ARB CASE NO. 06-024
ALJ CASE NO. 2003-CAA-4
DATE: August 31, 2007
In the Matter of:
RAMACHANDRAN SEETHARAMAN,
COMPLAINANT,
v.
STONE & WEBSTER, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Ramachandran Seetharaman, pro se,
Ashland, Massachusetts
For the Respondent:
Paul J. Murphy, Esq.; Kevin P.
Sweeney, Esq., Menard, Murphy & Walsh LLP, Boston, Massachusetts
FINAL DECISION AND ORDER
The Complainant,
Ramachandran Seetharaman, filed a complaint with the United States Department
of Labor’s Occupational Safety and Health Administration alleging that his
employer, the Respondent, Stone & Webster, Inc., retaliated against him in
violation of the employee protection provisions of the Clean Air Act,[1]
the Comprehensive Environmental Response, Compensation and Liability Act,[2]
the Federal Water Pollution
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Control Act,[3]
the Solid Waste Disposal Act,[4]
the Toxic Substances Control Act,[5]
(known collectively as the environmental acts), the Energy Reorganization Act
(ERA)[6] and their
implementing regulations.[7]
In particular Seetharaman, who was employed by Stone & Webster as a
principal engineer from March 2001 until May 2002, charged that Stone &
Webster violated the whistleblower provisions of the environmental acts and the
ERA when it: 1) refused to allow him to attend a seminar, 2) refused to
pursue business opportunities that he brought to the company’s attention,
thereby denying him the opportunity for advancement, 3) transferred him from
the Mechanical Engineering Group to the Heat Balance Group, and 4) terminated
his employment during the course of a reduction in force (RIF).[8]
OSHA
investigated Seetharaman’s complaint and determined that it could not
substantiate his allegations of unlawful reprisal. In particular, OSHA concluded
that the allegations concerning the seminar and transfer were untimely and that
Stone & Webster had articulated legitimate business reasons for all of its
challenged actions.[9]
Seetharaman
timely requested a hearing before a Department of Labor Administrative Law
Judge.[10]
The ALJ presided over thirteen days of hearings, at which the parties were
permitted to present evidence and legal argument. Both Seetharaman and Stone
& Webster were represented by counsel. Seetharaman testified in support of
his complaint; Stone & Webster called six witnesses in support of its
defense.[11]
[Page 3]
After
careful consideration of the entire record and the arguments advanced by the
parties, the ALJ issued a Recommended Decision and Order in which he concluded:
Seetharaman’s
complaint is untimely with the exception of two allegations – namely, that
S&W (1) refused to pursue business opportunities that he suggested and (2)
terminated his employment, both allegedly in violation for his protected
whistleblowing activities. The remaining allegations in the complaint are
untimely and, therefore, cannot form the basis of a finding of unlawful
discrimination, though they may be considered as relevant background evidence
in support of the timely claims. Regarding the timely allegations, I concluded
that S&W’s failure to pursue business opportunities, even if true, did not
constitute a prohibited adverse employment action. I further conclude that
Seetharaman has not proved by a preponderance of the evidence that his
protected activity contributed to his termination.[[12]]
The environmental laws and the ERA authorize the Secretary of
Labor to receive complaints of alleged discrimination in response to protected
activity and, upon finding a violation, to order abatement and other remedies.[13] The Secretary has delegated the authority to the Administrative
Review Board (ARB) to review Department of Labor Administrative Law Judges’
initial decisions under the environmental acts and the ERA.<[14]
Under the Administrative Procedure Act, the ARB, as the
Secretary’s designee, acts with all the powers the Secretary would possess in
rendering a decision under the whistleblower provisions. The Board engages in
de novo review of the ALJ’s recommended decision.[15] Accordingly, the Board is not bound by an ALJ’s findings of
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fact and conclusions of law because the recommended
decision is advisory in nature.[16] Nevertheless, an
ALJ’s findings constitute a part of the record, and as such are subject to
review and receipt of appropriate weight.[17]
In weighing a
witness’s testimony, the fact-finder considers the relationship of the witness
to the parties, the witness’s interest in the outcome of the proceedings, the
witness’s demeanor while testifying, the witness’s opportunity to observe or
acquire knowledge about the subject matter of the witness’s testimony, and the
extent to which other credible evidence supported or contradicted the
testimony.[18] We accord special weight to an ALJ’s credibility findings that
“rest explicitly on the evaluation of the
demeanor of witnesses.”[19] This is so because the ALJ “sees the witnesses and hears them
testify while . . . the reviewing court look[s] only at cold records.”[20]
We have
carefully reviewed the record, the ALJ’s R. D. & O., and the parties’
briefs. The R. D. & O. is comprehensive and cogently reasoned and it is in
accordance with the law and the facts of this case. Accordingly, we accept the
ALJ’s recommendation that we deny Seetharaman’s complaint and we adopt his
decision. Nevertheless we briefly discuss two arguments that Seetharaman has
raised in his brief that were not directly addressed by the ALJ in his R. D.
