On December 9, 1992, shortly after referral of thin matter, complainant filed a Motion Regarding Witness Interviews and Access to Workplace, together with Complainant's First Interrogatories and Associated First Request for Production of Documents. The motion seeks an order requiring employer to "make available a conference room at the [Department of Energy (DOE) Albuquerque Operations] office and at Los Alamos National Laboratory for [c]omplainant's counsel to conduct interviews of non-management employees before and after employees' regular working hours." (Mot., p. 1) The Interrogatories and Request for Production, comprising 41 pages and 64 questions with subparts, seeks information and documents about certain of respondent's policies, procedures, and actions regarding complainant's employment and her ''expressed concerns . . . as part of a proposed Work For Others . . . program in fall, 1991." (Interrog., p. 14)

   On January 22, 1993 respondent filed a Notion to Dismiss or in the Alternative for Summary Judgment, with supporting Memorandum (Memo.). Based on two grounds, it asserts that the complaint should be dismissed as untimely because it was not filed within thirty days of the alleged violation of the Act as required by 29 C.F.R. § 24.3, and that it was invalid since it was not in compliance with § 24.4, requiring notice to the respondent, notice of the Administrator's decision supported by findings and conclusions, and filing of the notice and a copy of the complaint with the Chief Administrative Law Judge upon appeal. It is claimed that summary judgment should be granted for respondent as a matter of law because complainant has not under § 24.2(b)(1) "commenced or caused to be commenced" any proceeding constituting "protected activity" under the applicable statute and regulations.

   Respondent therefore claims complainant is not entitled to any discovery or a hearing.

   On February 3, 1993, complainant filed her Opposition to Respondents Notion to Dismiss or for Summary Judgment (Opp.), and in addition submitted her Motion to Compel Proper Answers to Discovery Requests. Shortly thereafter, on February 9, 1993, complainant filed a motion for continuance of the hearing scheduled for February 18, 1993, in order to enable counsel to conduct discovery and prepare her case, and on February 5, 1993 the hearing was canceled by order.

   In its memorandum in support of the motion to dismiss, respondent states its first notification that complainant had filed a complaint was upon its receipt on or about November 6, 1992 of a copy of a decision issued by the District Director,

dated October 30, 1992. (Memo., Exh. 1)

   In its memorandum, respondent also attaches the affidavit of Rush Inlow, Assistant Manager for Safeguards and Security for the DOE, Albuquerque Field Office, to whom complainant's supervisor reported. Mr. Inlow states he was unaware of any complaint of complainant prior to the week of November 9, 1992 when an attorney in that office advised him of complainant's allegations. (Memo., Exh. 3)

   The decision of the District Director on October 30, 1992, in the form of a letter acknowledging receipt of complainant's complaint and advising her of a right to a hearing, stated in substantive part the following:

Your complaint has been screened. Your information submitted to this office alleging violations, as well as other information obtained by Wage & Hour Investigator . . . in his contact with you, has been reviewed. This letter is to advise you that our findings indicate that you were not found to be engaged in a "protected activity" as defined under the Act. Therefore, it is our position that this is not a valid complaint.

(ALJ Exh. 1)

It further stated:

Unless a telegram is received by the Chief Administrative Law Judge within the five-day period, this notice of determination will become the final order of the Secretary of Labor dismissing your complaint. By copy of this letter, the U.S. Department of Energy, Albuquerque Field Office, is being advised of the determination in this case and the right to a hearing.

(Emphasis added.)

   In the letter to the Administrator, dated September 23, 1992 and received October 15, 1992, complainant stated the following in substantial part, as her complaint:

   Pursuant to the Toxic Substances Control Act (TSCA), Superfund (CERCLA), RCRA, and the Surface Transportation Act, I hereby file this complaint alleging unlawful and retaliation [sic] against me for my protected activity.

   . . . I am a Physical Scientist employed by the . . . [DOE], Albuquerque Field Office (AL) . . . .

   One of my duties at AL was to approve work that agencies in the Intelligence Community (IC) wish to have Los Alamos National Laboratory (LANL) and Sandia National Laboratory (SNL) perform. Both laboratories are government owned contractor operated facilities of DOE. This work is referred to as work for others (WFO). . . .

