USDOL/OALJ Nuclear and Environmental Whistleblower Digest
DIVISION II -- FILING REQUIREMENTS, GENERALLY
[Last updated May 22, 2009]
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II. Filing requirements, generally
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A.
Generally
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B. Pleading requirements
- 1. Form of complaint
- 2. Requirement that violation underlying the complaint confers subject matter jurisdiction
- 3. Requirement of written complaint
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C. Requirements relating to person and place
- 1. Who may file
- 2. Place of filing
[Nuclear and Environmental Whistleblower Digest II A]
ADEQUACY OF PLEADING;
SWIERKIEWICZ
NOT APPLICABLE BECAUSE ERA CONTAINS A GATEKEEPING FUNCTION
In Hasan v. USDOL , No. 03-1981 (1st Cir. Mar. 24, 2005) (case below ARB No. 03-058, ALJ No. 2000-ERA-10), the court rejected the Complainant's argument that his complaint should not have been dismissed because it contained the short, plain statement of his claim required by Swierkiewicz v. Sorema , 534 U.S. 506 (2002), because the complaint had not been dismissed solely based on allegations in his complaint and because the ERA whistleblower provision, unlike the statutes at issue in Swierkiewicz , includes a gatekeeping function.
In Greene v. Environmental Protection Agency , 2002 SWD 1 (ALJ Feb. 10, 2003), the ALJ concluded that no DOL authority had addressed the degree of specificity needed to establish jurisdiction, but observed that
the Merit Systems Protection Board has addressed this question pursuant to the Whistleblower Protection Act, 5 USC § 1221. See, e.g. Keefer v. Department of Agriculture , 82 M.S.P.R. 687, 692 (1999). "[T]o be entitled to protection, disclosures must be specific and detailed, not vague allegations of wrongdoing regarding broad imprecise matter." In another case, the MSPB set forth a more detailed discussion of specificity. In that case the Complainant failed to identify such basic facts as the entities to whom he made disclosures, the specific dates, or the vacant positions about which he had made disclosures. Becker v. Department of Veterans Affairs , 76 M.S.P.R. 292, 297 (1997).
The ALJ found that the instant complaint was insufficiently specific in regard to most of the environmental employee protection laws cited because: 1) Complainant had not provided specific information regarding the nature of her protected activity and the circumstances leading to the alleged reprisals; and 2) she had not articulated any relationship between her alleged protected activity and the purpose of any pertinent environmental statute.
[Nuclear and Environmental Whistleblower Digest II B 1 b]
AMENDMENT OF THE COMPLAINT BY THE ALJ; PRO SE LITIGANT; GROUNDS AND PROCEDURE ARE AT 29 C.F.R. 18.5(e)
In Hooker v. Westinghouse Savannah River, Co. , ARB No. 03-036, ALJ No. 2001-ERA-16 (ARB Aug. 26, 2004), the Complainant had testified in deposition that the Respondent had refused to rehire him. Although the Complainant had not included this assertion in his ERA discrimination complaint, the ALJ, taking into account the Complainant's pro se status, sua sponte amended the complaint to include the refusal to rehire allegation. The ARB observed on review that the Respondent did not contest the ALJ's sua sponte amendment, and that it likewise did not contest that action. The ARB, however, also noted that the grounds and procedure for amending whistleblower complaints are found at 29 C.F.R. § 18.5(e), and that the ALJ had not referenced that regulation.
II B 1 b Secretary not precluded from considering factors not argued by complainant where they had been implicitly raised and litigated
In Cowan v. Bechtel Construction, Inc., 1987-ERA-29 (Sec'y Mar. 24, 1995), the Secretary considered the fact that Complainant had filed three prior ERA complaints against the Respondent prior to the present action in consideration of whether there had been protected activity, and a causal link. The Secretary noted that "Complainant's failure to allege this protected activity as a potential basis for the adverse action does not preclude the Secretary from considering such a claim where as here it had been implicitly raised and litigated." Citing Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357-59 (6th Cir. 1992).>
[Nuclear & Environmental Whistleblower Digest II B 1 b]
AMENDMENT OF COMPLAINT BASED ON COMPLAINANT'S TESTIMONY ABOUT POST COMPLAINT ACTIVITIES; MERELY PROBING COMPLAINANT'S EVIDENCE IS NOT EQUIVALENT TO TRIAL BY CONSENT
In Sasse v. Office of the U.S. Attorney, USDOJ , ARB No. 02 077, ALJ No. 1998 CAA 7 (ARB Jan. 30, 2004), the ALJ erred when he sua sponte amended the whistleblower complaint to treat Complainant's testimony about post complaint activities as admissible evidence on a theory of continuing violations. The testimony was about a suspension, which was a discrete act that was not actionable if not timely complained of. The Board held that the limitations period for filing a whistleblower complaint on the suspension had already expired.
The Complainant contended before the ARB that the amendment was proper because the suspension issue was tried by mutual consent. The Board found that "it is one thing to probe evidence about post complaint activities for whatever light they might shed on the complaint's reasoning and credibility. It is another thing entirely to agree to treat this evidence as raising a new and independent claim for relief." USDOL/OALJ Reporter at 30 [PDF] (citations omitted). Moreover, the Board agreed with DOJ that the ALJ's recommended decision was the first notice it received of a claim based on the suspension.
[Nuclear & Environmental Whistleblower Digest II B 1 b]
ADDITION OF PARTIES; DUE PROCESS CONSIDERATIONS UNDER 29 C.F.R. § 18.5(e)
When considering a motion to amend a complaint to add parties, the regulation at 29 C.F.R. § 18.5(e) applies. Moreover, although the Secretary's interpretation of section 18.5(e) in Wilson v. Bolin Associates, Inc. , 1991 STA 4 (Sec'y Dec. 20, 1991), supports the proposition that a complaint may be amended to add an individual party respondent, that decision also requires consideration of whether such is consistent with due process. Ewald v. Commonwealth of Virginia, Dept. of Waste Management , ARB No. 02 027, ALJ No. 1989 SDW 1 (ARB Dec. 19, 2003). In Bolin , the individual sought to be added had received notice from the outset of the case and had participated in the investigation and all proceedings before DOL. In Ewald , however, the ARB affirmed the ALJ's denial of an amendment to the complaint to add certain parties where they had not participated in the proceedings in about a decade. The ARB also affirmed the ALJ's finding that the current head of the Waste Management Department, who Complainant sought to add in his individual capacity, had no authority to effect a remedy to Complainant and was not susceptible to individual liability merely because he had assumed a public office.
[Nuclear & Environmental Whistleblower Digest II B]
DISCRIMINATION COMPLAINT MAY NOT BE DISMISSED SOLELY FOR
FAILURE TO PLEAD FACTS SUFFICIENT TO SATISFY PRIMA FACE CASE
In a Title VII case, Swierkiewicz v. Soreman , 534 US 506, 122 S Ct 992, 152 L Ed 2d 1 (2002), the United States Supreme Court held that complaints of employment discrimination cannot be dismissed solely for having failed to plead facts to satisfy each element of the McDonnell Douglas standard for establishing a prima facie case. The Court held that such a complaint is only required to satisfy Fed. R. Civ. P. 8(a)(2)'s requirement of a "short and plain statement of the claim showing that the pleader is entitled to relief."
The Court observed that this ruling does not prevent a Respondent from filing a motion for a more definite statement under Rule 12(e), and that meritless claims may be dealt with through summary judgment under Rule 56.
[Nuclear & Environmental Digest II B 1 b]
NEW COMPLAINT OF BLACKLISTING; ARB REMANDS TO OSHA FOR
INVESTIGATION
In Duncan v. Sacramento Metropolitan Air Quality Management District , ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB June 13, 2000), Complainant wrote to the Secretary of Labor complaining that Respondent had posted information concerning the ALJ's recommended decision and order on its website, and this posting constituted blacklisting. Complainant indicated that he had faxed a copy of his complaint to the San Francisco OSHA office, but received no reply. The Executive Director of the Labor Department's Office of Adjudicatory Services responded on behalf of the Secretary, informing Complainant that he could raise this issue formally with the ARB because of the pending appeal of the ALJ's decision. Complainant subsequently filed with the ARB a motion to review the new complaint of retaliation-blacklisting. The ARB found that this new complaint was not currently in a posture for review by the ARB, and remanded the complaint to OSHA for an investigation.
[N/E Digest II B 1 b]
AMENDMENT/SUPPLEMENTATION OF COMPLAINT TO CONFORM TO THE
EVIDENCE AND TO RAISE UNPLEADED ISSUES
In Ruud v. Westinghouse Hanford Co. , 1988-ERA-33 (ARB Nov. 10, 1997), Complainant originally filed a complaint about protected activity and retaliation occurring between 1986 and 1988. Complainant and Respondent negotiated a settlement agreement, but refused to submit the agreement to the ALJ or the Secretary for review, and the Secretary remanded the matter for a hearing. The parties then revealed the terms of the settlement to the ALJ. Complainant then took the position that the settlement was void for a number of reasons, including breach of the agreement in 1990 and 1991 based on harassment, blacklisting and constructive discharge.
The ARB rejected the settlement agreement based on the breach of the agreement. The ALJ had alternatively recommended a finding of liability on the part of Respondent for the 1990-1991 conduct. On review, Respondent argued that this finding was unfair because the evidence establishing violation purportedly was introduced solely for purposes of showing misrepresentation in reaching the 1988 settlement agreement. The ARB found that the introduction of the evidence relating to the 1990-1991 conduct was not so limited. The ARB found that the ALJ, by overruling Respondent's relevancy objection and denying its motion to strike when this evidence was introduced, essentially (and appropriately) amended the complaint to conform to the supplemental evidence. The ARB stated that Respondent should have been aware of this issue and defended against it, but in an abundance of caution, remanded the case to the ALJ to give Respondent an additional opportunity to defend against the evidence relating to the 1990-1991 conduct.
The decision contains several paragraphs of discussion about Fed. R. Civ. P. 15(b) and (d), and the mechanism for amendment or supplementation of the complaint to conform to the evidence.
[N/E Digest II B 1 b]
BOARD'S CONSIDERATION OF UNPLEADED ISSUE
In MacLeod v. Los Alamos National Laboratory , 94-CAA-18 (ARB Apr. 23, 1997)(this was actually an "ERA" case), the Board considered Complainant's complaints about oversized gloves when handling radioactive material in reviewing Respondent's motive for discharge even though Complainant did not allege this complaint as protected activity in the early stages of the litigation. The Board noted that Complainant had referred to these particular complaints in her deposition prior to hearing, and thus Respondent was on notice that such allegations existed. In addition, Complainant's supervisor testified at the hearing about oversized gloves and conceded that they could be deemed safety issues. The Board cited in this regard Yellow Freight Sys. Inc. v. Martin , 954 F.2d 353, 358-59 (6th Cir. 1992)(unpleaded issue may be tried by implied consent).
WITHDRAWAL OF COUNTS GOVERNED BY FED. R. CIV. P. 15(a)
[N/E Digest II B 1 b]
Voluntary dismissal of a complaint under the ERA is governed by Fed. R. Civ. P. 41. Withdrawal of counts within multiple count complaints, however, is governed by Fed. R. Civ. P. 15(a), which concerns amendments of pleadings. Frady v. Tennessee Valley Authority , 92-ERA-19 and 34 (Sec'y Oct. 23, 1995).
AMENDMENT OF COMPLAINT; IDENTIFICATION OF SOURCE OF ADVERSE
REFERENCE AFTER FILING OF COMPLAINT
[N/E Digest II B 1 b]
In Leveille v. New York Air National Guard, 94-TSC-3 and 4 (Sec'y Dec. 11, 1995), the Complainant obtained an employment information form pursuant to the Freedom of Information Act from the Office of Personnel Management. The form was redacted pursuant to the Privacy Act because a source requested confidentiality. The Secretary agreed with the ALJ that there was sufficient data in the form to permit an identification of the source as one of the Complainant's former supervisors only after the discrimination complaints were filed. Thus, the Secretary approved amendment of the complaints to include an alleged violation concerning the information supplied on the form.