& O.
1. Whether the ALJ erred when
he did not apply a dual motive analysis to Seetharaman’s claims of retaliation.
Seetharaman
contends, “[The] ALJ committed ‘serious legal error’ when he did
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not use
Mixed motive analysis in the ALJRDO and further used same legal standards under
ERA and Environmental laws[.][21]
Once a case has been tried on its merits, as here, the relevant
question is whether the complainant has successfully met his or her burden of
proof that the respondent discriminated.[22] Therefore to prevail on his environmental and ERA whistleblower
complaints, Seetharaman was required to establish by a preponderance of the
evidence that he engaged in protected activity, that Stone & Webster was
aware of the protected activity, that he suffered adverse employment action,
and that Stone & Webster took the adverse action because of his protected
activity.[23] If Seetharaman had
met this burden, then we would have proceeded to determine whether Stone &
Webster had demonstrated by a preponderance of the evidence (whistleblower
acts)[24] or clear and
convincing evidence (ERA) [25] that it would have taken the same unfavorable personnel action in
the absence of the protected activity.[26] Examining whether a respondent has met this burden of proof is
commonly referred to as the mixed or dual motive analysis. The respondent’s
burden under the dual motive analysis is in the nature of an affirmative
defense and arises only if the complainant has proven that the respondent took
adverse action in part because of the complainant’s protected activity.[27] The ALJ found, and we agree, that Seetharaman “failed to
introduce any credible evidence to rebut S&W’s evidence that he was
included in the RIF because he was the least productive member of the HB
Group.”[28] Because Seetharaman
failed to establish by a preponderance of the evidence that his protected
activity either motivated or contributed to the adverse action, neither the
ALJ, nor we have reason to engage in dual
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motive analysis.[29]
2. Whether the Board should
reconsider its Final Decision and Order in Seetharaman v. Gen. Elec. Co., ARB
No. 03-029, ALJ No. 2002-CAA-021 (May 28, 2004).
In Seetharaman v.
Gen. Elec. Co., ARB No. 03-029, ALJ No. 2002-CAA-021 (May 28, 2004)(Seetharaman
I), the Board agreed with the ALJ that the Respondents, General Electric Company, Pacific Gas & Electric
Company, Exelon Corporation, Mitsubishi Power Systems, Massachusetts Water
Resources Authority, Nebraska Boiler Company, and English Boiler and Tube,
Incorporated (the 03-029 Respondents) were entitled to summary dismissal of the
complaints against them because Seetharaman “raised no genuine issue of material
fact regarding an essential element of his claim: an employer-employee
relationship with Respondents.”[30]
Seetharaman, to date, has filed no motion requesting the Board to reconsider
its decision. Instead, Seetharaman has urged the Board to reconsider its
decision in his initial and rebuttal briefs in this case.[31] Most significantly, Seetharaman has
failed to serve the 03-029 Respondents with his request that we reconsider our
decision in that case.
The ARB is
authorized to reconsider a decision upon the filing of a motion for
reconsideration within a reasonable time of the date on which the decision was
issued.[32] In considering a motion for reconsideration,
the Board has applied a four-part test to determine whether the movant has
demonstrated:
(i) material
differences in fact or law from the presented to a court of which the moving
party could not have known through reasonable diligence, (ii) new material
facts that occurred after the court’s decision, (iii) a change in the law after
the court’s decision, and (iv) failure to consider material facts presented to
the court before its decision.[[33]]
[Page 7]
As an initial
matter we note that Seetharaman has requested reconsideration more than
two years after the Board issued its Final Decision and Order in Seetharaman
I. Given the Board’s recent decision in Henrich v. Ecolab, Inc.,[34]
there is a substantial question whether the request for reconsideration, even
if it had been properly filed would be timely. But even if it had been
properly filed and was timely, upon consideration of the request’s merits, we
would nevertheless deny reconsideration.
Upon review of
Seetharaman’s reconsideration request, we conclude that he has failed to meet
any of the provisions of the Board’s four-part test for reconsideration. As
was true when Seetharaman presented his original case in Seetharaman I,
he has presented no facts, evidence or law that addresses the relevant issue:
whether he had an employee-employer relationship with the 03-029 Respondents.
Accordingly, even if Seetharaman had filed a proper and timely request for
reconsideration, he would not be entitled to such relief.
