Wilkinson v. Chao

• Decision Date: 24 November 2003
• Docket Number: No. CIV. 03-46-JD.,CIV. 03-46-JD.
• Citation: 292 F.Supp.2d 288
• Parties: Scott S. WILKINSON and James Mitchell, v. Elaine CHAO<SMALL><SUP>1</SUP></SMALL>
• Court: U.S. District Court — District of New Hampshire

292 F.Supp.2d 288

Scott S. WILKINSON and James Mitchell, v. Elaine CHAO¹

No. CIV. 03-46-JD.

United States District Court, D. New Hampshire.

November 24, 2003.

COPYRIGHT MATERIAL OMITTED

Scott S. Wilkinson, Weare, NH, pro se.

James R. Mitchell, Plymouth, NH, pro se.

Gretchen Leah Witt, U.S. Attorney's Office, Concord, NH, for Defendant.

ORDER

DICLERICO, District Judge.

Scott S. Wilkinson and James Mitchell, proceeding pro se, have sued United States Secretary of Labor Elaine Chao under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA"), to compel the disclosure of certain documents concerning the denial of overtime pay to Mitchell, an employee of the Labor Department's Occupational Safety and Health Administration branch ("OSHA"). OSHA has resisted the disclosure of the documents on the grounds that they are protected by the deliberative process privilege. See 5 U.S.C. § 552(b)(5). On the basis of this privilege, Secretary Chao moves to dismiss the complaint for lack of subject matter jurisdiction or for summary judgment on the plaintiffs' claim (document no. 8). The plaintiffs object and cross-move for summary judgment (document nos. 20-21). Secretary Chao objects to the plaintiffs' cross-motion (document no. 23).

Standard of Review

Secretary Chao has moved to dismiss this action on the ground that this court lacks subject matter jurisdiction because OSHA has not unlawfully withheld records. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980); Shafmaster Fishing Co. v. United States, 814 F.Supp. 182, 184 (D.N.H.1993). Ordinarily, where evidentiary materials are submitted on a motion to dismiss for lack of subject matter jurisdiction, the court is permitted to weigh that evidence to discern whether a factual predicate for jurisdiction exists. O'Toole v. Arlington Trust Co., 681 F.2d 94, 98 (1st Cir.1982).

Where the jurisdictional issues raised by a motion to dismiss are intertwined with the merits of the plaintiff's claim, however, a court must treat the Rule 12(b)(1) motion as a motion for summary judgment. See Gonzalez v. United States, 284 F.3d 281, 287 (1st Cir.2002); McLellan Highway Corp. v. United States, 95 F.Supp.2d 1, 5-6 (D.Mass.2000). Here, because FOIA serves as the source of both this court's subject matter jurisdiction and the plaintiffs' cause of action, the jurisdictional inquiry is intertwined with the merits of their claim. See United States ex rel. Fine v. MK-Ferguson Co., 99 F.3d 1538, 1543 (10th Cir.1996); Baizer v. Dep't of Air Force, 887 F.Supp. 225, 226-27 (N.D.Cal. 1995). Accordingly, the court must analyze Secretary Chao's motion under Rule 56.

On a motion for summary judgment, the moving party has the burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the movant does so, the court must then determine whether the non-moving party has demonstrated a triable issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In performing this analysis, the court must view the entire record in the light most favorable to the non-movant, "`indulging all reasonable inferences in that party's favor.'" Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990)). Still, "[o]n issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion." Id., 950 F.2d at 822; see also Invest Almaz v. Temple-Inland Forest Prods. Corp., 243 F.3d 57, 76 (1st Cir. 2001). Where, as here, both sides have moved for summary judgment, the court applies the foregoing analysis to each motion in turn. See Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996).

Background

Mitchell works as an industrial hygienist in OSHA's Concord, New Hampshire, area office. Pursuant to the collective bargaining agreement between his union and the Department of Labor, Mitchell filed a grievance with OSHA's regional administrator on October 8, 1999, asserting that OSHA had violated the agreement and the Fair Labor Standards Act ("FLSA") by failing to pay him at the overtime rate for fourteen and one-half hours of work which he performed between September 22, 1999, and October 6, 1999. The grievance was denied on October 21, 1999, by OSHA's regional administrator. Within sixty days of that date, Mitchell requested arbitration of his claim as provided by the agreement.²

Wilkinson, a federal wage and hour investigator assigned to work as a union representative, served as Mitchell's union advocate at the arbitration proceedings, which began on November 14, 2001, and concluded on September 14, 2002, after a number of lengthy continuances. The issue in the arbitration was whether Mitchell did not qualify for overtime pay under the FLSA because he was working in a "professional capacity" as defined by 29 U.S.C. § 213(a)(1) and its implementing regulations. The arbitrator denied Mitchell's grievance in a written decision issued on October 10, 2001.

