Mark H. McCormack v. Westinghouse Savannah River Company (Case No. SR--98--0003)

Final Agency Decision Issued by the Deputy Secretary of Energy

Issued February 7, 1999

This is a request for review by complainant Mark H. McCormack of a decision by the Office of Inspector General (OIG) dismissing the reprisal complaint that he filed pursuant to 10 C.F.R. Part 708, the regulation establishing the DOE Contractor Employee Protection Program. Mr. McCormack filed his complaint against Westinghouse Savannah River Company (WSRC), the DOE management and operating contractor at DOE's Savannah River Site in Aiken, South Carolina. Mr. McCormack has never been an employee of WSRC. He was an employee of National Environmental Services Corporation (NESC), a DOE subcontractor at the Savannah River Site, until he resigned in March 1996.

Background

On May 21, 1998, Mr. McCormack filed his reprisal complaint. He alleged in his complaint that he became an employee of NESC in October 1995; that as a "Site Safety Officer" at NESC he reported certain safety concerns to NESC and WSRC, which both resisted his recommendations of safety controls; that he believed that the lack of safety controls and safety concerns by NESC and WSRC required that he resign; and that therefore his resignation from NESC in March 1996 constituted a constructive discharge. Complaint at 1--2.

He further alleged that in December 1997, he was not selected for a position as an "ALARA Planner" at BAT Associates, another DOE subcontractor at the Savannah River Site, because WSRC employees provided negative job references in retaliation for his earlier reporting of safety concerns when he had been an employee of NESC. Complaint at 2; e-mail message, dated "7/13/98 1:40 PM," from Mark McCormack to Jerome Yurow of OIG, at 1--2.

He also alleged that when he first learned the reasons for his rejection in January 1998, his wife, Carol McCormack, presented a written complaint to Joseph Buggy, Executive Vice President of WSRC, because she had a personal relationship with Mr. Buggy as a result of their work together on the United Way of Aiken County, South Carolina; and that Mr. Buggy rejected the complaint on March 26, 1998. Complaint at 2; e-mail message, dated "7/13/98 1:40 PM," from Mark McCormack to Jerome Yurow of OIG, at 2--3.

The relief that Mr. McCormack requests in his complaint is that DOE enter an order requiring that he be awarded the position of ALARA Planner at BAT Associates, together with back pay and reasonable attorney's fees and costs. Complaint at 3.

Thus, Mr. McCormack in his complaint has alleged two separate discriminatory actions by two separate contractors: (1) that NESC constructively discharged him in March 1996; and (2) that WSRC employees provided negative job references concerning him in December 1997. However, he requests relief for only the latter alleged action by WSRC, not the former by NESC.

Mr. McCormack's counsel, Richard E. Miley, initially sent an outline of Mr. McCormack's reprisal complaint to Michael L. Wamsted, Senior Counsel for WSRC, by letter dated May 6, 1998. By letter dated May 14, 1998, Mr. Wamsted responded that because Mr. McCormack was at no time an employee of WSRC, he cannot maintain a Part 708 action against WSRC.

On August 6, 1998, the OIG issued a summary dismissal of Mr. McCormack's reprisal complaint, pursuant to 10 C.F.R. Sec. 708.8(a)(2) and (5). The grounds for the summary dismissal are that Mr. McCormack is ineligible to file a Part 708 complaint because he is not an "employee" as defined by Secs. 708.2(b) and 708.4; and that his complaint was not timely filed as required by Sec. 708.6(d).

On August 13, 1998, Mr. McCormack filed a timely request for review. By letter dated August 26, 1998, WSRC responded to Mr. McCormack's request for review.

Analysis

Subsection 708.2(b) provides that Part 708 is applicable to employees of contractors as defined in Sec. 708.4. The latter subsection defines an "employee" as "any person(s) employed by a contractor, and any person(s) previously employed by a contractor if such prior employee's complaint alleges that employment was terminated in violation of Sec. 708.5." Subsection 708.4 also defines a "contractor" to include, among other entities, a party to a Management and Operating Contract or to subcontracts under such a contract.

