1 The Clean Air Act, 42 U.S.C. §7622 (1995), the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9610 (1995), the Safe Drinking Water Act, 42 U.S.C. §300j-9 (1994), the Solid Waste Disposal Act, 42 U.S.C. §6971 (1994), the Toxic Substances Control Act, 15 U.S.C. §2622 (1994), and the Water Pollution Control Act, 33 U.S.C. §1367 (1994).
2 Erickson subsequently amended her complaint to include allegations that EPA also had attempted to intimidate, harass and scare her subsequent to the filing of her initial complaint by: (1) issuing a letter on August 5, 1998, warning her against falsely representing herself to officials at the General Services Administration, and (2) denying another promotion request, pursuant to letter dated August 10, 1998.
3 Because EPA submitted evidence outside the pleadings in support of its Motion to Dismiss, EPA's Motion must be viewed as a motion for summary decision under 29 C.F.R. §18.40. See High v. Lockheed Martin Energy Sys., Inc., ARB No. 98-075, ALJ No. 96-CAA-8, slip op. at 3-4 (ARB Mar. 13, 2001). See also Stephenson v. NASA, 94-TSC-5, slip op. at 3 (Sec'y Sept. 28, 1995). Office of Administrative Law Judges (OALJ) Rules 18.40 and 18.41 (29 C.F.R. §§18.40 and 18.41) govern the disposition of motions for summary decision before ALJs. The rules are modeled on Rule 56 of the Federal Rules of Civil Procedure, Williams v. Lockheed Martin Corp., ARB Nos. 99-054/064, ALJ Nos. 98-ERA-40/42, (ARB Sept. 29, 2000), and the standard for granting summary decision under the OALJ rules is essentially the same standard applicable in granting summary judgment under Federal Rule 56. Hasan v. Burns and Roe Enterprises, ARB No. 00-080, ALJ Case No. 2000-ERA-6, slip op. at 6 (ARB Jan. 30, 2001). See also Hill v. U.S. Dep't of Labor, 198 F.3d 257 (Table), 1999 WL 815830 at 2 (10th Cir. 1999) (summary decision procedure of 29 C.F.R. Part 18 "operates in much the same way as the summary judgment authorized by Fed. R. Civ. P. 56").
4 The ALJ apparently believed that the 30-time limit for filing a complaint begins to run from date on which the employee engages in protected activity. However, 29 C.F.R. §24.3 (b) states in relevant part: "Except [with regard to complaints under the Energy Reorganization Act], any complaint shall be file within 30 days after the occurrence of the alleged violation." Thus the time for filing a complaint begins to run from the date of the adverse action, not the date the employee engaged in the protected activity.
5 Attached to EPA's Motion is a document labeled "Exhibit S." The document is titled "Vacancy Selection, Senior Contracting Officer, GS-1102-13" and was signed by Keith R. Mills on July 27, 1998. It references an employment decision made by Mills as the Selecting Official on June 30, 1998. Exhibit S indicates that on or about July 27, 1998, Mills selected Charles Hayes to be "Senior Contracting Officer" as the result of a competitive process involving nine applicants "presented to the Selecting Official . . . on June 30, 1998." However, Exhibit S does not mention Erickson or make any statements with regard to her claim of discrimination; moreover, EPA's Motion does not refer to the exhibit at all.
EPA's position is unclear, but unavailing in any event. If EPA submitted Exhibit S to challenge Erickson's allegation that the person who did not select her was motivated by retaliatory intent, then the parties disagree as to a material issue of fact and summary decision is simply inappropriate. On the other hand, if EPA submitted Exhibit S to show that it is entitled to prevail as a matter of law because EPA believes that a competitive process per se is evidence that its actions were non-discriminatory, EPA's argument is deficient because the agency has failed to explain why Erickson is precluded from asserting a discrimination claim simply because other candidates applied for the position and the defendant selected someone other than her.
6 Respondent's Answer to Complainant's Motion to Quash its Motion to Dismiss (June 9, 1999).
7 We note that EPA's Motion asserts that Erickson is precluded from litigating her claim because she previously litigated the same issues in other forums. The ALJ did not address this aspect of the motion. The question whether any of these issues were litigated in another forum is a factual issue best resolved in the first instance by the ALJ. Therefore, we leave this question for the ALJ to consider in light of the standards set forth in Sedlack v. Braswell Servs. Group, Inc., 134 F.3d 219, 224 (4th Cir.1998).
8 We emphasize the narrowness of this decision, which focuses specifically on the arguments raised by EPA in its Motion and the ALJ's associated rulings on (1) the timeliness of the complaint in connection with the March 1998 non-selection, and (2) the continuing violation question. On remand, the ALJ and the parties have available to them the full range of tools normally used to promote efficient adjudication. Indeed, the ALJ would not be foreclosed from considering a properly constructed and supported motion for summary decision. Neither the ALJ nor this Board has an obligation "to research and construct the legal arguments open to parties, especially when they are represented by counsel." Sanchez v. Miller, 792 F.2d 694, 703 (7th Cir. 1986), cert. denied, 479 U.S. 1056 (1987).