Administrative Review Board

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

CHRISTOPHER GREEN,

ARB CASE NO.

COMPLAINANT,

v.

2018-0007

ALJ CASE NO. 2017-TSC-00002

DATE: April 9, 2020

OPCON, INC., and VSGI, LLC

CONSTRUCTION SERVICES SERIES,

RESPONDENTS.

Appearances:

For the Complainant:

Nicholas D. Thompson; The Moody Law Firm, Inc.; Portsmouth, Virginia

Before: Thomas H. Burrell, Acting Chief Administrative Appeals Judge, and Heather

C. Leslie and James A. Haynes, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. This case arises under the employee protection provisions of the

Clean Air Act (CAA), 42 U.S.C. § 7622 (1977), the Solid Waste Disposal Act

(SWDA), 42 U.S.C. § 6971 (1980), and the Toxic Substances Control Act (TSCA), 15

U.S.C. § 2622 (1986) (collectively, the “Environmental Acts”). Christopher Green

filed a complaint alleging Opcon, Inc. (Opcon) and VSGI, LLC Construction Services

Series (VSGI) retaliated against him for engaging in activities protected by the

Environmental Acts. On October 31, 2017, a Department of Labor Administrative

Law Judge (ALJ) entered a Summary Decision and Order Denying Complaint (D. &

O.).1 The ALJ found that Green had not shown he was a covered “employee” of

Respondents, which was an essential element of his claim, and denied his

complaint. For the following reasons, we affirm.

BACKGROUND

According to Green’s complaint with the Occupational Safety and Health

Administration (OSHA), Respondents held contracts to perform roof and window

renovations for the United States Department of Veterans Affairs (the VA Projects).

Green Amended Complaint (Am. Complaint) at ¶ 8. Respondents, in turn,

subcontracted the renovations to Priority Construction and Roofing Co. (Priority)

and Tactical Construction Corp. (Tactical). Id. at ¶¶ 9-10. Tactical and Priority

employed Green as their project manager on the VA Projects. Am. Complaint,

Exhibits C & E. Green did not submit any evidence suggesting he had a contractual

relationship directly with either Respondent.

Green avers that Respondents ordered Priority and Tactical to work with and

dispose of asbestos-containing materials without following the applicable

regulations for asbestos abatement. Am. Complaint at ¶ 1. Green claims that when

he objected to and opposed such orders, Respondents retaliated by ordering Priority

and Tactical to remove Green from the VA Projects. Id. at ¶¶ 1-2, 13-18.

OSHA determined that Green was not a “covered employee” under the

Environmental Acts and denied his claim. OSHA Determination at 1. Green

requested a hearing before an ALJ. Upon assignment of the case, the ALJ issued a

Notice of Assignment, Filing Notice of Appearance, and Order to Show Cause

(Order to Show Cause). The Order to Show Cause ordered Green to show why his

case should not be dismissed for failing to establish that he was a “covered

employee” of Respondents:

William T. Barto (the ALJ) subsequently became the Chief Administrative

Appeals Judge of the Administrative Review Board but did not participate in the

consideration of this case while it was pending on appeal before the Board.

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I would like to address one important issue in limine

before scheduling a hearing in this matter. Complainant

alleges that Respondents caused him to suffer adverse

action because of Complainant’s protected activity. But

after investigation, the Regional Supervisory Investigator

dismissed this complaint of retaliation because

Complainant had failed to establish that he was a

“covered employee” of either Respondent under any of the

statutes at issue. In the interest of judicial economy, I

hereby ORDER that Complainant will SHOW CAUSE

why this request for hearing should not also be dismissed

for the same reason.

Order to Show Cause at 2. The ALJ ordered Green to submit a memorandum of

points and authority and affidavits, declarations, or other evidentiary proof to

establish the factual and legal basis for his position. Id. The Order to Show Cause

also gave Respondents the opportunity to file oppositions to Complainant’s

submission. Id.

In response to the Order to Show Cause, Green submitted a letter from

counsel and certain exhibits, including his employment agreements with Tactical

and Priority, a signed subcontractor agreement between Opcon and Priority, an

unsigned subcontractor agreement between VSGI and Priority, letters and

correspondence, and certain filings the parties apparently submitted to OSHA.

Green did not provide any declarations or affidavits in support of his position.

