Pensyl v. Catalytic, Inc., 83-ERA-2 (ALJ July 19, 1983)

May 9, 2009

DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter
Pensyl v. Catalytic, Inc., 83-ERA-2 (ALJ July 19, 1983)

U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Suite 700-1111 20th Street, N.W.
Washington, D.C. 20036

Case No. 83-ERA-2

In the Matter of

WILLIAM D. PENSYL,
Complainant

CATALYTIC, INC.,
Employer

RECOMMENDED DECISION AND ORDER

On December 8, 1982 the Acting Area Director concluded that discrimination was not a factor in the actions comprising the complaint and it was determined the adverse action taken by Catalytic, Inc. was based upon Complainant's refusal to perform work in the manner assigned by the employer.

Appeal was taken under 42 U.S.C. § 5851¹ which provides:

(a) No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor of a Commission licensee or applicant, may discharge

[Page 2]

any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee)-

(1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or the Atomic Energy Act of 1954, as amended, 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 in any such proceeding or; testify

(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 Act or the Atomic Energy Act of 1954, as amended.

The threshold question is whether the complaint states a cause of action for which relief may be given. The regulations protecting so-called "whistle blower" employees from discriminatory actions by their employers are found in 29 C.F.R. Part 24. section 24.3 states as follows:

(a) Who may file. An employee who believes that he or she has been discriminated against by an employer in violation of any of the statutes listed in § 24.1 (a) may file, or have another person file on his or her behalf, a complaint alleging such discrimination.

[Page 3]

As Complainant succinctly states: "...He refused to work in a contaminated area without a respirator, The employer refused to allow Pensyl to work with a respirator. Pensyl was therefore fired." There is no allegation that Complainant was discriminated against or that he commenced, caused or was involved in any protected proceeding. Whether Complainant was right or wrong in refusing to work is not a subject which can be tried under this statute. Therefore, the complaint should be dismissed.²

RECOMMENDED ORDER

It is recommended that this complaint be dismissed for failure to state a cause of action for which relief is available under 42 U.S.C. 5851.

JOHN W. EARMAN
Administrative Law Judge

Dated: 19 JUL 1983
Washington, D.C.

JWE:kat

[ENDNOTES]

¹ The time requirements of the implementing regulations found in 29 C.F.R. Part 24 have been waived by Complainant.

² The employer gave notice that, at any hearing of this matter, it intended to move for a dismissal of the complaint. While admitting the circumstances surrounding Mr. Pensyl's discharge, Complainant contends that the legal issue is whether his refusal to work under the circumstances was an action taken to carry out the purposes of the Atomic Energy Act and the Energy Reorganization Act