Backen v. Nuclear Management Co., LLC, 2001-ERA-25 (ALJ Sept. 18, 2001)

U.S. Department of Labor

Office of Administrative Law Judges 525 Vine Street, Suite 900 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue date: 18Sep2001

Case No. 2001-ERA-00025

In the Matter of

ROGER J. BACKEN,
    Complainant,

    v.

NUCLEAR MANAGEMENT COMPANY, LLC,
    Employer.

   The above-styled matter is currently pending before the undersigned. A hearing is presently scheduled in this matter for October 23, 2001, in Green Bay, Wisconsin.

   By motion dated August 28, 2001, the Employer, Nuclear Management Company, LLC, seeks an order remanding this case to OSHA for investigation of allegations made by the Complainant in his amended complaint. In a response dated September 6, 2001, the Complainant, through counsel, objects to the Employer's motion to remand.

   The original claim in issue was filed by the Complainant on March 12, 2001. In his complaint, he alleges the Employer acted in violation of the employee protection provisions of the Energy Reorganization Act (hereinafter "ERA" or "the Act") by not awarding him a performance-based bonus and a higher salary after he engaged in protected activity. After OSHA investigators issued a notice of determination on May 8, 2001, finding that the Complainant's allegations could not be sustained, the Complainant appealed and the matter was assigned to the Office of Administrative Law Judges. A hearing was scheduled before the undersigned on October 23, 2001. On August 20, 2001, the Complainant filed an amended complaint with my office seeking damages for wrongful termination after he was discharged by the Employer on August 7, 2001. In the amended complaint, the Complainant avers he was improperly terminated for filing an ERA whistleblower claim in violation of the Act.

   As grounds for its motion, the Employer argues that the ERA, 42 U.S.C. §5851, requires OSHA to investigate every complaint under the ERA before such a claim may be adjudicated by an administrative law judge. Since there has been no OSHA investigation of the August 20, 2001, claim, the Employer states I lack jurisdiction to adjudicate this claim on the merits. Furthermore, the Employer avers that bypassing an OSHA investigation would undermine fundamental policy objectives underlying the ERA's procedural scheme. In a response filed September 6, 2001, the Complainant, through counsel, asks that the Employer's motion to remand be denied.

   I begin by noting that the Act, the regulations, and the case law do not directly address the issue presented by the Employer's motion. No provision or precedent requires or prohibits remand to OSHA when a Complainant files an amended complaint alleging further discrimination by an Employer. Section 211 of the ERA states that "upon receipt of a complaint. . . the Secretary shall conduct an investigation of the violation alleged in the complaint." 42 U.S.C. §5851(b)(2)(A). 29 C.F.R. §24.4(b) requires that the Assistant Secretary of OSHA, the individual entrusted with enforcement of the Act, to, upon receipt of a complaint, "investigate and gather data concerning such [a] case" on a "priority basis." Either party may appeal the final decision of the Assistant Secretary and such an appeal is adjudicated de novo by the Office of Administrative Law Judges. 29 C.F.R. §24.6.

   No provision of the Act or the regulations specifically address amended complaints. However, Title 29 of the Code of Federal Regulations sets forth Rules of Practice and Procedure that are generally applicable in administrative hearings before the Office of Administrative Law Judges setting forth the procedure for supplemental complaints. See 29 C.F.R. Part 18. 29 C.F.R. §18.5(e) permits parties to amend their initial complaint "once as a matter of right prior to the answer, and thereafter if the administrative law judge determines that the amendment is reasonably within the scope of the original complaint." As is noted by the Employer in brief, no formal answer need be filed by the respondent in ERA cases. See English v. General Electric, 85-ERA-2 (Sec'y Feb. 13, 1992); see also Young v. CBI Services, Inc., 88-ERA-19, (ALJ Apr. 6, 1993). However, in this case, I find that amended complaint is within the scope of the original complaint, as both relate to alleged retaliatory conduct by the Employer against the Complainant, and the amended complaint has therefore been properly filed before me.

   The Employer cites two cases for the proposition that pursuant to Administrative Review Board (hereinafter "the ARB") precedent, the instant case must be remanded to OSHA for investigation of the supplemental claim. In Duncan v. Sacramento Metro Air Quality Mgmt. Dist., ARB NO. 99-011, ALJ No. 97-CAA-12 (ARB June 13, 2000), the ARB denied the Complainant's motion to accept new evidence into the record regarding a supplemental complaint he had filed. In Fabricius v. Town of Braintree/Park Dept., ARB No. 97-111, ALJ No. 97-CAA-14 (ARB Feb. 9, 1999), the ARB upheld the decision of the administrative law judge who had previously refused to reopen the record and accept evidence regarding an allegation of continuing harassment.

   I find that the only similarity which exists between the instant case and Duncan and Fabricius is the mere fact that in all three cases a supplemental complaint of continuing harassment was filed by the complainant. In both Duncan and Fabricius this supplemental complaint was filed post-hearing, after the record in both cases had been closed. In the present case, the evidentiary record is still open. Furthermore, in Duncan, the supplemental complaint was filed after the Administrative Law Judge had issued a recommended decision and order. 29 C.F.R. §24.8(a) permits the ARB to review only those issues presented by the recommended decision and orders of Administrative Law Judges. Therefore, as the ARB noted in Duncan, the supplemental complaint was not properly before the ARB for review and remand was required. See Duncan, ARB NO. 97-011, at 3. Reviewing these two cases, I find that neither requires I remand this case for further investigation. To the contrary, I find both stand for the proposition that an Administrative Law Judge has authority to exercise control over his or her docket. In the instant case, I find it will be more expeditious and in the interest of judicial economy to handle the supplemental allegations in the same proceeding.

   I also do not find compelling the Employer's argument that failing to remand this case to OSHA for an additional investigation would undermine fundamental policy objectives of the Act. While the Employer argues that an OSHA investigator facilitates the goals of achieving settlements, weeding out frivolous complaints, and collecting objective evidence, nothing exists at the hearing level which deters those objectives. In fact, procedures exist at the Office of Administrative Law Judges level which encourages those various purposes. The statute and regulations also promote the goals of judicial economy, efficiency, cost and practicality, all of which I find will be best served by not remanding this proceeding.

   THEREFORE, IT IS HEREBY ORDERED that the Employer's motion to remand this case to OSHA for an additional investigation of the supplemental complaint is DENIED.

       DANIEL J. ROKETENETZ
       Administrative Law Judge