Opcon filed a letter in opposition to Complainant’s response disputing Green’s

various factual allegations, but did not supply evidence or exhibits. VSGI did not

submit an opposition or evidence.

On October 31, 2017, before any discovery had been conducted, the ALJ

issued the D. & O., finding that Green had not produced sufficient evidence showing

that he was an “employee” of either Respondent. The ALJ therefore denied the

complaint. D. & O. at 10-11. Green appealed the ALJ’s decision to the Board.2

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Respondents did not file briefs in opposition to Green’s appeal.

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JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated to the ARB authority to review ALJ

decisions and issue agency decisions in cases arising under the Environmental Acts.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6,

2020); 29 C.F.R. § 24.110. The ARB reviews an ALJ’s grant of summary decision de

novo, applying the same standards that ALJs employ under 29 C.F.R. Part 18.

Siemaszko v. First Energy Nuclear Operating Co., Inc., ARB No. 2009-0123, ALJ No.

2003-ERA-00013, slip op. at 3 (ARB Feb. 29, 2012).

Under 29 C.F.R. § 18.72, an ALJ may enter summary decision for either

party if the pleadings, affidavits, materials obtained by discovery, or matters

officially noticed show that there is no genuine issue as to any material fact and

that based on the law a party is entitled to summary decision. If the complainant

fails to show an essential element of his case, there can be no “genuine issue as to

any material fact,” since a complete failure of proof concerning an essential element

necessarily renders all other facts immaterial. Mehan v. Delta Air Lines, ARB No.

2003-0070, ALJ No. 2003-AIR-00004, slip op. at 3 (ARB Feb. 24, 2005); Rockefeller

v. Dep’t of Energy, ARB Nos. 2003-0048, -0084, ALJ Nos. 2002-CAA-00005, 2003ERA-00010, slip op. at 4 (ARB Aug. 31, 2004) (citing Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986)). On summary decision, the ALJ in the first instance and

the Board on appeal must review the record in the light most favorable to the

nonmoving party. Micallef v. Harrah’s Rincon Casino & Resort, ARB No. 2016-0095,

ALJ No. 2015-SOX-00025, slip op. at 3 (ARB July 5, 2018).

DISCUSSION

1. Green Did Not Show He Had an Employment Relationship with Respondents

The Environmental Acts require that the complainant be a covered

“employee” and have an employment relationship with the respondent. 42 U.S.C. §

7622(a); 42 U.S.C. § 6971(a); 15 U.S.C. § 2622(a); Reid v. Methodist Med. Ctr., 1993CAA-0004, 1995 WL 847960, at *3-4 (Sec’y Apr. 3, 1995). To determine whether

Green, who albeit was not a direct or immediate employee of either Respondent,

was nonetheless a covered “employee” under the Environmental Acts, the ALJ

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applied a test derived from the common law of agency as articulated in Nationwide

Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992) and its progeny. D. & O. at 6.

The relevant factors under the common law test include the “(1) extent of the

[purported] employer’s control and supervision over the worker, including directions

on scheduling and performance of work, (2) the kind of occupation and nature of

skill required, including whether skills are obtained in the workplace, (3)

responsibility for the costs of operation, such as equipment, supplies, fees, licenses,

workplace, and maintenance of operations, (4) method and form of payment and

benefits, and (5) length of job commitment and/or expectations.” Nischan v.

Stratosphere Quality, 865 F.3d 922, 929 (7th Cir. 2017) (citation omitted); accord

Darden, 503 U.S. at 323 (citing Cmty. for Creative Non-Violence v. Reid, 490 U.S.

730 (1989)).

Upon review of the D. & O., we conclude the ALJ’s analysis is a well-reasoned

application of the common law test to the undisputed facts on the record. Green did

not present evidence that Respondents controlled or supervised Green’s day-to-day

work, that Respondents directed the manner in which Green completed his tasks,

that Respondents played a role in the development of Green’s skills or provided

Green training, that Respondents and Green had anything more than just a

temporary and indirect relationship, or that Respondents conferred any pay or

benefits on Green. D. & O. at 6-9. Therefore, considering the record as a whole in

the light most favorable to Green, we agree with the ALJ that Green failed to make

a showing sufficient to establish the existence of an employment relationship with

Respondents under the common law test.

Green contends on appeal that the ALJ erred by using the common law test.

Green argues that the ALJ should have instead applied a “control” test to determine

whether he was a covered employee of Respondents under the Environmental Acts.