   In approximately mid-1991, I was asked to approve a project from an IC agency that would have required LANL to use a highly toxic chemical that was entirely inappropriate for LANL to work with and for which I had every reason to believe LANL was not equipped to handle safely. Furthermore, the SOW [statement of work] specified that a LANL employee could obtain the chemical in the Washington, D.C. area and carry it to Los Alamos, New Mexico. I had reason to believe that Department of Transportation regulations could be violated. I refused to approve the project and required the SOW to be changed so that the work would be in compliance with all laws and regulations.

   As a direct result of my protected activity, I believe I was retaliated against in various ways, including:

(1) On September 27, 1991, a reorganization was announced in which the AL intelligence staff was disbanded in such manner so as to stunt my career growth. . . . I had asked to be appointed the [AL staff] director after the [incumbent] director left.

(2) Effective October 7, 1991, I was reassigned to the Kirtland Area Office (KAO), which has purview over SNL, and I was stripped of all my LANL projects . . . [and] I am in danger of being downgraded.

(3) In 1991 I underwent what should have been a routine reinvestigation for my security clearance. On November 15, 1991, I was . . . interview[ed] . . . [and learned] that allegations were made during the background check that I am a threat to national security. I was not given sufficient information during the interview that would enable me to successfully counter the allegations. As a result, my clearance was suspended on May 12, 1992. I have been reassigned from intelligence to an unclassified program where my duties are largely clerical. . . .

   All of the above actions were as a direct result of my protected activity. The retaliation continues to the present time. . . .

(ALJ Exh. 1; Memo. Exh. 2) (Emphasis added.)

The Motion to Dismiss

   Respondent asserts in the motion to dismiss that "[c]omplainant has failed to state a claim or to provide evidence, that she has timely filed an allegation of reprisal or engaged in a protected activity [as] identified in . . . 29 CFR Part 24." (Mot., p. 1)

   (1) Timeliness

Under § 24.3, the following is provided, in relevant part:

(a) Who may file. An employee who believes that he or she has been discriminated against by an employer in violation of any of the statutes listed in § 24.1(a) may file . . . a complaint alleging such discrimination.

(b) Time of filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation. . . .

(3) Form of complaint. No 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.

(Emphasis added.)

   By her own statement in her complaint, complainant makes it undeniably clear that her disapproval of a proposed project was in her view the "protected activity under the whistleblower provisions:

I refused to approve the project . . . . As a direct result of my protected activity, I believe I was retaliated against in various ways, including . . . 1 events occurrring between September 27, 1991 [staff reorganization] and May 12, 1992 [suspension of security clearance].

§ 24.4 Investigations

   (a) Upon receipt of a complaint under this part the Administrator shall notify the person named in the complaint, and the appropriate office of the Federal agency charged with the administration of the affected program of its filing.

   (b) The Administrator shall, on a priority basis, investigate and gather data concerning such case

. . . .

   (d)(l) Within 30 days of the receipt of a complaint, the Administrator shall complete the investigation, determine whether the alleged violation has occurred, and give notice of the determination which shall contain a statement of reasons for the findings and conclusions therein. Notice of the determination shall be given by certified mail to the complainant, the respondent, and to their representatives. At the same time the Administrator shall file with the Chief Administrative Law Judge, U.S. Department of Labor, the original complaint and a copy of the notice of determination.

(Emphasis added.)

   There is no record indication that the Administrator, upon receipt of the complaint, ever notified respondent, as "the Federal agency charged with the administration of the affected program," of the filing of the complaint. (§ 24.4(a)) The complaint was filed October 15, 1992; the first agency awareness of the complaint was apparently in the first week of November when the District Director's notice of determination was received. (See Memo., Exh. 3, Affidavit of R. Inlow)

   It is clear that complainant's complaint was "screened" and information obtained by a Wage and Hour investigator who contacted her. It is also clear that the Administrator in rendering her findings intended them to represent her "notice of determination" as contemplated by § 24.4(d)(1). This notice contained, in compliance with this provision, "a statement of reasons for the findings and conclusions therein," which statement was as sufficient as the merits of the complaint were deemed to warrant: "You were not found to be engaged in a 'protected activity' as defined under the Act." A fairly immediate determination of a clearly baseless complaint may be the only apparent explanation for an absence of an earlier notice to respondent of the complaint's filing.

   Moreover, notice of the determination was given to complainant and respondent - by certified mail, as required. (ALJ Exh. 1) Furthermore, the original complaint was forwarded with the notice of determination to the Chief Administrative Law Judge and a copy of it was apparently-attached to the notice of determination sent to respondent, which it has identified as its Exhibit 2 attached to the Memorandum supporting the instant Motion. Accordingly, "jurisdiction," as the power to grant a hearing or adjudicate this matter as the circumstances might warrant, was properly conferred.

