ARB CASE NO. 00-069
ALJ CASE NO. 2000-CAA-6
DATE: December 18, 2000
In the Matter of:
IRA H. KEMP,
COMPLAINANT,
v.
VOLUNTEERS OF AMERICA
OF PENNSYLVANIA, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Ira H. Kemp,
Pro se, Harrisburg, Pennsylvania
For the Respondent:
James C. Oschal, Esq., Andrew D. Bigda, Esq.,
Rosenn, Jenkins & Greenwald, L.L.P.,
Wilkes-Barre, Pennsylvania
DECISION AND ORDER
Complainant Ira Kemp filed this case under the employee protection
("whistleblower") provisions of the Clean Air Act ("CAA"), 42 U.S.C.
§7622 (1994). Kemp alleges that he was unlawfully terminated by his employer,
Respondent Volunteers of America of Pennsylvania, Inc.
The relevant facts of this case are, for the most part, undisputed. Prior
to January 1998, the Volunteers of America ("VOA") organization in Pennsylvania
was divided into three separate corporations: VOA Northeastern Pennsylvania, VOA Central
Pennsylvania, and VOA of the Lehigh Valley and Allentown (Tr. 85). On January 1, 1998, the
VOA corporations of Northeastern Pennsylvania, Central Pennsylvania, and Lehigh Valley and
Allentown merged into VOA of Pennsylvania, Inc. (Tr. 86).
[Page 2]
Prior to the merger, VOA of Central Pennsylvania operated a store
located in Harrisburg. Although several clerks worked in the store, it was actually managed by
an off-site regional manager. Kemp was employed as a part-time clerk in the store and worked
approximately 35-37 hours a week (Tr. 119). VOA of Central Pennsylvania believed this
arrangement to be inefficient, but did not attempt to change it until after the merger (Tr. 118).
Also, prior to the merger, VOA of Northeastern Pennsylvania operated
a 401(k) pension plan. VOA of Central Pennsylvania did not have a 401(k) plan and the
Northeastern plan was unavailable to Kemp and the other employees of the Central
Pennsylvania corporation (Tr. 109). However, after the merger, employees of Central
Pennsylvania became eligible for the Northeastern plan. Once Kemp realized that the 401(k)
plan was available to him, he wrote to Respondent inquiring as to his eligibility (Tr. 109-110).
Meanwhile, Respondent was effecting a reorganization of the Harrisburg
store. Respondent created a new position for an on-site store manager and determined that
Kemp's position was superfluous (Tr. 88, 118). Although Kemp had been an employee with
Respondent for approximately 15 years, his supervisor terminated him immediately and
without notice on or about June 21, 1999 (Tr. 46). Shortly thereafter, the supervisor also fell
victim to the reorganization and was terminated as well (Tr. 116).
1 Within the Labor Department, OSHA is
responsible for receiving and investigating whistleblower claims under various whistleblower statutes.
See 29 C.F.R. §§24.3, 24.4 (2000).
2 The ALJ also found that Kemp's
termination was motivated in part by his demand that he be included in VOA's 401(k) pension plan. RD&O
at 12. Accepting this as true, we see no legal basis for concluding that the ALJ or this Board would have
jurisdiction over Kemp's complaint that he was retaliated against for asserting his rights to a pension.
3 The TSCA is not applicable to this
case because the asbestos of which Kemp allegedly complained was not located in a school. See
15 U.S.C. §§2641-2656 (1994).