1. Purported Acts of Protected Activity

   First, Complainant alleges that she engaged in protected activity within the definition of the environmental statutes because she disclosed an ex parte conversation between Chief Judge Biro and Ms. Marcia Mulkey, an EPA supervisory attorney in EPA's Region III office located in Philadelphia. The facts concerning this incident are set forth in the Complaint and declarations provided by Chief Judge Biro and Marcia Mulkey. Complainant does not dispute the account provided the declarations.

   Judge Biro became the EPA Chief Judge in May 1997. Among her concerns was the large number of over-age cases in the office, many of which had been assigned to Complainant. To dispose of these over-age cases, Judge Biro took several actions, including contacting Ms. Mulkey. High on Chief Judge Biro's list was Babcock v. Wilcox, a case assigned to Complainant, which had been on the EPA OALJ docket for over ten years. Ms. Mulkey was not serving as an attorney in that case. In August of 1997, Complainant told Chief Judge Biro that a settlement agreement in that case had fallen through. The conversation between Chief Judge Biro and Ms. Mulkey consisted of Chief Judge Biro's exhortation to the regional office to either "aggressively pursue settlement or progress to hearing in order to do its part to resolve unduly old cases" and to "take whatever steps [necessary] to close [Babcock v. Wilcox] before the end of the current fiscal year on September 30, 1997." Biro Declaration, p. 3; Memorandum of Telephone Conference with Regional Counsel. There was no discussion of the merits of Babcock v. Wilcox. Prior to making the call, Chief Judge Biro told Complainant that she intended to make it, and after making the call, she informed Complainant that she had made the call. Complainant did not object to the call; she merely requested that Chief Judge Biro write a memo about the conversation. Chief Judge Biro gave Complainant the memo which, for whatever reason, Complainant did not place in the case file. Complaint; Declarations of Chief Judge Biro and Marcia Mulkey.

   Second, Complainant asserts: 1) that she made unspecified disclosures concerning judicial integrity to unspecified parties at unspecified times over a decade ago (Complaint, paragraph 2); and 2) that she made an unspecified, undated disclosure about the EPA Inspector General. As a result, she claims that she was harassed by EPA and EPA IG in the 1980s. The harassment purportedly also took the form of a "pretext call" in May 2001, from someone she believes to be connected in some manner to EPA IG or Chief Judge Biro because "pretext calls" are a modus operandi of the EPA IG. Complaint, paragraph 7. This claim hereafter will be referred to as the "judicial integrity" claim.

   Third, that at an unspecified time in the past, Complainant engaged in an unspecified protected activity by participating in a lawsuit brought by herself and other EPA employees against the commercial landlord of the building in which EPA had its headquarters. She does not provide specifics as to the statute(s) violated by the landlord, her role in the lawsuit, the identity of the individuals at EPA who learned of the lawsuit, and how these unnamed individuals learned of her role in the lawsuit. She claims that EPA was embarrassed by the lawsuit but provides no details as to the form this embarrassment took. Hereafter this claim will be referred to as the "sick building" claim.

2. Purported Acts of Retaliation for Having Engaged in Protected Activity

   Complainant summarizes the retaliation she suffered as follows:

Respondent Judge Biro has abused her de facto and de jure powers as Respondent EPA's Chief Judge and denied Judge Greene meaningful work, law clerks, legal assistants, moving help, reasonable accommodations under ADA, and make [sic] blacklisting communications adversely affecting Judge Greene's career and her ability to dispense justice impartially to parties in environmental cases.

Complaint, paragraph 3.

   The Complaint further states that Respondents created a hostile work environment for Complainant "in retaliation for Complainant's efforts to disclose and correct on the record an ex parte communication by Respondent Judge Biro." Complaint, paragraph 5.

   Complainant also complains of arbitrary taking of her leave, improper adjustment of her work hours, negative evaluations of her law clerk, requests for status on work her clerk was doing, changes in security measures, and failure to keep her informed of meetings and other office matters via office-wide e-mails. Complainant also alleges continuing violations after filing her Complaint. These alleged retaliatory acts include EPA's failure to respond to FOIA requests, destruction of tapes, and eventually, a "constructive discharge," that is, Complainant alleges that her resignation was really a coerced dismissal from her employment at EPA.