   (3) Entitlement to a hearing and Coverage by the Whistleblower Provisions

   Respondent argues that "[u]nless and until Ms. Flor provides information to demonstrate that she is covered by the provisions of 29 CFR Part 24, there is no basis to conduct a hearing." (Memo., p. 3) This aspect of what is deemed to be a motion to dismiss for failure to state a claim upon which relief can be granted attacks the substance of the complaint and has merit. See Rule 12(b)(6), F.R.Civ.P. Such a motion, like respondent's alternative motion for summary judgment, accepts material allegations for the purpose of the pleading, but questions their legal sufficiency. See Walker Process Equip. v. Food Mach. Chem. Corp., 382 U.S. 172, 86 S.Ct. 347 (1965). The motion should not be granted unless it appears to a certainty that a plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim, and like the summary judgment motion, invites adjudication on the merits.

Section 24.2(a) provides, as relevant here:

[T]hat no employer . . . may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee . . . engaged in any of the activities specified in paragraph (b) of this section.

Section 24.2(b) defines the protected activities:

Any person is deemed to have violated the federal law and these regulations if such person intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee who has:

   (1) Commenced, or caused to be commenced . . . a proceeding under one of the Federal statutes listed in § 24.1 . . . [which includes the instant Act];

   (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.

   Complainant would only contend that she "commenced . . . a proceeding" by the filing of her complaint with the U.S. Department of Labor on October 15, 1992. Respondent contends that prior to filing her complaint complainant did not engage in any commencing of a proceeding and therefore could not have engaged in any "protected activity." This is correct.

   Under the only conceivable set of facts by which this claim could be advanced, complainant has by her own admission shown that her only activity that triggered "retaliation" was her singular disapproval of a project requiring what she regarded as the inappropriate handling of a toxic chemical. Mere employee disapproval of a proposed project in the course of one's routine duties is not tantamount to making - let alone filing - a complaint, or "commen[cing] . . . a proceeding" -however liberal the interpretation.

   If complainant did not actually engage in "protected activity" - that is, file a complaint or commence a proceeding the employer could not have discriminated against her because of it. The whistleblower provision which complainant invokes cannot therefore be a valid basis for relief.

   Accordingly, respondent's motion to dismiss should be granted for two reasons: (1) the complaint is untimely and (2) it fails to state a claim upon which relief can be granted.

The Alternative Motion for Summary Judgment

   (1) Applicable Principles

   Since the motion to dismiss and the alternative motion for summary judgment both question the legal sufficiency of the complaint, as complainant acknowledges (Opp., p. 23), the alternative motion should be decided here. See §§ 18.1, 18.40, 18.41.

   Under § 18.41 "[w]here no genuine issue of a material fact is found to have been raised," summary decision is considered appropriate. With no genuine issue as to any material fact, judgment can and should be rendered as a matter of law. Rule 56,

Rule 56(e), F.R.Civ.P., provides, in part:

When a motion for summary Judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him

(Emphasis added.)

   The question does not become easier or the resolution fairer by postponing disposition until after much discovery and a rescheduled hearing when the present record offers a more than adequate, uncontroverted, factual basis for judgment.

   (2) The Adequate, Uncontroverted Factual Basis

   No genuine issue of material fact can be found to have been raised here under the provisions of the statute and regulations upon which complainant relies.

   The federal Act offers protection to employees from discharge or discrimination in matters affecting their employment because the individual engaged in protected activity.

   As stated in regard to the motion to dismiss in the preceding section, complainant has not shown that she has engaged in any protected activity.

   Viewing the allegations favorably for the complainant, there is no genuine issue of any material fact, for complainant's allegations as to what she did, and what the employer allegedly did in retaliation still would not make a case under the Act, because there is simply no protected activity, to begin with, on her part.

   In clear concession that she did not file any complaint with a government agency prior to any alleged retaliation, or "commence a proceeding,' complainant states in her opposition to respondent's motion:

The Secretary of Labor has followed the majority rule established by . . . [three federal circuit courts] by recognizing [whistleblower] protection for purely internal reporting [footnote omitted], which is what partly what Ms. Flor engaged in through her communications within Respondents and the CIA.

(Opp., pp. 8-9)

   The foundation of complainant's case, however, is ultimately revealed:

In addition, the District of Columbia and Sixth Circuits have recognized the protection for internal concerns. [Citations omitted.]

