The issue presented in this motion for summary decision is whether a genuine issue of material fact exists with regard to whether, as a matter of law, Complainant engaged in protected activities such that this office would have jurisdiction over the instant matter.

   Any party may move with or without supporting affidavits for summary decision on all or part of a proceeding. 29 C.F.R. §18.40(a) (2003). If pleadings, affidavits, and material obtained by discovery show that there is no genuine issue as to any material fact, the administrative law judge may enter summary decision for either party. Id. §§18.40(d), 18.41(a). In determining whether summary decision is appropriate, the court must look at the record in the light most favorable to the non-moving party and must draw all inferences in favor of the non-moving party. Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 (1962)). To defeat a summary decision motion, the party opposing summary decision must establish the existence of an issue of fact that is both material and genuine. Id. at 464; Gillilan v. Tennessee Valley Authority, 1991-ERA-31, 1991-ERA-34, at 3 (Sec'y Aug. 28, 1995). If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," there is no genuine issue of material fact, and the movant is entitled to summary decision. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). However, granting a summary decision motion is not appropriate where the information submitted is insufficient to determine if material facts are at issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

   To establish a prima facie case of retaliatory or discriminatory action by Respondent, a complainant must establish that his employer is subject to coverage under the environmental statute(s), and that he is a covered employee under the act. Bechtel Constr. Co. v. Sec'y of Labor, 50 F.3d 926, 933-34 (11th Cir. 1995). The complainant must also show that he engaged in protected activity, that he was subject to adverse employment action, that his employer was aware of the protected activity, and that a causal link exists between the protected activity and the adverse employment action. Id.; Williams v. Lockheed Martin Corp., 1998-ERA-40, 1998-ERA-42, at 4 (ARB Sept. 29, 2000); see also Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252 (1981).

   In his complaint, Complainant alleges that Respondent violated the following seven environmental statutes: Clean Air Act; Comprehensive Environmental Response, Compensation & Liability Act; Safe Drinking Water Act; Solid Waste Disposal Act; Toxic Substances Control Act; Federal Water Pollution Control Act; and Resource Conservation & Recovery Act. In general, these statutes contain the same basic whistleblower provisions. All of the Acts prohibit an employer from discriminating against an employee for commencing, causing to be commenced, or preparing to commence or cause to be commenced a proceeding under the chapters of the respective Acts, or testifying or preparing to testify in any such proceeding. Several of the Acts (CAA, SDWA, and TSCA) include provisions that additionally prohibit an employer from discriminating against an employee for assisting or participating or preparing to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of the respective Acts. With regard to testifying in such proceedings, the FWPCA, SWDA, and CERCLA contain provisions that bring testifying in proceedings regarding the administration and enforcement of the provisions of the chapters of the respective Acts under whistleblower protection.

   All of the Acts mentioned in the original complaint fall under the guise of the regulations found at 29 C.F.R. Part 24. Under 29 C.F.R. §24.2:

(b) Any employer is deemed to have violated the particular federal law and the regulations in this part if such employer intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee because the employee has:

(1) Commenced or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under one of the Federal statutes listed in §24.1(a) or a proceedings for the administration or enforcement of any requirement imposed under such Federal statute;
(2) Testified or is about to testify in any such proceeding; or
(3) Assisted or participated, or is about to assist or participate, in any manner in such a proceeding or in any other action to carry out the purposes of such Federal statute.

   In its motion, Respondent argues that summary decision should be granted in favor of Respondent on several bases. While there are other elements necessary to establish a whistleblower complaint, this decision addresses only Respondent's assertion that Complainant has failed to show that he engaged in any protected activities prior to filing his complaint. This is so because a failure to establish any protected activities under any of the "environmental whistleblower statutes" renders the complaint beyond the jurisdiction of the U.S. Department of Labor. Respondent argues that because there are no genuine issues of material fact, Complainant has failed to set forth a claim upon which relief may be granted, and therefore, summary decision in favor of Respondent is proper.

Has Complainant Shown that He Engaged in Protected Activity?

