ARB CASE NO. 05-081
ALJ CASE NO. 2004-SOX-073
DATE: October 30, 2007
In the Matter of:
MILORAD STOJICEVIC,
COMPLAINANT,
v.
ARIZONA–AMERICAN WATER,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Milorad Misha Stojicevic, pro se, Etobicoke, Ontario
For the Respondent:
John J. Balitis, Jr., Fennemore Craig, P.C., Phoenix, Arizona
FINAL DECISION AND ORDER
Milorad Stojicevic
complained that Arizona-American Water Company (AAW) violated the employee protection provisions of both
Section 806 of the Corporate and Criminal Fraud Accountability Act of 2002,
Title VII of the Sarbanes-Oxley Act (SOX)[1],
and Section 1450 of the Safe Drinking Water Act of 1974 (SDWA)[2]
when it terminated
[Page 2]
his employment on May 20, 2003. A Department of Labor (DOL)
Administrative Law Judge (ALJ) dismissed the complaint. Stojicevic appeals,
claiming that the ALJ erred in finding that (1) AAW had a legitimate non-discriminatory
basis for terminating Stojicevic’s employment, and that (2) Stojicevic did not
engage in protected activity under SOX. We accept the ALJ’s recommendation
that the complaint be denied and we affirm his recommended decision.
Background
For convenience, we briefly restate certain background
facts. Additional details are provided in the ALJ’s Recommended Decision
and Order (R. D. & O.).
Mark Clark hired
Stojicevic as a project manager for Citizens Utilities Company (Citizens) in
January 2001. R. D. & O. at 4. Approximately one year later, AAW,
headquartered in Phoenix, Arizona, became Stojicevic’s employer when it
purchased the assets of Citizens and each of its subsidiaries. Id. Stojicevic’s responsibilities included low-level oversight on technical issues
in development and engineering projects in Bullhead City and at Lake Havasu. R. D. & O. at 5. Tom Condit served as the project manager for the Lake Havasu work site and Fred Schneider supervised the entire project. Id.
Stojicevic’s
relationship with the Phoenix office became strained; he “did not have a lot of
respect for the folks in the Phoenix office and, as such, he did not feel he
should be reporting to the folks in the Phoenix office.” Transcript (T.) at
100. Stojicevic asserted that AAW was poorly managing the project, citing both
technical and financial errors. T. at 189-91. Stojicevic also maintained that
Condit lacked the necessary expertise to supervise the project. Id. As Stojicevic’s e-mails became increasingly “curt and rude,” communications
between Stojicevic and his managers worsened. T. at 101.
At a company
meeting at the end of 2002, Stojicevic voiced his problems with the handling of
the Lake Havasu site. T. at 248. He requested removal from the project and
from Condit’s supervision. Id. Following the meeting, Schneider told
Stojicevic that his attitude and inability to work with the Lake Havasu team would reduce his usefulness to AAW. R. D. & O. at 5. Stojicevic’s
failure to procure contracts or purchase orders for work to be performed by
outside contractors also caused tension between Stojicevic and the Phoenix office management. Id. at 5.
On January 13,
2003, Stojicevic e-mailed Condit, asserting that the “[c]aissing pipe is not cap welded and
protected according to technical standards.” Complainant’s Exhibit (CX) 1. In
February 2003, the project team met and Schneider believed that they had resolved
the technical issues. R. D. & O. at 6. But on February 17, 2003, Stojicevic
e-mailed Schneider detailing numerous technical and financial problems with the
[Page 3]
development of the Lake Havasu site. See Respondent’s Exhibit (RX) 3.
Stojicevic indicated that he was “open to discuss all of the [technical issues]
but … not on the [basis] of company hierarchy.” Id. Following the
February 17 e-mail, Schneider informed Stojicevic that company policy dictated
the proper procedure for voicing complaints. R. D. & O. at 6. Further,
Schneider told Stojicevic that if could not work within the current hierarchy,
he should look for other employment. Id. Schneider counseled
Stojicevic to improve the tone and tenor of his communications. Id.
On March 28,
2003, AAW issued a performance report for Stojicevic, listing him as “meets
expectations.” RX 5. While noting that Stojicevic “is an asset to the Mohave
operations,” the review rated Stojicevic’s communication and cooperation skills
as “needs improvement.” Id. In April 2003 Stojicevic met with
Paul Townsley, AAW’s President for the Western Region. They discussed Stojicevic’s
technical concerns, communication issues, and how the disagreements with
Schneider would affect future references. R. D. & O. at 6.