Complainant’s Brief (Comp. Br.) at 13-15. Even applying the control test, we

conclude that Green still has not demonstrated an employment relationship with

Respondents.3

Because we find Green cannot establish an employment relationship with

Respondents under either the control test or the common law test, we need not decide

whether one test or the other should have been applied or would have been determinative

under the facts and circumstances of this case.

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The crucial factor in finding an employer-employee relationship under the

control test is “whether the respondent acted in the capacity of an employer, that is,

exercised control over, or interfered with, the terms, conditions, or privileges of the

complainant’s employment.” Seetharaman v. Gen. Elec. Co., ARB No. 2003-0029,

ALJ No. 2002-CAA-00021, slip op. at 5 (ARB May 28, 2004); accord Stephenson v.

NASA, ARB No. 1996-0080, ALJ No. 1994-TSC-00005, slip op. at 3 (ARB Feb. 13,

1997). Such control includes “the ability to hire, transfer, promote, reprimand, or

discharge the complainant, or influence another employer to take such action

against a complainant . . . .” Seetharaman, ARB No. 03-0029, slip op. at 5.

The only indicia of control that Green points to in this appeal is Respondents’

power to remove Green from the VA Projects. Comp. Br. at 16. Green has not

argued that Respondents had any other ability to control the terms, conditions, or

privileges of his employment.

In the context of putative indirect employers like Respondents, the power to

order an individual’s removal from a particular contract or project, without more, is

not tantamount to control over the terms and conditions of the individual’s

employment. Love v. JP Cullen & Sons, 779 F.3d 697, 703-04 (7th Cir. 2015);

Knitter v. Corvias Military Living, LLC, 758 F.3d 1214, 1228-29 (10th Cir. 2014);

Godlewska v. HDA, 916 F.Supp.2d 246, 258 (E.D.N.Y 2013), aff’d sub nom.

Godlewska v. Human Dev. Ass’n, Inc., 561 F. App’x. 108 (2d Cir. 2014); cf. Nischan,

865 F.3d at 929 (finding an indirect putative employer’s ability to provide input and

recommendations on personnel decisions does not establish control over the terms

and conditions of employment). Notably, Green did not argue to the ALJ or to this

Board that his removal from the VA Projects resulted in his termination from

Priority or Tactical, or otherwise impacted his employment with those companies.

There is no indication that Green could not be reassigned to other contracts held by

Priority or Tactical. Green also did not argue or supply evidence suggesting that

Respondents intended to jeopardize Green’s employment with Priority and Tactical

or influence those companies to take unfavorable personnel actions against him. See

Love, 779 F.3d at 703 (finding no control where “the record lack[ed] any evidence

that [defendant] attempted to jeopardize [plaintiff’s] continued employment with

[his direct employer] or his placement on other . . . projects.”). Therefore, we find

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that Green has not made a showing that Respondents had control over the terms

and conditions of his employment.

For the foregoing reasons, we conclude that Green has not shown he had an

employment relationship with Respondents under the common law test applied by

the ALJ or the control test for which Green advocates. Because Green has not

shown facts sufficient to establish an essential element of his retaliation claim, we

affirm the denial of his complaint. See Mehan, ARB No. 03-0070, slip op. at 3.

2. The ALJ Did Not Err by Entering Summary Decision without Discovery

Green also argues that the ALJ erred by entering summary decision without

first allowing time for discovery. Green did not argue to the ALJ below that he

needed to conduct discovery to respond to the Order to Show Cause or that

dismissing his case prior to discovery would be premature or improper. Under the

applicable regulation, Green had the opportunity to submit an affidavit or

declaration identifying his need to conduct discovery to present facts essential to his

claim, but he did not do so. See 29 C.F.R. §18.72(d); accord Fed. R. Civ. P. 56(d)

(providing the same procedural mechanism in federal courts). We generally do not

consider arguments raised for the first time on appeal, even when reviewing a

summary decision de novo. Saporito v. Cent. Locating Servs., LTD, ARB No. 20050004, ALJ No. 2001-CAA-00013, slip. op. at 10 (ARB Feb. 28, 2006); Lewandowski v.

Viacom Inc., ARB No. 2008-0026, ALJ No. 2007-SOX-00088, slip op. at 10 (ARB Oct.

30, 2009).