II B 1 b Discharge of complainant during proceeding; if timely complained of, may be considered by ALJ without remand to Wage and Hour Division
In Studer v. Flowers Baking Company of Tennessee, Inc., 93-CAA-11 (Sec'y June 19, 1995), the Complainant was discharged while the case was pending before the Secretary, and in a letter to the Acting Director for the Office of Administrative Appeals, the Complainant complained that the discharge violated the CAA. Taking into consideration the Complainant's pro se status, the Secretary considered the letter to be a timely complaint to the Wage and Hour Administrator as required by the regulation at 29 C.F.R. § 24.3(d). The letter was a timely new complaint because it was made within 30 days of the discharge.
Although the Secretary acknowledged that the Wage and Hour Administrator had not investigated the complaint about the discharge, he remanded the discharge complaint only the ALJ because either party would be entitled to a de novo hearing if there had been an Administrator's determination.
In Knox v. USDOL , No. 04-2486 (4th Cir. Jan. 17, 2006) (case below ARB No. 03-040, ALJ No. 2001-CAA-3), the Fourth Circuit reversed the ARB's finding that, because the CAA is concerned with the pollution of "ambient air," i.e. , air external to buildings, and the Complainant only complained of asbestos within his workplace, he did not engage in protected activity under the CAA. The ARB had announced that for the Complainant to establish that he engaged in CAA protected activity he must prove that when he expressed his concerns about the asbestos he reasonably believed that the Respondent was emitting asbestos into the ambient air. In its decision, the ARB pointed to evidence that the Complainant's complaints to management were only about asbestos in the workplace generally, as opposed to the potential for asbestos being emitted into the ambient air, and the Complainant's testimony that he observed asbestos escaping through exhaust fans did not establish that he ever told the Respondent's officials about the exhaust fan.
The Fourth Circuit found that
the ARB altered its protected activity standard from an inquiry into Knox's reasonable beliefs to a requirement that Knox actually conveyed his reasonable beliefs to management. Although the contents of Knox's complaints may provide evidence of his reasonable beliefs, it does not follow that he must have necessarily conveyed a notion to have reasonably believed it, as the ARB demanded of him. Indeed, in the very first sentence of this paragraph, the ARB seemed to accept as true, evidence that Knox did, in fact, reasonably believe that asbestos was emitted into the ambient air. Given the standard that the ARB initially announced, requiring Knox to have reasonably believed that asbestos was being emitted into the ambient air, and the ARB's acceptance that Knox observed asbestos escaping into the ambient air, we conclude that Knox has engaged in a protected activity under the CAA as interpreted by the ARB.
Slip op. at 6 (footnote omitted). The court therefore remanded for further proceedings. The court noted that it was only holding that the ARB's standard for determining whether the Complainant engaged in protected activity did not require the Complainant to convey his reasonable beliefs to management, and that the Respondent's awareness of his complaints may be relevant in regard to causal connection between protected activity and the adverse action.
The court also noted that it was
not convinced that a reasonable belief of a release into the ambient air is even the correct standard in all cases under the whistleblower provision of the CAA. There are several ways to violate the CAA and its implementing regulations without releases into the ambient air. See, e.g. , 42 U.S.C. § 7412(h)(1) (allowing EPA to establish work practice standards for pollutants such as asbestos); 40 C.F.R. § 61.150 (setting forth standards for "waste disposal for manufacturing, fabricating, demolition, renovation, and spraying operations" involving asbestos, some of which can be violated without releases of asbestos into the ambient air); United States v. Ho , 311 F.3d 589, 594-95 (5th Cir. 2002) (discussing work practice standards involving asbestos). Thus, depending on the circumstances, an employee could reasonably believe his employer was violating the CAA, even if no release into the ambient air occurred.
[Nuclear and Environmental Whistleblower Digest II B 2]
JURISDICTION; COVERAGE AND TIMELINESS ARE NOT DETERMINATIVE OF JURISDICTION
In Gain v. Las Vegas Metropolitan Police Dept. , ARB No. 03-108, ALJ No. 2002-SWD-4 (ARB June 30, 2004), the ALJ had determined that she lacked jurisdiction over a complaint because she found that the complaint concerned occupational rather than environmental hazards and because she found the complaint to be untimely. The ARB affirmed the dismissal of the complaint on the ground that it did not include the essential element of protected activity. In a footnote it observed that coverage and timeliness are not jurisdictional matters, citing OFCCP v . Keebler Co ., ARB No. 97-127, ALJ No. 1987-OFC-20, slip op. at 10 (ARB Dec. 21, 1999).
In Culligan v. American Heavy Lifting Shipping Co. , ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), however, the ARB held that safety and health issues that pertain only to a complainant's workplace are not covered under the whistleblower protection provisions, and OALJ and the ARB lack jurisdiction over complaints filed under section 11(c) of the Occupational Safety and Health Act. To the same effect: Evans v. Baby-Tenda , ARB No. 03-001, ALJ No. 2001-CAA-4 (ARB July 30, 2004).
[ Editor's note : The ARB in Gain and Culligan and Evans uses the concept of subject matter jurisdiction differently in procedural terms. Undoubtedly, the use of the concept in the two decisions seems to be directly contradictory, and the ARB may need to clarify the concepts more distinctly. In Gain , the Board is making the point that the mere fact that the ALJ needs to decide whether a cause of action under Part 24 has been presented provides the requisite subject matter jurisdiction for a DOL ALJ to adjudicate that issue. In Culligan and Evans , however, the Board is making the point that safety and health issues that pertain only to a complainant's workplace are not covered under the whistleblower protection provisions, and that DOL OALJ and the ARB lack subject matter jurisdiction over complaints filed under section 11(c) of the Occupational Safety and Health Act. Probably the Board panel in Gain would say that the Culligan and Evans panels had subject matter jurisdiction to decide the issue of whether the complaint raised issues within the jurisdiction of DOL OALJ and the ARB under Part 24, and that they correctly decided that since DOL OALJ and the ARB do not have such jurisdiction, the complaints had to be dismissed.]
[Nuclear and Environmental Whistleblower Digest II B 2]
SUBJECT MATTER JURISDICTION; THRESHOLD JURISDICTION; SUFFICIENT SPECIFICITY ALLEGING PROTECTED ACTIVITY
In Bertacchi v. City of Columbus , 2003-WPC-11 (ALJ Aug. 26, 2005), the Respondent asserted that DOL did not have subject matter jurisdiction over the complaint. The Respondent's argument was that the Complainant had not satisfied the protected activity requirement because he never articulated a specific safety or health concern that had or would potentially result from Respondent's alleged violations -- the regulations at issue relating to administrative requirements rather than safety and/or health matters. The Complainant had written to the state EPA challenging a co-worker's application for an operator's license necessary to operate wastewater works in Ohio.
The ALJ, however, found that articulation of a "specific" concern was not a requirement of the prima facie case, and that the Respondent had synthesized a standard that mischaracterized the jurisdictional test. Noting that there were few decisions addressing a threshold jurisdiction test, the ALJ examined two ALJ decisions in which the Complainant's allegations were found too vague to establish subject matter jurisdiction of DOL over the complaint.
In the instant case, the ALJ found that the Complainant had, in his complaint, alleged that his letter to the Ohio EPA blew the whistle on a perceived improper attempt to fraudulently obtain a Class IV operator license by an employee of Respondent, which was an allegation with sufficient specificity of protected activity for the claim to be found to arise under the subject matter jurisdiction of the U.S. Department of Labor, Office of Administrative Law Judges.
[Nuclear and Environmental Whistleblower Digest II B 2]
JURISDICTION; SEAMAN COVERED BY U.S. COAST GUARD RULES ON SAFETY AND HEALTH; FACT THAT OSH ACT ANTI-RETALIATION PROVISION IS PREEMPTED DOES NOT PRECLUDE INVESTIGATION OF ENVIRONMENTAL WHISTLEBLOWER COMPLAINTS; NEED TO EXAMINE PURPOSES OF ACTS TO DETERMINE JURISDICTION
Although the OSH Act's prohibition against employer retaliation, 29 U.S.C.A. § 660(c)(1), is pre-empted for blue-water seamen, such preemption does not necessarily preclude OSHA from investigating employee whistleblower complaints filed under the environmental statutes. In Culligan v. American Heavy Lifting Shipping Co. , ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), the ARB therefore had to examine the purposes of each of the six whistleblower acts cited by the Complainant -- a merchant seaman -- and then determine whether any of several alleged environmental violations were related to the concerns covered by the acts in order to determine whether the Complainant had established subject matter jurisdiction. In Culligan , the Board concluded that none of the environmental statutes conferred subject matter jurisdiction over the Complainant's complaints, but declined to dismiss on this ground because there was some ambiguity about exactly where the protected activities that could have potentially affected the environment took place. The Board found a remote possibility that some of the incidents could be covered by CERCLA or the FWPCA, and therefore proceeded to an alternative finding on the merits of the complaints.
[Nuclear and Environmental Whistleblower Digest II B 2]
JURISDICTION; PURPOSES OF ENVIRONMENTAL STATUTES
In Culligan v. American Heavy Lifting Shipping Co. , ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), the Complainant was a merchant seaman who alleged violations of six environmental whistleblower statutes by his employer, a shipping company. The ARB found that, although most of his complaints were about the working conditions aboard the vessel concerning safety and health issues that did not relate to the environment, a few of Complainant's allegations might implicate the environmental statutes. The Board therefore closely examined the purposes of each statute to determine if a jurisdictional basis existed. The discussion is too lengthy to adequately summarize in a casenote, but, in brief, the Board found:
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The purpose of the CAA is to protect and enhance the quality of the nation's air resources so as to promote the public health and welfare and the productive capacity of its population. 42 U.S.C.A. § 7401(b)(1).
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The purpose of the SDWA is to promote the safety of the nation's public water systems through the regulation of contaminants so as to provide water fit for human consumption. 42 U.S.C.A. 300f(1).
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The purpose of the TSCA is to regulate chemical substances and mixtures that present such risks and to take action against imminent hazards. 15 U.S.C.A. § 2601(b)(2).
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The purpose of the SWDA is to promote the reduction of hazardous waste and the treatment, storage, or disposal of such waste so as to minimize threats to human health and the environment. 42 U.S.C.A. § 6902(b).
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The two main purposes of CERCLA are the "prompt cleanup of hazardous waste sites and the imposition of all cleanup costs on the responsible party."
General Electric Co. v. Litton Industrial Automation Systems, Inc.,
920 F.2d 1415, 1422 (8th Cir. 1990).
- The objective of the FWPCA, also known as the Clean Water Act, is to restore and maintain the chemical, physical, and biological integrity of the nation's waters, with the goal of eliminating the discharge of pollutants by industry into the navigable waters, waters of the contiguous zone, and the oceans. 33 U.S.C.A. § 1251(a).
The ARB found that none of the statutes provided subject matter jurisdiction over the Complainant's complaints because none of the activities cited by the Complainant could be considered as carrying out the purposes of those acts or relating to the administration or enforcement of their provisions.
The Board, however, declined to decide the case based on subject matter jurisdiction because there was a remote possibility that some the incidents were covered [alleged dumping of oil-contaminated oil drums and untreated garbage; malfunctioning sanitation equipment; faulty steam valves left open while the ship was at dock].