While the arbitration was pending, OSHA asked its program manager and senior technical expert concerning position classification and position management, Thomas Wayne Ponton, to review the duties Mitchell performed during the period for which he claimed unpaid overtime. In his declaration submitted in support of Secretary Chao's motion for summary judgment, Ponton describes his assignment as a "final OSHA determination regarding whether certain work performed ... by ... Mitchell was `professional' work, and thus exempt from the [FLSA] overtime provisions ...." First Ponton Decl. ¶ 4. Secretary Chao has also submitted another declaration from Ponton, executed on October 15, 2003 and made in opposition to the plaintiffs' summary judgment motion. In it, Ponton states

I was aware at the time I conducted the audit that Mr. Mitchell's request for overtime had been denied, that he had grieved that denial, and that there was a pending arbitration on the grievance. However, I was reviewing the issue to make a final determination for [OSHA], which I did.

Second Ponton Decl. ¶ 5.

In undertaking his assignment, Ponton created one of the documents at issue in this litigation, a January 23, 2002, e-mail message to David May, the area director of OSHA's Concord office. Ponton describes the e-mail as "a preliminary list of general questions" generated to obtain May's "interpretation and opinion" of the nature of Mitchell's work. First Ponton Decl. ¶ 6. Ponton also explains that he intended to use May's response as part of the "analysis and evaluation process in determining the FLSA status of the work performed . . ." Id. ¶ 7.

In response to his e-mail, Ponton received the "19 pages of documentation" which constitute the second document at issue in this case. Id. ¶ 10. Miriam McD. Miller, an attorney at the Department of Labor with knowledge of this document, describes it as an "internal memorandum of case studies" prepared by May and George Kilens, the team leader for OSHA's Concord office who supervised Mitchell. Miller Decl. ¶ 4. Both May and Kilens relate that they reviewed files of certain inspections conducted by Mitchell and "prepared written material about the type of work performed." May Decl. ¶ 7; Kilens Decl. ¶ 6.

According to both May and Kilens, "[t]he written material was not simply a recitation of the facts" of Mitchell's role in those inspections, but reflected their opinions about "the degree of discretion and judgment" associated with his work on them. May Decl. ¶ 8; Kilens Decl. ¶ 7. Kilens explains that the written material he provided to Ponton "did not reach any conclusions about the FLSA .... it was not a final decision." Kilens Decl. ¶ 9. May does not specifically make such a claim, although he describes the information he provided as "preliminary in nature." May Decl. ¶ 9. Both May and Kilens state that Ponton followed up on the document with additional questions.

For his part, Ponton avers that the information contained in the document "was used primarily in an advisory manner in which [he] considered, accepted, discarded and adapted the information in reaching [his] final conclusions." First Ponton Decl. ¶ 10. Ponton also relates that "the opinions and assessments contained in that written material [received from May and Kilens] played a minuscule role in reaching [his] final determination." Id.

On April 26, 2002, Ponton generated a document entitled "Fair Labor Standards Act Determination" in which he stated that he "was asked to review ... Mitchell's position in order to determine the ... exemption status of work performed during a specified period of time." The document expressed Ponton's conclusion that "it is determined that Mr. Mitchell's work is exempt under the professional exemption criteria." Ponton describes this document as "the final FLSA determination ...." First Ponton Decl. ¶ 9. Miller describes it as "the final audit report ...." Miller Decl. ¶ 7. This document was previously given to Wilkinson and therefore is not directly at issue here.

Peter Beil, the regional labor relations officer who represented the Department of Labor in the arbitration, describes the events leading up to Ponton's assignment as follows:

As part of management's case, I had always reserved the right to have a Human Resources Specialist testify. At some point, an arrangement was made to have Thomas Ponton, a Human Relations Specialist for OSHA, conduct an audit of the specific work performed by Mr. Mitchell that was at issue in the case.

Beil Decl. ¶ 5. Beil relates that he discussed Ponton's "forthcoming audit" with Wilkinson, telling him that if "Ponton decided, after the audit, that the work at issue was non-exempt, [Beil] would likely settle the case for OSHA." Id. ¶ 6. Beil also suggested to Wilkinson that the...