Subsection 708.6(d) provides for a 60-day limitations period for filing a reprisal complaint with DOE:

A complaint filed pursuant to paragraph (a) of this section must be filed within 60 days after the alleged discriminatory act occurred or within 60 days after the complainant knew, or reasonably should have known, of the alleged discriminatory act, whichever is later. In cases where the employee has attempted resolution through internal company grievance procedures as set forth in paragraph (c) of this section, the 60-day period for filing a complaint shall be tolled during such resolution period and shall not again begin to run until the day following termination of such dispute-resolution efforts.

The OIG was correct in concluding that Mr. McCormack is not an "employee" of the respondent WSRC, as defined by Secs. 708.2(b) and 708.4, and is therefore not eligible to file his complaint. Mr. McCormack has never been employed by WSRC. He was previously employed by NESC, but he resigned from NESC in March 1996 and now alleges, in his May 1998 complaint, that his resignation from NESC constituted a constructive discharge. Pursuant to the definitions of "employee" and "contractor" in Sec. 708.4, Mr. McCormack would have been eligible to file a Part 708 complaint against his former subcontractor employer NESC if he had filed it within 60 days after his alleged constructive discharge by NESC occurred in March 1996, as required by Sec. 708.6(d). However, by failing to file a Part 708 complaint until May 1998, Mr. McCormack exceeded the 60-day limitations period by approximately two years.

Mr. McCormack contends that he is an employee within the meaning of the phrase in Sec. 708.4 which includes "any person(s) previously employed by a contractor if such prior employee's complaint alleges that employment was terminated in violation of Sec. 708.5," because he alleged in his May 1998 complaint against WSRC, which has never employed him, that he was terminated by another contractor---his former employer NESC---in violation of Sec. 708.5. Request for review at 1--4, 8--10. That argument fails for two reasons.

First, as explained supra, his allegation that he was terminated in March 1996 by NESC is barred by the limitations period in Sec. 708.6(d). Mr. McCormack has failed to show good cause for his exceeding that 60-day deadline by two full years. /1 Because that untimely allegation is barred, it cannot serve as the basis for his complying with the definition of "employee" in Sec. 708.4.

Second, even if Mr. McCormack's allegation against his former employer NESC were not time-barred, he would still not be entitled to file his separate allegation against WSRC, because WSRC has never been his employer. The alleged discriminatory actions that are the subject of Part 708 are those taken by complainants' employers or former employers, not by other contractors or subcontractors that have never been their employers. In Mr. McCormack's complaint, only the first of the two alleged discriminatory actions was taken by his former employer: his alleged constructive discharge by NESC in March 1996, for which he does not even request relief in his complaint. In contrast, the second of the two discriminatory actions alleged in his complaint was taken by a contractor that has never employed him: the negative job references allegedly provided by employees of WSRC in December 1997. That is the only alleged discriminatory action for which he seeks relief in his complaint, and Part 708 does not apply to such an alleged action by a contractor that has never employed the complainant. /2

The language of the regulations makes it clear that Part 708 applies to alleged discriminatory actions taken by employers of complainants (including their former employers under the definition in Sec. 708.4). This is consistent with the purpose of the DOE Contractor Employee Protection Program. In describing the purpose of Part 708, Sec. 708.1 states the following:

This part establishes procedures for timely and effective processing of complaints by employees of contractors performing work at sites owned or leased by the Department of Energy (DOE), concerning alleged discriminatory actions taken by their employers.... (emphasis added)

Similarly, Sec. 708.3 provides as follows:

It is the policy of DOE that employees of contractors at DOE facilities should be able to provide information to DOE, to Congress, or to their contractors concerning violations of law, danger to health and safety, or matters involving mismanagement, gross waste of funds, or abuse of authority, to participate in proceedings conducted before Congress or pursuant to this part, and to refuse to engage in illegal or dangerous activities without fear of employer reprisal. (emphasis added)

In the present case, the only alleged discriminatory action for which Mr. McCormack seeks relief---negative job references provided by employees of WSRC---was not taken by his employer or former employer, and is not an employer reprisal contrary to the provisions of Part 708.