[Nuclear and Environmental Whistleblower Digest II B 2]
FAILURE TO STATE A CAUSE OF ACTION; ALLEGED HARDBALL LITIGATION TACTICS
In Culligan v. American Heavy Lifting Shipping Co. , ARB No. 03-046, ALJ Nos. 2000-CAA-20, 2001-CAA-9 and 11 (ARB June 30, 2004), the Complainant had filed a complaint alleging that the Respondent had further retaliated against him in violation of the environmental whistleblower statutes by engaging in "hardball litigation tactics." The ARB found that the complaint seemed to be grounded in a request that the ALJ reconsider numerous discovery rulings, and held that "[s]uch a request is not cognizable under the whistleblower protection provisions of the environmental statutes." USDOL/OALJ Reporter at 15 (citations omitted). The Board wrote: "While sanctions may be imposed in cases of discovery abuse and inappropriate legal maneuvers, there is no legal basis for filing a subsequent whistleblower complaint to raise such issues or seek reconsideration of an ALJ's orders. Furthermore, after review of the procedural record, we find that the ALJ acted within her discretion in disposing of the multitudinous motions filed below. Culligan's 2001 complaint is thus also frivolous."
[Nuclear and Environmental Whistleblower Digest II B 2]
JURISDICTION; COMPLAINT MUST ALLEGE ACTIVITIES THAT FURTHER THE PURPOSES OF THE ENVIRONMENTAL ACTS OR RELATE TO THEIR ADMINISTRATION AND ENFORCEMENT IN ORDER TO ESTABLISH SUBJECT MATTER JURISDICTION; EVEN IF SUBJECT MATTER JURISDICTION IS ESTABLISHED, THE COMPLAINANT MUST ALSO ESTABLISH THAT SHE ENGAGED IN PROTECTED ACTIVITY UNDER THE ENVIRONMENTAL ACT
In cases arising under the environmental whistleblower statutes, subject matter jurisdiction exists only if the complainant is alleging that the respondent illegally retaliated against him for engaging in activities protected by the environmental statutes' whistleblower provisions. Culligan v. American Heavy Lifting Shipping Co., ARB No. 03-046, ALJ Nos. 00-CAA-20, 01-CAA-09, 01-CAA-11, slip op. at 8 (ARB June 30, 2004). That is, the complainant must have alleged activities that further the purposes of those acts or relate to their administration and enforcement. See 29 C.F.R. § 24.2(a), (b). Evans v. Baby-Tenda , ARB No. 03-001, ALJ No. 2001-CAA-4 (ARB July 30, 2004).
In Evans , the ARB assumed that it had subject matter jurisdiction because the Complainant alleged that she had included a CAA complaint to OSHA: that paint fumes were escaping from Baby-Tenda's manufacturing plant into the outside air. The ARB only assumed that the Complainant made this allegation because the actual complaint was not in the record. The ARB, however, also observed that in order to prevail under the CAA, the Complainant must establish by a preponderance of the evidence that she engaged in protected activity, i.e. , she must demonstrate that her complaint was based on a reasonable belief that the Respondent was violating the CAA by emitting paint fumes and asbestos into the ambient air. Disagreeing with the ALJ's analysis of the evidence, the ARB found that the Complainant had not established that she engaged in CAA protected activity.
The ALJ had found that the Complainant could be attributed to have engaged in protected activity "by extension" where a co-worker filed a complaint with state and federal authorities about asbestos removal by the Respondent, and the Employer assumed that it was the Complainant who had made the complaint. The ARB did not decide the issue of whether a complainant can be attributed with protected activity by extension because it found in the instant case that the Complainant's supervisor did not know about the protected activity at the time he terminated the Complainant.
II B 2 Coverage under SWDA; mistake regarding facts versus mistake regarding the law
In Minard v. Nerco Delamar Co., 92-SWD-1 (Sec'y Jan. 25, 1994), the issue arose of whether the SWDA's whistleblower provision extends to situations in which the employee is mistaken regarding the facts but not to situations in which the employee is mistaken regarding the law. In Minard , the Complainant had erroneously believed that antifreeze and used oil were regulated as hazardous waste.
The Secretary concluded that the Complainant's internal complaints to management were similar to those which would fall under the Title VII section 704(a) "opposition clause." Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-3(a). The Complainant was not participating in a SWDA enforcement action, but was opposing his employer's actions.
The ALJ had relied in part on certain Title VII case law indicating that where the employer's alleged action, even if it in fact happened just as the complainant alleged, would not have been a violation of the Act, then the employer cannot be found to have violated the Act's whistleblower protection provision if it retaliates against the complaining employee.
The Secretary, however, chose to follow another line of Title VII authority indicating that "opposition to an employer's actions which are reasonably believed to violation Title VII is protected, irrespective of whether it is ultimately determined that the employer's actions did not violate Title VII either because the employer did not do what was complained about or because the actions the employer took did not violate Title VII." Slip op. at 20-22, citing Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980); Parker v. Baltimore & O.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981). The Secretary concluded that the same approach under the SWDA's whistleblower provision should be followed.
In sum, the Secretary held that "under the SWDA whistleblower provision an employee's reasonable belief that his employer is violating the Act may--depending on the particular facts of the case--be sufficient basis for a retaliation claim if the employer allegedly takes action against that employee because he [or she] expressed his [or her] belief, irrespective of after-the-fact determinations regarding the correctness of the employee's belief."
[Nuclear & Environmental Whistleblower Digest II B 2]
FAILURE TO ALLEGE A VIOLATION OF A WHISTLEBLOWER PROTECTION DOES NOT ESTABLISH LACK OF JURISDICTION, ONLY LACK OF MERIT TO THE COMPLAINT
In Saporito v. USDOL , ARB No. 03 063, ALJ No. 2003 CAA 9 (ARB Mar. 31, 2004), the ALJ had dismissed the complaint because the Respondent was not the Complainant's employer. The ALJ had found therefore that she did not have jurisdiction to consider the complaint. On review the ARB agreed with the ALJ that the complaint should be dismissed because of the Complainant's failure to establish an employer employee relationship with the Respondent, but noted that this was not a matter of lack of jurisdiction, citing Sasse v. United States Dep't of Justice , ARB No. 99 053, ALJ No. 1998 CAA 7, slip op. at 3 4 (ARB Aug. 31, 2000). In Sasse , the ARB had clarified that the even if DOL ultimately finds that a complaint is lacking in an essential element, such a finding does not divest DOL of subject matter jurisdiction to hear and decide the case.
[Nuclear & Environmental Whistleblower Digest II B 2]
COMPLAINT; DEGREE OF SPECIFICITY REQUIRED TO ESTABLISH DOL JURISDICTION
In Santamaria v. U.S. Environmental Protection Agency , 2004 ERA 6 (ALJ Feb. 24, 2004), the Complainant was a Coordinator of Minority Business Enterprises and Women Business Enterprises for the EPA. His complaint alleged that he was being pressured to approve "questionable, false flag Minority Business Enterprises" and that concerns he had voiced regarding EPA contracting constituted protected activity. Following a deposition of the Complainant, EPA moved for summary decision based on a number of grounds, the essence of which were the Complainant had failed to plead a violation of environmental whistleblower protection law, and that his alleged protected activity did not implicate any violation of environmental protection laws, even if true.
The ALJ, citing Greene v. U.S. Environmental Protection Agency , 2002 SWD 1 (ALJ Feb. 1, 2003), found that a complainant must allege a complaint with sufficient specificity to establish jurisdiction. Greene , 2002 SWD 1 had in turn cited MSPB decisions addressing principles of specificity in pleadings to the effect that vague allegations of wrongdoing regarding broad imprecise matters are not sufficient to establish subject matter jurisdiction over a whistleblower complaint.
In the instant complaint, Complainant failed, despite repeated opportunities in his deposition and in response to the Respondent's motion for summary decision, to explain with any specificity the connection between his complaints and complaints related to health and safety concerns stemming from the alleged violation of environmental statutes named in the complaint. Thus, the ALJ granted the Respondent's motion for summary decision.
[Editor's note: Santamaria was erroneously docketed as an "ERA" case. The statutes involved, however, were all environmental.]
[Nuclear & Environmental Whistleblower Digest II B 2]
DISTINCTION BETWEEN COVERAGE OF WORKPLACE SAFETY IN ERA AND ENVIRONMENTAL CASES
In Williams v. Mason & Hanger Corp. , ARB No. 98 030, ALJ No. 1997 ERA 14 (Nov. 13, 2002), the ARB described several general principles relating to protected activity under the ERA whistleblower provision, and specifically as applicable to nuclear weapons workers:
Within the context of nuclear power plant operation and repair, the Secretary, the Board and a number of the United States Courts of Appeals have repeatedly addressed the issue of which activities qualify for ERA protection. That body of case law provides the following guidelines. First, safety concerns may be expressed orally or in writing. Second, the concern expressed must be specific to the extent that it relates to a practice, condition, directive or occurrence. Third, a whistleblower's objection to practices, policies, directives or occurrences is covered if the whistleblower reasonably believes that compliance with applicable nuclear safety standards is in question; it is not necessary for the whistleblower to cite a particular statutory or regulatory provision or to establish a violation of such standards. This third principle is especially relevant to this case where, for the most part, the Complainants raised safety concerns while performing work with nuclear weapons that posed a risk of imminent danger to the workers and the public. Conditioning protection for such concerns on a reference to supporting legal authority or proof that a nuclear incident would otherwise occur would contravene the ERA interest of minimizing the risk of a nuclear accident.
Id. , USDOL/OALJ Reporter at 18 19 (citations omitted).
The ARB also observed that in cases involving nuclear weapons workers, it would "also look to DOE regulations and orders regarding nuclear safety in determining what activities qualify for ERA protection." Id. at 19. For example, although under the environmental whistleblower statutes a concern relating only to an employee's workplace health and safety, and not to an adverse impact on the public or the environment, is not protected by the environmental protection statutes, radiological protection for workers, as well as the public, is covered by the whistleblower provisions of the ERA. There is unqualified protection for concerns related to employees' radiation exposure under the ERA. Id. at 20 22 , distinguishing Kesterson v. Y 12 Nuclear Weapons Plant , ARB No. 96 173, ALJ No. 95 CAA 0012, slip op. at 4 (ARB Apr. 8, 1997). Similarly, although the Secretary held in Abu Hejli v. Potomac Elec. Power Co. , 1989 WPC 1 (Sec'y Sept. 24, 1993), that employees "have no protection . . . for refusing work simply because they believe that another method, technique, or procedure or equipment would be better or more effective[,]" the ARB held because that case arose under the WPCA and involved an analyst who refused to perform analytical work in an office setting, it was inapposite to ERA complaints arising in a nuclear weapons plant engaged in the disassembly of nuclear weapons.
[Nuclear and Environmental Digest II.B.2.]
UNDERLYING JURISDICTION; CLAIMS OF FRAUD AND UNETHICAL CONDUCT
BY INDIVIDUALS IN COURSE OF ADMINISTRATIVE LITIGATION; HANDLING OF
FOIA FEE WAIVER REQUEST
In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998- CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), Complainant alleged, inter alia , fraud and unethical conduct on the part of several individuals in the course of the administrative adjudication of his first complaint (for example, that Respondents had wrongfully induced the presiding ALJ to recommend dismissal, and that there had been ex parte contacts between Respondents, OSHA and the ALJ). The ARB held that it did not have subject matter jurisdiction over these types of claims under the CAA whistleblower provision, which prohibits an employer from taking adverse action against an employee in retaliation for protected activity.
The ARB also found that it did not have subject matter jurisdiction over Complainant's allegation that a DOE attorney had engaged in unethical conduct in providing "undisclosed, self-interested legal advice" to a local DOE office in regard to Complainant's attorney's FOIA fee waiver request.
[Nuclear and Environmental Digest II.B.2.]
