Somerson v. Mail Contractors of America, 2003-CAA-14 (ALJ Sept. 9, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002 (856) 486-3800

Issue Date: 09 September 2003

CASE NO: 2003-CAA-00014

In the Matter of

DANIEL S. SOMERSON
    Complainant

v.

MAIL CONTRACTORS OF AMERICA
    Respondent

Appearances:

    Edward A. Slavin, Jr., Esquire
    For Complainant

    Oscar E. Davis, Esquire
    For Respondent

Before: RALPH A. ROMANO
    Administrative Law Judge

   Complainant brings this proceeding under the Clean Air Act (42 U.S.C. 7622), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9610), the Safe Drinking Water Act (42 U.S.C. 300j-9), the Solid Waste Disposal Act (42 U.S.C. 6971), and the Toxic Substances Disposal Act (15 U.S.C. 2622)- hereinafter "the Acts".¹

   He seeks to be returned to his job with Respondent, back pay and the purging of his personnel file of mention of his termination by Respondent which occurred on February 25, 2002. Tr.² @131; Ex N-7 @ Resp. Br.

   The matter was heard on May 28, 2003 in Jacksonville, Florida. Respondent's closing brief was filed on August 18, 2003. Complainant has not filed a closing brief as such³ .

   The record in this case is comprised of the testimony of two witnesses (Tr.); RX 1 thru 7 and CX 1,2, which are the transcripts and admitted exhibits of trial held before Judge Edward Terhune Miller in SOMERSON V. MAIL CONTRACTORS OF AMERICA , INC., 2002 STA 44 (ALJ Dec.16, 2002).

   The alleged protected activity in respect of which Complainant brings this complaint takes the form of environmental complaints as contained in his letters dated December 17 and 25, 2002. (Tr.@17-18;Exs.L and M @ Resp.Br.). The adverse action allegedly taken by Respondent is its failure to rehire Complainant⁴ since the activity took place. Prior to the filing of the instant complaint, Complainant brought a claim under the Surface Transportation Assistance Act of 1982 (49 U.S.C. 2301, et.seq.), hereinafter "STA." That claim was dismissed with prejudice by Judge Miller on December 16, 2002 due to Complainant's "- - intentionally provocative and pernicious character and behavior, and his adamant unwillingness, despite ample notice to conform his behavior to proper and appropriate norms in connection with the prosecution of his claim, and because it is manifest that the imposition of sanctions would be futile- - ", SOMERSON, supra.@2. ⁵ The protected activity there invoked was Complainant's publication of a website critical of Respondent in the nature of transportation safety matters (Tr.@15; 119-128;151;166). The adverse employment action alleged in that case was Respondent's firing of Complainant on February 25, 2002 (Ex. N7 @ Resp. Br.).

   I find that Complainant has presented no evidence in this case⁶ , not even reaching a prima facie level, to establish that Respondent failed to rehire him due to his environmental complaints as contained in his December, 2002 letters, supra. Nor is there any evidence of disparate treatment, i.e., that others in the same position as Complainant were re-hired (Tr.@19-20; 21; 95).

   Gleaned from the various exchanges with counsel relative to Complainant's theory of recovery (Tr. 15-18; 22; 31-33), is the proposition that the existence of some evidence (in the STA case) that Complainant was, in part, fired for voicing his transportation safety concerns, is sufficient to make out a prima facie case (in this case under the environmental "Acts") that he was not re-hired due to his expression of environmental complaints. But, in "whistleblower" proceedings, it has been held that a prima facie case is made upon a showing that the protected activity motivated an employer's decision to take adverse employment action, and that a complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993); Mackowiak v. University. Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984). Here, some evidence that Complainant was fired, in part, for raising transportation safety matters, is not evidence sufficient to raise the inference that the protected activity of raising environmental concerns was the likely reason, or motivated, Respondent's failure to re-hire Complainant. Thus, a prima facie case has not been established on this theory.

   Indeed, there is evidence in this record, probably reaching a prima facie level, that Respondent fired Complainant due to his transportation safety complaints-see letter terminating Complainant - Ex.N@7, Resp. Br.-noting that Complainant's website was in part a reason for termination. But Complainant may not bootstrap the transportation safety complaints, which form the basis for a complaint under the STA, into this case which is brought under environmental statutes. His claim under the STA has been dismissed with prejudice, and no further claim under that Act based upon the facts as previously put forward before Judge Miller may be successfully asserted here under the environmental "Acts" which form the jurisdictional predicate for the present case.

   To summarize, Complainant has failed to establish a claim under the environmental "Acts" here invoked, i.e., that Respondent has failed to re-hire him due to his environmental complaints. And, had Complainant here established that Respondent failed to re-hire him due to his transportation safety complaints (website publication), (or, in effect, that Respondent failed to re-hire him for the same reason, the website publication, that he alleged he was fired in Judge Miller's case), he would have established a claim under the STA, which claim is not before me, and has been forever barred by Judge Miller's dismissal with prejudice. In any event, I also find Complainant's testimony relative to his alleged application to be re-hired (Tr.115-116; 156-162;163-164)⁷ , critical to his case insofar as establishing that Respondent failed to re-hire him, both equivocal and uncertain, and thus not worthy of belief. On the other hand, Ms. Scott's testimony that no such application was ever filed (Tr.@83-4;94-5) is found both unequivocal and certain, and worthy of belief.

   On the basis of the foregoing, I recommend the complaint be DISMISSED.

      RALPH A. ROMANO
      Administrative Law Judge

NOTICE: This Recommended Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U. S. Department of Labor, Room S-4309, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R.§1978.109(a); 61 Fed. Reg. 19978 (1996).

¹ Respondent's notion that this claim is barred under the statue of limitations (Br. @6) ignores Complainant's assertion that the alleged failure to re-hire is a continuing violation.

² References are "Tr".-transcript of trial; "CX"- Complainant's exhibits; "RX"-Respondent's exhibits.

³ See Order July 17, 2003. Complainant's motion for miscellaneous relief, including a stay of filing deadlines, dated August 12, 2003, is denied.

⁴ Complainant also asserts that he has been "blacklisted" since his protected activity (Tr. @16). I find no evidence in this record, however, suggestive of behavior traditionally characterized as blacklisting, and proceed herein only upon the claim that the adverse employment action taken took the form of failure to rehire. (See also Tr. @27).

⁵ Complainant was also found to have intimidated and harassed witnesses and counsel (id @4).

⁶ In Judge Miller's case, a substantial part of which record has been admitted here, of course, there was no evidence of environmental complaints, only complaints of transportation safety (website). The environmental complaints were created by writings dated December 17, and 25, 2002 after Judge Miller's December 16, 2002 decision.

⁷ Complainant's testimony that he unsuccessfully applied for re-hire both "[b]efore] and after" his December, 2002 environmental complaints, (Tr. 117) suggests that the making of those complaints had no impact upon Respondent's behavior toward Complainant, rendering his environmental complaints even less likely to have motivated a failure to re-hire.