   1. Has Complainant Alleged Protected Activity with Sufficient Specificity?

   Respondent argues that Complainant has not made a prima facie showing that he engaged in any protected activities. To support this argument, Respondent asserts that Complainant has failed to specifically state the protected activities in which he engaged. Respondent cites to Greene v. Biro, 2002-SWD-1 (ALJ Feb. 10, 2003), for the proposition that allegations must be specific and detailed, not vague, broad, and imprecise. Greene v. Biro, 2002-SWD-1, at 6-7 (ALJ Feb. 10, 2003) (noting that "While no DOL whistleblower cases address the degree of specificity needed to establish jurisdiction, the Merit Systems Protection Board ("MSPB") has addressed this question pursuant to the Whistleblower Protection Act, 5 U.S.C. §1221" and that the complaint before him lacked in specificity (citing Keefer v. Dep't of Agric., 82 M.S.P.R. 687, 692 (1999); Becker v. Dep't of Veterans Affairs, 76 M.S.P.R. 292, 297 (1997)).

   In his response to the motion for summary decision, Complainant argues that he has engaged in protected activities because he has voiced concerns involving "government spending pursuant to special appropriations and regular environmental appropriations" and that Respondent has failed to ensure that Respondent and its contractors comply with MBE/WBE legal requirements. (Compl. Resp., at 5). Complainant also alludes that he engaged in protected activity by voicing concerns about "nationwide violations of environmental and contracting laws and contract provisions" and when he "rais[ed] concerns to managers and in response to Congressional inquiries . . . [that] go to the heart of governmental integrity in EPA's billions of dollars of environmental spending," but provides no further explanation on either of these points. (Compl. Resp. at 1, 8).

   2. Do the Alleged Wrongdoings Pose a Threat of Environmental Harm?

   Respondent next argues that Complainant has failed to assert that his protected activity included disclosing violations that have the potential to cause environmental harm. (Resp't Br. on Summ. Dec., at 13). Respondent cites to American Nuclear Resources v. Department of Labor, 134 F.3d 1292 (6th Cir. 1998), for the proposition that whistleblower protection does not encompass "every incidental inquiry or superficial suggestion that somehow, in some way, may possibly implicate a safety concern." (Resp't Br. on Summ. Dec., at 12 (quoting Am. Nuclear Res. v. Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998))). Respondent contends that even if EPA has violated the "Six Affirmative Steps" (mentioned above), Complainant has failed to show how the violation(s) could affect Respondent's enforcement or regulation of any environmental statutes or the purpose of such statutes. (Resp't Br. on Summ. Dec., at 13).

   Complainant's only statement as to how environmental health and/or safety is implicated by violations allegedly committed by Respondent is that "Government and corporate whistleblower retaliators threaten public health and welfare and destroy lives and First Amendment values." (Compl. Resp. at 7 (footnote omitted)).

    3. Resistance to Pressure to Approve "False Flag Minority Business Enterprises"

   Respondent argues that Complainant's allegation that he has resisted pressure to approve "questionable false flag Minority Business Enterprises" does not represent a genuine issue of material fact as to whether he engaged in protected activity because the allegation is not credible. (Resp't Br. on Summ. Dec., at 14 (citing Complaint, at 1). Respondent cites to its questioning of Complainant during his deposition about this particular terminology. Complainant appeared unfamiliar and stated that he had not heard of that term. Respondent maintains that this answer calls into question Complainant's sworn testimony earlier in the deposition that he read and signed his complaint and was familiar with its contents. (Resp't Br. on Summ. Dec., at 14 (citing Dep. at 21, 50-53)). According to Respondent, this testimony also conflicts with other statements made by Complainant during his deposition in which he stated that he had "had no problems with whether a business qualifies as an ‘MBE' or ‘WBE' and that he does not look behind their routine representations that they are minority or women owned businesses." (Resp't Br. on Summ. Dec., at 14 (citing Dep. at 66-68)). Respondent asserts that the allegation that Complainant has resisted pressure to approve "questionable false flag Minority Business Enterprises" is therefore not credible and thus cannot be considered protected activity. Even if it was a credible allegation, Respondent argues that Complainant has not shown how this activity implicates an environmental protection statute. (Resp't Br. on Summ. Dec., at 14).

   Complainant did not respond to this portion of Respondent's Motion.

