
Preliminary tests were undertaken to assess the ignitability risk, and
use of the catalyst was found acceptable. CX 38, notwithstanding this evaluation Robinson
wrote
in a memorandum to his superiors that there was a potential touch temperature problem with the
catalyst, recommended further testing, and warned that any attempt to "'cook' the
data"
would seem suspicious. RX 109 at 3. One of the co-inventors of the DBCS, Dr. Clift, yelled at
Robinson concerning the reference to cooking the data. T. 119-121. Robinson wrote the
protocol
for conducting a touch temperature test of the catalyst, was present during the test, and approved
the use of the catalyst on board the October 1993 shuttle flight. RX 1, 111; R. 240, 243.
After testing was completed, Robinson received assignments to
other projects because there no longer was a need for two manufacturing engineers on the DBCS.
T. 129-130, 665-666, 776-777. Robinson later complained to a member of the staff of NASA's
OIG that he had been relieved of his normal duties after he expressed concerns about the safety
of
the catalyst. CX 4 at 2; T. 141-143.
Christy Hinders, a co-op student working as an intern at NASA, had
the assignment to formulate and design an in-flight maintenance tool kit. T. 827-829. Robinson
was assigned as the primary engineer on the mini-oscilloscope, one of the tools in the kit. T.
829-830. Hinders attempted to redesign the mini-oscilloscope with only the aid of a draftsman.
T.
123-135. When Robinson informed his management that Hinders' design violated general
engineering standards, T. 135, the managers asked him to cooperate with her. T. 137. Robinson
refused to sign or approve the drawing set of Hinders' modifications to the oscilloscope, and as a
result Hinders' version was not built. T. 138.
Robinson asked his managers to give him a different assignment
because he disliked the mini-oscilloscope project. T. 261-262; RX 119. At about that time,
Robinson failed to attend three required meetings and showed up late or unprepared for others.
T.
269-272. Although he had work to do, Robinson played games, read the newspaper, wrote
stories,
and slept while at work. T. 274-275. As a consequence, in February 1994, Robinson's
supervisor,
Pat Hite, issued a written warning that further similar behavior would be viewed as refusal to do
his job and would result in sanctions. T. 273; RX 150. Hite also placed Robinson on a weekly
supervision schedule to monitor his progress.
Hite suggested that Robinson file a formal grievance concerning the
catalyst used in the DBCS when Robinson raised the issue at one of the supervision meetings. T.
799-800; see RX 121. Hite discontinued his investigation of the use of the catalyst when
he learned that Robinson had no further safety concerns about it. T. 804, 813.
In late April 1994, Robinson submitted a resignation letter stating
that his "goals, beliefs and standards are essentially incompatible with those of NASA,
Martin Marietta, and their respective management." RX 126. He asked that his resignation
be made effective at a future date after he had secured other employment. Id. As a result,
Hite stopped the weekly supervision sessions and stopped assigning Robinson new work. T.
806-808.
In May 1994, Martin Marietta's in-house newspaper published an
article about the Medical Sciences Products Group that discussed the DBCS project but did not
mention Robinson's name. CX 70. At the time, Robinson was not a member of that Group. T.
288. A short time later, Robinson learned that his name was not included on the patent
application
form submitted for the DBCS. CX 30.
Martin Marietta officially accepted Robinson's resignation and set
June 24, 1994 as his last day. T. 284. Robinson sent his managers a memorandum rescinding
his
resignation. CX 51 at 3. Nevertheless, Martin Marietta treated Robinson as having resigned.
The
company later contested Robinson's right to collect benefits for unemployment on the ground
that
he had resigned and was not entitled to those benefits. T. 177.
DISCUSSION
Procedural Fairness
Robinson contends that the ALJ erred by declining to compel
discovery responses, denying his request for a continuance of the hearing, and disallowing the
testimony of two witnesses. Comp. Br. 25-26. We address these matters seriatim.
Robinson contends that the ALJ acted unfairly when he did not rule
promptly on his discovery requests, required that they be re-served, and ruled that new requests
were served too late for him to compel answers. Comp. Rebuttal Br. at 12-13. The ALJ
explained that he did not rule on Robinson's initial discovery request that was styled a
"Motion for Turnover of Documents," because under the rules, a party must begin
with a request for document production, show that the request was not complied with, and only
then request an order compelling production. Dec. 7, 1994 T. at 5-6.3 After granting a continuance to an agreed
date, the ALJ admonished the parties to do their discovery promptly and correctly because he
was
not inclined to grant further hearing postponements. Dec. 7, 1994 T. at 36. The ALJ later denied
both Robinson's and Martin Marietta's motions to compel discovery responses because they were
not submitted in time for him to address the issues prior to the hearing. T. 14.
