ARB CASE NO. 04-109
ALJ CASE NO. 04-ERA-10
DATE: August 31, 2006
RICHARD O. DEVINE,
COMPLAINANT,
v.
BLUE STAR ENTERPRISES, INC.
and FLUOR HANFORD, INC.,
RESPONDENT.
BEFORE: THE
ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Richard DeVine, pro se, Richland,
Washington
For the Respondents:
Lucinda J. Luke, Cowan Walker,
P.S., Richland, Washington
Larry E. Halvorson, Attorney at Law, Richland, Washington
FINAL DECISION AND
ORDER
This case arises
under the whistleblower protection provision of the Energy Reorganization Act
(ERA), 42 U.S.C.A. § 5851 (West 2003), and implementing regulations at 29
C.F.R. Part 24 (2005). Richard DeVine complains that Blue Star Enterprises,
Inc. (BSE) and Fluor Hanford, Inc. (Fluor) violated the ERA when BSE laid him off
as a hazardous waste truck driver after he reported that he did not have the
safety training required for the job. On May 21, 2004, a Labor Department
Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R. D.
& O.), recommending the granting of Fluor’s Motion for Summary Decision and
the dismissal of DeVine’s complaint. We concur and dismiss the complaint.
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Background
At all relevant
times, DeVine was a truck driver and a Teamster Union member. DeVine Complaint
to United States Department of Labor (DOL), October 6, 2003, para. 1-3, Motion
for Summary Judgment (MSJ), Attachment F. His employer was BSE, a Fluor
subcontractor. Fluor was a contractor performing environmental restoration and
waste management for the United States Department of Energy (DOE) at the
Hanford Nuclear Site. Id. DOL, Notice of Determination, January
15, 2004, MSJ, Attachment D. BSE was an environmental drilling company and Fluor
subcontractor that performed services at the site. Id. The site
contained underground nuclear waste tanks, which, DeVine alleged, leaked and
contaminated the groundwater. Complaint, para. 5.
In February 2003
Fluor requested BSE to provide a driver for a water purge truck. BSE faxed
this request to the local Teamsters Union on February 27, 2003. The fax
included training requirements for the driver and a start date of March 3,
2003, with a duration of “1 to 2 days off and on.” Complainant’s Opposition to
Summary Judgment, attachment N. The Teamsters local dispatched DeVine. Complaint,
para. 3; Declaration of Robert Dobush, MSJ, Attachment A, para. 2; Declaration
of Darwin Tenney, MSJ, Attachment B, para. 2. DeVine alleges that BSE required
the following training and certifications for the job: “a 40-Hour Hazardous
Waste Course; and 8 Hour Hazardous Waste Refresher; Radiation Worker II;
II-GET; Class A Commercial Driver’s License with Tanker and Hazardous Materials
Endorsement; Hazardous Material General Awareness; and First Aid/CPR.” Complaint,
para. 8. DeVine says he met the requirements, except that his First Aid/CPR
had expired. Id., para. 9.
DeVine commenced work
on March 3 or March 4, 2003. Complaint, para. 3; Dobush Declaration, para. 2;
Tenny Declaration, para. 2. According to Fluor, BSE notified DeVine on April
3, 2003, that his work driving the purge water truck would be completed on
April 7, and that he would be laid off sometime after April 8. Dobush
Declaration, para. 3; Tenny Declaration, para. 4. Although DeVine disputes
that he was laid off due to lack of work, his Opposition to the Motion for
Summary Judgment does not contest that he was notified of the layoff, but says
the date was April 4, 2003. Opposition to Summary Judgment, Section III at 3.
DeVine contends he
learned of the CPR requirement on April 4, 2003. Complaint, para. 10. He
contacted Fluor, which informed him of an additional training requirement: introduction
to Federal Motor Carrier Safety Regulations. Complaint, para. 11. DeVine alleges
that he then informed BSE of what he had learned from Fluor and expressed
concern that BSE did not know the training requirements for hauling hazardous
material in tanker trucks and claimed that BSE failed to verify that personnel had
the requisite training for assigned tasks. Id., para. 12.