COGNIZABLE CLAIM UNDER THE CAA; REFUSAL OF FOIA FEE WAIVER
In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998- CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), Complainant alleged that DOE had retaliated against him in violation of the whistleblower provision of the CAA when it denied his counsel's request for a fee waiver for a FOIA search. The ARB held that '[b]ecause refusal to waive a FOIA search fee is not discrimination with respect to "compensation, terms, conditions, or privileges of employment,' [Complainant] has failed to state a claim upon which relief can be granted under the CAA. See 29 C.F.R. §18.1(a); Rule 12(b)(6), Federal Rules of Civil Procedure."
[Nuclear & Environmental Digest II B 2]
SUBJECT MATTER JURISDICTION; DOL HAS JURISDICTION TO ADJUDICATE A
COMPLAINT ALLEGING VIOLATION OF WHISTLEBLOWER PROVISION, EVEN IF
THE ULTIMATE RULING IS THAT THE COMPLAINT DID NOT SUPPORT A FINDING
OF PROTECTED ACTIVITY
In Sasse v. U.S. Department of Justice , ARB No. 99-053, ALJ No. 1998-CAA-7 (ARB Aug. 31, 2000), Respondent requested that the ALJ certify the question of subject matter jurisdiction as a controlling question of law so that an interlocutory appeal could be taken the ARB. The issue, as framed by Respondent, was "whether a federal employee alleges protected activity if he alleges nothing more than carrying out assigned federal duties relating to the enforcement of federal environmental law...." The ALJ certified the question. The ARB, however, ruled that the appeal "confused the Labor Department's subject matter jurisdiction over an environmental whistleblower complaint with the wholly separate question whether [Complainant's] actions might be covered as 'protected activities' under the environmental statutes. .... 'A court is said to have jurisdiction, in the sense that its erroneous action is voidable only, not void , when the parties are properly before it, the proceeding is of a kind or class which the court is authorized to adjudicate, and the claim set forth in the paper writing invoking the court's action is not obviously frivolous.' West Coast Exploration Co. v. cKay , 213 F.2d 582, 591 (D.C. Cir.), cert. denied , 347 U.S. 989 (1954)(emphasis supplied)." Slip op. at 3 (some citations omitted).
[Nuclear & Environmental Digest II B 2]
JURISDICTION; UNDERLYING COMPLAINT
In McNeal v. The Foley Co. , 98-ERA-5 and 14 (ALJ July 7, 1998), the ALJ considered whether Complainant's complaints concerned violations of environmental requirements or complaints about violations of occupational safety and health requirements. He found that the safety complaints raised by Complainant were related to occupational safety: absence of guardrails on elevated working surfaces, exposed rebar without caps, work site cluttered with debris, inadequate fall protection for workers, many damaged harnesses and lanyards and no harnesses at all for some of the workers, scaffolding not up to code, no toe boards and faulty equipment, tag lines not used during crane operation, exposed ditches, no warning whistles before explosions were carried out, a need for more ropes for tag lines and for carrying loads up ladders and for more wood for hand railings, use of jack hammers without toe guards, face shields, ear plugs and respiratory protection, failure to tie off when jack hammering was done on elevated work surfaces and no shoring when jack hammering alone in a confined space, and failure to put plywood cut offs on top of rebar mat to create a safe walkway over the mat.
The ALJ concluded that the only concern submitted by Complainant which arguably might be able to come within the realm of the ERA, was her concern about the quality of the concrete, but found that Complainant had failed to present evidence regarding whether or not these concrete quality concerns would implicate nuclear safety or the fact that Complainant reasonably believed that the concrete quality presented a nuclear or nuclear-related safety hazard.
[Nuclear & Environmental Digest II B 2]
JURISDICTION; APPLICABILITY OF CAA TO INDOOR AIR POLLUTION
In Veasaw v. Texas Hydraulics, Inc. , 1998-CAA-5 (ALJ Oct. 5, 1998), Complainant's CAA whistleblower complaint alleged poor air quality exclusively in the manufacturing and office areas of Respondent's facility, and was later amended to include an undefined area outside the plant into which gases or vapors may have been dispelled by ventilation fans and open doors. The ALJ found that the CAA was inapplicable to the "indoor air quality complaints and the alleged speculative, residual outdoor contamination which form the basis of Complainant's complaint." Slip op. at 19. The ALJ observed that even if some outdoor venting had occurred, the record contained no evidence whether such releases were adverse to the health of the general public.
The ALJ, however, went on to consider the merits of the complaint, because Complainant may have had a cognizable complaint, "if he reasonably believed Respondent violated the Clean Air Act." Slip op. at 19. Finding against Complainant on the merits on several grounds, the ALJ made the finding that Complainant could not have so reasonably believed, because "he admittedly knew the Act was not applicable to indoor air quality." Slip op. at 23.
[N/E Digest II B 2]
FECA COMPLAINT COULD NOT BE ADJUDICATED AS AN ERA COMPLAINT
In Billings v. Tennessee Valley Authority , 92-ERA-53 and 93-ERA-46 (ARB July 15, 1998), Complainant alleged that statements made by one of Respondent's employees to the Office of Worker's Compensation Programs regarding possible fraud committed by Complainant's husband resulted in his loss of benefits under the Federal Employees Compensation Act (FECA) and were in retaliation for his presumed protected activities. The presiding ALJ issued orders to show cause why the complaints should not be dismissed for failure to state a claim upon which relief could be granted under the ERA. Complainant did not answer.
The ARB adopted the ALJ's recommendations that the complaint be dismissed both for failure to state a claim and failure to comply with the orders to show cause.
[N/E Digest II B 2]
SETTLEMENT; FEES ONLY OFFER AS BASIS FOR WHISTLEBLOWER
COMPLAINT
In High v. Lockheed Martin Energy Systems, Inc. , 1997-CAA-3 (ARB Nov. 13, 1997), Complainant alleged that Respondents violated nuclear and environmental whistleblower provisions when it made a counteroffer in a settlement negotiation that in exchange for dismissal of the complaint, it would reimburse Complainant's attorney for incurred fees and expenses up to $5000. Complainant characterized the offer as an unethical attempt to bribe plaintiff lawyers, undermine client confidence, and elicit whistleblowers to give up their rights to compensatory damages in nuclear and environmental whistleblower cases.
A motion to dismiss for failure to state a cause of action was filed, and the ALJ recommended dismissal in part on this ground. The ARB observed that Fed. R. Civ. P. 12(b)(6) is referenced for the standard for considering a motion for failure to state a claim, and that in such a situation all reasonable inferences are made in favor of the non-moving party.
The ARB then found that the factual allegations of Complainant's complaint, if considered true, would be that DOE lawyers encouraged and gave permission to lawyers for one of the other Respondents to offer to Complainant and other, unnamed whistleblowers, a settlement under which the complainants' attorneys would receive payment of legal fees and the whistleblowers themselves would not receive any other relief available under the whistleblower provisions. The ARB found that the remainder of Complainant's complaint were legal conclusions.
The ARB concluded that the complaint failed to contain either a direct or an inferential allegation concerning a material element of a whistleblower complaint -- i.e. , that Respondents discriminated against Complainant with respect to the compensation, terms, or privileges of employment. The ARB distinguished Delcore v. W.J. Barney Corp. , 1989-ERA-38 (Sec'y Apr. 19, 1995), aff'd sub nom. Connecticut Light & Power Co. v. Secretary of Labor , 85 F.3d 89 (2d Cir. 1996), on the ground that in the instant case there was no allegation of a settlement term that would curtail Complainant's rights under the whistleblower provisions such that Respondents discriminated against him with respect to the compensation, terms, conditions, or privileges of employment. In Delcore , the settlement offer included an improper "gag" provision.
[N/E Digest II B 2]
UNDERLYING VIOLATION; DOL JURISDICTION
When Complainant in Roberts v. Rivas Environmental Consultants, Inc. , 96-CER-1 (ARB Sept. 17, 1997), filed her whistleblower complaint, both OSHA and Complainant apparently treated the charges as both a CERCLA and an OSHA whistleblower complaint because Complainant worked at a CERCLA Superfund site. The nature of her complaints, however, were not environmental in nature, but were entirely based in workplace health and safety. The ARB held that "[u]nder CERCLA, there can be no adjudication on the merits if an alleged discriminatee has failed to submit a complaint alleging CERCLA employee protection violations to the Department of Labor for investigation within the prescribed time period. 42 U.S.C. §9610(b) (1994) and 29 C.F.R. §24.3(c) (1995). [Complainant] has not satisfied this jurisdictional requirement. Accordingly, we are precluded from further review of this matter." Slip op. at 3-4 (citations omitted).
The ARB noted that OSHA whistleblower actions are brought by the Secretary of Labor in U.S. District Court, and that Complainant had testified to the effect that the Solicitor was awaiting the outcome of the CERCLA proceeding before pursuing the OSHA action. Thus, the ARB sent copies of its decision to OSHA attorneys from their consideration in determining whether to proceed under the OSHA statute.
[N/E Digest II B 2]
TIMELINESS; REQUIREMENT OF WRITTEN NOTATION; FAILURE TO SUPPLY
COPY OF WRITTEN COMPLAINT ALLEGEDLY RAISING ERA COMPLAINT; 180 DAY
TIME LIMIT
In Roberts v. Battelle Memorial Institute , 96-ERA-4 (ARB June 4, 1997), the Board assumed, for purposes of rendering a summary decision that a June 6, 1994 complaint raised by Complainant with the Ohio Civil Rights Commission and the EEOC raised a nuclear health or safety concern and therefore was a protected activity under the ERA. Complainant had been suspended without pay on June 21-23, 1994 and discharged on July 18, 1994.
Complainant alleged that she made a telephone complaint to the Department of Energy in August 1994. The Board, however, held that an ERA complaint must be in writing, and that in the absence of any written notation of the telephone conversation, it could not constitute a valid ERA complaint.
Complainant alleged that she filed a timely written complaint with the Department of Labor on January 12, 1995, but did not provide a copy of that complaint to Respondents, the ALJ or the Board. The complaint was brought pursuant to E.O. 11246, which prohibits discrimination -- not on the basis of expression of nuclear safety concerns -- but rather on the basis of race, color, religion, sex and national origin. DOL had forwarded the complaint to the EEOC, which the Board concluded suggested that it was filed pursuant to the Executive Order. Although the Board recognized that such complaint could have included statements that would support an ERA complaint, since a copy of the complaint had not been produced, it could not conclude that it did.
Finally, Complainant filed a written complaint with the Department of Energy that apparently alleged discrimination for raising health and safety issues. Since this complaint was filed more than 180 days after Complainant's discharge, it was not timely, and that there was no grounds for equitable tolling (the Board adopting the ALJ's analysis).
[N/E Digest II B 2]
PROTECTED ACTIVITY; ENVIRONMENTAL VERSUS OCCUPATIONAL SAFETY
In Tucker v. Morrison & Knudson , 94-CER-1 (ARB Feb. 28, 1997), the ALJ had concluded that Complainant's reporting of the violation of internal safety procedures was protected environmental whistleblower activity. The ALJ based this determination on the theory that "[s]afety regulations to protect personnel charged with effectuating the purposes of environmental legislation such as that involved in this incident should be deemed an integral component of the law and its implementation process." The Board disagreed because "[t]he safety violations which [an operations manager] committed did not relate to environmental safety, but rather to occupational safety." The Board wrote that: "[t]he distinction between complaints about violations of environmental requirements and complaints about violations of occupational safety and health requirements is not a frivolous one. Worker protection for whistleblowing activities related to occupational safety and health issues is governed by Section 11 of the Occupational and Safety and Health Act, 29 U.S.C. §§ 651-678 (1988), and enforced in United States Federal District Courts, not within the Department of Labor's administrative adjudicatory process." See Minard v. Nerco Delamar Co. , 92-SWD-1 , slip op. at 8 (Sec'y Jan. 25, 1995); DeCresci v. Lukens Steel Co. , 87-ERA-113 , slip op. at 4 (Sec'y Dec. 16, 1993); Aurich v. Consolidated Edison Co. of New York, Inc. , 86-CAA-2, Slip op. at 3-4 (Sec'y Apr. 23, 1987).