   4. MBE/WBE Program and Regulations

   Respondent asserts that Complainant's allegation that he has raised concerns that the MBE/WBE program is not being conducted in accordance with MBE/WBE regulations does not implicate any violation of environmental protection statutes, even if Complainant's allegation was true. (Resp't Br. on Summ. Dec., at 15). In support of this argument, Respondent maintains that Complainant has improperly and erroneously interpreted the applicable statutes and regulations regarding his authority in approving grantees' bids and committing money to these grantees. (Resp't Br. on Summ. Dec., at 15-17). Respondent highlights two of Complainant's contentions in this respect: Complainant's allegation that bid packages must be approved by him prior to contracts being awarded, and his allegation that grantees are spending money before Respondent officially commits money to the grantees. (Resp't Br. on Summ. Dec., at 15 (citing Complaint, at 3; Dep. at 11)). As to the first complaint, Respondent maintains that Complainant's job is to review grant packages for documentation of compliance with the "Six Affirmative Steps," and that this phase must be completed prior to the release of funds by Respondent; however, Complainant does not participate in the actual approval of grant packages. (Resp't Br. on Summ. Dec., at 15). As to the second complaint, Respondent states that Congress has the authority, which it regularly utilizes, to "officially commit" funds to projects. (Resp't Br. on Summ. Dec., at 15).

   Respondent also addresses Complainant's allegations that he has voiced concerns that the MBE/WBE program is not involved when the EPA's Direct Procurement Section and the Bank Credit card expenditures program determines compliance with the MBE/WBE regulations, and that quarterly reports submitted by grantees are not cross-checked against a master list to determine whether the grantees are complying with regulations. (Resp't Br. on Summ. Dec., at 16-17). Respondent states that the Direct Procurement Section is responsible for determining its compliance with any applicable requirements. Further, Respondent states that there is no link established by Complainant between either of these activities and an environmental protection statute. (Resp't Br. on Summ. Dec., at 17).

    Complainant states in his response that "EPA, Mr. Robbins and Mr. Mills now admit that Mr. Santamaria raised concerns about the Minority Business Enterprise (MBE) and Women-owned Business Enterprise (WBE) program. . . . Mr. Santamaria raised valid protected concerns about EPA not enforcing laws governing EPA environmental contracting work, including failure to verify compliance with MBE/WBE ‘Six Affirmative Steps' duties." (Compl. Resp., at 3). Complainant states that he also raised valid protected concerns about the following: "(1) EPA not enforcing environmental regulations on states, counties, cities and colleges; (2) EPA grantees not complying with environmental regulations before the [sic] start work; (3) EPA grantees spending money before EPA approves it; (4) EPA grantees finishing the projects before they get grants and before plans and specifications are every [sic] approved, making it impossible to verify compliance with the Six Affirmative Steps and other EPA requirements until the job is already done." (Compl. Resp., at 3 (citing Dep. at 7-11; 40-138)).

   Complainant cites to the declaration of Keith Mills (RX-N, ¶¶ 13-15), in which Mr. Mills discusses his request that Complainant attend a meeting with the contract specialists to explain his job. (RX-N, ¶ 11). Mr. Mills stated that Complainant instead asked Jeanette Brown, Director of the EPA's Office of Small and Disadvantaged Businesses Utilization in Washington, D.C., speak with the contract specialists regarding the duties and responsibilities of MBE/WBE Coordinators such as Complainant. (RX-N, ¶ 13). According to Mr. Mills, he believed that Complainant should have been able to adequately explain his duties to the contract specialist, and objected to Ms. Brown attending the meeting. (RX-N, ¶¶ 14-15). Complainant states that his "concerns are protected activity, as the requirements of federal law are incorporated into every EPA contract." (Compl. Resp., at 3).

   5. Objectively Improper Conduct

   Respondent next argues that Complainant has not engaged in any protected activity grounded in conditions that constituted reasonably perceived violations of environmental statutes by Respondent. Respondent asserts that it provided Complainant with several opportunities during his deposition to expound upon which specific environmental protection laws he believed Respondent had violated; however, each time, Complainant responded with broad, sweeping statements such as "entire environmental regulations" instead of specific environmental laws and/or regulations. (Resp't Br. on Summ. Dec., at 18 (citing Dep. at 7-13, 32-35, 131-36)).

   Complainant did not respond to this portion of Respondent's Motion.