Yet even if we consider Green’s argument, we find it lacks merit. An ALJ’s

limitation on the scope of discovery lies within his or her sound discretion. Saporito,

ARB No. 05-0004, slip op. at 10 (citing High v. Lockheed Martin Energy Sys., ARB

No. 2003-0026, ALJ No. 1996-CAA-00009, slip op. at 4 (ARB Sept. 29, 2004)). To

establish an abuse of that discretion, the appellant must, at a minimum, articulate

what materials he hoped to obtain during discovery and how he expects those

materials would have helped him avoid dismissal of his case. Id.; see also Bucalo v.

United Parcel Serv., Inc., ARB No. 2010-0107, ALJ Nos. 2008-SOX-00053, 2008STA-00059, slip op. at 4 (ARB March 21, 2012); Moore v. Dep’t of Energy, ARB No.

1999-0047, ALJ No. 1998-CAA-00016, slip op. at 4 (ARB June 25, 2001). The

appellant may not avoid dismissal merely by insisting that he should have been

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permitted to complete discovery on all issues, generally, before his case was

dismissed. Saporito, ARB No. 05-0004, slip op. at 10; Moore, ARB No. 99-0047, slip

op. at 4.

Green has not articulated what facts were missing regarding his relationship

with Respondents, what specific discovery he wanted to conduct, or how discovery

could have avoided denial of his complaint. Green’s general proffer that he needed to

complete discovery, without articulating why or identifying what discovery was

necessary, is not sufficient to establish the ALJ abused his discretion.

Green cites several cases from the federal courts for his proposition that

discovery must always be permitted before the entry of summary decision. Comp.

Br. at 11-12. Yet, consistent with ARB precedent and the applicable rules and

regulations, the courts in the cases cited by Green stated that the party seeking to

avoid dismissal of a claim before discovery had to actually articulate what facts

were missing and identify a need for discovery. Moore v. Shelby Cty., 718 F. App’x

315, 319 (6th Cir. 2017) (“[T]he non-movant bears the obligation to inform the

district court of its need for discovery…We have observed that filing an affidavit

that complies with Rule 56(d) is essential, and that in the absence of such a motion

or affidavit, ‘this court will not normally address whether there was adequate time

for discovery.’” (quoting Plott v. Gen. Motors Corp., 71 F.3d 1190, 1196 (6th Cir.

1995))); Shelton v. Bledsoe, 775 F.3d 554, 565-66 (3d Cir. 2015) (citing the Rule

56(d) requirement that a non-movant supply an affidavit or declaration setting forth

what discovery was necessary in order to avoid judgment); Rattigan v. Holder, 982

F. Supp. 2d 69, 76, 83-84 (D.D.C. 2013) (same). As a result, these cases do not

support Green’s argument.

Green also cites to the Board’s decision in Zavaleta v. Alaska Airlines, Inc.,

ARB No. 2015-0080, ALJ No. 2015-AIR-00016 (ARB May 8, 2017) for the

proposition that the ALJ was obligated to make sure Green was aware of his right

to discovery before entering summary decision. Comp. Br. at 12. However, the

ruling in Zavaleta was premised on the complainant’s pro se status. As the Board

explained in that case, the ALJ committed reversible error by not explaining to the

complainant his right to identify necessary discovery because ALJs have a heighted

responsibility to assist pro se litigants and are under an obligation to hold them to

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lesser standards than litigants with legal counsel in procedural matters. Id. at 11,

13. The same considerations do not apply to represented litigants, like Green.

For these reasons, we do not find the ALJ abused his discretion in entering

summary decision without allowing Green to conduct discovery.4

CONCLUSION

The ALJ properly concluded that Respondents were entitled to summary

decision as a matter of law. Accordingly, the ALJ’s entry of summary decision in

favor of Respondents is AFFIRMED and the complaint is hereby DENIED.

SO ORDERED.

Green also argues that to the extent the ALJ’s D. & O. was decided as a

motion to dismiss under 29 C.F.R. § 18.70(c), rather than as a summary decision under 29

C.F.R. § 18.72, the ALJ erred because Green adequately stated a claim for relief. Comp. Br.

at 7-10. The ALJ clearly identified his ruling as a summary decision under 29 C.F.R. §

18.72 and applied the standards for summary decision to the facts on the record. D. & O. at

1, 10-11. Therefore, we reject this alternative argument.

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