ARB CASE NO. 01-056
ALJ CASE NO. 2001-ERA-9
DATE: May 30, 2003
In the Matter of:
NITA BAUER,
COMPLAINANT,
v.
UNITED STATES ENRICHMENT CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
John Frith Stewart, Esq., Jeffrey Trapp, Esq., Segal, Stewart, Cutler, Lindsay, Janes & Berry, PLLC Louisville, Kentucky
For the Respondent:
Shahram Ghasemian, Esq., Assistant General Counsel, David M. Thompson, Esq., United States Enrichment Corporation, Paducah, Kentucky; Mark C. Whitlow, Esq., Whitlow, Roberts, Houston & Straub, PLLC, Paducah, Kentucky
FINAL DECISION AND ORDER
Nita Bauer claims that her employer, United States Enrichment Corporation (USEC), violated the employee protection provision of the Energy Reorganization Act of 1974 (ERA), as amended and codified at 42 U.S.C.A. § 5851 (West 1995), when it discharged her during an involuntary reduction in force. Bauer's claim rests on her allegation that she was selected for the reduction in force because of her sex and because of her prior complaints of sexual harassment. After investigating Bauer's complaint, the Department of Labor's Occupational and Safety and Health Administration (OSHA) rejected it on the basis that Bauer failed to establish a violation of § 5851. Bauer then requested a hearing before an Administrative Law Judge (ALJ). The ALJ, acting on USEC's Motion for Summary Decision, issued a Recommended Decision and Order dismissing Bauer's complaint on the grounds that the United States Department of Labor (DOL) does not have jurisdiction under the ERA to adjudicate claims of sexual harassment, sex discrimination, or age discrimination. Bauer appealed to this Board. For the reasons set forth below, we affirm the recommended dismissal of Bauer's complaint.
42 U.S.C.A. § 5891 (Pub. L. 93-438, title IV, § 401, Oct. 11, 1974, 88 Stat. 1254) (emphasis added).
Title VI prohibits discrimination under Federally assisted programs on grounds of race, color, or national origin. 42 U.S.C.A. § 2000d. To effectuate this goal Title VI provides:
Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.
42 U.S.C.A. § 2000d-1.
Pursuant to this authority, the Atomic Energy Commission (AEC), the predecessor of the Nuclear Regulatory Commission, published regulations to implement Title VI. 29 Fed. Reg. 19,277 (Dec. 31, 1964). Consistent with the statutory language, the regulations state: "This part applies to any program for which Federal financial assistance is authorized under a law administered by AEC." 10 C.F.R. § 4.2(a), 29 Fed. Reg. 19,277 (Dec. 31, 1964).
When the ERA was passed, the AEC's Title VI regulations were updated to, among other things, effectuate the provisions of Title IV of the ERA and change the term "AEC" to read "NRC" where it appeared. 40 Fed. Reg. 8,774, 8,778 (March 3, 1975). Section 4.1 of the NRC's regulations was revised to read:
The purpose of this part is to effectuate the provisions of Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reorganization Act of 1974 (hereafter collectively referred to as the "Act") to the end that no person in the United States shall on the ground of sex, race, color, or national origin be excluded from participation in, be denied the benefits of or be otherwise subjected to discrimination – under any program or activity receiving Federal financial assistance from the NRC.
Id. (emphasis added).
[Page 5]
In 1987, the NRC revised its regulations once again, to implement the provisions of the Age Discrimination Act of 1975. This revision also reorganized the NRC's regulations, in 10 C.F.R. Part 4 – Nondiscrimination in Federally Assisted Programs, into several subparts. Subpart A implemented Title VI of the Civil Rights Act of 1964 and Title IV of the Energy Reorganization Act of 1974. Regarding Part 4, the regulations provide, generally: "This part applies to any program for which Federal financial assistance is authorized under a law administered by the NRC. The programs to which this part applies are listed in appendix A of this part." 10 C.F.R. § 4.3.
1 The recital of facts in this paragraph is based on Bauer's December 19, 2000 complaint to OSHA.
2 Although Bauer's complaint states that she was discharged on July 14, 2000, her Response to Motion for Summary Decision states that she was selected for the IRIF on June 30, 2000, and officially discharged on August 14, 2000. Complainant's Response to Motion for Summary Decision at 1.
3 This is also the position Bauer took in responding to USEC's summary decision motion. In addition, in her Rebuttal Brief submitted to this Board, Bauer for the first time raises the argument that "Subchapter 4 ‘bars sex discrimination in connection with any license, activity, or Federal assistance under this act[ERA].' The enforcement mechanism is the same mechanism that protects whistleblowing related to other protected activities, since sex discrimination is an ‘alleged violation of this chapter' as contemplated by Section 211 of the ERA." Reb. Br. at 3. Bauer raises this argument in the context of her continuing assertion that the whistleblower provision is a mechanism for enforcing the § 5891 prohibition on sex discrimination.
The question must arise (and was never answered by the ALJ) of what Subchapter 4 of the ERA means. If it does not create a cause of action for agency enforcement of sex discrimination claims under the ERA, what is it there for? … According to Senate Report 93-980 regarding the ERA, Subchapter 4 "bars sex discrimination in connection with any license, activity, or Federal assistance under this act [ERA]." The enforcement mechanism is the same mechanism that protects whistleblowing related to other protected activities, since sex discrimination is an "alleged violation of this chapter" as contemplated by Section 211 of the ERA … For some reason, one which is not our business to second guess, Congress has decided that sex discrimination in federally funded nuclear defense facilities is a cognizable cause of action under the ERA. Neither the respondent nor the ALJ has disputed that Ms. Bauer has shown a prima facie case of sex discrimination and sexual harassment in her complaint. Such a complaint is cognizable under the ERA, particularly Section 211.
Reb. Br. at 2-3. Section 211 of the ERA, of course, is codified as 42 U.S.C.A. § 5851. We decline to consider this newly raised argument because it appears for the first time in Bauer's rebuttal brief and was neither raised below nor included in Bauer's petition for review. SeeDuprey v. Florida Power & Light Co., ARB No. 00-070, ALJ No. 2000-ERA-5, slip op. at 11 n.54 (Feb. 27, 2003) (and authorities cited there).
4 The language pertaining to other legal remedies appears to contemplate other provisions, which make remedies available for sex discrimination. It does not turn § 5851 into an additional enforcement mechanism for § 5891.
5 That court was considering whether under the ERA the Secretary could award attorney's fees for work performed before the Court of Appeals, and saw the appellate review as simply a continuation of the action before the Secretary. The quoted remark is dictum. Even so, it does not constitute a license for turning § 5851 into an enforcement mechanism for § 5891 as Bauer suggests.
6 This case involved the whistleblower provision of the Federal Deposit Insurance Act. The court was interpreting statutory language that prohibited a Federal banking agency from discharging an employee because the employee (or any person acting pursuant to the request of the employee) provided information regarding a possible violation of any law. There a building and loan association's managing officer turned over to the FDIC a memorandum outlining activities of the Office of Thrift Supervision (OTS) which potentially violated federal banking laws and regulations. The association's officer acted based on an OTS employee's request that he use the memo to save the association from OTS's improper conduct. The court noted that the first step in determining the issue was to look to the language of the statute itself, and, if the statute was ambiguous, to consider the purpose, subject matter, and condition of affairs which led to its enactment.