Saporito v. USDOL, ARB No. 03-063, ALJ No. 2003-CAA-9 (ARB Mar. 31, 2004)

U.S. Department of Labor

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

ARB CASE NO. 03-063
ALJ CASE NO. 2003-CAA-9
DATE: March 31, 2004

In the Matter of:

THOMAS SAPORITO,
COMPLAINANT,

v.

UNITED STATES DEPARTMENT
OF LABOR,
RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
Thomas Saporito, pro se, Jupiter, Florida

For the Respondent:
Steven J. Mandel, Assoc. Solicitor; Paul L. Frieden, Counsel for Appellate Litigation; Lynn S. McIntosh, Attorney, United States Department of Labor, Washington, D.C.

   Thomas Saporito contends that the Occupational Safety and Health Administration (OSHA), an agency of the Labor Department, violated the whistleblower protection provisions of the Clean Air Act, 42 U.S.C.A. § 7622 (West 2004), the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.A. § 9610 (West 2004), the Safe Drinking Water Act, 42 U.S.C.A. § 300j-9 (West 2004), the Solid Waste Disposal Act, 42 U.S.C.A. § 6971 (West 2004), the Toxic Substances Control Act, 15 U.S.C.A. § 2622 (West 2004), and the Federal Water Pollution Control Act, 33 U.S.C.A. § 1367 (West 2004). These provisions ("the environmental whistleblower provisions") prohibit employers from discriminating and retaliating against employees for reporting occupational or health safety problems.

   Saporito had filed a separate whistleblower complaint against Adecco Technical and GE Medical Services. In this matter, he contends that OSHA discriminated against him in the Adecco/GM case because it did not complete its mandated investigation within 30 days and did not properly investigate his complaint.

   A Department of Labor Administrative Law Judge (ALJ) dismissed this complaint because OSHA was not Saporito's employer and therefore she lacked jurisdiction to consider the complaint. "There must . . . be an employer-employee relationship between an alleged whistleblower and the Federal agency in question before the protections of the whistleblower [provisions] extend to the alleged whistleblower." Recommended Decision Dismissing Complaint at 2-3. Saporito timely petitioned for review of the ALJ's Recommended Decision and Order.

   Saporito failed to establish that OSHA was his employer. Furthermore, while we disagree with the ALJ's conclusion that she lacked jurisdiction¹ this Board's recent decisions fully support the ALJ's decision that OSHA is not covered employer. See Lewis v. Synargo Technologies, ARB Nos. 02-72, 02-116, ALJ Nos. 02-CAA-12, 02-CAA-14, 02-CAA-17 (ARB Feb. 27, 2004) (dismissing complaint because complainant failed to establish an employment relationship with the respondent employer); Anderson v. Metro Wastewater Reclamation Dist., ARB No. 01-103, ALJ No. 97-SDW-7 (ARB May 29, 2003) (noting that SWDA, SDWA, CERCLA, FWPCA, TSCA and ERA, require complaining employee to have an employment relationship with respondent employer); Bath v. United States Nuclear Regulatory Comm'n, ARB No. 02-041, ALJ No. 2001-41 (ARB Sep. 29, 2003) (statutory references to "employees," "employers," and "persons" in the Energy Reorganization Act whistleblower protection provision similar to those in the environmental whistleblower provision require an employment relationship between a complainant and the respondent employer).

   Accordingly, we agree with the ALJ's findings and conclusions and DISMISS the complaint.

   SO ORDERED.

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge

      OLIVER M. TRANSUE
      Administrative Appeals Judge

¹ Sasse v. United States Dep't of Justice, ARB No. 99-053, ALJ No. 98-CAA-7, slip op. at 3-4 (ARB Aug. 31, 2000).