Finally, we note that
Seetharaman states in his I.B., “ALJRDO, page 7 FN 9 – incorrectly lists
6-3-2002 as date of the complaint. This is plain [sic] wrong. On 5-24-2002,
complainant met John Sechovicz of USDOL, OSHA & personally filed charge
orally/via letter dated the same day. Complainant cannot understand where ALJ
got the 6-3-2002 date!” The Secretary of Labor’s initial findings issued by
the Occupational Safety and Health Administration investigator state, in
reference to both the alleged denial of training and transfer from the
Mechanical Engineering Department to the Heat Balance Group, that the complaint
was filed on “June 3, 2002, more than 180 days after the occurrence of alleged
violation.”[35]
Therefore, the basis for the ALJ’s finding is clear. But there does seem to be
some confusion over the filing date of the complaint, given that Stone &
Webster stated in its Motion to Dismiss, filed with the ALJ, that Seetharaman
filed a complaint on or about May 30, 2002. [36]
In any event,
Seetharaman has failed to argue the legal significance of this alleged error in
his briefs to the Board and generally, the Board will not consider an issue
that a
[Page 8]
party has not raised and briefed and will consider any argument thereon
waived.[37]
Nevertheless, even if Seetharaman had properly preserved this objection to the
ALJ’s finding, the only issue to which it could potentially be relevant is the
timeliness of Seetharaman’s complaint regarding the transfer from the
Mechanical Engineering Department to the Heat Balance Group. However, although
Seetharaman did not comply with the order to transfer to Heat Balance until on
or about February 6, 2002, there is evidence in the record establishing that he
had unequivocal knowledge of the transfer no later than the second week in
November 2001.[38]
Thus because Seetharaman failed to file his complaint within 180 days of the
alleged adverse action both his environmental act[39]
and ERA complaints[40]
based on the transfer were untimely. Therefore any error in the ALJ’s finding
that the complaint was file on June 3, 2002, was harmless.
Conclusion
The ALJ’s
Decision and Order is AFFIRMED. Finding no reason to depart from the
ALJ’s cogent opinion, we adopt and attach it.[41]
DAVID G. DYE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[1] 42 U.S.C.A. § 7622 (West 2003).
[2] 42 U.S.C.A. § 9610 (West 2005).
[3] 33 U.S.C.A. § 1367 (West 2001).
[4] 42 U.S.C.A. § 6971 (West 2003).
[5] 15 U.S.C.A. § 2622 (West 1998).
[6] 42 U.S.C.A. § 5851 (West 2003). This
statute has been amended since Seetharaman filed his complaint, but the
amendments are not applicable to this case because Seetharaman’s complaint was
filed before the amendments’ effective date, August 8, 2005. Energy Policy Act
of 2005, Pub. L. 109-58, Title VI, § 629, 119 Stat. 785 (Aug. 8, 2005).
[7] 29 C.F.R. Part 24
(2006). These regulations have been amended since Seetharaman filed his
complaint, but the amended regulations are not implicated in this case. 72
Fed. Reg. 44,956 (Aug. 10, 2007).
[8] Seetharaman v. Stone & Webster,
Inc., 2003-CAA-004, slip op. at 2 (ALJ Nov. 30, 2005)(R. D. & O.).
[9] Id.
[10] See 29 C.F.R. § 24.4(d)(3).
[11] R. D. & O. at 3.
[12] Id. at 2.
[13] 29 C.F.R. § 24.1(a).
[14] See 29 C.F.R. § 24.8. See also Secretary’s
Order 1-2002 (Delegation of Authority and Responsibility to the Administrative
Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the
Secretary’s authority to review cases arising under, inter alia, the statutes
listed at 29 C.F.R. § 24.1(a)).
[15] See 5 U.S.C.A. § 557(b)(West 2000); 29 C.F.R. § 24.8; Stone &
Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (11th Cir. 1997).
[16] See Attorney Gen. Manual on the Administrative Procedure Act, Chap.
VII, § 8 pp. 83-84 (1947) (“the agency is [not] bound by a [recommended]
decision of its subordinate officer; it retains complete freedom of decision as
though it had heard the evidence itself”). See generally Starrett v.
Special Counsel, 792 F.2d 1246, 1252 (4th Cir. 1986) (under principles of
administrative law, agency or board may adopt or reject ALJ’s findings and
conclusions); Mattes v. United States, 721 F.2d 1125, 1128-1130 (7th
Cir. 1983) (relying on Universal Camera Corp. v. NLRB, 340 U.S. 474
(1951), in rejecting argument that higher level administrative official was
bound by ALJ’s decision).
[17] Universal Camera, 340 U.S. at 492-497;
Pogue v. U.S. Dep’t of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991).
[18] Jenkins v. United States Envtl. Pro.
Agency, ARB No. 98-146, ALJ No. 88-SWD-002, slip op. at 10 (ARB Feb. 28,
2003) (citations omitted).
