On November 5, 2003, Complainant appealed the OSHA findings and requested a formal hearing. I was assigned the case on December 4, 2003. A hearing is scheduled for April 6, 2004 in Toledo, Ohio.

   In Somerson v. Mail Contractors of America, 2003-STA-11 (ALJ, Jan. 10, 2003), Complainant's counsel, Mr. Slavin, also complainant's counsel in the above-captioned matter, filed a claim under the STAA against the employer's attorney for a motion filed in a previous STAA case. Respondent moved to dismiss because complainant failed to assert a prima facie allegation of an adverse employment action. Associate Chief Judge Burke issued a Recommended Decision and Order Dismissing the complaint. Judge Burke stated, in pertinent part:

The present complaint, asserting that the motion for protective order is an adverse employment action under the STAA, is completely specious. The complaint fails to allege the essential elements of a violation of the whistleblower protection provisions of the STAA. To prevail under the STAA, it is necessary to prove that the Complainant was an employee of a covered employer, the complainant engaged in protected activity, the Complainant thereafter was subject to adverse action regarding his employment, Respondents knew of the adverse activity when it took the adverse activity, and the protected activity was the reason for the adverse action. First, the motion for protective order filed by Mail Contractors of America, considered and granted by Judge Miller, is not an adverse employment action in retaliation for protected activity under the STAA. Judge Miller found that the "ad hominem communications" which were to be prohibited by the protective order "have nothing to do with safety or fatigue as it applies to truckers, or indeed anything except implicit threats, and scurrilous insults in the nature of harassment, [and] are not protected activity in issue under the STAA." Recommended Decision and Order Dismissing Complaint and Certifying facts Relating to Intimidation and Harassment of Witnesses and Counsel to Federal District Court, at 4, fn.3 [Somerson v. Mail Contractors of America, Inc., 2002-STA-44 (ALJ, Dec. 16, 2002)]. Second, the attorneys representing Mail Contractors of America before Judge Miller are not Complainant's employers under the STAA. See Saporito v. Florida Power & Light Co., 1994-ERA-35 (ARB July 19, 1996). To be considered an employer under the STAA the attorneys would have to be employers operating a commercial motor carrier. 49 U.S.C. § 31101(3)(A), 29 C.F.R. § 1978. 100 et seq. (Emphasis added).

Somerson v. Mail Contractors of America, 2003-STA-11 (ALJ, Jan. 10, 2003). On review, the Administrative Review Board stated: complainant failed "to adduce evidence in support of an essential element of his complaint, i.e., that the filing of the request for a protective order constituted ‘discipline or discriminate[ion] against an employee regarding pay, terms, or privileges of employment.'" Somerson v. Mail Contractors of America, ARB No. 03-042 (ARB, Oct. 14, 2003) (Final Order Striking the Complainant's Brief and Dismissing the Complaint).

   Additionally, Claimant's counsel argues that "gag orders" are illegal in whistleblower cases. Counsel cites Connecticut Light & Power Company v. Secretary of the United States Department of Labor, 85 F.3d 89 (2d Cir. 1996), for the proposition that "employer asking for illegal Gag Order in settlement violates whistleblower laws." Letter from Mr. Slavin to Director

Office of Investigative Assistance, OSHA (dated September 19, 2003). Counsel's interpretation of Connecticut Light & Power Company is, at best, a broad overstatement of the Circuit Court's holding.

   Connecticut Light & Power Company involved a settlement agreement in a whistleblower case that included provisions restricting the complainant's ability to appear as a witness or a party in any judicial or administrative proceeding in which Connecticut Light and Power Company was a party. Id. at 92. Claimant's counsel uses this case for the proposition that "gag orders" are illegal per se. Connecticut Light involved "particularly restrictive" provisions. The provision at issue restricted the employee's right to report violations to regulatory agencies. Id. at 97. The court did not imply, much less explicitly state, that "gag orders" violate whistleblower laws. Wherefore,

   IT IS HEREBY ORDERED that both parties are directed to show cause, in writing, within ten (10) days of the issuance of this order why the above-captioned matter should or should not be immediately dismissed with prejudice for failure to state a claim upon which relief can be granted or why a summary decision denying the complaint should not be issued.

       RICHARD A. MORGAN
       Administrative Law Judge