Threatening E-mail
On April 29, 2003,
Stojicevic sent a lengthy e-mail to Schneider. RX 7. Schneider described the
e-mail as “offensive” and “threatening.” R. D. & O. at 6. Multiple points
in the e-mail are written as if Schneider is the author. Id. In the
e-mail, Stojicevic accused project team members of hiding behind their titles.
Id. He concluded the e-mail by stating, “[n]ext time tell full
story. I will very soon.” Id.
After receiving
the April 29th e-mail, Schneider issued Stojicevic a counseling report
detailing how his behavior violated the Employee’s Guide for Conduct. RX 9.
The report stated that Stojicevic’s behavior included “interfering or refusing
to cooperate with the authorized supervisory associates in the performance of
their duties,” “making, or publishing of false, vicious, or malicious
statements concerning any associate, supervisor, the company or its products,”
“threatening, intimidating, coercing, or interfering with other associates,”
and “insubordination.” Id. The report concluded with a recommendation
for AAW to suspend Stojicevic for one day. R. D. & O. at 6.
On April 30,
2003, Stojicevic sent a letter to Paul Townsley, president of American Water
Works, of which AAW is a subsidiary, detailing his problems with his work
experience at AAW. RX 6. In the letter, Stojicevic detailed numerous
problems, including a lack of communication with the engineers, poor pump
design resulting in low water pressure, faulty well design that could allow
bacterium in the aquifer, and poor management resulting in financial loss. Id.
Stojicevic was
to serve his suspension on May 20, 2003. Id. Nevertheless, he came
into work. Id. At the office, Clark approached Stojicevic and told him
that he was on suspension and should not be in the office. Id. Stojicevic
promptly left. Id. Clark then reported the incident to
Schneider. Id. Later that day, Stojicevic visited the Lake Havasu work site to meet with a client. Id. An employee notified Clark that
Stojicevic had been seen at a work site in a company vehicle and Clark relayed this information to
[Page 4]
Schneider. Id. The same day, after
learning from Clark that Stojicevic had been at work for the second time in
violation of his suspension, Schneider terminated Stojicevic’s employment.
Stojicevic
timely filed a complaint with OSHA on June 11, 2003, alleging violations of the
SOX and SDWA whistleblower provisions. On August 25, 2004, OSHA dismissed the
complaint. He appealed and was granted a hearing before an ALJ on October 22,
2004. On March 24, 2005, the ALJ issued a recommended decision dismissing
Stojicevic’s complaint.
I. Discussion
Safe Drinking Water Act - 42 U.S.C.A. § 300j-9(i)
The environmental whistleblower statutes authorize the
Secretary of Labor to hear complaints of alleged discrimination in response to
protected activity and, upon finding a violation, to order abatement and other
remedies.[3]
The Secretary has delegated authority for review of an ALJ’s initial
decisions to the ARB.[4]
Under the SDWA regulations in effect when Stojicevic filed his complaint,
the ARB engages in de novo review of the ALJ’s recommended decision.[5]
The legal standard
The
environmental whistleblower protection provisions prohibit employers from
discharging or otherwise discriminating against any employee “with respect to
the
[Page 5]
employee’s compensation, terms, conditions, or privileges of employment”
because the employee engaged in protected activities such as initiating,
reporting, or testifying in any proceeding regarding environmental safety or
health concerns.[6] To prevail on his SDWA
complaint, Stojicevic must establish by a preponderance of the evidence that he
engaged in protected activity, that AAW was aware of the protected activity,
that he suffered adverse employment action, and that AAW took the adverse
action because of his protected activity.[7]
Stojicevic’s failure to establish causation defeats his SDWA complaint.[8]
In
analyzing an environmental whistleblower case, the ARB and reviewing courts
generally apply the framework of burdens developed for use in deciding cases
under Title VII of the Civil Rights Act of 1964[9]
and other discrimination laws.[10] To establish a prima facie
case of unlawful discrimination under the environmental whistleblower statutes,
a complainant need only present evidence sufficient to raise an inference, a
rebuttable presumption, of discrimination.[11] A
complainant meets this burden by initially showing that the employer is subject
to the applicable whistleblower statutes, that the complainant engaged in
protected activity under the statute of which the employer was aware, that the
complainant suffered adverse employment action and that a nexus existed between
the protected activity and the adverse action.[12]
Once a complainant meets his initial burden of establishing a prima facie case,
the burden then shifts to the employer to simply produce evidence or articulate
that it took adverse action for a legitimate, nondiscriminatory reason (a
burden of production, as opposed to a burden of proof). When the respondent
produces evidence that the complainant was subjected to adverse action for a
