Therefore, we conclude that collateral estoppel precludes Muino's second ERA whistleblower complaint.
Conclusion
Because no genuine issue of fact exists as to whether the hiring officials knew about Muino's protected activity, an essential element of Muino's initial ERA complaint, Florida P & L is entitled to summary decision. As a result, Florida P & L's Motion for
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Summary Decision of Muino's initial complaint must be granted and Muino's intial complaint is DISMISSED.
Because the issue in Muino's initial complaint and his second complaint is the same, and because that issue decided the outcome of his initial complaint, and because that issue was fully and fairly litigated in his initial complaint, we further conclude that collateral estoppel applies and that no other issue of material fact exists. Therefore, Florida P & L is entitled to summary decision on Muino's second complaint, and we DISMISS Muino's second complaint.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 The ERA provides, in pertinent part, that "[n]o 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 . . . [notified a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), or refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA]." 42 U.S.C.A. § 5851 (a)(1) (West 2007). The ERA has been amended since Muino filed this complaint. Energy Policy Act of 2005, Pub. L. 109-58, title VI, § 629, 119 Stat. 785 (Aug. 8, 2005). We need not decide here whether the amendments would apply to this case, which was filed before their effective date, because even if the amendments applied, they are not at issue in this case and thus would not affect our decision. The ERA's implementing regulations, found at 29 C.F.R. Part 24 (2007), have also been amended. 72 Fed. Reg. 44,956 (Aug. 10, 2007). It is unnecessary for us to determine whether the amendments apply to Muino's complaint because they are not implicated by the summary judgment issue presented and thus, even if the amendments were applicable to this complaint, they would not affect our decision. The ERA covers applicants for employment, like Muino, as well as employees. Samodurov v. Gen. Physics Corp., No. 1989-ERA-020, slip op. at 4 (Sec'y Nov. 16, 1993).
2 By order dated September 18, 2006, the Board granted Florida's Motion to Consolidate the appeals of the denials of Muino's two complaints for decision. Muino v. Florida Power & Light, Co., ARB Nos. 06-092 and 06-143, ALJ Nos. 2006-ERA-002 and 2006-ERA-008 (ARB Sept. 18, 2006).
3 See Muino Jan. 23, 2006 Deposition at 16-17; Jim Gallagher Feb. 3, 2006 Affidavit at 1.
4 Muino Jan. 23, 2006 Deposition at 16; Defendant's Exhibit (DX) 2.
5 DX 1.
6 Muino Jan. 23, 2006 Deposition at 32, 36.
7 DX 2.
8 See Jan. 7, 1993 Release Questionnaire.
9 See DX 3-4; Jim Gallagher Feb. 3, 2006 Affidavit at 1-2.
10 Jim Gallagher Feb. 3, 2006 Affidavit at 1-2.
11 DX 4; Muino Jan. 23, 2006 Deposition at 70-74.
12 Muino Jan. 23, 2006 Deposition at 59, 63, 68, 113-114.
13 Daniel Tomaszewski Feb. 3, 2006 Affidavit at 1.
14 Daniel Tomaszewski Feb. 3, 2006 Affidavit at 1-2.
15 Daniel Tomaszewski Feb. 3, 2006 Affidavit at 2.
16 Robert Burgess Feb. 2, 2006 Affidavit at 2.
17 Diane Bryant Feb. 2, 2006 Affidavit at 2.
18 Id.
19 Robert Burgess Feb. 2, 2006 Affidavit at 2; Daniel Tomaszewski Feb. 3, 2006 Affidavit at 2.
20 Terry Sopkin Feb. 1, 2006 Affidavit at 1.
21 John Zudans Feb. 1, 2006 Affidavit at 1.
22 John Zudans Feb. 1, 2006 Affidavit at 2.
23 See 42 U.S.C.A. § 5851(b)(1); see also 29 C.F.R. § 24.3(b)(2). The limitations period begins to run when the employee is notified of the adverse action. See Jenkins v. United States Envtl. Prot. Agency, ARB No. 98-146, ALJ No. 1988-SWD-002, slip op. at 12 (ARB Feb. 28, 2003); see also Chardon v. Fernandez, 454 U.S. 6 (1981); Delaware State Coll. v. Ricks, 449 U.S. 250 (1980).
24 Recommended Order, Apr. 13, 2006, at 4-5.
25 Recommended Order, Apr. 13, 2006, at 5-6.
26 Recommended Order, Apr. 13, 2006, at 6.
27 Recommended Order Dismissing Complaint, Aug. 2, 2006, at 3.
28 See 5 U.S.C.A. § 557(b) (West 2007).
29 See Kester v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 2000-ERA-031, slip op. at 4 (ARB Sept. 30, 2003).
30 Santamaria v. United States Envtl. Prot. Agency, ARB No. 04-063, ALJ No. 2004-ERA-006, slip op. at 4 (ARB May 31, 2006); Demski v. Ind. Mich. Power Co., ARB No. 02-084, ALJ No. 2001-ERA-036, slip op. at 3 (ARB Apr. 9, 2004); Honardoost v. Peco Energy Co., ARB No. 01-030, ALJ No. 2000-ERA-036, slip op. at 4 (ARB Mar. 25, 2003).