   As a matter of law, pursuant to the employee protection provisions of the above-named environmental statutes, Complainant must make a prima facie showing that he engaged in protected activities in order to establish that this office has jurisdiction over his complaint. Examining the record in the light most favorable to Complainant and drawing all inferences in his favor, I find that Complainant has failed to establish that a genuine issue of material fact exists with regard to whether he engaged in any protected activities. Because no genuine issue of material fact has been established, Respondent is entitled to judgment as a matter of law.

   I find persuasive the language in Greene v. Biro, 2002-SWD-1 (ALJ Feb. 10, 2003), in which the Administrative Law Judge discussed a complaint that he found lacked sufficient specificity to establish jurisdiction. Greene v. Biro, 2002-SWD-1, at 6-7 (ALJ Feb. 10, 2003). In that whistleblower case, the ALJ found that the complainant had "not provided specific claims regarding the nature of her protected activity" and had "not articulated any relationship between her alleged protected activity and the purpose of any pertinent environmental statute." Id. at 7. The ALJ noted that the complainant before him did not specify, among other things, the content of disclosures, the person to whom the disclosures were made, and when the disclosures were made. Id. Therefore, the ALJ dismissed the case for failure to allege subject matter jurisdiction. Id. at 6. In reaching this finding, the ALJ discussed two Merit Systems Protection Board ("MSPB") cases, which addressed the issue of specificity of whistleblower complaints. The MSPB found that "[t]o be entitled to protection, disclosures must be specific and detailed, not vague allegations of wrongdoing regarding broad imprecise matter." Id. at 7 (citing Keefer v. Dep't of Agric., 82 M.S.P.R. 687, 692 (1999); Becker v. Dep't of Veterans Affairs, 76 M.S.P.R. 292, 297 (1997)).

   As the ALJ in Greene stated, no Department of Labor whistleblower case had as of then discussed the degree of specificity needed to establish jurisdiction; however, I find that the same principles of specificity discussed in Greene should apply in the instant matter, because without such, Complainant cannot establish that he has engaged in protected activity such that this office has jurisdiction over the instant matter. Complainant has been provided with opportunities to expand upon the broad, unspecific alleged protected activities alluded to in his complaint. He was deposed on January 8, 2004, and was repeatedly asked by counsel for Respondent as to what specific complaints he had made, to whom he made the complaints, when the complaints were made, and on what specific environmental statutes he based his complaints. (Dep. at 31-35, 47-50, 126). Each time, Complainant answered either with a broad, sweeping answer that he "routinely" made complaints to his supervisor, or by referring to the "Six Affirmative Steps," or by simply avoiding the question as posed to him.

   Protected activity must relate to a safety and/or health concern resulting from the reasonably perceived violation of an environmental statute. Kesterson v. Y-12 Nuclear Weapons Plant, 1995-CAA-12, at 3 (ARB Apr. 8, 1997). Complainant never articulated a specific safety or health concern that had or would potentially result from Respondent's alleged violations. The only specific regulations that Complainant ever referred to was a general citation to 40 C.F.R. Parts 30, 31, and 35. (Dep. at 32, 49). These regulations refer to the administrative requirements for grants to higher education institutions, hospitals, and other non-profit organizations (Part 30); the administrative requirements for grants to state and local governments (Part 31); and assistance provided to state and local agencies (Part 35). These regulations do not encompass any safety and/or health matters. Complainant need not cite a specific statute or regulation to establish a violation thereof. Williams v. Mason & Hanger Corp., 1997-ERA-14, at 16 (ARB Nov. 13, 2002) (citing Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1507 (10th Cir. 1985), aff'g sub nom. Wells v. Kansas Gas & Elec. Co., 1983-ERA-12 (Sec'y June 14, 1984)). However, Complainant does need, in this stage of the proceedings, to show that a genuine issue of material fact exists as to his protected activity, which must be related to a safety and/or health concern resulting from the reasonably perceived violation of an environmental statute.

   There is also merit in Respondent's argument that Complainant did not state a credible allegation when he alleged that he engaged in protected activity when he resisted pressure to approve "false flag Minority Business Enterprises." Complainant was clearly unfamiliar with the term when Respondent's counsel questioned him about it. (Dep. at 51-53). Complainant's unfamiliarity with that terminology is clearly in contradiction to his testimony that he read and wrote his complaint. (Dep. at 21). Complainant also testified that he had had no problems with whether a business qualifies for MBE or WBE status also speaks against the credibility of this allegation. Because this allegation is not credible, I find that it does not establish a genuine issue of material fact.