legitimate, nondiscriminatory reason, the rebuttable presumption created by the
complainant’s prima facie showing “drops from the case.”[13]
At that point, the
[Page 6]
inference of discrimination disappears, leaving the
complainant to prove intentional discrimination by a preponderance of the
evidence.[14]
Thus,
after the ALJ has fully tried a whistleblower case on the merits, he or she
does not determine whether a prima facie showing has been established, but
rather whether the complainant has proved by a preponderance of the evidence
that the respondent discriminated because of protected activity.[15] Accordingly,
the Board will decline to discuss an ALJ’s findings regarding the
existence of a prima facie showing in a case the ALJ has fully tried on the
merits.[16]
Finally, if the
complainant proves by a preponderance of the evidence that a retaliatory motive
played at least some part in the respondent’s decision to take an adverse
action, only then does the burden of proof shift to the respondent employer to
prove by a preponderance of the evidence that the complainant employee would
have been fired even if the employee had not engaged in protected activity.[17]
It is undisputed that
AAW is a water utility governed by the SDWA.[18]
It is also undisputed that AAW took adverse employment action against
Stojicevic when it terminated his employment on May 20, 2003.
[Page 7]
Protected activity
Congress enacted
the SDWA “to assure that water supply systems serving the public meet minimum
national standards for protection of public health.”[19]
As the First Circuit Court of Appeals wrote in Natural Res.
Defense Council, Inc. v. U.S. E.P.A.,[20]
The SDWA was enacted in 1974 to assure safe drinking water
supplies, protect especially valuable aquifers, and protect drinking water from contamination by the
underground injection of waste. The SDWA required the EPA to promulgate
standards to protect public health, by setting either (1) maximum contaminant
levels for pollutants in a public water supply, or (2) a treatment technique to
reduce the pollutants to an acceptable level if the maximum contaminant level
is not economically or technologically attainable.[[21]]
The SDWA’s
whistleblower protection provisions prohibit employers from discriminating
against an employee who has:
(A) commenced, caused to be commenced, or
is about to commence or cause to be commenced a proceeding under this subchapter
or a proceeding for the administration or enforcement of drinking water
regulations or underground injection control programs of a State,
(B) testified or is about to testify in
any such proceeding or,
(C) assisted or participated or is about
to assist or participate in any manner in such a proceeding or in any other
action to carry out the purposes of this subchapter.[[22]]
The ALJ described Stojicevic’s
alleged protected activities: “Complainant alleges that he raised concerns
with management about the capacity of the projected well to support the water
needs of the Lake Havasu community . . . . This includes maintaining
[Page 8]
sufficient water pressure to put out fires.” R. D. & O. at 8. The ALJ acknowledged that the “SDWA is not itself
specifically concerned” with the subject matter of Stojicevic’s complaints
about the well capacity and water pressure, but that “this issue is relevant to
public safety, which is a main concern of the environmental whistleblower
statutes generally.” R. D. & O. at 8. The ALJ concluded that Stojicevic’s
“complaints to the Phoenix office about water safety therefore could be
considered protected activity under the SDWA.” Id.
AAW did not
challenge the ALJ’s determination that Stojicevic engaged in protected activity;
thus, we will not review it.[23]
Nevertheless, we note that Stojicevic’s complaints, as described by the ALJ, on
their face, do not implicate the coverage of the SDWA’s enumerated protected
activities i.e., “a proceeding under this subchapter
[i.e., an SWDA whistleblower proceeding] or a proceeding for the administration
or enforcement of drinking water regulations or underground injection control
programs of a State proceeding.”[24]
Accordingly, we note that the ALJ’s determination that Stojicevic’s complaints
concerning well capacity and water pressure were protected under the SDWA’s
whistleblower provision is highly questionable.
Knowledge
The ALJ found that
AAW was aware of Stojicevic’s engagement in protected activity prior to his
suspension and termination. R. D. & O. at 8. AAW has not challenged this
finding and therefore, we need not review it.[25]
Causation
The ALJ states the applicable legal standard as:
In order to make a prima
facie case of discriminatory treatment under an environmental whistleblower
statute, such as the SDWA, the complainant must prove four elements:
(1) The respondent is governed by the SDWA;
(2) The complainant engaged in protected activity as defined by the SDWA;
[Page 9]
(3) The respondent had actual or constructive knowledge of the protected
activity and took some adverse against the complainant; and
(4) An inference is raised that the protected activity of the complainant
was the likely reason for the adverse action.
