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Issue Date: 21 April 2003
CASE NO.: 2003 -CAA- 11
IN THE MATTER OF
SHARYN ERICKSON
Complainant
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY,
REGION IV, ATLANTA, GEORGIA
Respondent
ORDER DISMISSING EPA INSPECTOR GENERAL FROM THE CASE
On March 10, 2003, Complainant filed a whistleblowing complaint alleging retaliation by Respondents for post-decision retaliation. On March 31, 2003, Counsel for the EPA Inspector General filed an Answer to Complainant's petition and filed a Motion to Remove Respondent OIG as a Party from the case alleging that the only accusation against it is that Respondent OIG filed an appeal of the Court's September 24, 2002 Recommended Decision and Order. Averring that exercising its right to an appeal is not adverse action and is not an act of retaliation, Respondent OIG asserts that it is not a proper party to this proceeding. On April 4, 2003, I issued an Order to Show Cause why Respondent OIG should not be dismissed form his case.
On April 21, 2003, Complainant filed a Response arguing that Respondent OIG is an indispensable party necessary to provide the Court with jurisdiction to provide complete relief, including reinstatement to a position assisting Respondent OIG in investigating procurement fraud. Complainant specifically requested: 1) a determination of whether Respondent OIG filed a timely Answer and Motion to Dismiss; 2) an instanter pursuant to 29 C.F.R. § 18.4, because of alleged improper discovery responses from Respondent OIG; and 3) a determination that Respondent OIG's failure to remedy it actions as detailed in the September 24, 2002 Recommended Decision and Order makes Respondent OIG an indispensable party and Respondent OIG must be included to provide complete relief and conclude the controversy.
1. Timeliness of Respondent OIG's Answer and Motion to Dismiss
Respondent OIG purportedly mailed its Answer and Motion to Remove Respondent OIG as a Party by Federal Express on March 25, 2003. Due to a clerical error, the Federal Express package was not addressed correctly, Respondent OIG resubmitted the filings on March 31, 2003, and they were filed in this office on April 1, 2003. Regardless of the timing of Respondent OIG's Answer, its Motion to Dismiss is timely filed as my Pre-Hearing Order allowed dispositive motions to be filed within fifteen days of the formal hearing on May 13, 2003. Because I find merit in Respondent OIG's Motion to Remove Respondent OIG as a Party, I find no need to address the timeliness of its Answer.
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2. Instanter Pursuant to 29 C.F.R. § 18.4 for Proper Discovery Responses
Because I find merit in Respondent's OIG's Motion to Remove Respondent OIG as a Party, I find no need to address Complainant's Instanter Motion.
3. Respondent OIG as an Indispensable Party
Complainant asserts that Respondent OIG is an indispensable party because without it complete relief cannot be given, including reinstatement of Complainant to a position assisting Respondent OIG investigate procurement fraud. Complainant also alleges that Respondent OIG is a necessary party so that the Court can sign an decision that will finally conclude the controversy. Specifically, Complainant asserts that Respondent OIG had done nothing to correct its wrongful actions, and the actions of the OIG are so intertwined with the claims of other litigants that no relief can be granted without impairing or infringing on those rights or without leaving the risk of inconsistent or multiple obligations in respect to the same liability.
The Federal Rules of Civil Procedure provide:
A person . . . shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest, or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Fed. R. Civ. P. 19(a) (2002).
None of the necessary elements are met with respect to Respondent OIG. In my September 24, 2002 Recommended Decision and Order, I determined that Respondent OIG undertook adverse employment action by failing to disclose the results of its investigation of Complainant after multiple requests by Complainant and despite its promise to release the information when the investigation was completed. Erickson v. U.S. Environmental Protection Agency, 199 CAA 2, 2001 CAA 8 & 13, 2002 CAA 3 & 18 (September 24, 2002) (slip. op. at 65). Respondent OIG had knowledge of Complaint's protected activities through its investigation, and retaliated against Complaint for going to members of Congress concerning the OIG investigation. Id. at 76-77, 83-84. I specifically determined that there was no evidence of any collusion between Respondent OIG and Respondent EPA. Id. at 83. Also, the liability of Respondent OIG ended when the results of the investigation were fully disclosed to Complainant.
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The instant litigation concerns actions taken by Respondent EPA after issuance of my September 24, 2002 Recommended Decision and Order. The only activity Complainant asserts that Respondent OIG undertook that was adverse employment action consisted of appealing the underlying Decision. As a matter of law, I find that exercising a legal right to appeal an adverse whistleblowing decision is not adverse employment action and cannot form the basis of a new whistleblowing complaint. My earlier Decision fully addressed Complainant's relief against Respondent OIG and based on that Decision any "reinstatement" remedy in the present litigation assertable against Respondent OIG is unfounded.
IT IS ORDERED that EPA Inspector General's Motion to Remove Respondent OIG as a Party is GRANTED and EPA Inspector General is DISMISSED from his case.