   With regard to Complainant's allegation that he has raised concerns that the MBE/WBE program is not being conducted in accordance with MBE/WBE regulations, Complainant has not shown that a genuine issue of material fact exists as to whether his complaints on this subject constitute a protected activity. Even taking this issue in the light most favorable to him, Complainant's constant references to Respondent allegedly violating these regulations without any further explanation as to how these alleged violations relate to a safety and/or health concern are again insufficient to show that a genuine issue of material fact exists with regard to protected activity.

   Further, Complainant mischaracterizes his own deposition testimony when referring to it in his response to Respondent's motion. Complainant stated in his response that he had voiced concerns about "EPA is not enforcing environmental regulations on states, counties, cities and colleges." (Compl. Resp., at 3 (citing Dep. at 7-11). However, Complainant's actual statement during his deposition regarding the concerns he had voiced was "The Environmental Protection Agency is failing to enforce on the state, on the county, on the city, on the towns, on colleges and universities, on nonprofit organization is failing to enforce the MBE/WBE rules, regulations, and guidelines. But really, the point is that is environmental law, and that's what the EPA is supposed to be enforcing and is not making sure that those grantees and contractors comply with that law." (Dep. at 8 (emphasis added)). Complainant's other statement in his response that he had voiced concerns regarding "EPA grantees not complying with environmental regulations before the [sic] state work" is similarly mischaracterized because in the context of the deposition, Complainant consistently referred to alleged violations of the MBE/WBE regulations, and not to alleged violations of environmental regulations that would implicate a safety and/or health concern.

   While it is true that Respondent is charged with carrying out the regulations alluded to by Complainant, it is also true that, for a complaint to fall within the jurisdiction of this office, Complainant must show that the enforcement or purpose of an environmental statute or regulation designed to protect health and safety has potentially been affected by Respondent's violation. Simply being an employee of the Environmental Protection Agency does not mean that any complaint that Complainant may have against the EPA qualifies as protected activity. As stated by the Administrative Review Board in Kesterson v. Y-12 Nuclear Weapons Plant, 1995-CAA-12 (ARB Apr. 8, 1997), an employee's subjective belief that the environment might be affected is not enough to afford an employee whistleblower protection. Kesterson v. Y-12 Nuclear Weapons Plant, 1995-CAA-12, at 3 (ARB Apr. 8, 1997).

   Complainant could have explained in more detail his alleged protected activities in his response to Respondent's motion for summary decision, but again did not provide any additional information that might show that he engaged in protected activity other than to provide a non-responsive argument. The allegations of protected activity as they stand, without further specificity, and without further evidence as to their connection to any health or safety concern stemming from the alleged violation of any of the environmental statutes that Complainant names are insufficient to afford Complainant any whistleblower protection. Therefore, Complainant has not shown a genuine issue of material fact with regard to alleged protected activity.

   Complainant's actions in complaining to his supervisors and others that the EPA was failing to enforce the MBE/WBE rules, regulations, and guidelines may constitute the basis for a complaint under the jurisdiction of the Equal Employment Opportunity Commission. However, the MBE/WBE rules, regulations, and guidelines are not a part of the "environmental whistleblower statutes" under the jurisdiction of the U.S. Department of Labor. Complainant's activity would have been exactly the same if he were employed by an agency which has nothing to do with environmental protection, such as the Federal Reserve System. The fact that Complainant is an employee of the EPA does not automatically mean that because he complained about enforcement of the MBE/WBE rules, regulations, and guidelines, and because the EPA is charged with enforcement of environmental laws, that he has complained about enforcement of environmental laws. The complaint in this case simply does not allege that he engaged in any activity protected by the statutes under the jurisdiction of the U.S. Department of Labor.

    Accordingly, the following recommended order will issue:

1. The motion of Respondent, U.S. Environmental Protection Agency, for summary decision is hereby GRANTED;

2. The complaint of Rafael Santamaria alleging violations of "environmental whistleblower laws" by Respondent is DENIED; and

3. Mr. Santamaria's motions for summary decision and to compel discovery are both DENIED.

      RICHARD E. HUDDLESTON
      Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.