DeVine contends that,
on April 7, despite his expression of concerns about his lack of training, BSE
ordered him to continue to haul hazardous material in tanker trucks. Id., para. 13. DeVine used his “Stop Work Authority” to shut down the job. That
night BSE sent him to First Aid/CPR training. Id., para. 13. On
April 8 and 9, there was no
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work for him, and on April 10, BSE laid him off
because he lacked the required training. Id., para. 14-18. But
he observed that the rest of the BSE crew was still working, id., para.
18, and Fluor told him he was laid off because his Commercial Driver’s License
was invalid and he was not authorized to haul hazardous material. Id., para. 19.
Fluor’s version of
events is not materially different. After DeVine stopped work on April 7, a
Fluor employee who was First Aid/CPR certified offered to ride with DeVine, but
DeVine refused. Dobush Declaration, para. 3; Tenny Declaration, para. 6. On
April 8, DeVine told Fluor managers that he lacked three training courses that
were required for his job as a purge water truck driver. Dobush Declaration,
para. 4; Tenny Declaration, para. 7. Although BSE had believed that DeVine was
fully certified when the Teamsters dispatched him, BSE confirmed had DeVine did
not have the necessary training, and that three courses at issue were not
available for three weeks. Dobush Declaration, para. 4; Tenny Declaration,
para. 7. Fluor only needed a purge water driver for one more day, so it
deleted that requirement from its contract with BSE, had one of its own drivers
complete the work, and BSE laid DeVine off on April 10, as anticipated. Dobush
Declaration, para. 4-5; Tenny Declaration, para. 7.
On October 6, 2003,
DeVine filed a complaint with the Occupational Safety and Health Administration
(OSHA), DOL, alleging that BSE and Fluor violated the whistleblower protection
provisions of the ERA when they laid him off on April 10, in retaliation for
complaining about his lack of training to perform his job as a hazardous waste
truck driver, and for issuing a stop work order and refusing to drive. OSHA
denied DeVine’s complaint on the ground that the training concerns he raised did
not amount to violations of nuclear laws or regulations. Notice of
Determination at 2.
DeVine requested a
hearing before an ALJ. On March 11, 2004, Fluor moved for summary judgment on
DeVine’s claims. DeVine filed an opposition on March 22, 2004, and the ALJ
issued the R. D. & O. on May 21, 2004. The R. D. & O. recommended
summary decision because: (1) DeVine did not file his complaint within 180
days of learning that he was to be laid off and therefore his complaint was untimely
under the ERA; (2) if DeVine’s complaint that he was not First Aid/CPR certified
implicated nuclear safety, then he was unqualified for the job and should have
been laid off; or (3) if being First Aid/CPR certified did not implicate
nuclear safety, then DeVine did not bring himself under the ERA’s whistleblower
protection provision. R. D. & O. at 4-8.
On June 3, 2004,
DeVine filed a Petition for Review of the ALJ’s decision. He submitted his
initial brief on July 7, 2004. Both contained attachments that he had not
previously submitted. Fluor and BSE have filed briefs and objections to
DeVine’s submission of additional exhibits.
Issues
[Page 4]
On
appeal, we decide whether to consider DeVine’s additional documents and then
whether Fluor and BSE are entitled to summary decision.
Jurisdiction and Standard of Review
The Secretary of Labor has delegated her authority to decide this matter
to the Board. 29 C.F.R. § 24.8; see Secretary’s Order 1-2002, 67 Fed.
Reg. 64,272 (Oct. 17, 2002). We review a recommended decision granting summary
decision de novo, thereby applying the same legal standards that governed the
ALJ’s decision-making process. Santamaria v. United States Envtl. Prot.