If the Complainant
makes out a prima facie case of discrimination, the employer must prove
that it took the adverse employment action for a legitimate, non discriminatory
reason. If the employer carries this burden, then the complainant must show
that the reason proffered by the employer was a pretext for a discriminatory
motive.
R. D. & O. at 4.
The ALJ incorrectly
stated that after the complainant establishes an inference of discrimination, the
burden of proof shifts to the respondent to prove that it took the action for a
legitimate non discriminatory reason. Thus, the ALJ imposed an improper burden
on AAW, requiring it to prove that its reason for terminating Stojicevic’s
employment was legitimate and non-discriminatory. R. D. & O. at 9. Instead,
at this stage all the respondent is required to do is to articulate evidence of
a non-discriminatory reason for taking the action. Therefore, once AAW alleged
a legitimate non-discriminatory reason for the termination, i.e., Stojicevic’s
hostile and inappropriate behavior and acts of insubordination, the burden was
on Stojicevic to prove by a preponderance of the evidence that AAW terminated
his employment because he engaged in protected activity.[26]
In any event, given the ALJ’s ultimate conclusion that Stojicevic
failed to carry his burden of proof, his misapplication of the burdens of proof
and persuasion was harmless.
The ALJ found
that Stojicevic engaged in inappropriate behavior
including sending e-mails that were hostile and rude and “his unwillingness to
follow Respondent’s management hierarchy when making complaints.” Id.
Stojicevic was suspended for one day because of
“his inability to work with his supervisors, inappropriate comments, hostile
attitude, and insubordination.” Id. He ignored the suspension
and was sent home again. Nevertheless, he returned to the job site later that
day. AAW terminated his employment for his continued insubordination. R. D.
& O. at 9.
Stojicevic contends
that Schneider’s misinterpretation of his April 29 e-mail prompted AAW to
suspend him. CB at 2; see RX 7. Stojicevic claims that since English
is not his first language, his “writing style can be awkward and tone can be
misunderstood.” Id. AAW responds, noting that Stojicevic conducted all
of his business matters in English, and was well versed in proper use and
tone. Respondent’s Brief (RB) at 7.
[Page 10]
The ALJ found that
the e-mail was reasonably interpreted as “hostile.” R. D. & O. at 9.
Moreover, although this e-mail ultimately led to the suspension, AAW management
previously had warned Stojicevic on numerous occasions about his demeanor and
tone. In February 2003, Schneider approached Stojicevic, counseling him to
improve his tone and demeanor in dealings with the other employees at AAW. T.
at 254-56. Further, AAW placed Stojicevic on notice by issuing a March 28,
2003 performance review that indicated Stojicevic needed to improve his
communication skills with other employees due to improper tone. RX 5.
Stojicevic was not simply misunderstood in his e-mail. He was well aware that
his actions were improper and continued to engage in them.
Even if Stojicevic
proved that his tone was proper and merely misunderstood, such evidence alone
would not establish that AAW’s interpretation of his e-mails as hostile was
discriminatory. It is not sufficient for Stojicevic to establish that the
decision to terminate his employment was not “just, or fair, or sensible . . .
rather he must show that the explanation is a phony reason.”[27]
Thus, Stojicevic must show that AAW’s proffered explanations are false and a
pretext for discrimination. He has not done so here.
Stojicevic also
contends that his e-mail on April 29 was a response to Schneider’s attempts to
“blacklist” him through e-mail. CB at 5. He argues that Schneider sent an
e-mail claiming that Stojicevic’s calculations on a particular tank were
wrong. Id. He claims that his calculations were correct according to
engineering standards. Id. He does not, however, provide any
evidence that Schneider believed Stojicevic’s calculations to have been
correct, and therefore his e-mail rejecting them was just a pretext for
discrimination, nor that he had any discriminatory motive in rejecting the tank
size. Id.
Stojicevic
further contends that he returned to work on May 20, 2003, to meet with a
client. CB at 7. He claims that he had a field meeting with a trade representative,
which was scheduled a week prior. Id. Moreover, he claims he
had no chance to cancel the meeting. Id. Nevertheless, Stojicevic was
indisputably insubordinate, especially in light of the admonition earlier in
the day to leave the work site. In any event, even if Stojicevic believed his
actions were in AAW’s best interests, he has not carried his
[Page 11]
burden of proving
that AAW suspended him in retaliation for protected activity rather than
because he insubordinately refused to comply with AAW’s suspension.[28]
As the ALJ
found, Stojicevic has not provided any evidence that “the motive behind the
adverse employment action” was discriminatory. R. D. & O. at 10.