(Opp., p. 9)

If complainant's case is really about "purely internal reporting' and "internal concerns," matters about which she might be expected to possess knowledge - without the necessity for the comprehensive discovery she has sought from respondents barely weeks after filing her appeal - they remain yet unspecified.

What is most telling in complainant's opposition is the absolute absence of any factual counter to the affidavit of Rush Inlow which supports respondent's summary judgment motion.

In his affidavit, Mr. Inlow, to whom complainant's mmediate supervisor reported to the fall of 1991, states:

[There was never an instance, to my knowledge, that a WFO acceptance was made for an Intelligence Community WFO proposal without Marlene Flor's recommendation. .

During this time period, I am not aware of any instance where Ms. Flor raised an objection about an acceptance of a WFO project, either internally or externally.

During the relevant time period, I had regular meetings with . . . [complainant's immediate supervisor]. At no time do I recall him raising an issue with me concerning Ms. Flor's objection to acceptance of any project.

I have reviewed the provisions of 29 CFR Part 24 and am unaware of any charge against DOE/AL for violation of any of the referenced statutes through procedures identified in section 24.2(b) 1, 2 or 3 by Ms. Flor or any other individual. Neither Ms. Flor, nor anyone else has advised me that they were about to commence such a proceeding.

(Memo., Exh. 3) (Emphasis added.)

   Confronted with this affidavit based on personal knowledge, it was incumbent on complainant to controvert in similar fashion these damaging assertions and show some genuine issue of material fact. Bloomgarden v. Coyer, supra. Section 18.40(c) and Rule 56(e), F.R.Civ.P., demand that both supporting and opposing affidavits be based on personal knowledge. Complainant has failed to refute or discredit the substance of Mr. Inlow's affidavit in any way. Rather, complainant offers legal argument for: (1) liberally construing the whistleblower statute, (2) recognizing what her complaint has apparently now evolved into "internal whistleblowing," (3) invoking the continuing violations doctrine," (4) granting a hearing, and (5) compelling the discovery she has requested. (Opp., pp. 5-30)

   Only two of these matters will be addressed briefly here.

   As to the "continuing violations" doctrine, it is unavailable when complainant has not made any sufficient showing of the initial violation, that is, employer discriminatory retaliation because of engagement in protected activity. As stated earlier, complainant refers to only one vague, postcomplaint incident - another employee's alleged hearing of a former supervisor's reportedly denigrating remarks about complainant - and this deficiency is exceeded only by an assumption of employer's failure to have been more overtly discriminatory:

   Here, because Respondents did not fire or officially demote Ma. Flor and never told employees of the existence of environmental whistleblower statutes the retaliation against Ha. Flor was far more subtle, took longer to perceive as discriminatory retaliation, and this is exactly the type of situation which the continuing violation doctrine is intended to address.

(Opp., p. 19) (Emphasis added.)

   As to compelling discovery, Rule 56(f), F.R.Civ.P., would warrant the exercise of a liberal spirit in granting sufficient time for the parties reasonably to develop the full facts upon the issues presented. Here, however, there is no genuine issue.

   The present facts upon which the necessity of discovery should be considered and a hearing accorded are quite simple. Without any discovery, this complainant should know whether she filed a complaint, testified in a proceeding, made an "external or internal" complaint, or - for that matter - expressed any "external or internal" concerns - and to whom, when. Her vast discovery undertaking should not be necessary for knowledge she obviously should possess herself. In this lies a most fatal deficiency in her cause after respondent sought summary judgment, and such judgment is appropriate.

   When summary judgment is appropriate, it "shall be rendered forthwith." Rule 56(c), F.R.Civ.P. It would be unfair under these circumstances to subject the parties to further litigation, including extensive discovery in preparation for an unnecessary and no doubt equally extensive - hearing only to render more difficult and costly a result that is required now.

   Indeed, from complainant's own, initial assertions in her complaint, it is clear, as the District Director determined, that this cause is not at all about whistleblowing.

   Summary judgment should be rendered for respondent.

Conclusion

   Respondent's motion to dismiss or in the alternative for summary judgment should be granted.

   It is recommended that the complaint be Ordered dismissed for untimeliness and for failure to state a claim upon which relief can be granted. In the alternative, summary judgment should be Ordered granted for respondent.

      JULIUS A. JOHNSON
      Administrative Law Judge

Washington, D.C.