3. The Cross-motions

   Complainant requests partial summary decision on the issues of "subject matter jurisdiction, timeliness, temporal nexus, employer-employee, notice and knowledge of protected activity, the inapplicability of sovereign immunity, and the existence of a hostile working environment." Complainant's Partial Motion for Summary Judgment, para. 39, pg 17.

   Respondent EPA requests dismissal or, in the alternative, summary decision on the following grounds: 1) Respondents Biro, EPA OIG, and EPA OALJ are not subject to DOL jurisdiction; 2) Complainant does not qualify as a protected employee under the environmental statutes (with the possible exception of the SWDA) because her allegations of protected activity are not specific enough to qualify; 3) Complainant is not a protected employee under the provisions of the SWDA; 4) Complainant's alleged protected activity does not constitute protected activity under the relevant statutes; 5) subject matter jurisdiction, if it exists, exists only as to Complainant's allegations occurring within 30 days of when she filed her complaint with OSHA (timeliness); 6) Complainant has failed to meet the burden to establish a prima facie case because she has not suffered adverse actions and there is no connection between the retaliation she asserts and her purported protected activity; and 7) EPA has provided legitimate reasons for its actions, and Complainant has not established that such reasons are pretextual.

   I conclude: 1) that Respondents Biro, EPA OALJ and EPA OIG are not proper parties in this case; 2) that the Complaint fails to allege facts sufficient to establish jurisdiction under the environmental statutes, with the possible exception of the SWDA; and, 3) that Complainant's alleged actions do not constitute protected activity under the SWDA. Because these conclusions warrant the dismissal of the Complaint and the denial of Complainant's Motion for Partial Summary Judgment, I have not addressed the other contentions of the parties.

1. Motion to Dismiss

   DOL OALJ's rules of practice do not specifically address motions to dismiss. See 29 C.F.R. Part 18. However, in those situations not specifically controlled by 29 C.F.R. Part 18, DOL's rules refer to the Federal Rules of Civil Procedure ("F.R.C.P.") set forth in Title 28 of the United States Code. Federal Rule of Civil Procedure 12(b) governs motions to dismiss. The types of 12(b) motions include motions to dismiss: 1) for lack of subject matter jurisdiction and 2) for failure to state a claim upon which relief can be granted. Dismissal for subject matter jurisdiction is granted when the pleadings do not set forth facts sufficient for jurisdiction. Granting a motion for failure to state a claim is appropriate if the court determines beyond doubt that the complainant could prove no set of facts entitling it to relief. The material facts alleged in the complaint are taken as true, and all reasonable inferences are made in favor of the non-moving party. Dismissal is granted purely on the legal sufficiency of the complainant's case. See, e.g., High v. Lockheed Martin Energy Systems, Inc., et al, ARB Case No. 98-075, ALJ Case No. 96-CAA-8 (March 13, 2001); Kesterson v. Y-12 Nuclear Weapons Plant, ALJ Case No. 95-CAA-12, Rec. Dec. and Ord., slip op. at 10 (Aug 5, 1996). "In other words, even if the facts alleged are taken as true, no claim has been stated which would entitle the complainant to relief." Kesterson, slip op. at 10.

2. Motion for Summary Decision (Summary Judgment)

   The standards applicable to motions for summary decision in environmental whistleblower cases are set forth in 29 C.F.R. §§ 18.40 and 18.41. A motion for summary decision is governed by standards similar to a motion for summary judgment under F.R.C.P. Rule 56. Granting a motion for summary decision is proper when there is no genuine issue of material fact. 29 C.F.R. § 18.41. The party opposing the motion "may not rest upon the mere allegations or denials of such pleading" but must "set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. § 18.40(c). The court must view the facts, and all reasonable inferences drawn from those facts, in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). However, when a non-moving party's response to the summary judgment motion "consists of nothing more than mere conclusory allegations then the court must enter judgment in the moving party's favor." Peppers v. Coats, 887 F.2d 1493, 1498 (11th Cir. 1989).

   Summary decision is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). While the court will not weigh the evidence, a "mere scintilla" of evidence will not suffice to defeat the motion. Johnson v. Fleet Finance, Inc., 4 F.3d 946, 949 (11th Cir. 1993). The party opposing a motion for summary decision must "set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R.

