U.S. Department of Labor Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
Telephone (609) 757-5312
Case No. 86-CAA-1
In the matter of
PAUL POULOS
Complainant,
v.
AMBASSADOR FUEL OIL CO., INC.,
Respondent
RECOMMENDED DECISION AND ORDER DISMISSING
COMPLAINT
This proceeding was commenced pursuant to the provisions of the
Clean Air Act, (hereinafter "the Act'), 42 U.S. C. §7622, and its
implementing regulations, 29 C.F.R. Part 24. The complaint, dated
November 27, 1985, alleges that on October 31, 1985, Ambassador Fuel:
Oil Co., Respondent, discharged Mr. Paul Poulos, Complainant, in
retaliation for complaining:
(a) That Ambassador was fueling their fleet with
#2 home heating oil, rather than diesel fuel,
causing air pollution; and
(b) That Ambassador delivered #2 oil to a charter
bus company, unbeknownst to that company, which
charter bus company utilized the # 2 oil to
fuel its buses, believing that it was diesel
fuel.
These complaints were raised in February of 1985. Respondent maintains
that Complainant was discharged for failing to report to work on four
occasions after having been scheduled to work, and denies that
Complainant's complaints concerning the use and sale of #2 home heating
oil in lieu of diesel fuel had anything to do with the discharge.
The Department of Labor conducted an investigation in this matter,
and informed Complainant by letter dated January 22, 1986, that it had
been determined that his actions as alleged were not entitled to
protection under the Act. An Appeal was requested on January 27,
1986. The matter was originally scheduled to be heard on February 12,
1986 before Administrative Law Judge Williams. However, on February 5,
1986, Complainant requested an adjournment of the hearing in order to
conduct additional discovery, and also purported to waive statutory
time limits for completion of action by the Secretary of Labor. Judge
Williams granted the request and continued the hearing until further
notice. On March 7, 1986, this case was reassigned to the undersigned
Administrative Law Judge, and subsequently scheduled for hearing on May
12, 1986. For good cause shown, the hearing was rescheduled for June
18, 1986. However, due to circumstances beyond the control of the
undersigned Administrative Law Judge, the hearing was postponed.
Throughout the numerous motions and correspondence in this
proceeding to date, Respondent has readily admitted to engaging in the
use and sale of #2 fuel, and also admitted that Complainant complained
of such use. However, Respondent maintains such practices do not
violate the Clean Air Act. Complainant contends that he need not show,
and has no intention of attempting to prove, that Respondent's
practices actually violate the Act. It is enough, Complainant alleges,
that the complaints were based on a good faith belief that Respondent's
conduct violated the Act. Complainant argues that the legislative
history of the employee protection provision of the Act supports his
position, citing the following statement from committee hearings on the
[Page 2]
provision:
... the employer would not have to be proved to be in
violation of a Clean Air Act requirement in order
for this section to protect the employee's action.
U.S. Code Congressional and Administrative News 1977, p. 1405.
By letters dated June 13, 1986 and June 19, 1986, Respondent moved
that his case be dismissed. Complainant opposed said motion. Pursuant
to 29 C.F.R. §24.5(e)(4)(ii), on June 25, 1986, an order was issued
directing the parties to submit pre-hearing briefs addressing the issue
of whether or not this complaint should be dismissed. Both parties
submitted briefs.
The Act prohibits employers from discharging or otherwise
discriminating against an employee because the employee has engaged in
"protected activity". The employee has engaged in protected activity
if he has:
(1) commenced, caused to be commenced, or is about
to commence or cause to be commenced a proceeding
under this chapter or a proceeding for the
administration or enforcement of any requirement
imposed under this chapter or under any applicable
implementation plan,
(2) testified or is about to testify in any such
proceeding, or
(3) assisted or participated or is about to assist
or participate in any manner in such a proceeding or
in any other action to carry out the purposes of
this chapter.
42 U.S.C. §7622; 24 C.F.R. 24.2 (b). There are no reported decisions
interpreting this employee protection, or "whistleblower", provision of
the Clean Air Act. However, such provisions are also found in other
federal statutes, including the Energy Reorganization Act,
(hereinafter, ERA). Therefore, cases resolving disputes arising under
similar statutory provisions will be referenced to define the burdens
of proof and the elements of a case under the Clean Air Act.1
1 It should be noted that the
whistleblower provision of the Energy
Reorganization Act, 42 U.S.C. §5851, is virtually identical to that of
§7622 of the Clean Air Act. For comparison, §5851 (a) provides:
No employer ... may discharge any employee or otherwise
discriminate against any employee ... because the
employee ...
(1) commenced, caused to be commenced or is about to
commence or cause to be commenced a proceeding under this
chapter of the Atomic Energy Act of 1954, as amended (42
U.S.C. 2011 et seq.), or a proceeding for the
administration or enforcement of any requirement imposed
under this chapter or the Atomic Energy Act of 1954, as
amended;
(2) testified or is about to testify in any such
proceeding or;
(3) assisted or participated or is about to assist or
participate in any manner in such a proceeding or in any
other manner in such a proceeding or in any other action
to carry out the purposes of this chapter or the Atomic
Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.).
2 Complainant's brief also cites
Consolidated Edison Company of New
York v. Donovan, 673 F.2d 61 (2d Cir. 1982), as holding that purely
internal complaints constitute protected activity. However, in that
case there is no discussion regarding the issue of purely internal
complaints, and thus it is hardly persuasive precedent.