DATE: September 3, 1993

CASE NO: 93-CAA-0011

IN THE MATTER OF

PATRICK STUDER
    Plaintiff

    v.

FLOWERS BAKING COMPANY OF TENNESSEE, INC.

    Respondent

Mr. Patrick Studer
    Unrepresented

Larry Eber, President
    For the Respondent

BEFORE:
Richard E. Huddleston
Administrative Law Judge

    The action arises upon a complaint filed against Flowers Baking Company of Tennessee, Inc., alleging

discrimination "because of the charges that I had against them with Labor Relations and the EPA last year." The nature of the "charges ... EPA last yearn is not identified in the complaint. However, the matter was referred to the Wage & Hour Division of the U.S. Department of Labor as a complaint alleging a violation of the Clean Air Act (hereinafter "Act"), Public Law 95-95, § 322, 42 U.S.C. § 7622. Upon completion of its investigation, the Department of Labor found no violation of the Act, and so notified the Plaintiff on August 10, 1993. By telegram received August 16, 1993, the Plaintiff has requested a formal hearing before the Office of Administrative Law Judges. This matter has now been assigned to the undersigned, and all further correspondence, motions, or other pleadings shall be filed with:

Judge Richard E. Huddleston
Office of Administrative Law Judges
525 Vine Street, Suite 900
Cincinnati, Ohio 45202

    The Act at § 7622 (a) provides in relevant part that,

No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee ... (emphasis added).

   This case does not involve the issue of discharge. Thus, in order to state a cause of action under the Act, the Plaintiff must allege that (as a result of protected activity) he has been discriminated against with respect to his compensation, terms, conditions, or privileges of employment.

   I note, initially, that the complaint, itself, does not clearly allege any protected activity under the Act, but generally refers to "because of the charges that I had against them with . . . the EPA last year. " However, it is apparent that the Wage & Hour Division was aware of a previous complaint filed by the Plaintiff under the Act, as such is referenced in the District Director's August 10, 1993, response. Assuming that protected activity is properly alleged, the discriminatory conduct complained of

is stated as "The facts are that Merrell Carnes has an opening for a school and has filled the opening with a person of half the seniority that I have." Generally, any discriminatory action taken against an employee as a result of protected activity is considered to be a violation of the Act. However, not all actions taken or business decisions made by an employer, which affect an employee, are considered discriminatory.

   I have reviewed the complaint filed by Mr. Studer to make a preliminary determination of whether the complaint at least states a valid complaint under the Act, taking the facts in the light most favorable to the Plaintiff. As stated above, I do find that it is at least adequately alleged that Mr. Studer did engage in protected activity under the Act, as he referenced charges he made against Respondent "with the EPA last year." However, the action complained of does not on its face allege any conduct by the Employer which is discriminatory activity. Instead, the complaint merely alleges that he was not selected for a school he wanted to attend. There is no allegation of any activity by the Employer in which Plaintiff was treated differently from other employees. For example, if the Plaintiff was the only employee more senior than the person who was selected for the school in question, and if the Employer had a practice of selecting the most senior person to attend such functions, failure to select the Plaintiff might be considered discriminatory. However, such is not alleged here.

   It is my preliminary judgment that even taking the facts in the light most favorable to the Plaintiff, he has not alleged any activity which would be considered discriminatory. Therefore, his complaint does not state a cause of action under the Act.

    It is, therefore, Ordered, that:

1. The Plaintiff, Patrick Studer, shall show cause in waiting within 10 days of this order why his complaint should not be summarily dismissed as failing to state a valid cause of action under the Clean Air Act.

2. Following receipt of the Plaintiff's response, a decision will be made whether a hearing should be scheduled, or whether this matter must be dismissed.

    Entered this the 3rd day of September, 1993, at Cincinnati, Ohio.

       Richard E. Huddleston
       Administrative Law Judge