Furthermore, the regulatory history of Part 708 confirms that the regulations only apply to discrimination and reprisals taken by complainants' employers (including their former employers). In adopting the final rule, DOE stated the following:

This rule establishes criteria and procedures for the investigation, hearing, and review of allegations from DOE contractor employees of *i employer reprisal *r resulting from (1) employee disclosure of information to the DOE, to members of Congress, or to the contractor, (2) employee participation in proceedings before Congress or pursuant to this rule, or (3) employee refusal to engage in illegal or dangerous activities, when such disclosure, participation, or refusal pertains to employer practices which the employee believes to be unsafe, to violate laws, rules, or regulations, or to involve fraud, mismanagement, waste, or abuse. (emphasis added)

57 Fed. Reg. 7533, 7533 (Mar. 3, 1992).

[E]mployees of DOE contractors are encouraged to come forward with information that in good faith they believe evidences unsafe, unlawful, fraudulent, or wasteful practices. Employees providing such

information are entitled to protection from consequent discrimination by their employers with respect to compensation, terms, conditions, or privileges of employment.

Currently, there are certain statutory proscriptions against employer reprisal. (emphases added)

Id., quoted in request for review at 8--9.

Section 708.5 lists the types of activities for which employees are to be protected from employer reprisal. (emphasis added)

Id. at 7534.

Mr. McCormack is incorrect in alleging that the Supreme Court's decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), supports his argument that he may file a Part 708 complaint against a contractor that has never been his employer. Request for review at 3--4. In Robinson, Shell Oil Co. fired an employee who shortly thereafter filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging that Shell had discharged him because of his race. While that charge was pending, the former Shell employee applied for a job with another company, which contacted Shell for an employment reference. The former Shell employee then charged that Shell provided a negative reference in retaliation for his having filed his first EEOC charge against Shell. He filed his second charge against Shell under Sec. 704(a) of Title VII of the Civil Rights Act of 1964, which makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment" who have either availed themselves of Title VII's protections or assisted others in so doing. 519 U.S. at 339--40.

The issue before the Court was whether the term "employees," as used in Sec. 704(a) of Title VII, includes former employees, such that the former Shell employee could bring suit against Shell for Shell's negative job references. After examining the language and purpose of that particular statute, the Court concluded that the term "employees" includes former employees within its coverage. 519 U.S. at 346.

A different issue is in dispute in the present case: whether a former employee of one contractor (NESC) can file a Part 708 complaint against another contractor (WSRC) that is neither his employer nor his former employer, but whose employees allegedly provided negative job references concerning him. That was not an issue in Robinson, because in that case it was the former employer Shell that allegedly provided negative job references concerning its former employee. The former Shell employee did not file a charge against a company that never employed him. That is what Mr. McCormack has done in the present case. The Supreme Court noted this distinction in the context of Title VII when it stated that the "phrase 'his employees' could include 'his' former employees, but still exclude persons who have never worked for the particular employer being charged with retaliation." 519 U.S. at 344.

Mr. McCormack also argues that DOE "should follow the Supreme Court's broad construction of the term 'employee' to include applicants, such as Complainant." Request for review at 4. However, the Supreme Court in Robinson did not construe the term "employee" in Title VII to include applicants. On the contrary, the terms of Sec. 704(a) of Title VII, as quoted supra, expressly make that section applicable to "employees or applicants for employment." Congress thus included "applicants for employment" in Sec. 704(a) as persons distinct from "employees." In contrast, Sec. 708.2(b) of Part 708 makes that part applicable to "employees," but it does not mention "applicants for employment," nor does any other provision of Part 708.

