RECOMMENDED DECISION AND ORDER DISMISSING COMPLAINT
FOR LACK OF JURISDICTION AND FOR FAILURE TO STATE A CLAIM
UPON WHICH RELIEF CAN BE GRANTED
Statement of the Case
This complaint has been referred to the Office of Administrative Law Judges (OALJ), U.S. Department of Labor (DOL) by the Area Director, Occupational Safety & Health Administration, Cincinnati Area Office (OSHA), by letter dated April 23, 2004, pursuant to Procedures for the Handling of Discrimination Complaints under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 29 CFR Part 1979. It has been assigned to this tribunal as of May 20, 2004, for consideration and disposition. The Respondent Agency, the U.S. Department of Homeland Security, Transportation Security Administration (TSA), has filed a motion which was received June 2, 2004, to dismiss the complaint. Complainant's response was received June 3, 2004. The case is ripe for decision. This tribunal is required to hear and decide this case on the merits, regardless of the Assistant Secretary's determination to dismiss the complaint without completing the investigation, pursuant to §1979.104(b), if there otherwise is jurisdiction. §1979.109(a).
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Background
OSHA's letter of reference to the Office of Administrative Law Judges incorporated a letter of even date to the Complainant, Rick Fader, advising him that his complaint filed against TSA had been dismissed without investigation. That letter included what purports to be Complainant's original complaint filed with OSHA, which OSHA averred did not establish that the Complainant, as an employee of TSA, a federal government agency, is or was an employee within the pertinent definition of AIR21. OSHA also averred that Complainant did not make a prima facie allegation, as required, within the jurisdiction of AIR21; and that the complaint was not timely filed with OSHA within ninety days after the date of discharge or other specified discrimination. OSHA's letter and the attached complaint filed by Complainant specify without elaboration that the complaint alleged "violations of Federal Laws regarding the Privacy Act 1974, as well as prohibited personnel practices involving abuses of junior workforce, nepotism, and fraud." As a consequence, OSHA dismissed the complaint and declined to conduct an investigation because the complaint lacked "a primafacia (sic) allegation that falls under the jurisdiction of AIR 21." OSHA declared that the Complainant, as a TSA employee did not satisfy the definition of employee under AIR 21, and that the complaint was filed more than ninety days after the alleged adverse employment actions.
In his request for a hearing of his complaint, Complainant contended that the Secretary of Labor (Secretary) "erred in its determination that AIR 21 does not apply in this instance," and elaborated regarding the several pertinent findings by OSHA's Area Director recorded on the Secretary's behalf. Specifically, he averred that, because his employment was solely based on the needs of air carriers, he qualifies under the definition of "Employee" under AIR21 which includes "an individual whose employment could be affected by an air carrier or contractor or subcontractor of an air carrier." Apparently, Complainant is a "screener." He avers that TSA is a "Company" "that performs safety-sensitive functions by contract for an air carrier" and that TSA has contracted with the American public to provide security and safety sensitive functions for air carriers. He also contends that his filing with the Office of Special Counsel was timely, though that agency denied jurisdiction over TSA at the time of filing, and that he should be credited with having filed timely notwithstanding, since as a lay person he only belated learned that DOL has jurisdiction over AIR21 complaints. Complainant seeks to invoke the authority of this tribunal to waive rules pursuant to 29 CFR §1979.114 in order to allow his complaint to proceed. Implicit in his complaint that he was "reprised" for engaging in protected activity is that his activity was protected within the jurisdictional scope of AIR21.
In its motion to dismiss the complaint Respondent contends, in essence, that, as a former TSA employee, Appellant does not qualify as an airline employee under AIR21; that his complaint "that TSA terminated him in retaliation for reporting violations of Federal law regarding the Privacy Act of 1974, abuses of junior workforce, nepotism and fraud" failed to make a prima facie showing that that the protected activity was a contributing factor in the unfavorable personnel action; and that the complaint filed more than ninety days after the date of discharge or other alleged discrimination was untimely under AIR21. Respondent contends that, as a federal agency which does not provide air transportation, TSA does not meet the definition of air-carrier or contractor as alleged. Respondent also contends that Complainant does not qualify as an air-carrier employee protected by AIR 21.
1 Claimant's use of "continue" in his opposition is construed to mean continue prosecution of the case, rather than postpone proceedings.
2 The Transportation Security Administration within DOT was established by the Aviation & Transportation Security Act (ATSA), Pub. Law 107-71, signed by the President on November 19, 2001. Evidently there are unresolved jurisdictional questions which pertain to complaints after March 1, 2003, of whistleblowers who are employees of DHS. U.S. Office of Special Counsel (OSC) has recently asked the U.S. Merit Systems Protection Board to extend jurisdiction over individual appeals brought by federal airport screener alleging retaliation for whistleblowing in an amicus brief filed on May 6, 2004, in response to several initial decisions by MSPB Administrative Judges that the MSPB lacks jurisdiction over screeners' appeals under the 2001 law that created TSA. OSC is an independent investigative and prosecutorial agency which operates as a secure channel for disclosures of whistleblower complaints and abuse of authority, and a primary mission of protecting federal employee whistleblowers. See e.g. http://www.osc.gov/documents/press/2004/pr04_08.htm.