31 Santamaria, slip op. at 4.
32 29 C.F.R. § 18.40(c).
33 Santamaria, slip op. at 4.
34 42 U.S.C.A. § 5851(b)(3)(C); Hibler v. Exelon Generation Co., LLC, ARB No. 05-035, ALJ No. 2003-ERA-009, slip op. at 19 (ARB Mar. 30, 2006); Hasan v. Southern Co., Inc., ARB No. 04-040, ALJ No. 2003-ERA-032, slip op. at 2, 4 (ARB Mar. 29, 2005); Demski, slip op. at 3; Kester, slip op. at 5-8.
35 42 U.S.C.A. § 5851(b)(3)(D); Hibler, slip op. at 20; Demski, slip op. at 3; Kester, slip op. at 7.
36 Kester, slip op. at 9.
37 See, e.g., Melendez v. Exxon Chems. Ams., ARB No. 96-051, ALJ No. 1993-ERA-006, slip op. at 10-11 (ARB July 14, 2000), and cases cited therein.
38 See Recommended Order, Apr. 13, 2006, at 5-6. Florida P & L has not cross-appealed the ALJ's recommended decision. Thus, unlike the ALJ, we will assume that Muino created a fact dispute about whether he engaged in protected activity. At his Speakout exit interview, Muino raised concerns regarding plant drawings and manuals which he alleged were not being properly updated that, he believed, related to nuclear safety at the plant. Muino alleges that he also previously raised these same concerns with two of his supervisors. Viewed in the light most favorable to Muino, this evidence may be enough to establish a reasonable belief that nuclear safety under the ERA and AEA was at issue.
39 29 C.F.R. § 18.40(c).
40 See Recommended Order, Apr. 13, 2006, at 5, n.9.
41 Recommended Order, Apr. 13, 2006, at 5, n.9, and at 6, n.12.
42 See Daniel Tomaszewski Feb. 3, 2006 Affidavit at 2-3; Robert Burgess Feb. 2, 2006 Affidavit at 2; Diane Bryant Feb. 2, 2006 Affidavit at 2; Terry Sopkin Feb. 1, 2006 Affidavit at 2; John Zudans Feb. 1, 2006 Affidavit at 2. Moreover, as the ALJ noted, none of Florida P & L's hiring officials has access to Muino's Speakout exit interview statements. See Jim Gallagher Feb. 3, 2006 Affidavit at 1; Recommended Order, Apr. 13, 2006, at 5, n.9. In addition, although Muino alleges that he also raised his concerns with two of his supervisors, Robert Custis and John Hosmer, neither is still employed with Florida P & L, as Hosmer left in 1994 and Custis left in 2000. See J. A. ("Tony") Marco Feb. 6, 2006 Affidavit at 3.
43 Recommended Order, Apr. 13, 2006, at 6.
44 See Muino Jan. 23, 2006 Deposition at 111-114, 116, 127-128, 130-131, 134.
45 Seetharaman, slip op. at 6.
46 Recommended Order Dismissing Complaint, Aug. 2, 2006, at 3.
47 Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984) (distinguishing issue preclusion and claim preclusion).
48 See Univ. of Tenn. v. Elliot, 478 U.S. 788, 797-799 (1986) (reasoning that when an administrative agency acts in a judicial capacity to resolve issues of fact which the parties before it have had an adequate opportunity to litigate, application of res judicata principles is appropriate).
49 Chao v. A-One Med. Servs., Inc., ARB No. 02-067, ALJ No. 2001-FLS-027, slip op. at 6 (ARB Sept. 23, 2004); Otero County Hosp. Ass'n, ARB No. 99-038, slip op. at 7-9 (ARB July 31, 2002); Agosto v. Consol. Edison Co. of New York, Inc., ARB Nos. 98-007, 98-152, ALJ Nos. 1996-ERA-002, 1997 ERA-054, slip op. at 7 (ARB July 27, 1999) (requiring "full and fair opportunity" for the litigation of the issues in the prior proceeding). See also Montana v. United States, 440 U.S. 147, 155 (1979) ("To determine the appropriate application of collateral estoppel in the instant case necessitates three further inquiries: first, whether the issues presented by this litigation are in substance the same as those resolved [in the first proceeding]"); Kidwell v. Dep't of Army, 56 F.3d 279, 286-87 (D.C. Cir. 1995) ("When a court has decided an issue of fact or law necessary to its judgment, that decision precludes relitigation of an issue ‘in substance the same' as that resolved in an earlier proceeding.").
50 See Montana, 440 U.S. at 153-154 (precluding parties from contesting issues they have already had a full and fair opportunity to litigate "protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions."); see also Agosto, slip op. at 7 (holding that there must have been "full and fair opportunity" for the litigation of the issues in the prior proceeding).