§ 18.40(c). "To defeat a properly supported motion for summary decision, the non-moving party must present affirmative evidence." Kesterson, slip op. at 9. Only disputes of fact that might affect the outcome of the suit will properly prevent the entry of a summary decision. Anderson, 477 U.S. at 251-52. If the non-moving party fails to sufficiently establish the existence of an element essential to that party's case and on which that party bears the burden of proof, there is no issue of material fact.

3. Standards of Proof under the Employee Protection Provisions of the Environmental Statutes

   Section 24.2(a) of Title 29, the applicable DOL regulation states:

No employer, subject to the provisions of the environmental whistle blowing protection statutes, "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 [protected activity]."

   To establish a prima facie case of discrimination under environmental whistleblower statutes, the Complainant must show by a preponderance of the evidence that: 1) the employer is subject to the act; 2) the employee is covered under the act; 3) the employee engaged in protected activity; and, 4) that the employer, knowing of her protected activity, took adverse employment action(s) against her because she engaged in the protected activity. See, e.g., American Nuclear Resources, Inc. v. DOL, 134 F.3d 1292, 1295 (6th Cir. 1998); Kahn v. U.S. Secretary of Labor, 64 F.3d 271, 277 (7th Cir. 1995); and Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984). "A complainant must initially show that it was likely that the adverse action was motivated by a protected activity (prima facie showing)." Jenkins v. EPA, ALJ Case No. 92-CAA-6, Dec. and Ord., slip op. at 6 (May 18, 1994).

1. Proper Parties

   Complainant can prove no set of facts entitling it to relief against Respondents EPA OALJ and EPA OIG, and Chief Judge Biro. These entities and Judge Biro are not Complainant's "employers" within the meaning of the environmental statutes. Accordingly, dismissal of EPA OALJ and EPA OIG, and Chief Judge Biro is appropriate under F.R.C.P. 12(b) for failure to state a claim upon which relief can be granted.

   Individuals and entities are not subject to DOL jurisdiction under the environmental whistleblower provisions unless they are also "employers" of the complaining "employees" within the meaning of the applicable statute. See, e.g., Pickett v. TVA, ALJ Case No. 2000-CAA-9, Summary Dec., slip op. at 5 (Aug 9, 2000);

Stephenson v. NASA, ALJ Case No. 94-TSC-5, Rec. Dec. and Ord., slip op. at 52-54 (Nov. 13, 1997).

   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 USC § 1221. See, e.g. Keefer v. Department of Agriculture, 82 M.S.P.R. 687, 692 (1999). "[T]o be entitled to protection, disclosures must be specific and detailed, not vague allegations of wrongdoing regarding broad imprecise matter." In another case, the MSPB set forth a more detailed discussion of specificity. In that case the Complainant failed to identify such basic facts as the entities to whom he made disclosures, the specific dates, or the vacant positions about which he had made disclosures. Becker v. Department of Veterans Affairs, 76 M.S.P.R. 292, 297 (1997). The Board found the Complaint insufficiently specific to establish jurisdiction.

   Similarly, the instant Complaint is insufficiently specific in two ways: 1) Complainant has not provided specific claims regarding the nature of her protected activity and the circumstances leading to the alleged reprisals; and 2) she has not articulated any relationship between her alleged protected activity and the purpose of any pertinent environmental statute.

   With regard to the "judicial integrity" claim the Complaint does not specify, for example: 1) the time, place, and content of the disclosures; 2) the identity of the person to whom she made the disclosures, or 3) the causal connection between the disclosures and reprisal actions taken against her. The allegations of reprisal because of the "sick building" lawsuit are also insufficiently specific. The Complaint does not specify, for example: 1) the statute(s) violated by EPA's landlord; 2) her role in the lawsuit or the content of any disclosures she may have made; 3) when any disclosures occurred; 4) the identity of the individuals at EPA who learned of the lawsuit; 5) how these unnamed individuals learned of her role in the lawsuit; 6) the nature of EPA's embarrassment over the resulting lawsuit; or 7) the causal connection between her role in the lawsuit and any reprisal actions taken by EPA against her.

   Although Complainant states that she engaged in protected activity during the "sick building" case against the EPA's landlord, she does not identify the environmental protection statute, if any, that applied to this "sick building." The lawsuit might have related to the CAA or the SWDA, but it could also pertain to electrical currents, poor lighting, even an OSHA regulation. There is simply no way to tell. Similarly, there has been no citation of statutes governing Complainant's protected activity relating to the "judicial integrity" claim.