An ALJ is given wide discretion in limiting discovery and his
rulings win be reversed only when arbitrary or an abuse of discretion. Celcom
Communications Corp. V. FCC, 789 F.2d 67, 69 (D.C. Cir. 1986); see Corwin v.
Marney,
Orton Investments, 843 F.2d 194, 200 (5th Cir.), cert. denied, 488 U.S. 924 (1988)
and Washington v. Norton Manufacturing, Inc., 588 F.2d 441 (5th Cir.), cert. denied,
442 U.S. 942 (1979) (both concerning appellate review of district court). We find that the
ALJ did not abuse his discretion in declining to compel responses to Robinson's document
requests.
Robinson requested a continuance of the hearing because of his new
position as a part time college professor, stating that "[i]t would be strongly inadvisable
from a career standpoint for complainant to be involved in the intensity of a whistleblower trial
during any of the weeks during which he is working." Jan. 19, 1995 Motion at 3. Robinson
asked that the hearing be held during the college's spring break week. Id. The ALJ
denied
the continuance because he was unavailable to hear the case during the requested week, and
Robinson did not state that it was impossible for him to attend the hearing or to alter his part
time
work schedule to accommodate the prior scheduled hearing. Jan. 1-7, 1995 Order Denying
Motion for Reconsideration.
Continuances are to be granted only in cases of "prior judicial
commitments or undue hardship, or a showing of other good cause." 29 C.F.R. §
18.28(a). We find that the ALJ did not abuse his discretion in denying Robinson's request for a
continuance. See Johnson v. Old Dominion Services, 86-CAA-3, Sec. Dec. and
Ord., May 29, 1991, slip op. at 4. (under the Clean Air Act).
We now turn to the exclusion of two of Robinson's witnesses.
According to Robinson's offer of proof, his pastoral counselor would have testified that Robinson
was "suffering from symptoms of depression and anxiety." T. 8. This testimony
would
be relevant to Robinson's entitlement to compensatory damages, which only comes into play if
Robinson prevails in his complaint. Since Robinson has not prevailed, excluding the counselor's
testimony was, at most, harmless error. See McDonough Power Equipment, Inc. V.
Greenwood, 464 U.S. 548, 553 (1984) (courts should ignore errors that do not affect the
essential fairness of a trial); see also Crosby v. United States Dept. Of Labor,
1995 U.S. LEXIS 9164, No. 93-70834 (9th Cir. Apr. 20, 1995) (no reversible error where
certain witnesses did not testify, since ALJ determined that their testimony would have been
immaterial).
The second excluded witness, Robert Tyndall, is a retired special
agent of the Office of Inspector General of a Federal agency, who would have testified that the
NASA OIG violated basic standards of law enforcement when it failed to investigate a safety
concern Robinson raised. T. 21-23. Thus, Tyndall's testimony was only relevant to the issue of
the NASA respondents' liability. We explain below that, as to the NASA respondents, the TSCA
complaint correctly was dismissed because of the sovereign immunity of the United States and
the
CAA complaint properly was dismissed because NASA is not within that statute's definition of
the
Complainant's "employer." Since Tyndall's testimony does not concern the issues of
sovereign immunity or whether NASA was Robinson's employer, the exclusion of his testimony
likewise was, at most, harmless error. McDonough, 464 U.S. at 553; Crosby,
1995 U.S. LEXIS 9164.
Finally, Robinson objects because the ALJ should have recused
himself. An ALJ may be disqualified upon a showing of personal bias. See Spearman v.
Roadway Express, Inc., Case No. 92-STA-1, Sec. Order Vacating Procedural Orders and
Directing Reassignment, Aug. 5, 1992, slip op. at 1 (removing ALJ who granted the respondent's
motions prior to expiration of the time for the complainant to respond), aff'd, Roadway Exp.,
Inc. v. Reich, No. 93-3787 (6th Cir. Aug. 22, 1994). To establish improper prejudgment, it
must appear that the ALJ in some measure adjudged the facts and the law of a case in advance of
hearing them. City of Charlottesville, Va. v. FERC, 774 F.2d 1205, 1212 (D.C.
Cir. 1985), cert. denied. 475 U.S. 1108 (1986).
As evidence of alleged bias, Robinson cites the ALJ's post hearing
letter, addressed to counsel for Respondents, which stated that the Secretary's decision in
Reid
v. Methodist Hospital Center of Oak Ridge, Case No. 93-CAA-4, Sec. Final Dec.
and
Ord., Apr. 3, 1995, pet. for review filed, No. 95-3648 (6th Cir. June 1, 1995)
"may be relevant to some of the procedural issues in the Robinson case" and
enclosed
a copy of the decision. The ALJ sent Robinson's counsel a copy of the letter, but not of the
Reid decision. Counsel for Robinson in this case also represented the complainant in
Reid. As the ALJ explained in the letter, the Reid decision showed that it had
been served on counsel.