[N/E Digest II B 2]
JURISDICTION; LABOR-MANAGEMENT DISPUTE
Where Complainant acknowledged that he did not engage in protected activity under the ERA, but maintained that his removal was discriminatory based on his job classification schedule, the Board affirmed the ALJ's recommended decision awarding summary decision, finding that the ALJ correctly found that Complainant was engaged in a labor-management dispute with Respondent, and not an environmental safety dispute. Fugate v. Tennessee Valley Authority , 1995-ERA-50 (ARB Dec. 12, 1996).
[N/E Digest II B 2]
JURISDICTION; NATURE OF COMPLAINANT'S COMPLAINTS
In Keene v. Ebasco Constructors, Inc. , 1995-ERA-4 (ARB Feb. 19, 1997), Complainant was assigned to a project in which he and a partner terminated electrical cables; one electrician performed the termination and the other electrician was to verify; each electrician then was required to sign a document upon completion of the task. Complainant complained to a supervisor that his partner was taping cable wire in violation of quality control procedures. The Board also found that Complainant complained about falsification of records.
Respondent contended that Complainant's complaints did not involve a potential violation of the ERA or the Atomic Energy Act or an issue related to nuclear safety. See 42 U.S.C. § 5851(a)(1); DeCresci v. Lukens Steel Co. , 87-ERA-13 (Sec'y Dec. 16, 1993).
The Board distinguished DeCresci , in which the complainant's concerns were about welding procedures in the construction of sonarspheres for nuclear submarines and the Secretary had found that these concerns were not related in any way to activities regulated under the ERA and nuclear or radiation safety, and therefore were not the type of environmental concerns that the ERA whistleblower provision was intended to reach. In contrast, the Board found that the instant case involved "an allegation of retaliation based on complaints about improprieties related to the performance of electrical work within an operating nuclear power plant, and comes within the purview of the ERA's whistleblower provision." Slip op. at 7.
The Board also noted that the fact that the NRC investigated and concluded that the particular cable and work packages at issue were not safety-related was not dispositive because Complainant had a reasonable belief that his employer was violating the ERA's requirements.
UNDERLYING VIOLATION; CLAIM FOR WHICH RELIEF CAN BE GRANTED;
REIMBURSEMENT OF DOE CONTRACTOR FOR DEFENSE OF EARLIER
WHISTLEBLOWER COMPLAINT
[N/E Digest II B 2]
In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Complainant complained that DOE improperly reimbursed a contractor for its defense of an earlier complaint made by the Complainant. The Board, applying Fed. R. Civ. P. 12(b)(6), found that this aspect of the complaint failed to state a claim upon which relief may be granted. The Board found that (1) the Complainant was not an employee of DOE; (2) the Complainant failed to state how DOE's funding policies had an adverse effect upon his compensation, terms, conditions, or privileges of employment; and (3) the Complainant failed to claim that DOE's funding of the defense was motivated by retaliatory animus. The Board also noted the ALJ's conclusion that DOL had no jurisdiction to decide claims contesting DOE's use of funds appropriated by Congress was "patently correct". Slip op. at 58 n.40.
UNDERLYING VIOLATION; LACK OF SUBJECT MATTER JURISDICTION;
UNDERLYING VIOLATION; EMPLOYMENT OF FORMER DOL OFFICIAL
[N/E Digest II B 2]
In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5, 93-CAA-1 and 94-CAA-2 and 3 (ARB June 14, 1996), the Complainant named the former head of the Office of Administrative Appeals as a Respondent on the ground that she allegedly acted in an unethical manner by advising one of the Respondents on an environmental whistleblower case that was pending in the Department of Labor at the time she was director of the OAA. The Board, assuming arguendo that the former directors acts were unethical under 29 C.F.R. § 2.2, found that they were not actionable under the environmental whistleblower provisions. Thus, this claim was dismissed for lack of jurisdiction over the subject matter pursuant to Fed. R. Civ. P. 12(b)(1).
JURISDICTION; NATURE OF COMPLAINANT'S CONCERNS
[N/E Digest II B 2]
In Ruud v. Westinghouse Hanford Co. , 88-ERA-33 (ALJ Mar. 15, 1996), the ALJ examined the nature of the Complainant's concerns and compared them against the purposes of the various environmental statutes relied upon. The Complainant had cited all of the environmental statutes covered by Part 24 and CERCLA. The ERA was not applicable because the Respondent was not a covered employer under that Act.
The ALJ found that because the Complainant was very much concerned about air pollution--especially from radioactive discharges--the CAA and CERCLA were applicable, neither of those statutes excluding radioactive emissions into the air from their coverage. The ALJ did not find jurisdiction, however, under the other environmental statutes because either the substance complained about was not covered, or because there was no evidence that the Complainant in fact had raised concerns about the substance.
JURISDICTION; COVERED SUBSTANCE
[N/E Digest II B 2]
In Balog v. Med-Safe Systems, Inc. , 1995-TSC-9 (ALJ Nov. 8, 1995), the Respondent moved for summary decision based on its argument that the TSCA does not cover a "sharps collector" -- a rigid plastic container used for safe storage and disposal of used syringes, needles, razor blades, and scalpels -- as a "toxic substance". 15 U.S.C. § 2602(2)(B)(vi). The ALJ noted that the TSCA expressly provides for regulation of articles containing chemical substances, 15 U.S.C. § 2605. Noting that the instruments a sharps collector is used to store are contaminated with blood and bodily fluids after use, and that such fluids can be harmful to medical personnel, the ALJ considered whether they may be considered "chemical substances" within the meaning of the TSCA, and concluded that the reference to "organic" substances in 15 U.S.C. § 2602(2)(A) clearly indicates that they are.
Because he found TSCA coverage, the ALJ found that a consideration of whether the Complainant's citation of the SWDA was proper to be irrelevant and unnecessary given that the remedies and protections of the two acts are similar, if not the same.
COVERAGE OF NON-NUCLEAR SAFETY CONCERN UNDER ERA
[N/E Digest II B 2]
In Stockdill v. Catalytic Industrial Maintenance Co., Inc. , 1990-ERA-43 (Sec'y Jan. 24, 1996), the ALJ had concluded that Complainant's non-nuclear dust concerns were initially subject to ERA protection under the facts of the case. The ALJ found that making a distinction between radioactively contaminated dust and other dust such as asbestos would tend to hinder employee reports of safety concerns at nuclear facilities. The Secretary did not find it necessary to rule on this aspect of the ALJ's recommended decision, but did footnote the issue, and cited Van Beck v. Daniel Construction Co., 86-ERA-26, slip op. 4-6 (Sec'y Aug.. 3, 1993) , in which a non-nuclear safety concern was found to be protected under the ERA "because Respondent's retaliatory action may directly affect the radiological safety of nuclear plant construction and operation....".
II B 2 JURISDICTION; NO SUBJECT MATTER JURISDICTION OVER EMPLOYMENT OF CONSULTANT ALLEGEDLY IN CONFLICT WITH ETHICS REGULATIONS
In Varnadore v. Oak Ridge National Laboratory, 95-ERA-1 (ALJ Sept. 20, 1995), the complaint alleged that the former Director of the Office of Administrative Appeals is violating ethics regulations by acting as a consultant to one of the Respondents. The ALJ recommended a finding of no subject matter jurisdiction.
II B 2 Emission of ethylene oxide and freon in enclosed space is sufficient to state CAA whistleblower complaint
In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (Sec'y July 1, 1995), the Secretary held that a complaint concerning exposure of astronauts to ethylene oxide and freon within a space capsule was sufficient to maintain a CAA whistleblower complaint. Although the Secretary observed that the Complainant "nowhere alleged discretely that she was subject to discrimination because of a complaint about the emission of dangerous substances into the atmosphere," and that "[o]n first impression the complaint appears concerned with occupational, rather than public, safety and health," he concluded that "[e]thylene oxide and freon ... are precisely the types of substances reasonably perceived as subject to CAA regulation, which is sufficient in these circumstances to bring the complaint within the purview of that Act." Slip op. at 2-3 (citations omitted).
II B 2 Coverage under SWDA; test of reasonable belief that substance is hazardous
In Minard v. Nerco Delamar Co., 1992-SWD-1 (Sec'y Jan. 25, 1994), a Solid Waste Disposal Act (SWDA) whistleblower case, the Complainant alleged that he was fired by the Respondent because he complained to management about dumping of antifreeze and a spill of oil. The Complainant, however, stipulated that neither antifreeze nor motor oil is classified as hazardous waste under the SWDA, and the ALJ recommended dismissal based on lack of jurisdiction.
Establishment of reasonable belief test
The Secretary, however, concluded that where the complainant has a reasonable belief that the substance is hazardous and regulated as such, he or she is protected under the SWDA. The Secretary noted that the applicable law indicates that wastes are considered hazardous if they are listed as such by the EPA, or if they have one four technical characteristics of hazardousness (ignitability, corrosivity, reactivity, and toxicity). See 40 C.F.R. §§ 261.11(a)(1), 251.11(b), 261.20-261.24, 261.30-261.33. Because of the technical complexity of knowing how a particular chemical is categorized, the Secretary concluded that "[i]t is unreasonable to expect the average lay person to know what is or is not on the Act's hazardous waste 'list' [or] whether a particular substance met[s] one of th[e] tests for hazardousness." Slip op. at 6-7.
Limits on reasonable belief test
The Secretary placed several limits on the reasonableness test. First, it is not enough that the employee believe that the environment may be negatively impacted by the employer's conduct; rather, the employee's complaints must be grounded in conditions reasonably perceived to be violations of the environmental acts. Second, there can be jurisdictional limits to employees' complaints -- "the environmental whistleblower provisions are intended to apply to environmental and not other types of concerns." Slip op. at 9, citing Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993) (ERA whistleblower complaint not raised by allegations of race or sex discrimination); Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (remand order)(emissions to outside air covered by CAA whistleblower provision; emissions as an occupational hazard not covered). In the instant case, the Secretary ruled that the Complainant's allegations about oil and anti-freeze fell within the environmental rubric.
Application of reasonable belief test
In applying the reasonable belief test, the Secretary considered whether "under the circumstances it was reasonable, given [the Complainant's] training and experience, for him to believe that used oil and/or antifreeze were hazardous wastes subject to EPA regulation. The Secretary then delved into the "complex regulatory history regarding used oil" and concluded that it was reasonable for the Complainant to belief that a large spill was hazardous and required some notification to an environmental agency. In regard to antifreeze (which the Secretary assumed to contain ethylene glycol), the Secretary noted that there was evidence of record that some people believe that antifreeze is toxic, and that ethylene glycol is regulated under the Clean Air Act and CERCLA. Thus, he concluded that it was reasonable for the Complainant to believe that antifreeze was hazardous and was regulated as such.
II.B.1.a. Sufficiency of pleadings
In Jain v. Sacramento Mun. Util. Dist., 89-ERA-39 (Sec'y Nov. 21, 1991), the Secretary noted that the ALJ considered all the potential claims raised by the pro se Complainant, even though not all of the allegations were specified in the complaint. She then noted that she had held generally that complaints filed under the employee protection statutes and the applicable regulations are not formal pleadings, thus implicitly approving the ALJ's consideration of the additional claims.
II.B.1.a. Complaint; adequacy of letter as
A letter to the Secretary of Labor detailing a whistleblower's situation, though informal in nature, is equivalent to the filing of a formal legal complaint. Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L.Ed.2d 724, 106 S. Ct. 3311 (1986) (citing 29 C.F.R. § 24.3).