[19] NLRB v. Cutting, Inc., 701 F.2d 659,
663 (7th Cir. 1983); Poll v. R.J. Vyhnalek, ARB No. 98-020, ALJ No.
96-ERA-030, slip op. at 8 (ARB June 28, 2002).
[20] Pogue, 940 F.2d at 1289.
[21] Appellant/Complainant’s Initial Brief (I.B.)
at 17 (footnote omitted).
[22] Kester v. Carolina Power & Light Co.,
ARB No. 02-007, ALJ No. 2000-ERA-031, slip op at 6-7 (ARB Sept. 30,
2003)(ERA); Dierkes v. West Linn-Wilsonville School Dist., ARB No.
02-001, ALJ No. 2000-TSC-002, slip op. at 6 (ARB June 30, 2003)(environmental
acts).
[23] In environmental act cases, the complainant
must establish by a preponderance of the evidence that his or her protected
activity was a motivating factor in the adverse action; in ERA cases the
complainant must prove by a preponderance of the evidence that the protected
activity was a contributing factor. See Lopez v. Serbaco, Inc., ARB No.
04-158, ALJ No. 04-CAA-005, slip op. at 4 n.6 (ARB Nov. 29, 2006).
[24] Evans v. Baby-Tenda, ARB No. 03-001,
ALJ No. 2001-CAA-004, slip op. at 4 n.1 (ARB July 30, 2004).
[25] Kester, slip op. at 5-6.
[26] Id. at 7-8.
[27] Id. at 8.
[28] R. D. & O. at 24.
[29] Kester, slip op. at 8.
[30] Slip op. at 7.
[31] I.B. at 4, 34; Rebuttal Brief at 2-3.
[32] Macktal v. Chao, 286 F.3d 822, 826
(5th Cir. 2002), aff’g
Macktal v. Brown & Root, Inc.,
ARB Nos. 98-112/122A, ALJ No. 86-ERA-023, slip op. at 2-6 (ARB Nov. 20, 1998); Powers
v. Pinnacle Airlines, Inc., ARB No. 04-102, ALJ No. 2004-AIR-006, slip op.
at 1 (ARB Feb. 17, 2005). See also Henrich v. Ecolab, Inc., ARB No.
05-030, ALJ No. 2004-SOX-051, slip op. at 11 (ARB May 30, 2007).
[33] Chelladurai v. Infinite Solutions, Inc., ARB
No. 03-072, ALJ No. 03-LCA-004, slip op. at 2 (ARB July 24, 2006); Rockefeller
v. U.S. Dep’t of Energy,
ARB Nos. 03-048, 03-184; ALJ Nos. 2002-CAA-005, 2003-ERA-010, slip op. at 2
(ARB May 17, 2006); Saban v. Morrison-Knudsen, ARB No. 03-143, ALJ No.
03-PSI-001, slip op. at 2 (ARB May 17, 2006); Halpern v. XL Capital, Ltd., ARB
No 04-120, ALJ No. 2004 SOX-054, slip op. at 2 (ARB Apr. 4, 2006); Getman v.
Southwest Secs., ARB No. 04-059, ALJ No. 2003-SOX-008, slip op. at (ARB
Mar. 7, 2006); Knox v. Dep’t of the Interior, ARB No.
03-040, ALJ No. 2001-LCA-003, slip op. at 3 (ARB Oct. 24, 2005).
[34] ARB No. 05-030, ALJ No. 2004-SOX-051, slip
op. at 11 (ARB May 30, 2007).
[35] Administrative Law Judge Exhibit 1, at 1, 2.
[36] Respondent’s Motion to Dismiss, or, in the
Alternative, for Summary Decision at 1.
[37] Higgins v. Glen Raven Mills, Inc.,
ARB No. 05-143, ALJ No. 2005-SDW-007, slip op. at 8 (ARB Sept. 29, 2006).
[38] Hearing transcript at 305-307
(Seetharaman). See Lewis v. U.S. EPA, ARB No. 04-117, ALJ Nos.,
2003-CAA-005, 006, slip op. at 8 (ARB Mar. 30, 2007); Swenk v. Exelon
Generating Co., ARB No. 04-028, ALJ No. 2003-ERA-030, slip op. at 4 (ARB
Apr. 28, 2005).
[39] 29 C.F.R. § 24.3(b).
[40] 29 C.F.R. § 24.3(b)(2).
[41] See, e.g., Kelley v. Heartland Express, Inc.,
ARB No. 00-049, ALJ No. 99-STA-29, slip op. at 3 (ARB Oct. 28, 2002). See
also Ondine Shipping Corp. v. Cataldo, 24 F.3d 353, 355 (1st Cir.
1994)(“When a trial court produces a lucid, well-reasoned opinion that reaches
an appropriate result, we do not believe that a reviewing court should write at
length merely to put matters in its own words.”).
