SO ORDERED.
DAVID G. DYE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 Pamela Yoder changed her last name to Roland at some point during the proceedings below. Because most of the documents in the record refer to her as Pamela Yoder, we use that last name throughout this decision for simplicity's sake.
2 As we noted earlier in the text, the Secretary of Labor delegated her adjudicative function under STAA to the Administrative Review Board. She delegated her investigatory function under STAA to OSHA. See Secretary's Order No. 9-83, 48 Fed. Reg. 35,736 (Aug. 5, 1983).
3 Coates also argues that the ALJ erred in not permitting him to amend his complaint to add a charge of discrimination under the Toxic Substances Control Act (TSCA) at 15 U.S.C.A. 2622. Coates had criticized SMI for polluting ground water by dumping spoiled milk, and he believed that company documents he acquired through discovery would support a TSCA whistleblower complaint.
4 The ALJ did not err in denying Coates' motion. An employee seeking to invoke the protection of the TSCA whistleblower provision must submit his complaint to the Secretary of Labor (via OSHA) for investigation within 30 days of the adverse personnel action he seeks to challenge. 15 U.S.C.A. § 2622(b)(1) (West 1998). The employee then has five business days from receipt of OSHA's investigative findings within which to request a hearing. 29 C.F.R. § 24.4(b)(2). Thus, the OSHA investigation is an absolute prerequisite for a hearing and subsequent appeals. As Coates never filed a TSCA complaint with OSHA, and OSHA never issued a notice of determination concerning Coates' TSCA-related complaint, the ALJ had no power to adjudicate such a complaint. Cf. Marshall v. N. Am. Car Co., 626 F.2d 320, 324 (3d Cir. 1980) ("once OSHA begins citation proceedings, the proper course is for an employer to exhaust OSHA procedures and then raise contentions in an appeal from the finding of a violation"); Bozeman v. Per-Se Techs., 456 F. Supp. 2d 1283, 1358 (N.D. Ga. 2006) (employee whose complaint to OSHA did not name certain individuals as respondents deprived OSHA of the opportunity to investigate their actions; therefore, the employee failed to exhaust his administrative remedies).
Even if it were true that Coates' truck safety concerns did contribute to Yoder and Antoine's decision to fire him and that the embezzlement statement did not appear on the web until November 10, SMI would still be entitled to summary decision. That is because the record strongly supports SMI's claim that they would have fired Coates even if he had not made truck safety complaints and at the same time provides no basis for a reasonable fact finder to find otherwise.
5 Rule 18.29(a)(8), 29 C.F.R., provides in pertinent part:
§ 18.20 Authority of administrative law judge.
(a) General powers. In any proceeding under this part, the administrative law judge shall have all powers necessary to the conduct of fair and impartial hearings, including, but not limited to the following:
(7) Exercise, for the purpose of the hearing and in regulating the conduct of the proceeding, such powers vested in the Secretary of Labor as are necessary and appropriate therefore ….
6 Because Coates failed to carry his burden on the causality element of his claim, we need not decide whether the existing record could support a finding that Coates' truck safety complaints related to a violation of a commercial motor vehicle safety law.