Greenwald v. The City of North Miami Beach, 80-SDW-2 (Sec'y Apr. 14, 1980)

May 9, 2009

DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter
Greenwald v. The City of North Miami Beach, 80-SDW-2 (Sec'y Apr. 14, 1980)

UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
Case No. 80-SDWA-2

GLENN M. GREENWALD
Complainant

vs.

THE CITY OF NORTH
MIAMI BEACH
Respondent

MEMORANDUM DECISION OF THE SECRETARY

This is a proceeding under the Safe Drinking Water Act (88 Stat. 1660, et seq.; 42 U.S.C. 300 f, et seq.). In December 1977, Glenn M. Greenwald filed a complaint alleging that the City of North Miami Beach discharged him from his employment, in violation of Section 1450(i) of the Act. (88 Stat. 1692; 42 U.S.C. 300 j-9(i). That section prohibits discrimination against an employee because of activities to carry out the purposes of the Act. After a hearing before an Administrative Law Judge, the Judge issued a recommended decision in which he recommended that the complaint be dismissed on the ground that it was not timely filed. I concluded that the Judge was correct, and in a decision issued April 3, 1978 I adopted his recommendation and dismissed the complaint. (Case No. 78-SDWA-1) That decision was sustained by the Court of Appeals for the Fifth Circuit. See 587 F. 2d 779 (1979), cert. den. 100 S. Ct. 49 (1979)

Thereafter Greenwald applied to the City of North Miami Beach for re-employment. The city declined to re-employ him on the ground that there was no vacancy. Thereupon Greenwald filed a complaint initiating the present proceeding, alleging that the city continued to discriminate against him in violation of Section 1450(i) by failing to rehire him. After a hearing, the Administrative Law Judge issued a recommended decision in which he recommended that the complaint be dismissed for lack of subject matter jurisdiction.¹ He stated:

A review of the statutory language, history, and cases provides no basis for a complaint by an applicant for a position, unlike Title VII

[Page 2]

of the Civil Rights Act, nor is there any basis for complaint by a former employee whose previous employment relationship has already been subjected to an opportunity for hearing and is now closed off by a final order. To find jurisdiction here it would be necessary to go behind the earlier case, Case No. 78-SDWA-1, to find the employment relationship requisite to this proceeding, and co reopen issues involved there. The doctrine of res judicata bars reopening such matters which have become final.

Therefore, absent the existence of an employer- employee relationship, there is no subject matter jurisdiction and the complaint must be dismissed.

In my opinion, the decision of the Judge, dated March 11, 1980 is correct, and I adopt it as my own. Accordingly, the complaint is dismissed for lack of subject matter jurisdiction.

Dated at Washington, D.C.
this 14th day of April, 1980.

RAY MARSHALL
Secretary of Labor

[ENDNOTES]

¹ During the hearing the City of North Miami Beach made a motion to dismiss the complaint due to lack of jurisdiction over the subject matter and the person. Greenwald was served with a copy of the motion and through his attorney he filed a statement in opposition. He also filed a motion for leave to file an affidavit to supplement the hearing record. His motion was received after the issuance of the Judge's recommended decision. Considering all the circumstances, including the result reached herein, such motion is denied.