Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220
(412) 644-5754 (412) 644-5005 (FAX)
Issue Date: 08 August 2003
CASE NO. 2003-CAA-15
In the Matter of:
JAMES G. BLODGETT, JR.,
Complainant
v.
TENNESSEE DEPARTMENT OF ENVIRONMENT AND CONSERVATION,
Respondent
Appearances:
Edward A. Slavin, Jr., Esq.
For the Complainant
Kim Kirk, Esq.
For the Respondent
Before: RICHARD A. MORGAN
Administrative Law Judge
RECOMMENDED DECISION AND ORDER OF DISMISSAL
FACTUAL AND PROCEDURAL HISTORY
Respondent is a government entity of the State of Tennessee and performs work in that state. On February 4, 2002, the complainant, James G. Blodgett, filed a complaint against the Respondent, Tennessee Department of Environment and Conservation ("TDEC"). 2003-CAA-7 (ALJ, January 28, 2003). In that case, complainant filed a whistleblower complaint citing blacklisting and discriminatory discharge for having engaged in protective activity under the following whistleblower provisions: the Clean Air Act ("CAA"), 42 U.S. C. §7622; the Safe Drinking water Act ("SDWA"), 42 U.S.C. §300j-9; the Solid Waste Disposal Act ("SWDA"), 42 U.S.C. §6971; the Water Pollution Control Act ("WPPCA"), 33 U.S.C. §1367; the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9610; and the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §2622. Id.
Complainant was employed by Respondent until being discharged on June 14, 2001. Prior to his termination from the TDEC, the complainant was an Environmental Specialist IV Manager. Complainant alleged that on June 29, 2001, he was terminated by the TDEC after raising environmental concerns. Additionally, complainant alleged that on January 9, 2002, he discovered he had been coded as "not eligible for re-hire" in the TDEC system database, which he asserted was a form of internal blacklisting.
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On November 14, 2002, the Occupational Health and Safety Administration ("OSHA") issued its findings after an investigation of the complainant's allegations. OSHA noted that the complainant lodged thirty two written allegations of misconduct against his supervisor in December of 2000. (OSHA findings, pg. 2). However, OSHA found that only one of these allegations related to the enforcement of environmental regulations and it was later found to be without merit. Id. Moreover, OSHA found that the complainant displayed a repeated pattern of confrontational and aggressive behavior toward management. Id. Specifically, the records indicate that on several occasions in June of 2001, the complainant had confrontations with the Assistant Commissioner and another management official. Id. During the final confrontation on June 12, 2001, complainant was physically and verbally hostile towards his manager, which prompted other employees to call 911. Id. OSHA found that none of these confrontations involved protected activities. Id. OSHA concluded that the complainant's history of aggressive behavior was the legitimate non-discriminatory reason for his termination. Id. OSHA further concluded that the complainant was terminated for cause.
That case was dismissed, on Respondent's motion, pursuant to the 11th Amendment of the United States Constitution due to the immunity of the State of Tennessee from a private individual's request for federal adjudication. In the instant matter, Mr. Boldgett alleges that he has been blacklisted in retaliation for having filed the above discussed environmental whistleblower complaint and having previously engaged in protected activity. Complainant further argues that the Supreme Court's recent decision in Nevada v. Hibbs removes respondent's sovereign immunity defense. OSHA investigated Blodgett's second complaint and later dismissed it for lack of merit. (OSHA findings, pg. 2). OSHA further found that the additional named Respondents Kim Kirk, Alan Payne, Pat Doe, et. al., were not employers under the definition of the statute and not party to the determination. (OSHA findings, pg. 2).
DISCUSSION
The Doctrine of Sovereign Immunity Precludes the Complainant from Pursuing a Federal Environmental Whistleblower Claim Against the Respondent, a State Agency.
The doctrine of sovereign immunity originates from the Eleventh Amendment of the U.S. Constitution which provides "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced, or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const., Amdt. 11. The United States Supreme Court has held for over a century that federal jurisdiction over suits against nonconsenting states "was not contemplated by the Constitution when establishing the judicial power of the United States." Seminole Tribe of Florida v. Florida et. al., 517 U.S. 44, 54, 116 S.Ct.1114, 1122 (1996), citingHans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L. Ed. 842 (1890). See also: Nevada v. Hibbs, 123 S.Ct. 1972 at 1977 (2003); Board of Trustees of Ala. v. Garett, 531 U.S. 356, 363 (2001); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73 (2000); College Savings Bank v. Florida Prepaid PostsecondaryEd. Expense Bd., 527 U.S. 666, 669-670 (1999).