Agency, ARB No. 04-063, ALJ No. 2004-ERA-6, slip op. at 4 (ARB May 31,
2006). Pursuant to 29 C.F.R. § 18.40(d) (2005), summary decision is appropriate
“if the pleadings, affidavits, material obtained by discovery or otherwise . .
. show that there is no genuine issue as to any material fact and that a party
is entitled to summary decision.” In considering a motion for summary
decision, the Board reviews the evidence in the light most favorable to the
nonmoving party. Santamaria, slip op. at 4. However, the nonmoving
party may not rest upon the mere allegations or denials of its pleadings, but
instead must set forth specific facts which could support a finding in its
favor. 29 C.F.R. § 18.40(c). In addition to determining the existence of any
genuine issue of material fact, the Board must also determine whether the ALJ
properly applied the applicable law. Santamaria, slip op. at 4.
Discussion
1. ARB
will not consider new evidence
With
his June 3, 2004 Petition for Review of the ALJ’s R. D. & O., DeVine submitted
Appendices A-M. On July 7, 2004, DeVine submitted his initial brief to the ARB
and asked us to accept Exhibits 1-15 that were attached. At least some of
these documents were not previously submitted to the ALJ in conjunction with
the motion for summary decision. Fluor objected and moved to strike exhibits
that were not part of the record. We consider the issue of additional evidence
first.
When deciding
whether to consider new evidence, the Board
ordinarily relies upon the same standard found in the Rules of Practice and
Procedure for Administrative Hearings Before the Office of Administrative Law
Judges, 29 C.F.R. Part 18 (2005), which provides that “[o]nce the record is
closed, no additional evidence shall be accepted into the record except upon a
showing that new and material evidence has become available which was not
readily available prior to the closing of the record.” 29 C.F.R. § 18.54(c); see,
e.g., Welch v. Cardinal Bankshares Corp., ARB No. 06-062, ALJ No.
2003-SOX-15 , Order Denying Stay, slip op. 5-6 (ARB June 9, 2006).
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DeVine has not established that his additional
exhibits were not available at the time of the ALJ’s consideration of Fluor’s
motion for summary decision. We therefore do not consider them in our review.
2. DeVine’s complaint was
untimely
According to Fluor,
DeVine was notified on April 3, 2003, that he would be laid off. Dobush
Declaration, para. 3; Tenny Declaration, para. 4. In his opposition, DeVine
notes that BSE/Fluor represented to the DOE that Blue Star Management told him
on April 4, 2003, that his position of purge water driver was coming to an
end. Opposition to Summary Judgment, Section III, at 3. Although DeVine
disputes that there was a lack of work, his opposition does not contest that he
was notified of the lay off on April 4. Id.
Whistleblower
retaliation complaints under the ERA must be filed with the Secretary of Labor
“within 180 days after such violation occurs.” 42 U.S.C.A. § 5851(b)(1); see
also 29 C.F.R. § 24.3(b)(2). The limitations period begins to run when the
employee is notified of the adverse action, not when it actually takes effect.
Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No.
88-SWD-002, slip op. at 12 (ARB Feb. 28, 2003). See also Chardon v.
Fernandez, 454 U.S. 6 (1981); Delaware State Coll. v. Ricks, 449
U.S. 250 (1980).
DeVine did not file
his complaint until October 6, 2003. Complaint at 4; Notice of Determination at
1. Taking the evidence in the light most favorable to DeVine, he did not
receive notice of his layoff until April 4, 2003. He would have 180 days from
that date, October 1, 2003, to file his complaint. Since it is undisputed that
he did not file the complaint until October 6, 2003, he missed the 180-day
deadline. His complaint was untimely and BSE and Fluor are entitled to summary
decision on that issue.
3.
