Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
Issue Date: 18 December 2002 Case No.: 2002-ERA-24
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In the matter of
JERRY CUNNINGHAM,
Complainant
v.
TAMPA ELECTRIC COMPANY, INC.,
Respondent
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RECOMMENDED DECISION AND ORDER GRANTING RESPONDENT'S
MOTION FOR SUMMARY DECISION
This claim arises from the whistleblower protection provisions under the Energy Reorganization Act ("ERA"), 42 U.S.C. § 5851, the Clean Air Act ("CAA"), 42 U.S.C. § 5851, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9610, Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. §1367, the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300j-9, the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. 6971, and the Toxic Substance Control Act ("TSCA"), 15 U.S.C. 2622. These statutes and implementing regulations at 29 CFR Part 24 protect employees from discrimination in retaliation for engaging in protected activity such as reporting health, safety or environmental violations. In this claim, Jerry Cunningham alleges that he was terminated from his position as a Watch Engineer for the Tampa Electric Company ("TECO") as a result of reporting environmental violations to the United States Environmental Protection Agency ("EPA") and the Hillsborough County Environmental Protection Commission ("Hillsborough County EPC"). TECO denies retaliating against Cunningham and contends that he was terminated because he committed a security procedure violation when he entered the plant grounds, and provided false information during the subsequent internal investigation.
STATEMENT OF THE CASE
On May 4, 2001, Cunningham filed a complaint with the Occupational Safety and Health Administration of the Department of Labor ("OSHA"). He alleged he had been terminated on April 6, 2001, in retaliation for reporting industrial discharges into waters of Tampa Bay, in violation of the whistleblower protections contained in FWPCA, SDWA, TSCA, SWDA, CAA, ERA and CERCLA. The complaint recites the sequence of events leading to his discharge, with supporting documentation attached. 1[Page 2]
1The file contains only two pages of the original complaint. A May 11, 2001, facsimile transmission from one OSHA office to another contains the only complete copy of the complaint and its attachments. In this recommended decision, page references to the complaint and attachments refer to the numbers recorded by the facsimile machine at the top of each page on May 11, 2001. For example, the facsimile cover sheet is P.01/35.
2Except for the request for a site visit, the discovery motions filed by Cunningham on September 20, 2002, and as later amended, do not relate to discovery addressed to Respondent. Rather, Cunningham seeks to compel OSHA to produce documents from its investigative file. The documents in question were withheld by OSHA pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. I do not have jurisdiction over FOIA issues. Denial of a FOIA request by a component of the Department of Labor may be appealed to the Solicitor of Labor. 29 CFR § 70.22.
3This decision and any others cited to the USDOL/OALJ Reporter are published on the Department of Labor's World Wide Web site at www.oalj.dol.gov.
4In Stone & Webster Engineering Corp. v. Herman, 115 F.3d 1568 (11th Cir. 1997), the Eleventh Circuit suggests that the "sprawling body of general employment discrimination law" does not apply because the ERA
is clear and supplies its own free-standing evidentiary framework. After a complainant has cleared the prima facie gatekeeper test–and assuming she has not been knocked out by a preemptory "clear and convincing" response from the employer–the Secretary is to investigate whether the complainant's behavior actually was "a contributing factor in the unfavorable personnel action." . . . The burden to persuade the Secretary falls upon the complainant, and she must do so by a preponderance of the evidence. . . .If the complainant succeeds, the employer has a second chance to offer "clear and convincing evidence" that it would have done the same thing anyway . . .
115 F.3rd at 1752 (citations omitted). In application, however, the analysis is similar to other employment discrimination cases.
5In his Amended Answers to Interrogatories, Cunningham included the following statement referring to Miller:
The Company's Supervisor Harry Miller said that I was a liability and not an assist. The company did not approve of employees going out side of the company to government agent for help in safety environmental or health matters. The Company has refused to deal with Env and Safety issues including violations and injuries resulting and requiring workers compensation claims, in a timely manner.
Answer to Question #2. That statement is not sufficient to raise a genuine issue whether Miller knew Cunningham was a whistleblower.