   Accordingly, because the Complaint lacks sufficient specificity as to the "judicial integrity" and "sick building" claims and because it fails to allege facts sufficient to establish subject matter jurisdiction under SDWA; TSCA; CAA; CERCLA, and RCRA, the "judicial integrity" and "sick building" claims are dismissed.

3. Protected activity

   Under the employee protection provisions of the SWDA, a whistleblower is an employee who either 1) has filed, instituted, or caused to be filed or instituted any proceeding; or 2) testifies or is about to testify in any proceeding resulting from the administration or enforcement of the proceedings thereunder. 42 U.S.C. § 6971. Because Complainant fails to allege that she filed or instituted a proceeding under SWDA or that she testified in any proceeding, she does not qualify as whistleblower under the SWDA. However, because this incident occurred in the course of Complainant's work as a judge in an SWDA case, her "disclosure" to counsel for Babcock v. Wilcox might arguably be construed as protected activity engaged in by someone involved in the enforcement of the SWDA. I will therefore assume arguendo in Complainant's favor that this matter is protected pursuant to the SWDA and that subject matter jurisdiction exists under the SWDA. Even assuming jurisdiction pursuant to SWDA, there is no genuine issue of material fact regarding Complainant's claim that she engaged in protected activity. Accordingly, summary dismissal of the Complaint is warranted.

   The principal assertions in the Complaint about the alleged ex parte conversation boil down to the following: 1) that in the summer of 1997, EPA Chief Judge Susan Biro engaged in an ex parte conversation with an EPA attorney, Marcia Mulkey, EPA's Region III Regional Counsel concerning an SWDA case pending before Complainant, entitled Babcock v. Wilcox ("the Biro-Mulkey conversation"); 2) that Complainant reported the ex parte conversation to counsel for Babcock v. Wilcox; 3) that the act of reporting the Biro-Mulkey conversation to counsel for Babcock v. Wilcox constituted protected activity and, 4) that for the ensuing four years Chief Judge Biro took various retaliatory actions against Complainant because of this protected activity.

   As stated above, to prevail on her whistleblower complaint, Complainant must establish, prima facie: 1) that Respondent is an "employer" under one or more of these acts; 2) that Complainant is protected by one or more of these acts; 3) that she engaged in protected activity; and 4) that the employer, knowing of her protected activity, took adverse employment action(s) against her because she engaged in the protected activity.

   Because there is no dispute that EPA is an employer for purposes of the SWDA, and because I assume arguendo that Complainant as an administrative law judge hearing a case under the SWDA was protected by that statute, I treat the first two elements of a prima facie case as having been satisfied. However, the third element has not been established. Because the third element has not been established, it follows that the fourth element has also not been established.

   The Complaint does not demonstrate that the reporting of the Biro-Mulkey conversation to counsel for Babcock v. Wilcox constituted protected activity. In order to constitute protected whistleblowing the underlying "disclosure" must be "grounded in conditions constituting reasonably perceived violations of the environmental acts." See Tyndall v. EPA, ALJ Case Nos. 93-CAA-5 and 6, slip op. at 4 (June 14, 1996); See also Minard, slip op. at 5 and n.5; Melendez, slip op. at 11 and 18-19. Taking the facts alleged in the Complaint as true, there can be no dispute that 1) the Biro-Mulkey conversation was not ex parte; 2) Complainant did not reasonably perceive that the conversation was ex parte; and, 3) the Biro-Mulkey conversation was not otherwise improper.

   For the reasons set forth above I dismiss the Complaint. I, therefore, need not address the other grounds for dismissal set forth in Respondent's Motion to Dismiss or, in the Alternative for Summary Decision. Accordingly,

it is ORDERED that

    1) EPA Chief Adminstrative Law Judge Susan Biro, the EPA OALJ, and EPA OIG are hereby dismissed as parties to this case and the style of the case shall reflect EPA as the sole Respondent;

    2) The Complaint is dismissed for lack of jurisdiction under CERCLA, CAA, SWDA, RCRA, and TSCA; and

    3) Because Complainant did not engage in activity protected by the SWDA, Summary Decision is appropriate, and the remaining allegations of the Complaint are hereby dismissed.

       William C. Cregar
       Administrative Law Judge