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More recently, in Federal Maritime Commission v. South Carolina State Ports Authority et. al., 122 S.Ct. 1864 (2002), the Supreme Court held that a private citizen cannot file a complaint against a State with a federal agency. The Supreme Court found that State sovereign immunity extends to proceedings before a federal Administrative Law Judge. In Federal Maritime Commission, South Carolina Maritime Services, Inc. ("Maritime Services"), filed a complaint with the Federal Maritime Commission ("FMC"), alleging that the South Carolina State Ports Authority ("SCSPA") violated the Shipping Act of 1984, by denying Maritime Services permission to berth a cruise ship at the SCSPA's port facilities. The complaint was forwarded to an Administrative Law Judge, who found that the SCSPA, as an agency of the State of South Carolina, was entitled to sovereign immunity and therefore dismissed the case. The Supreme Court reasoned that the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. Federal Maritime Commission, 122 S.Ct. at 1874, citing In re Ayers, 123 U.S. 443, 505, 8 S. Ct. 164, 31 L.Ed. 216 (1887). The Court added that given both this interest in protecting States' dignity and the strong similarities between FMC proceedings and federal civil litigation, state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a non-consenting state. 1Id. The Court concluded that the affront to a State's dignity does not lessen when an adjudication takes place in an administrative tribunal as opposed to an Article III court. Id.
1 The Supreme Court noted that a review of the FMC's Rules of Practice and Procedure confirms that FMC administrative proceedings bear a remarkably strong resemblance to civil litigation in federal courts, in that: FMC's rules governing pleadings are similar to those found in the Federal Rules of Civil Procedure; discovery in FMC adjudications largely mirrors discovery in federal litigation; and the role of the ALJ is similar to that of an Article III Judge. Federal Maritime Commission, at 1873.
2 Hibbs sought leave to care for his wife under FMLA, which entitles an eligible employee to 12 work weeks of unpaid leave per year. Hibbs, 123 S.Ct. at 1976. See 29 U.S.C. § 2612(a)(1)(c). The Department granted his leave, but later informed Hibbs that he had to return to work as the leave had been exhausted. Hibbs, 123 S.Ct. at 1976.
3 Section 5 of the Fourteenth Ammendment gives Congress the power to enforce substantive guarantees of the amendment through the enactment of "appropriate legislation." See City of Boernev. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157 (1997). Section 1 of the Fourteenth Amendment provides, in part:
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws."
U.S. Const. amend. XIV, § 1.
4 The complainant argued that pursuant to United States v. Tennessee Air Pollution Control Board, 967 F. Supp. 975 (M.D. Tenn. 1997), the State of Tennessee has no sovereign immunity with respect to claims filed under the Clean Air Act. In Tennessee Air Pollution Control Board ("TAPCB"), the Court held that the Clean Air Act's federal facilities and citizen suit provisions waive United States' sovereign immunity from state law punitive civil penalties imposed to force federal facilities to comply with state standards.
5 § 7418. Control of pollution from Federal facilities states:
Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge of air pollutants, and each officer, agent, or employee thereof, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of air pollution in the same manner, and to the same extent as any non-governmental entity... This subsection shall apply notwithstanding any immunity of such agencies, officers, agents, or employees under any law or rule of law. No officer, agent, or employee of the United States shall be personally liable for any civil penalty for which he is not otherwise liable.
6 For clarification, Section 7622(b)(1) of the Clean Air Act states that "any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a)" can file a complaint with OSHA. [emphasis added]. However, for a "person" to be in violation of subsection (a), he or she must be an employer, as subsection (a) states "[n]o employer may discharge any employee or otherwise discriminate against any employee."
7See 42 U.S.C. § 6971(a). That provision states that "[n]o person shall fire, or in any other way discriminate against, . . . , any employee." Id.
8 29 C.F.R. Part 24 implements the employee protection provisions of the following statutes: Safe Drinking Water Act; Water Pollution Control Act; Toxic Substances Control Act; Solid Waste Disposal Act; Clean Air Act; Energy Reorganization Act; Comprehensive Environmental Response, Compensation and Liability Act.