Stojicevic has failed to show that AAW terminated his employment because he
engaged in protected activity. Failing to do so, he has not shown a causal
link and has failed to prove his case under the SDWA’s whistleblower protection
provisions.
b. Sarbanes-Oxley - 18 U.S.C.A. § 1514A(a)(1)
The Secretary of
Labor has also delegated her authority to issue final agency decisions under
the SOX to the ARB.[29]
Pursuant to the SOX and its implementing regulations, the Board reviews the
ALJ’s factual determinations under the substantial evidence standard.[30]
In reviewing the ALJ’s conclusions of law, the Board, as the Secretary’s
designee, acts with “all the powers [the Secretary] would have in making the
initial decision . . . .”[31]
Therefore, the Board reviews an ALJ’s conclusions of law de novo.[32]
The legal standard
The employee
protection provision of the SOX prohibits employers from retaliating against
employees for providing information or assisting in investigations related to
securities fraud:
(a) Whistleblower
protection for employees of publicly traded companies.--No company with a class
of securities registered under section 12 of the Securities Exchange Act of
1934 (15 U.S.C. 78l), or that is required to file reports under section 15(d)
of the Securities Exchange Act of 1934 (15 U.S.C. 78o(d)), or any officer,
employee, contractor, subcontractor, or agent of such company, may discharge,
[Page 12]
demote, suspend, threaten, harass, or in any other manner discriminate against
an employee in the terms and conditions of employment because of any lawful act
done by the employee--
(1) to provide
information, cause information to be provided, or otherwise assist in an
investigation regarding any conduct which the employee reasonably believes
constitutes a violation of section 1341, 1343, 1344, or 1348, any rule or
regulation of the Securities and Exchange Commission, or any provision of
Federal law relating to fraud against shareholders, when the information or
assistance is provided to or the investigation is conducted by--
(A) a Federal regulatory or law enforcement agency;
(B) any Member of Congress or any committee of Congress; or
(C) a person with supervisory authority over the employee (or such other person working for the
employer who has the authority to investigate, discover, or terminate
misconduct); or
(2) to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed
or about to be filed (with any knowledge of the employer) relating to an
alleged violation of section 1341, 1343, 1344, or 1348, any rule or regulation
of the Securities and Exchange Commission, or any provision of Federal law
relating to fraud against shareholders.[33]
SOX actions are
governed by the legal burdens of proof set forth in section 42121(b) of title
49, United States Code (the employee protection provision of the Wendell H.
Ford Aviation Investment and Reform Act for the 21st Century, (AIR 21), 49
U.S.C.A. § 42121 (West 2005)).[34]
To prevail, a SOX complainant must prove by a preponderance of the evidence
that: (1) he engaged in a protected activity or conduct; (2) the respondent
knew that he engaged in the protected activity; (3) he suffered an unfavorable
personnel action; and (4) the protected activity was a contributing factor in
[Page 13]
the unfavorable action.[35]
The respondent can avoid liability by demonstrating by clear and convincing
evidence that it would have taken the same unfavorable personnel action in the
absence of the protected activity.[36]
Stojicevic was a
covered employee of AAW, a corporation governed by Sections 12 and 15(d) of the
Securities Exchange Act.[37]
There is no dispute that he suffered an adverse action when AAW terminated his
employment. At issue is whether Stojicevic engaged in protected activity under
the SOX.
Protected activity
With respect to
the protected activity requirement, Stojicevic must prove by a preponderance of
the evidence that he provided information to AAW that he reasonably believed
constituted a violation of 18 U.S.C.A., sections 1341 (mail fraud), 1343 (wire,
radio, TV fraud), 1344 (bank fraud), or 1348 (securities fraud), or any rule or
regulation of the Securities and Exchange Commission (SEC), or any provision of
Federal law relating to fraud against shareholders.[38]
Under the SOX, the employee’s communications must “definitively and
specifically” relate to any of the above listed federal securities laws.[39]
Stojicevic
alleged that “Respondent made financially unsound choices . . . .” R. D. &
O. at 7. However, the ALJ found that Stojicevic “has not offered any proof
that Respondent made false statements or misrepresentations to its shareholders
and investors regarding its earnings, such that its conduct constituted
fraud.” Id. The ALJ concluded that Stojicevic “has not shown that he
engaged in activity protected under SOX.” Id.
