Though Roseboro involved a pro seprisoner facing summary judgment, we note that the court there, and in later cases, has not held that the required notice applies only to pro seprisoners.41
1 The statute provides, in pertinent part, that "[n]o employer may discharge or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . [notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C.A. § 2011 et seq. (2000)), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA]." 42 U.S.C.A. § 5851(a)(1) (West 1995).
10See Hooker's September 7, 2000 letter to the United States Department of Labor, OSHA. Motion for Summary Judgment, Tab 3. Persons alleging violations of the ERA whistleblower protections file written complaints with the United States Department of Labor's Occupational Safety and Health Administration (OSHA). See 29 C.F.R. § 24.3. OSHA then investigates the complaint, determines whether the alleged violation occurred, and notifies the parties of its findings and conclusions. Either party may then request that a Department of Labor Administrative Law Judge hear the case. See 29 C.F.R. §§ 24.4, 24.5.
11 May 8, 2001 Notice of Hearing and Pre-Hearing Order.
12 The applicable rules of practice and procedure label motions for summary judgment "Motions for Summary Decision." See 29 C.F.R. §§ 18.40, 18.41.
13 August 9, 2001 Order Granting Extension of Time.
14See 29 C.F.R. § 24.8 (2001); see also Secretary's Order No. 1-2002, 67 Fed. Reg. 64, 272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)).
15See Administrative Procedure Act, 5 U.S.C.A. § 557(b) (West 1996); 29 C.F.R. § 24.8; Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1571-72 (11th Cir. 1997); Berkman v. United States Coast Guard Acad., ARB No. 98-056, ALJ Nos. 97-CAA-2, 97-CAA-9, slip op. at 15 (ARB Feb. 29, 2000).
16Honardoost v. Peco Energy Co., ARB No. 01-030, ALJ 00-ERA-36, slip op. at 4 (ARB March 25, 2003).
18Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
19Id. at 249, citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-290 (1968).
20Hodgens v. General Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998).
21 Anderson, 477 U.S. at 256; see also Fed. R. Civ. P. 56(e).
22Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
23See Johnsen v. Houston Nana, Inc., JV, ARB No. 00-064, ALJ No. 99-TSC-4, slip op. at 4 (ARB Feb. 10, 2003) ("[I]n ruling on a motion for summary decision we . . . do not weigh the evidence or determine the truth of the matters asserted. Viewing the evidence in the light most favorable to, and drawing all inferences in favor of, the non-moving party, we must determine the existence of any genuine issues of material fact.") (internal citation and quotation marks omitted); Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 99-STA-21, slip op. at 6 (ARB Nov. 30, 1999).
24See Carrol v. United States Dep't of Labor, 78 F.3d 352, 356 (8th Cir. 1996); Darty v. Zack Co. of Chicago, 82-ERA-2, slip op. at 5 (Sec'y Apr. 25, 1983).
33Id., citing Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-1357 (4th Cir. 1995).
34Martin, slip op. at 8, citing Bristow, 770 F.2d at 1255.
35 Motion for Summary Judgment, Tab 3 at 0003 ("I know I have be black ball [sic] by USFS (SRI), WSRC, and DOE for standing up for the employee's [sic] that work for Ga. Bowhunter's at the SRS.").
36 In its motion for summary judgment, WSRC did not specifically address Hooker's rather vague "black ball" claim. WSRC, however, did request summary judgment on "all claims." The ALJ read Hooker's mention of "black ball" as an allegation of blacklisting and also read WSRC's motion as seeking summary judgment on "the claim of blacklisting." February 4, 2002 Order at 16.
37Pickett v. Tennessee Valley Auth., ARB Nos. 00-56, 00-59, ALJ No. 01-CAA-18, slip op. at 6 (ARB Nov. 28, 2003) (citations omitted).
40 412 F.2d 1091, 1094 (1968) cited in Roseboro, 528 F.2d at 310.
41See id. ("Assuredly, a pro se plaintiff is entitled to such a reasonable safeguard when confronted with the possibility of summary disposition of his case.); Davis v. Zahradnick, 600 F.2d 458, 460 (4th Cir. 1979) (also involving a pro se prisoner but applying Roseboro notice to "pro se plaintiff" and "pro se litigant"); Hummer v. Dalton, 657 F.2d 621, 624 (4th Cir. 1981) ("pro se litigant").
42 July 6, 2001 Order Canceling Hearing; August 9, 2001 Order Granting Extension of Time.
44 February 4, 2002 Order at 16-17. WSRC does not contest the ALJ's sua sponteamendment. Neither do we, although we note that the grounds and procedure for amending whistleblower complaints is set out at 29 C.F.R. § 18.5(e), a regulation the ALJ ignored.
49 When alleging that an employer refused to hire, a whistleblower must establish: 1) that he applied and was qualified for a job for which the employer was seeking applicants; 2) that, despite his qualifications, he was rejected; and 3) that, after his rejection, the position remained open and the employer continued to seek applicants from persons with his qualifications. See Samodurov v. General Physics Corp., 89-ERA-20, slip op. at 9-10 (Sec'y Nov. 16, 1993).