The ALJ's letter simply notified all of the counsel in this case about
a recent decision by a binding authority relating to the determination of an
"employer"
within the CAA's employee protection provision. The ALJ's letter does not show prejudgment of
the facts or the law in this case. Accordingly, the ALJ did not err in denying the recusal requests.
Dismissing the TSCA Claim Against NASA and OIG Was Proper
We affirm the ALJ's conclusion that the United States has not waived
its sovereign immunity to permit suits against it under the TSCA's employee protection
provision.
See Stephenson v. National Aeronautics & Space Admin., Case No. 94-TSC-5,
Sec.
Dec. And Ord. Of Rem., July 3, 1995, slip op. at 5-8. Therefore, dismissal of the complaint
under
the TSCA was proper as to NASA and its OIG.
NASA Was Not Robinson's Joint Employer Under the CAA
The CAA prohibits an employer from discharging or discriminating
against any employee because the employee engaged in protected activities. 42 U.S. C. §
7622(a); Reid, slip op. at 9. To determine whether a respondent is or was a
complainant's employer within the CAA's prohibition, the Secretary used the test enunciated in
Nationwide Mutual Ins. Co. v. Darden, 112 S.Ct. 1344 (1992), which lists a number of
factors that determine "the hiring party's right to control the manner and means by which
the
product is accomplished:"
Darden, 112 S.Ct at 1348, quoting Community for Creative Non-Violence v. Reid,
490 U.S. 730, 751-752 (1989).4
Applying the Darden factors to this case, the evidence
shows that only Martin Marietta, and not NASA, was Robinson's employer. Only Martin
Marietta
evaluated Robinson's work, assigned him additional work, provided employee benefits, and paid
him. T. 328, 330, 480-481, 504-506, 696-4.
Nevertheless, Robinson contends that NASA was his joint employer
along with Martin Marietta because undergraduate co-op student Hinders purportedly supervised
him for three months on the mini-oscilloscope project. Complainant's Opening Brief (Comp.
Br.)
at 22-23; T. 133-134. Neither Robinson nor any other witness gave examples of occasions on
which Hinders directed Robinson's work. On the contrary, David White, a NASA employee who
supervised Hinders, testified that she did not supervise or give technical direction to Robinson
and
lacked authority to approve engineering drawings. T. 832-834.
The record reveals instead that Robinson was disappointed when his
Martin Marietta managers did not support him in his criticism, but rather asked him to do
everything possible to cooperate with Hinders. T. 137. Ultimately, Robinson's refusal to sign
the
drawing set of Hinders' modifications to the mini-oscilloscope prevented Hinders' version of the
hardware from being built. T. 138-139. Robinson's ability to prevent Hinders' work from
coming
to fruition indicates that Hinders did not supervise him.
On the basis of the record, we find that NASA did not have the
"right to control the manner and means by which [Robinson's work] product [wa]s
accomplished." Accordingly, NASA was not Robinson's joint employer and it was proper
to
dismiss the CAA complaint as to NASA and its OIG.
Robinson Did Not Meet His Burden of Persuasion Concerning Martin
Marietta
The alleged protected activity in this case was Robinson's
complaining to his superiors about the danger of using the catalyst chosen for the DBCS on
board
a space flight. Robinson contended that the catalyst could ignite spontaneously, endanger the
astronauts' lives, and cause emission of toxic substances and pollutants into the atmosphere of the
shuttle and possibly the earth's atmosphere as well. See Stephenson, slip op. at 3
(complaint about emission of ethylene oxide and freon into space capsule constituted protected
activity under CAA).
In a case such as this, in which the respondents articulated
legitimate, nondiscriminatory reasons for their alleged adverse actions, the question whether the
complainant previously established a prima facie case becomes irrelevant. Carroll v.
Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Fin. Dec. and Order, Feb. 15, 1995, slip
op. at 11, aff'd, Carroll v. United States Dept. of Labor, 78 F. 3d 352, 356 (8th
Cir. 1996). "The [trier of fact] has before it all the evidence it needs to determine whether
'the defendant intentionally discriminated against the plaintiff." USPS Bd. of Governors
v. Aikens, 460 U.S. 711, 715 (1983) (quoting Texas Dept. of Community Affairs
v.
Burdine, 450 U.S. 248, 253(1981).
Rather, the question in this case is whether Robinson established by
a preponderance of the evidence that Martin Marietta retaliated against him for engaging in
protected conduct. See Carroll, 78 F.3d at 356. We discuss below the legitimate
reasons articulated by Martin Marietta for the actions it took and find that Robinson did not
produce persuasive evidence that the real reason for the company's adverse actions was
discriminatory.
