Duncan v. Sacramento Metropolitan Air Quality Management District, ARB No. 99-011, ALJ No. 1997-CAA-12 (ARB Sept. 19, 2001)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 99-011
ALJ CASE NO. 97-CAA-12
DATE: September 19, 2001

In the Matter of:

MARK DUNCAN,
    COMPLAINANT,

    v.

SACRAMENTO METROPOLITAN AIR
QUALITY MANAGEMENT DISTRICT,
    RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD¹

Appearances:

For the Complainant:
   John L. Simonson, Esq.,
      La Tuna Canyon, California;
   Mark Duncan, pro se,
      Folsom, California²

For the Respondent:
   Kenneth L. Swenson, Esq.,
      Duncan, Ball, Evans, & Ubaldi, Sacramento, California

For the Assistant Secretary, Occupational Safety and Health as Amicus Curiae:

   William J. Stone, Esq., Steven J. Mandel, Esq.,
      U.S. Department of Labor, Washington, D.C.

   Complainant Mark Duncan filed this case under the Clean Air Act, 42 U.S.C.A. §7622 (West 1995) ("CAA") alleging that his former employer the Sacramento Metropolitan Air Quality Management District ("SMAQMD") violated the CAA's employee protection provisions by taking various adverse actions against him and ultimately terminating his employment. The Occupational Safety and Health Administration ("OSHA") investigated Duncan's complaint and found it without merit. Duncan objected to OSHA's findings and the matter was referred to a Department of Labor Administrative Law Judge ("ALJ") for a hearing.

   On October 16, 1998, the ALJ issued a Recommended Decision and Order ("RDO") finding that SMAQMD did not take any actions against Duncan in retaliation for engaging in protected activity. Therefore, the ALJ recommended that Duncan's complaint be dismissed. This appeal followed.³

   We have jurisdiction under the Clean Air Act, supra, and 29 C.F.R. §24.8 (2000). Under the Administrative Procedure Act, we have plenary power to review an ALJ's factual and legal conclusions de novo. See 5 U.S.C.A. §557(b)(West 1996); Masek v. Cadle Co., ARB No. 97-069, ALJ No. 95-WPC-1, slip op. at 7 (ARB Apr. 28, 2000).

   Essentially, Duncan argues that the facts in this case support an inference that SMAQMD retaliated against him. The ALJ himself recognized the possibility that some of SMAQMD's actions could have been motivated by retaliatory animus. However, he ultimately found that the weight of the evidence and testimony in this case militated against drawing such an inference. In our view, the ALJ's decision is thorough, well-reasoned, and fully supported by the record. Accordingly, we adopt the attached ALJ's RDO. Therefore, Duncan's complaint is DISMISSED.⁴

   SO ORDERED.

       PAUL GREENBERG
       Chair

       RICHARD A. BEVERLY
       Alternate Member

¹ This appeal has been assigned to a panel of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3, 1996).

² The complainant was represented by counsel during the initial phases of his appeal before this Board, but ultimately filed briefs on his own behalf.

³ Duncan's petition for review of the ALJ's RDO initially was filed with the Labor Department's Chief Administrative Law Judge, rather than with the Board. The filing with the ALJ occurred within the 10-business day time limitation required by the Labor Department's regulations at 29 C.F.R. §24.8(a); however, by the time the petition was re-submitted to the Board, the 10-day time period had lapsed, and the petition could have been viewed as untimely. We ordered briefing on whether the appeal should be accepted as timely. The Assistant Secretary appeared as an amicus in this case solely on the issue of timeliness, submitting a letter brief arguing that the appeal should be accepted. The Board issued an order accepting the petition for review on September 1, 1999, and ordered briefing on the merits of the case.

⁴ Before the Board, SMAQMD contends that it also is entitled to prevail under a collateral estoppel theory pursuant to Sawyers v. Baldwin Union Free School District, No. 85-TSC-1 (Sec'y Oct. 24, 1994), arguing the Board should give preclusive effect to an arbitration decision that was adverse to Duncan. Because we adopt the ALJ's merits finding that SMAQMD's discharge of Duncan was not unlawful under the CAA, it is unnecessary for us to address this argument.