II.B.1.a. TSCA complaint not a formal pleading
In
Sawyers v. Baldwin Union Free School District,
88-TSC-1 (Sec'y Oct. 5, 1988), the ALJ recommended dismissal of a
Toxic Substances Control Act, 15 U.S.C. § 2622 complaint
because the Complainant had not made a timely complaint to the
Department of Labor, and his earlier letter to EPA was not a
"complaint" because it did not contain a prayer for
relief, and therefore the doctrine of equitable tolling did not
apply. The Secretary found that a prayer for relief is not
required for a TSCA complaint, and therefore found equitable
tolling to be a proper consideration in the matter.
The Secretary quoted the TSCA: "Any employee who believes
that the employee has been discharged or otherwise discriminated
against . . . may . . . file . . . a complaint . . . alleging
such discharge or discrimination." 15 U.S.C. §
2622(b)(1). The Department of Labor regulations establishing
Procedures for the Handling of Complaints Under Federal Employee
Protection Statutes provide with respect to complaints that
"[n]o particular form of complaint is required, except that
a complaint must be in writing and should include a full
statement of the acts and omissions, with pertinent dates, which
are believed to constitute the violation." 29 C.F.R. §
24.3(c). Thus, neither the statute nor the regulations require a
complaint to include a prayer for relief.
In addition, the Secretary cited cases involving other employee protection statutes also covered by Part 24, in which it was held that a complaint under these laws need not meet the requirements of formal court pleadings. See Richter v. Baldwin Associates, 84-ERA-9 (Sec'y Mar. 12, 1986) (a complaint under 29 C.F.R. Part 24 "is not a formal pleading setting forth legal causes of action. Rather it is an informal complaint filed . . . for the purpose of initiating an investigation on behalf of the Secretary of Labor. . . ." Slip op. at 9); Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986) ("it is not required that every element of a legal cause of action be set forth" in a whistleblower complaint. Slip op. at 5).
In Jay v. Alcon Laboratories, Inc. , ARB No. 08-089, ALJ No. 2007-WPC-2 (ARB Apr. 10, 2009), OSHA had found that the Complainant's Federal Water Pollution Control Act (WPCA) whistleblower complaint was not timely filed, and the Complainant requested an ALJ hearing. In a prehearing submission, the Complainant argued that his complaint arose under the Sarbanes-Oxley Act as well as the WPCA. The ARB found that the ALJ did not abuse his discretion in denying the Complainant's motion to amend his complaint to include a SOX claim. The ALJ had found that the request to amend occurred at a "very late" stage, that the SOX claim did not reasonably relate to the scope of the original complaint, and that the SOX claim had only been raised because the complaint would have been timely under the SOX. The ARB found that the Complainant had cited no authority or argument to support the contention that both the WPCA and the SOX were applicable to the complaint.
II.b.1.b. Adequacy of letter to EPA as a complaint
In Sawyers v. Baldwin Union Free School District, 88-TSC-1 (Sec'y Oct. 5, 1988), the Secretary rejected the Respondent's contention that a letter to EPA could not have been intended to be a complaint under the TSCA, and therefore not the basis for equitable tolling of the filing period under the TSCA, because the Complainant was not aware of the TSCA at that time. The Secretary held that all that is required under the employee protection provision of the TSCA and the regulations at 29 C.F.R. Part 24 is that the Complainant clearly believed that the Respondent had violated some law over which EPA had jurisdiction, and believed that he had been suspended for complaining about that violation. See Richter v. Baldwin Associates, 84- ERA-9 (Sec'y Mar. 12, 1986) ("Often the complaint is filed before the complainant has consulted an attorney, and the complainant has no knowledge of the applicable statute or as to what constitutes the violation; all the complainant knows is that some adverse action was unfairly taken against him or her."
[Nuclear and Environmental Whistleblower Digest II B 1 b]
AMENDMENT OF COMPLAINT BASED ON IMPLIED CONSENT OF THE PARTIES
In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the Complainant alleged that the Respondent's failure to credit his research in a Federal Register notice responding to a Congressionally commissioned report of the National Academy of Sciences on the scientific basis for EPA Rule 503, and EPA's failure to fund two scientific projects he had proposed, were adverse employment action because such actions harmed his professional reputation. None of these actions were raised in the complaint or listed as an issue in the Complainant's prehearing statement. The ALJ, however, made findings and conclusions about these claims (finding against the Complainant), and the EPA did not raise an objection to the Complainant's raising of the issues. The ARB, therefore, found that the parties had consented to amendment of the complaint to include the claims. See 29 C.F.R. § 18.5(d); Roberts v. Marshall Durbin Co. , ARB Nos. 03-071 and 03-095, ALJ NO. 2002-STA-35, slip op. at 8-9 (ARB Aug. 6, 2004).
[Nuclear and Environmental Whistleblower Digest II B 1 b]
FAILURE TO NAME INDIVIDUAL FEDERAL OFFICIALS; ALJ'S DISCRETION TO PERMIT AMENDMENT OF COMPLAINT
In Salsbury v. Edward Hines, Jr. Veterans Hospital , 2004-ERA-7 (ALJ Oct. 18, 2004), the ALJ had determined that the APA waiver of sovereign immunity for non-monetary relief applied to a claim for reinstatement with back pay brought under the whistleblower provision of the ERA. In part, the ALJ's determination was based on the availability of equitable relief against a federal official in their official capacity, as opposed to relief against the agency itself. The Respondent presented as an alternative ground for dismissal that the Complainant had failed to name a "person" when filing his whistleblower complaint as required by section 5851(b)(1). The ALJ, however, held that under 29 C.F.R. § 18.5(e) he has the discretion to permit the Complainant to amend his petition to add named individuals personally, and since this imperfection with the complaint could be cured (assuming that no due process rights of the named individuals would be harmed) the Complainant's error (naming only the Dept. of Veteran's Affairs and the VA hospital) was not fatal.
II B 1 b Complaint is an informal pleading
In Monteer v. Casey's General Stores, Inc., 88-SWD- 1 (Sec'y Feb. 27, 1991), the Respondent contended that the Wage & Hour Administrator erred in going beyond the facts alleged in the complaint and that the Complainant's failure to plead her case accurately and specifically impaired its ability to defend, in violation of due process of law.
The Secretary stated that this argument misconstrues the nature of a complaint filed pursuant to 29 C.F.R. Part 24. The complaint is an informal pleading filed for the purpose of initiating an investigation by the Wage and Hour Division on behalf of the Secretary of Labor. See Richter v. Baldwing Associates, 84-ERA-9, 10, 11 and 12 (Sec'y Mar. 12, 1986) (order of remand, slip op. at 9). Development of the elements which establish a violation of the SWDA typically occurs during this investigation. Id., slip op. at 10-11. The Complainant's failure to precisely set forth in her complaint all elements which establish a violation is, therefore, not a valid basis for dismissal. See also Nunn v. Duke Power Co., 84- ERA-27 (Sec'y July 30, 1987) (order of remand, slip op. at 12, n.3); Willy v. Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987) (order of remand, slip op. at 2-3).
Additional considerations were that the preliminary findings of the Wage and Hour administrator afforded the Respondent ample notice of the allegations against it and, thus, adequate opportunity to prepare for the case presented at the hearing. Further, the hearing before the ALJ was de novo; since the Respondent objected to the findings of the Wage and Hour Administrator, they carried no weight before the ALJ or the Secretary. See 29 C.F.R. §§ 24.4(d)(3)(i), 24.5(e)(2), 24.6(a) and (b)(1).
II.B.1.b. Amendment by withdrawal of single count
In
Mitchell v. Arizona Public Service Co.,
92-ERA-
28 (ALJ Apr. 13, 1992),
later dismissed based on
settlement
, (Sec'y June 28, 1993), the Complainant sought
voluntary dismissal of one count of a multiple count complaint,
referring as authority to Fed. R. Civ. P. 41(a)(1)(i). The ALJ,
noted that the better Federal authority indicated that a motion
to dismiss a single count of a multi-count complaint should be
treated as an amendment to the complaint under Fed. R. Civ. P.
15(a).
See Gronholz v. Sears, Roebuck & Co.,
836 F.2d
515 (Fed. Cir. 1987);
contra Oswalt v. Script, Inc.,
616
F.2d 191 (5th Cir. 1980).
II B 1 b Error to use failure of complaint to state element as basis for summary decision
The failure to allege in the complaint the elements which establish a violation of section 5851 is not a valid basis for granting summary decision. Richter v. Baldwin Associates, 84-ERA-9 to 12 (Sec'y Mar. 12, 1986). Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987) (remand).
II.B 1 b. Amendment of complaint
In Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), the ALJ allowed the complainant to amend his complaint to substantiate whether he had filed the exact statutory claim in issues, albeit in the wrong forum (the NRC). Slip op. at 4. In the amended complaint, the complainant attached the full report of the NRC and stated that he recalled telling the inspector of each "Concern" listed, except Concern No. 12. The Secretary on review held that since the remaining concerns listed in the report focus on technical violations by the respondent and did not in any way address the alleged discriminatory acts at issue in the case before DOL, the complainant had failed to establish that he had raised the precise statutory claim. Slip op. at 7-8.
II B 1 b Elements of legal cause of action not required in complaint
It is not required that every element of a legal cause of action be set forth in an employee's section 5851 complaint. Moreover, a mere allegation that Complainant was assigned quality assurance functions is sufficient to state a cause of action since it has been recognized that all quality control personnel are engaged in activity protected by section 5851. [Complainant asserted that he was retaliated against because he performed his quality assurance functions of identifying deficiencies in Respondent's nuclear quality assurance program]. Bassett v. Niagara ohawk Power Co., 86-ERA-2 (Sec'y July 9, 1986).
II B 1 b Complaints develop during Wage and Hour investigation
In Richter v. Baldwin Associates, 84-ERA-9 to 10 (Sec'y Mar. 12, 1986) (order of remand), the ALJ had recommended the granting of a motion for summary decision, in part, on the ground that some of Complainant's initial complaints did not specifically allege protected activity. The Secretary found that a complaint filed under section 5851 does not constitute a formal pleading setting forth legal causes of action -- rather, it is "a most informal document." In describing why the failure to allege protected activity was not supportive of a grant of summary decision, the Secretary wrote:
Often the complaint is filed before the complainant has consulted an attorney, and the complainant has no knowledge of the applicable statute or as to what constitutes the violation; all the complainant knows is that some adverse action was unfairly taken against him or her. This action, even if unfair, may or may not constitute a violation. Sometimes, the complaint is drafted by Wage and Hour Division personnel, after they have questioned the complainant, and then copied by the complainant, or sometimes the contents of the complaint are suggested by such personnel. [footnote omitted] Thus, the development of the elements which establish a violation of section 5851 usually occurs during the administrative process conducted by the Wage and Hour division. It is during this process that the employer is apprised of a complainant's specific complaint and of the statute which may have been violated. Complainants' failure to allege contact with the NRC or that their terminations were related to such contact does not preclude their presenting evidence at a hearing establishing such contact and establishing a nexus between that contact and their terminations.
2 b 1 b
II B 1 b
Allegation not precisely set forth in original
complaint
In Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), the Secretary found that, although most of the Complainant's allegations of discrimination were untimely, the most recent act (the refusal of the Respondent to accept a resignation letter to replace a letter of termination upon the Complainant's having talked to reporters) was timely, even though this complaint was not precisely set forth in the original complaint, Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987), slip op. at 12 n.3, and the Complainant's former counsel did not press the ALJ to consider the timeliness of this separate allegation (the Complainant was alleging a continuing violation). The Secretary stated that: "I am not bound by the prior legal theories, particularly at this early stage of the proceeding." Chase v. Buncombe County, 85-SWD-4 (Sec'y Nov. 3, 1986), slip op. at 5. See also English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988).
The Secretary expressed no opinion whether this complaint was meritorious or cognizable, and remanded the case for further consideration by the ALJ.