The 1993 performance evaluation that Robinson deemed adverse
lauded his engineering skills, found that he met the requirements of his position, but stated that
he
needed to improve his interpersonal skills. RX 99; T. 264-265. The record documents several
examples of Robinson's poor interpersonal skills, including an admission that there were
occasions
when co-workers told him to calm down when he threw things. T. 156-157, 248, 252-253,
486-492; RX 73. In light of Robinson's admitted conflicts with co-workers, T. 248-255, he has
not
persuaded us that Martin Marietta retaliated against him in his performance evaluation.
Some months later, when the DBCS project no longer required two
engineers, Martin Marietta properly assigned Robinson to work on other assignments. Although
Robinson described the subsequent mini-oscilloscope project as an "arm pit, hell-hole
project" in an E-mail message demanding that his superiors reassign him, RX 119, T. 268,
he routinely complained about his assignments. T. 804-805. We therefore conclude that Martin
Marietta did not retaliate in assigning him work that he did not like.
Even after Robinson sought and received a promotion, T. 259, 262-263,
Robinson's work performance deteriorated. He admittedly failed to attend, arrived late, and
was unprepared for business meetings. RX 150; T. 270-273. Robinson also conceded that he
played video games, wrote stories, read newspapers, and slept on the job. T. 274-275, 742-745.
In response, Martin Marietta gave Robinson a written warning that
such behavior would be referred to the human resources department for further action. RX 150;
T.
272-273, 797. The company also placed Robinson on a weekly supervision schedule because he
was not meeting deadlines and was not making significant progress on his projects. T.
260-273, 799. Since Robinson admitted to all of the poor work place behaviors, we find that he
did not show that Martin Marietta took these disciplinary measures in retaliation for his protected
complaints.
About six weeks after Robinson submitted his "termination of
employment" memorandum, Martin Marietta managers asked Robinson's supervisors for
an
acceptable amount of time in which to reassign his work. CX 51 at 2. When the supervisors
suggested two weeks, Martin Marietta set an effective date of resignation about two weeks later.
Id. In light of the well documented deficiencies in Robinson's performance, we find that
the company's decision not to permit Robinson to rescind his resignation was legitimate and was
not motivated by his engaging in protected activities.
Martin Marietta credibly explained that Robinson's name was not
included on the patent application because two scientists, one from Martin Marietta and one from
NASA, disclosed their intention to apply for a patent on the DBCS system about one month prior
to Robinson's assignment to work on the project. T. 328, 618, 631. We find that since Robinson
joined the project only after the two scientists' patent disclosure, there was no retaliation in not
including his name on the patent application.5 See R. D. and O. at 3.
Similarly, Martin Marietta explained that Robinson's name was not
mentioned in an article in the in-house newsletter that discussed the DBCS project, CX 70,
because at that time he was not a part of the Medical Sciences Products Group that was featured
in
the article. T. 288. We find no retaliation in not mentioning Robinson in the newsletter article.
Finally, Robinson asserts that the company's decision to contest his
application to receive unemployment benefits was retaliatory. But Martin Marietta contested the
application because he had resigned voluntarily. T. 177, 180. In light of the voluntary nature of
Robinson's "termination of employment" memorandum, he did not offer persuasive
evidence that his protected activities were the real reason for contesting his benefits.
In view of Robinson's failure to persuade us that Martin Marietta
took any adverse action in retaliation for his engaging in protected activities, we find that the
complaint should be DISMISSED.
2On April 17, 1996, a Secretary's
Order was signed delegating jurisdiction to issue final agency decisions under these statutes and
the implementing regulations to the newly created Administrative Review Board (ARB).
Secretary's Order 2-96 (Apr. 17, 1996), Fed. Reg. 19978 (May 3, 1996). Secretary's Order 2-96
contains a comprehensive list of statutes, executive order, and regulations under which the
Administrative Review Board now issues final decisions.
3Reference is to the transcript of a
prehearing conference on December 7, 1994.
4The Secretary has found that the
ERA's definition of employer covered the Tennessee Valley Authority, which so interfered with
its
contract with a separate company that it caused the termination of the complainants'
employment.
Hill and Ottney v. Tennessee Valley Authority, Case Nos. 87-ERA-23 and 87-ERA-24,
Sec. Dec. and Ord. of Remand, May 24, 1989. There is no allegation of similar contractual
interference in this case.
5Although afforded the
opportunity
to explain why he deserved to be included on the patent application, RX 145, Robinson did not
attempt to do so.
LOCKHEED MARTIN CORPORATION;1
MARTIN MARIETTA TECHNOLOGIES;
NASA OFFICE OF INSPECTOR GENERAL; and
NATIONAL AERONAUTICS & SPACE ADMINISTRATION,
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