Finally, we note that even assuming arguendo that Mr. McCormack had been eligible to file a Part 708 complaint regarding the fact that he was not hired by BAT Associates in December 1997, that complaint would not have been timely filed. Pursuant to Sec. 708.6(d), his complaint would have been required to be filed within 60 days after he first learned the reasons for his rejection in January 1998. He should therefore have filed his complaint sometime before the end of March 1998. Instead, he did not file it until May 21, 1998. /3 He has alleged that his wife's correspondence with her United Way co-worker, XXXXX of WSRC, constituted an attempted resolution through the "internal company grievance procedures" of WSRC, and therefore tolled the 60-day limitations period pursuant to Sec. 708.6(d). Request for review at 4--7. However, the "internal company grievance procedures" set forth in Sec. 708.6(c) and (d) apply to the employees (including former employees) of that company, not to Mr. McCormack, who is neither an employee nor a former employee of WSRC.

The regulatory history of Part 708 confirms that the internal company grievance procedures that toll a complainant's limitations period apply to that company's own "internal" employees, not to external employees of other contractors:

The DOE believes that contractors should have the managerial discretion to deal with employee disciplinary matters as they deem appropriate, and that contractors with effective employee protection programs should have the opportunity to address and resolve complaints of reprisal internally. The DOE recognizes, however, that in certain instances company procedures are not a substitute for Federal administrative procedures. Accordingly, the DOE believes that Sec. 708.6(c) appropriately requires that internal company procedures be utilized when available, and that the rule as a whole does not excessively encroach upon the contractor's right to exercise managerial discretion.

57 Fed. Reg. at 7538.

Moreover, Mr. McCormack has failed to present any evidence that WSRC ever misled him or his wife by incorrectly stating that his wife's correspondence with XXXXX constituted an "internal company grievance procedure" that would toll the period of limitations pursuant to Sec. 708.6(d).

For the foregoing reasons, the dismissal of the complaint is affirmed.

Ernest J. Moniz

Acting Deputy Secretary

Issued February 7, 1999

/1 As the OIG correctly found in its dismissal, if Mr. McCormack had been constructively discharged by NESC in March 1996 because of his protected activity, as he alleges, he would have been aware of that discriminatory act at the time of its occurrence, and therefore the 60-day limitations period would have begun to run in March 1996. This finding is supported by the allegation in his complaint that his resignation from NESC constituted a constructive discharge because he believed that the lack of safety controls and safety concerns by NESC and WSRC required that he resign. Complaint at 2. If that belief compelled him to resign in March 1996, as he alleges, then he would have known at that time that his resignation was involuntary and a constructive discharge.

/2 For the same reason, Part 708 does not apply to the specific relief that Mr. McCormack requests---that DOE enter an order requiring that he be awarded the position of ALARA Planner at BAT Associates---because BAT Associates, like WSRC, has never employed the complainant.

/3 Although Mr. McCormack alleged, in his request for review at 5--6, that he discovered for the first time on March 26, 1998 that WSRC employees had made false statements concerning him, that allegation is contradicted by his statement in his complaint that "Complainant first learned of his rejection and the retaliatory reasons for his rejection in January of 1998" (Complaint at 2); by his wife's assertion in her letter to XXXXX of WSRC, dated January 28, 1998, that "misinformation" and "references" had kept him from consideration for the job of ALARA Planner at BAT Associates (Exhibit A to request for review, at 1, 3); and by his own statement in his request for review that "Complainant had no reason in 1996 or later to suspect that WSRC had undertaken to discriminate against him or to black-ball him until December, 1997, when he learned for the first time that WSRC managers had directed that his resume be 'pulled' from consideration because of his 1996 safety complaints" (request for review at 6 (emphasis added)).

Mr. McCormick is also incorrect in his claim that the alleged "[c]ontinuing nature of WSRC's black-listing" extends the limitations period indefinitely. Request for review at 5--6. Even if WSRC employees have not withdrawn the negative job references that he first discovered in January 1998, that would not extend the 60-day limitations period. Under the terms of Sec. 708.6(d), that period began to run when he "knew, or reasonably should have known," of the alleged negative job references, in January 1998.