II.B.1.b. Broad complaint may permit specification of additional allegations at time of hearing
Ray v. Tennessee Valley Authority, 88-ERA-14 (Sec'y Jan. 25, 1991) (the Secretary noted that although the additional allegations were not specified until the hearing, the language of the complaint was sufficiently broad to include those additional allegations; nevertheless, in view of the disposition of the case, the allegations did not need to be addressed).
II.B.1.b. Not fatal that complaint did not set forth precise alternative claim
In Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), slip op. at 10, the Secretary affirmed the ALJ's determination that the complainant's complaint was untimely in regard to her termination. Nevertheless, the Secretary found that the complaint sufficiently raised a separate allegation of discriminatory act occurring after the termination -- the respondent purportedly refused to accept a resignation letter (which it earlier had indicated would, if tendered, result in the removal of the termination letter) after the complainant talked to reporters about a disputed sewage plant project.
The Secretary noted that
It is not fatal that Complainant's complaint did not set forth this claim precisely. [ Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987), slip op. at 12 n.3.] Nor is it determinative that Complainant's prior counsel did not press the ALJ to consider the question of timeliness with respect to this separate allegation. I am not bound by the prior legal theories, particularly at this early stage of the proceeding. [ Chase v. Buncombe County, 85-SWD-4 (Sec'y Nov. 3, 1986), slip op. at 5. See also English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988)]."
Id. at 10 n.10.
II.B.1.b. Amendment of complaint
In Porter v. Brown & Root, Inc., 91-ERA-4 (ALJ ar. 9, 1992) (Order), the administrative law judge permitted the complainant, pursuant to 29 C.F.R. § 18.5(e), to amend her whistleblower complaint to include a claim under the Toxic Substances Control Act in addition to her original Energy Reorganization Act complaint. The ALJ found that the complainant's original complaint included alleged violations that fall within the scope of the TSCA, and that the respondents had notice of those assertions ab initio . The complainant was not permitted to amend the complaint to include claims under the Solid Waste Disposal Act, the Clean Air Act, the Water Pollution Control Act, the Safe Drinking Water Act, and the Comprehensive Environmental Response, Compensation and Liability Act, because claims under those acts were "not anticipated, and certainly not implied by the language of the original complaint nor by [a subsequent letter], and are, therefore, new theories of liability which fall outside the scope of the original complaint."
II B 1 b Secretary not precluded from considering factors not argued by complainant where they had been implicitly raised and litigated
In Cowan v. Bechtel Construction, Inc., 1987-ERA-29 (Sec'y Mar. 24, 1995), the Secretary considered the fact that Complainant had filed three prior ERA complaints against the Respondent prior to the present action in consideration of whether there had been protected activity, and a causal link. The Secretary noted that "Complainant's failure to allege this protected activity as a potential basis for the adverse action does not preclude the Secretary from considering such a claim where as here it had been implicitly raised and litigated." Citing Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357-59 (6th Cir. 1992).>
II.B.2. Subject matter jurisdiction
In Tyndall v. United States Environmental Protection Agency, 93-CAA-6 (ALJ Oct. 12, 1994), the ALJ recommended dismissal of the complaint because Complainant did not engage in protected activity under the CAA. The Complainant was a special agent of the EPA's Office of Inspector General ("OIG"), who contended that he engaged in protected whistleblower activity by reporting alleged official misconduct, and alleged wrongful interference by EPA-OIG management during an official investigation assigned to Complainant. Complainant argued that he was "on the trail of a major contracting fraud and organizational conflict of interest involving selection of and doing business with a contractor doing computer modelling and environmental research for EPA. . . ."
The ALJ concluded that Complainant's allegations afforded no basis for CAA relief because such allegations are not related to environmental safety or violations of the CAA. The only connection between the investigation and the CAA is the fact that the contract under investigation had to do with acid rain research, too tenuous a connection to establish coverage.
II. B. 2. Sex discrimination complaint
Where Complainant did not raise any safety issues concerning Respondent's operation of a nuclear power plant, but rather insisted that Respondent had discriminated against her on the basis of her sex, Complainant failed to state a prima facie case of the ERA's employee protection provision. Wilkinson v. Texas Utilities, 92-ERA-16 (Sec'y July 13, 1993).
II. B 2. Complaint not alleging protected activity
Where Complainant sent a letter to Senator Simpson alleging that she was terminated by Respondent -- a rural water association -- for her complaints to management about inaccurate records, mismanagement and waste, and none of her complaints were related to nuclear safety or violations of the ERA, nor environmental safety or violations of any of the other environmental statutes with the jurisdiction of the Secretary of Labor, the case was dismissed because there was no allegation of protected activity under those statutes. Deveraux v. Wyoming Association of Rural Water, 93-ERA-18 (Sec'y Oct. 1, 1993) (assuming that a complaint to a Senator could be treated as a complaint).
II B 2 Substance of complaint determines coverage
The substance of the complaint determines whether activity is protected under the particular statute at issue. See Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (distinguishing between complaints restricted solely to occupational safety and health and those touching public safety and health, the environment, or compliance with regulations under the particular environmental protection statute).
TSCA seeks to prevent unreasonable risk of injury to health and the environment, 15 U.S.C. 2601, expressly addressing regulation of PCBs as hazardous chemical substances. 15 U.S.C. § 2605(e); 40 C.F.R. Part 761 (1990). Thus, complaints about PCB leakage fall within the purview of TSCA. Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991).
II. B 2. Coverage of underlying Act
In Minard v. Nerco Delamar Co., 92-SWD-1 (ALJ Sept. 17, 1992), the Complainant alleged that he was fired because he complained about the Respondent's dumping of used antifreeze into a drain, threatened to report this activity to the Government, and insisted that the Respondent report an oil spill to the Government. The Respondent contended, inter alia, that the DOL has no jurisdiction under the employee protection provision of the Solid Waste Disposal Act, 42 U.S.C. § 6971(a), since neither antifreeze nor oil are hazardous substances subject to the Act's provisions. The Complainant stipulated that antifreeze and oil are not covered by the SWDA, but asserted that there is jurisdiction because he had a good faith belief that the Respondent was disposing of hazardous wastes in an unlawful manner.
The ALJ concluded that there is a distinction between case law holding that an employee's activities may be protected even if the conduct complained of is found not to have occurred or not to have violated the law, and the instant situation where the complaint failed to allege an underlying violation of the statute affording protection to the employee. The ALJ stated that "[l]ogic dictates, and the statutory and regulatory language [of 42 U.S.C. § 6971(a) and 29 C.F.R. § 24.2] make clear, that an employee's complaints regarding his employer's conduct which, even if true, do not allege a violation of the statute providing whistleblower protection, are not protected by that statute."
The ALJ cited Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987), for the proposition that the CAA would not cover a complaint limited to airborne asbestos as an occupational hazard.
II B 2 Coverage under SWDA; mistake regarding facts versus mistake regarding the law
In Minard v. Nerco Delamar Co., 1992-SWD-1 (Sec'y Jan. 25, 1994), the issue arose of whether the SWDA's whistleblower provision extends to situations in which the employee is mistaken regarding the facts but not to situations in which the employee is mistaken regarding the law. In Minard , the Complainant had erroneously believed that antifreeze and used oil were regulated as hazardous waste.
The Secretary concluded that the Complainant's internal complaints to management were similar to those which would fall under the Title VII section 704(a) "opposition clause." Civil Rights Act of 1964, 42 U.S.C. § 2000(e)-3(a). The Complainant was not participating in a SWDA enforcement action, but was opposing his employer's actions.
The ALJ had relied in part on certain Title VII case law indicating that where the employer's alleged action, even if it in fact happened just as the complainant alleged, would not have been a violation of the Act, then the employer cannot be found to have violated the Act's whistleblower protection provision if it retaliates against the complaining employee.
The Secretary, however, chose to follow another line of Title VII authority indicating that "opposition to an employer's actions which are reasonably believed to violation Title VII is protected, irrespective of whether it is ultimately determined that the employer's actions did not violate Title VII either because the employer did not do what was complained about or because the actions the employer took did not violate Title VII." Slip op. at 20-22, citing Berg v. La Crosse Cooler Co., 612 F.2d 1041 (7th Cir. 1980); Parker v. Baltimore & O.R. Co., 652 F.2d 1012, 1020 (D.C. Cir. 1981). The Secretary concluded that the same approach under the SWDA's whistleblower provision should be followed.
In sum, the Secretary held that "under the SWDA whistleblower provision an employee's reasonable belief that his employer is violating the Act may--depending on the particular facts of the case--be sufficient basis for a retaliation claim if the employer allegedly takes action against that employee because he [or she] expressed his [or her] belief, irrespective of after-the-fact determinations regarding the correctness of the employee's belief."
II B 2 Coverage under SWDA; test of reasonable belief that substance is hazardous
In Minard v. Nerco Delamar Co., 1992-SWD-1 (Sec'y Jan. 25, 1994), a Solid Waste Disposal Act (SWDA) whistleblower case, the Complainant alleged that he was fired by the Respondent because he complained to management about dumping of antifreeze and a spill of oil. The Complainant, however, stipulated that neither antifreeze nor motor oil is classified as hazardous waste under the SWDA, and the ALJ recommended dismissal based on lack of jurisdiction.
Establishment of reasonable belief test
The Secretary, however, concluded that where the complainant has a reasonable belief that the substance is hazardous and regulated as such, he or she is protected under the SWDA. The Secretary noted that the applicable law indicates that wastes are considered hazardous if they are listed as such by the EPA, or if they have one four technical characteristics of hazardousness (ignitability, corrosivity, reactivity, and toxicity). See 40 C.F.R. §§ 261.11(a)(1), 251.11(b), 261.20-261.24, 261.30-261.33. Because of the technical complexity of knowing how a particular chemical is categorized, the Secretary concluded that "[i]t is unreasonable to expect the average lay person to know what is or is not on the Act's hazardous waste 'list' [or] whether a particular substance met[s] one of th[e] tests for hazardousness." Slip op. at 6-7.
Limits on reasonable belief test
The Secretary placed several limits on the reasonableness test. First, it is not enough that the employee believe that the environment may be negatively impacted by the employer's conduct; rather, the employee's complaints must be grounded in conditions reasonably perceived to be violations of the environmental acts. Second, there can be jurisdictional limits to employees' complaints -- "the environmental whistleblower provisions are intended to apply to environmental and not other types of concerns." Slip op. at 9, citing Decresci v. Lukens Steel Co., 87-ERA-13 (Sec'y Dec. 16, 1993) (ERA whistleblower complaint not raised by allegations of race or sex discrimination); Aurich v. Consolidated Edison Co. of New York, Inc., 86-CAA-2 (Sec'y Apr. 23, 1987) (remand order)(emissions to outside air covered by CAA whistleblower provision; emissions as an occupational hazard not covered). In the instant case, the Secretary ruled that the Complainant's allegations about oil and anti-freeze fell within the environmental rubric.
Application of reasonable belief test
In applying the reasonable belief test, the Secretary considered whether "under the circumstances it was reasonable, given [the Complainant's] training and experience, for him to believe that used oil and/or antifreeze were hazardous wastes subject to EPA regulation. The Secretary then delved into the "complex regulatory history regarding used oil" and concluded that it was reasonable for the Complainant to belief that a large spill was hazardous and required some notification to an environmental agency. In regard to antifreeze (which the Secretary assumed to contain ethylene glycol), the Secretary noted that there was evidence of record that some people believe that antifreeze is toxic, and that ethylene glycol is regulated under the Clean Air Act and CERCLA. Thus, he concluded that it was reasonable for the Complainant to believe that antifreeze was hazardous and was regulated as such.
II B 2 Underlying complaint did not involve section 5851
In Delcore v. W.J. Barney Corp., 89-ERA-38 (ALJ Apr. 24, 1990), Complainant asserted that Respondent subjected him to discrimination by offering him an improper and overly restrictive proposed settlement agreement to resolve an action pending before a United States district court involving allegation of state laws relating to wrongful termination, tortious interference with employment contract, and defamation.
