Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111
Veterans Memorial Blvd Metairie, LA 70005
(504) 589-6201 (504) 589-6268
(FAX)
Issue Date: 23 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 DENYING REMAND
On April 21, 2003, Complainant filed a Motion to Remand to OSHA to Investigate, alleging that Respondent was contending that this Court lacked jurisdiction because OSHA did not investigate, and Complainant requested that this Court order an OSHA investigation so as not to delay trial on May 13, 2003. On October 9, 2002, Complainant filed a complaint alleging ten instances of continuing retaliation and hostile working environment against Respondent following a Recommended Decision and Order issued by this Court on September 24, 2002. On January 29, 2003, OSHA advised that the complaint was investigated and found to have no merit.
Specifically, OSHA determined that the complaint, as submitted, failed to meet the prima facie allegation requirements, the complaint appeared to be a continuation of prior allegations, and due to Complainant's counsel's lack of cooperation in the investigation, OSHA dismissed the case. Complainant's request is very similar to a motion made by her counsel in an earlier case. In considering a request to remand a case back to OSHA for investigation, Judge Burke reasoned:
In Billings v. Tennessee Valley Authority, 91-ERA-12 (ARB June 26, 1996), complainant sought remand of the matter to the reviewing administration for further investigation. The Board affirmed the ALJ's ruling denying remand because complainant did not establish a legitimate reason for remand, but only attacked the merits of the finding of nondiscrimination. The Board added that the initial findings were not binding on the ALJ because the regulations accord complainants a right to de novo hearings on the merits of complaints. Thus, the Board ruled that "any arguable flaws in the ... investigation or findings would not adversely affect litigation of his case before the ALJ." Slip op. at 8-9. See also, Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987) (noting that neither the ERA nor the regulations specifically contemplate a remand for further investigation).
Similar to the complainant in Billings, in this case complainant has failed to establish a basis for remand. Further, complainant is provided under 29 C.F.R. §§ 24.6 with the opportunity to present the evidence necessary to establish her claim and, if necessary, to pursue formal discovery to further develop the evidence to support the merits of her claim before presiding Administrative Law Judge. See Khandelwal v. Southern California Edison, (ARB Nov. 30, 2000).
Erickson v. Inspector General, U.S. Environmental Protection Agency, 2001 CAA 8 (April 13, 2001) (ALJ, Order Denying Request for Remand).
[Page 2]
Likewise, I find no basis in this case to Remand the complaint back to OSHA for further investigation.
IT IS ORDERED that Complainant's Motion to Remand to OSHA to Investigate is DENIED.
