Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005
(504) 589-6201 (504) 589-6268 (FAX)
Issue date: 05Apr2001 Case No.: 2001-ERA-11
In the Matter of
GEORGE E. McCOLLUM,
Complainant
v.
UNIVERSITY OF OKLAHOMA
COLLEGE OF PHARMACY,
Respondent.
APPEARANCES:
GEORGE E. McCOLLUM,
On behalf of the Complainant
SUSAN SEAMANS, ESQ.,
On behalf of Employer
CONNIE ACKERMAN, ESQ.,
On behalf of the Solicitor of the Department of Labor
BEFORE: RICHARD D. MILLS
Administrative Law Judge
ORDER
Complainant, George E. McCollum, seeks enforcement of an Order granted by the Secretary of Labor issued January 22, 2001. That Order became final on January 27, 2001 when Employer, The University of Oklahoma, failed to appeal. By letter dated February 22, 2001, Employer informed Complainant that it offered him the position of Staff Nuclear Pharmacist in the University of Oklahoma College of Pharmacy in accordance with the terms and conditions laid out in that letter.
[Page 2]
On February 26, 2001, Complainant wrote to this Court objecting to the Employer's offer and seeking enforcement of the Secretary's Order. Complainant contends that Employer's offer is not in compliance with the Secretary's Order because, among other deficiencies, it does not reinstate him to his prior position and does not provide for back pay.
Document: 2001ERA00011Dismissal.wpd Created by: RMILLS on 4/5/01 3:09:10 PM This case raises serious questions of jurisdiction for the Court. Accordingly, on March 2, 2001, we ordered the parties to submit briefs on the issue of subject matter jurisdiction. Briefs were timely submitted by Mr. McCollum, Susan Seamans on behalf of the University of Oklahoma Health Sciences Center as Employer, and the Solicitor of the Department of Labor on behalf of the Secretary of Labor.
Considering the arguments of all of the parties, the Court finds that it does not have jurisdiction to enforce this final order. Complainant's action to enforce properly lies with the United States District Court in Oklahoma.
DISCUSSION
This action is brought under the ERA provisions found at 42 U.S.C. § 5851. The procedures of the Secretary to investigate complaints are outlined in 42 U.S.C. § 5851(b). Subsection 2 of that section specifically provides that when a person or entity fails to comply with an Order Issued under the Act, the Secretary may file a civil action in the district where the violation occurred to enforce such an order. The district court has jurisdiction to grant all appropriate relief. 42 U.S.C. §5851(d).
The Act also allows any person on whose behalf the order was issued to commence a civil action against the person to whom the order was issued to require compliance with the order. That section also specifically gives the district court jurisdiction without regard to the amount in controversy or the citizenship of the parties. 42 U.S.C. § 5851(e).
The Court finds that, based on the law, it has no power to enforce this order as it is outside our jurisdictional grant. Complainant's objection to the Employer's offer and request to enforce properly belongs in the United States District Court for the Western District of Oklahoma. The Claimant can bring his action to that Court on his own or by asking OSHA to enforce the Secretary's Order.
Because we do not have jurisdiction over this matter, the Complainant's request to enforce the Secretary's order is hereby DENIED.