The ALJ found, inter alia , that he had no jurisdiction over the matter because Complainant was not an employee at the time of the allegedly discriminatory act and because the federal court action did not involve a 42 U.S.C. § 5851 matter.
II B 2 Coverage under underlying Act; amendment of complaint
In Proud v. CECOS International, 83-TSC-1 (Sec'y ar. 30, 1984), the Secretary adopted the ALJ's decision in its entirety. In a footnote, the Secretary noted that the Respondent had moved for dismissal at the hearing on the ground that the waste materials disposed of were not covered by TSCA but rather by the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq. , and therefore the Complainant had filed under the wrong statute and was now time barred from filing under the SWDA. The ALJ ruled that, because of TSCA's "mixture rule", which brings under TSCA materials being disposed of along with substances covered by TSCA, the complaint was properly filed under TSCA. Additionally, the ALJ permitted the Complainant to amend his complaint so as to add RCRA to all references to TSCA. The ALJ recognized that amendment of the complaint was "somewhat superfluous" in view of his finding that there was TSCA coverage.
II.B.2. Failure to allege statutory basis for claim
In Stephenson v. National Aeronautics & Space Administration, 94-TSC-5 (ALJ June 27, 1994), the ALJ concluded that the complaint was deficient for failing to allege or state facts showing the statutory basis for Complainant's claim under CAA. The ALJ noted that Complainant had ample opportunity to cure this deficiency by amending her complaint, and that at all times she had been represented by counsel who has extensive knowledge of the procedures applicable in these proceedings.
II. B 2 Complaint must establish coverage of underlying act
In a whistleblower proceeding, a complaint must show that the underlying act or its implementing regulations are involved. In Johnson v. Old Dominion Security, 86-CAA-3, 4 and 5 (Sec'y May 29, 1991), the Complainants were found not to have carried their burden of establishing that the CAA coverage. The Secretary stated:
The CAA seeks to prevent and control air pollution by regulations emissions into the atmosphere at particular sources. Generally, a complaint about contamination of workplace air, contained within a building, structure, facility, or installation which is not emitted into the external atmosphere, would not be covered under the CAA. The Complainants neither alleged, no presented evidence, that contaminants were emitted into the atmosphere, nor into the workplace as contemplated by 40 C.F.R. §§ 61.146, 61.147 (1990) (EPA regulation of asbestos emission in demolition and renovation).
Slip op. at 13, n.8.
II B 3 a Requirement that complaint be in writing
A complaint under the employee protection provision of the ERA must be in writing. In support of this conclusion, the Secretary referenced 42 U.S.C. § 5851(b)(1) and (b)(2)(A) and (b)(2)(B) to "file . . . a complaint", "the filing of the complaint", "a complaint filed", "receipt of such complaint", and "response to a complaint filed". He concluded that these reference "clearly connote a written complaint because a verbal complaint lacks the physical durability and permanence inherent in a filing." See also 29 C.F.R. § 24.3(c).
Mitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y July 22, 1993).
[Nuclear & Environmental Digest II B 3]
UNDERLYING JURISDICTION; COMPLAINT ABOUT ASBESTOS IN BASEMENT OF WORKPLACE; NOT PROTECTED ACTIVITY UNDER CAA UNLESS REASONABLE BELIEF THAT ASBESTOS WOULD BE EMITTED INTO AMBIENT AIR
In Kemp v. Volunteers of America of Pennsylvania, Inc. , ARB No. 00-069, ALJ No. 2000-CAA-6 (ARB Dec. 18, 2000), Complainant filed a Clean Air Act whistleblower complaint on the theory that his discharge was motivated by his expression of concern over asbestos in the basement of his workplace resulting from torn insulation on utility pipes. The ARB held that for this activity to be protected, Complainant had to demonstrate that his complaint was based upon a reasonable belief that the asbestos would be emitted into the ambient air. The ARB reviewed the record, and finding no evidence that Complainant believed that the asbestos was a threat to the air outside the basement, dismissed the complaint.
The ARB found that the TSCA was not applicable because the asbestos was not located in a school, see 15 U.S.C. §§2641-2656 (1994), and that if the case was covered by the Occupational Safety and Health Act, "the sole whistleblower enforcement mechanism is an action brought by the Secretary in a United States district court. 29 U.S.C. §660(c)(2)."
The ALJ had also made a finding that Complainant's discharge was motivated in part by his demand for inclusion in a 401(k) pension plan following a corporate reorganization. The ARB noted that even accepting this finding as true, there was no legal basis for the ALJ or the ARB to find jurisdiction over a complaint based on alleged retaliation for asserting pension rights.
[Nuclear & Environmental Digest II B 3 a]
ORAL COMPLAINT - FLSA ANTI-RETALIATION ACTION
In Valerio v. Putnam Associates, Inc. , No. 98-1399 (1st Cir. Apr. 9, 1999), the court considered whether the Fair Labor Standards Act anti-retaliation provision, 29 U.S.C. § 215(a)(3), protects written internal complaints, and found that it does. In footnote 4, the court noted that it was leaving for another day the question whether combined oral and written complaints, or alleged complaints of a wholly oral nature, allow invocation of the protections of § 215(a)(3). In so noting, the court cited by comparison Clean Harbors Environ. Serv., Inc. v. Herman , 146 F.3d 12 (1st Cir. 1998), a STAA anti-retaliation decision in which the panel spoke of a combination oral/written complaint as "filed."
[N/E Digest II B 2 and II B 3 a]
TIMELINESS; REQUIREMENT OF WRITTEN NOTATION; FAILURE TO SUPPLY
COPY OF WRITTEN COMPLAINT ALLEGEDLY RAISING ERA COMPLAINT; 180 DAY
TIME LIMIT
In Roberts v. Battelle Memorial Institute , 96-ERA-4 (ARB June 4, 1997), the Board assumed, for purposes of rendering a summary decision that a June 6, 1994 complaint raised by Complainant with the Ohio Civil Rights Commission and the EEOC raised a nuclear health or safety concern and therefore was a protected activity under the ERA. Complainant had been suspended without pay on June 21-23, 1994 and discharged on July 18, 1994.
Complainant alleged that she made a telephone complaint to the Department of Energy in August 1994. The Board, however, held that an ERA complaint must be in writing, and that in the absence of any written notation of the telephone conversation, it could not constitute a valid ERA complaint.
Complainant alleged that she filed a timely written complaint with the Department of Labor on January 12, 1995, but did not provide a copy of that complaint to Respondents, the ALJ or the Board. The complaint was brought pursuant to E.O. 11246, which prohibits discrimination -- not on the basis of expression of nuclear safety concerns -- but rather on the basis of race, color, religion, sex and national origin. DOL had forwarded the complaint to the EEOC, which the Board concluded suggested that it was filed pursuant to the Executive Order. Although the Board recognized that such complaint could have included statements that would support an ERA complaint, since a copy of the complaint had not been produced, it could not conclude that it did.
Finally, Complainant filed a written complaint with the Department of Energy that apparently alleged discrimination for raising health and safety issues. Since this complaint was filed more than 180 days after Complainant's discharge, it was not timely, and that there was no grounds for equitable tolling (the Board adopting the ALJ's analysis).
II B 3 b Requirement that complaint be in writing; OSHA memorandum adequate
In Dartey v. Zack Co. of Chicago, 82-ERA-2 (ALJ Jan. 29, 1982), (prehearing order denying motion to dismiss), adopted (Sec'y Apr. 25, 1983), the ALJ in denying a motion to dismiss concluded that the purpose of the employee protection provision of the ERA's very short time limitations was primarily "not to prevent the prosecution of stale claims, but rather to provide a quick and efficacious remedy for an employee who may have been wrongfully thrown out of a job." Hence, the ALJ found that Complainant's filing with OSHA rather than Wage & Hour was a timely filing and that OSHA's memorandum of the complaint satisfied the "in writing" requirement. oreover, the ALJ noted that the OSHA whistleblower section Complainant did file under is, for all practical purposes, much the same as section 5851, and that Respondent was fully apprised of that filing within 30 days of Complainant's suspension.
In addition, although the DOL did not comply with the 90-day provision for disposition of the claim, he ruled that "[t]he expedited procedure is designed to minimize the hardship that might result to the employee, not to provide a technical "out" for the employer." The ALJ dismissed Respondent's contention that it was prejudiced by the resignation of a material witness because no showing had been made that he was no longer available.
The Secretary, in approving and adopting this ruling, added that in addition to the ALJ's conclusion that filing in the wrong office of the right agency is not fatal, the filing with the wrong agency by a layman who has not slept on his rights can also toll a statute of limitations. Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at n.1.
[N/E Digest II B 3 b]
WRITTEN COMPLAINT; OSHA MEMORANDUM SUFFICES
In Roberts v. Rivas Environmental Consultants, Inc. , 96-CER-1 (ARB Sept. 17, 1997), OSHA apparently solicited a supplementary letter from Complainant on the mistaken assumption that a written submission from the complainant is needed. The ARB agreed with the ALJ that Complainant's oral statement to an OSHA investigator, and the subsequent preparation of an internal memorandum by that investigator satisfies the "in writing" requirements of 42 U.S.C. § 9610(b) and 29 C.F.R. § 24.3.
II. B 3 b Writing in hand of complainant or person to whom he or she complained
In Mitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y July 22, 1993), Complainant contended that it should not matter whether the "written" complaint required to file an ERA complaint (and to apply equitable tolling for filing in the wrong forum) was in the hand of Complainant or a TVA representative. Although the Secretary recognized that this argument might have some theoretical merit, he declined to consider it because any such TVA document was not made part of the record below despite full opportunity to do so.
Complainant also argued that he had made a written contact with the NRC, and could present evidence to this effect. The Secretary denied the request to present additional evidence given that Complainant had ample opportunity to do so before the ALJ.
[Editor's note: The ALJ had conducted a hearing solely on timeliness.
The Secretary approved Judge Feldman's ruling in Dartey v. Zack Co. of Chicago, 82-ERA-2 (ALJ Jan. 29, 1982), (prehearing order denying motion to dismiss), adopted (Sec'y Apr. 25, 1983), that an OSHA memorandum memorializing the complaint satisfies the regulatory requirement of that the filing be in writing.]
[Nuclear & Environmental Digest II C 1]
STANDING OF ESTATE TO BRING ERA COMPLAINT
In Ricketts v. Northeast Utilities Corp. , 1998-ERA-30 (ALJ Oct. 29, 1998), the ALJ considered whether an estate can bring an action under the whistleblower provision of the ERA. Finding no direct authority in the DOL regulations, the ALJ looked to Fed. R. Civ. P. 17(a), and found that Complainant, as Administratrix of Decedent's estate, has standing to bring an ERA whistleblower complaint. Compare Billings v. Tennessee Valley Authority ,1991-ERA-12 (ARB June 26, 1998)(citing Fed. R. Civ. P. 25(a)), for the proposition that a representative of a deceased complainant may be substituted as a party in an ERA complaint that had already been filed).
II C 2 Where to file complaint
The Toxic Substances Control Act, 15 U.S.C. § 2622, requires the filing of a complaint with the Secretary of Labor, not the Environmental Protection Agency. School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981).
[Nuclear & Environmental Digest II C 2]
COMPLAINT; LETTER FILED WITH SECRETARY OF LABOR RATHER THAN OSHA
In Duncan v. Sacramento Metropolitan Air Quality Management District , ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB June 13, 2000), the ARB noted that a complaint letter filed with the Secretary of Labor would be sufficient to constitute a complaint pursuant to section 7622(b)(1) of the CAA, 42 U.S.C. 7622(b)(1)(1994), and 29 C.F.R. 24.3(d), even if not filed with OSHA.