Merits of the complaint
We reach the
merits of DeVine’s complaint. The ERA provides in relevant part that “[n]o
employer may discharge any employee or otherwise discriminate against any
employee with respect to his compensation, terms, conditions, or privileges of
employment because the employee” . . . notified a covered employer about an
alleged violation of the ERA or the Atomic Energy Act (AEA), 42 U.S.C.A § 2011 et
seq. (West 1995), or refuses to engage in a practice made unlawful by the
ERA or AEA. 42 U.S.C.A. § 5851(a)(1)(A)-(B). To prevail on an ERA
whistleblower complaint, the complainant must allege and prove that: (1) he
engaged in activity the ERA protects; (2) the employer was aware of the
protected activity; (3) the employer subjected him to an unfavorable personnel
action; and (4) the protected activity was a “contributing factor in the
unfavorable personnel action.” § 5851(b)(3)(C); see also Hibler v.
Exelon Generation Co., LLC, ARB No. 05-035, ALJ No. 2003-ERA-9, slip op. at
19 (ARB Mar. 30, 2006); Kester v. Carolina Power & Light Co., ARB
No. 02-007, ALJ No. 00-ERA-31, slip op. at 6-7 (Sept. 30, 2003). However,
“[r]elief may not be ordered . . . if the employer demonstrates by clear and
convincing evidence that it would have taken the
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same unfavorable personnel action” in the absence of the complainant’s protected activity. § 5851(b)(3)(D);
Hibler, slip op. at 20; Kester, slip op. at 7.
We have said
that, to constitute protected activity under the ERA, an employee’s acts must
relate to nuclear safety “definitively and specifically.” Kester, slip
op. at 9. But the complainant need not prove an actual violation of a nuclear
safety law or regulation. Our cases say that a reasonable belief of a
violation is enough. See, e.g., Melendez v. Exxon Chems. Ams., ARB No.
96-051, ALJ No. 1993-ERA-6, slip op. at 10-11 (ARB July 14, 2000), and cases
cited therein.
Unlike the ALJ,
we will assume that DeVine created a fact dispute about whether he engaged in
protected activity. DeVine was dispatched to drive a purge water truck at a
nuclear site containing contaminated groundwater. BSE required training in
hazardous waste, radiation, and transportation of hazardous materials, in
addition to first aid and CPR. DeVine’s complaint about lack of training and
qualifications dealt not only with his own lack of first aid and CPR training,
which arguably did not relate to nuclear safety “definitively and
specifically,” but also with his lack of training for other courses, and the
lack of knowledge and training of other BSE employees. Viewed in the light
most favorable to DeVine, this evidence may be enough to establish a reasonable
belief that nuclear safety under the ERA and AEA was at issue.
Yet that is not
fatal to Fluor’s motion for summary decision. Fluor also argued that BSE laid
DeVine off for legitimate, non-discriminatory reasons: there were only a few
days remaining on his assignment, and he admitted that he lacked the requisite
qualifications for the job. Motion for Summary Judgment, C, at 12-13. We
agree. Although determining whether an adverse personnel action was taken for
legitimate or illegitimate reasons most often involves a factual determination
that makes summary judgment impossible, in this case the facts are undisputed.
Here, DeVine’s
protected activity included his complaint that he was unqualified for the
position of purge water truck driver at a nuclear waste site. The need for a
purge water driver was to end within a few days of April 3 or 4, and did end on
April 10. BSE was not required to retain an unqualified employee until he
could be trained for a position they no longer needed. The fact that DeVine
claims to have seen other BSE workers on the site after that, Complaint, para.
18, does not create a triable issue of fact.
Thus, it is not
necessary to weigh the evidence to see whether DeVine showed that his protected
activity was a factor and whether BSE would have laid him off anyway. The
evidence is undisputed that a job he lacked qualifications to perform had come
to an end. Fluor and BSE are entitled to summary decision.
Conclusion
To the extent
DeVine’s submissions to us contain new evidence that was not before the ALJ,
but was available at the time, we do not consider them. We affirm the grant of
summary decision on these grounds: Devine’s complaint is untimely; and he
[Page 7]
was laid off because his assignment had come to an end and because he lacked
the necessary qualifications for the position. We therefore DENY the
complaint.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