Stojicevic
argues to us that in early April 2003 he complained about financial and
technical issues on a large number of projects, which “did not comply with
technical [and] engineering standards and law.” Complainant’s Brief (CB) at
4. Further, he contends that AAW’s failure to “alert and inform shareholders,
consumers, developers and investors of …‘complainant’s valid technical
concerns’ does amount to misleading” them. CB at 10.
[Page 14]
Substantial
evidence supports the ALJ’s finding that Stojicevic did not allege fraud since
he does not argue before the Board any specific instances of fraud or false
statements. Instead, Stojicevic argues that the ALJ erred in his legal
conclusion, since AAW’s failure to inform the stockholders of Stojicevic’s
complaints about mismanagement and violations of SDWA and local regulations
constituted misrepresentations. However, as we held in Harvey v. Home Depot:
Providing
information to management about questionable personnel actions, racially discriminatory
practices, executive decisions or corporate expenditures with which the employee
disagrees, or even possible violations of other federal laws such as the Fair
Labor Standards Act or Family Medical Leave Act, standing alone, is not
protected conduct under the SOX. To bring himself under the protection of the
act, an employee’s complaint must be directly related to the listed categories
of fraud or securities violations. 18 U.S.C.A. § 1514A(a); 29 C.F.R. §§
1980.104(b), 1980.109(a). See Getman, slip op. at 9-10 (requiring that
the employee articulate the nature of her concern). A mere possibility that a
challenged practice could adversely affect the financial condition of a
corporation, and that the effect on the financial condition could in turn be
intentionally withheld from investors, is not enough. [40]
At most in this case, Stojicevic
demonstrated that AAW’s poor management could adversely affect its financial
condition. Accordingly, since Stojicevic did not demonstrate that AAW
defrauded, or attempted to defraud, its investors, or violated any rule or
regulation of the SEC, he has not shown that he engaged in protected activity
under the SOX.
II. Other Legal Concerns
In his brief to
the ARB, Stojicevic lists complaints of other alleged misdoings by his
employer, AAW. He claims that AAW violated the “immigration act” and that there
was a “strong indication of obstruction of justice” on the part of AAW. CB at
12. However, these issues are outside the scope of the ARB’s delegated
authority to issue final agency decisions.[41]
[Page 15]
Conclusion
Stojicevic bore
the burden of proving intentional discrimination by a preponderance of the
evidence. We find that he has failed to do so for the reasons stated above.
Accordingly, we AFFIRM the ALJ’s recommendation and DENY Stojicevic’s
SDWA and SOX complaints.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] 18 U.S.C.A. § 1514(A)(West 2007). The
SOX’s implementing regulations are found at 29 C.F.R. Part 1980 (2007).
[2] 42 U.S.C.A. § 300j-9(i)(West 2007). The
SDWA’s implementing regulations are found at 29 C.F.R. Part 24. The Department
of Labor has amended these regulations since Stojicevic filed his complaint. 72 Fed. Reg. 44,956 (Aug. 10, 2007). Even if the
amended regulations were applicable to this case, they would not change the
outcome.
[3] Jenkins v. U.S. Envtl. Prot. Agency, ARB No. 98-146, ALJ No.
1988-SWD-002, slip op. at 9 (ARB Feb. 28, 2003).
[4] 29 C.F.R. § 24.8
(2003). See Secretary’s Order No. 1-2002, 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)).
[5] See 29 C.F.R. § 24.8 (2003); Stone
& Webster Eng’g Corp. v. Herman, 115 F.3d 1568, 1571-1572 (11th Cir.
1997); Berkman v. U.S. Coast Guard Acad., ARB No. 98-056, ALJ No.
1997-CAA-002, 1997 CAA-009, slip op. at 15 (ARB Feb. 29, 2000). The SDWA’s
amended regulations provide for substantial evidence review of the ALJ’s
factual findings. 29 C.F.R. § 24.110(b) (2007). Substantial evidence is that
which is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Clean
Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)). As indicated above, even if the
Board applied a substantial evidence review to the ALJ’s findings in this case,
such review would not change the outcome of our decision, because even applying
the less restrictive de novo review standard, we agree with the ALJ’s ultimate
recommendation that Stojicevic’s complaint be denied.
[6] See 29 C.F.R. § 24.2. Accord
Morriss v. LG&E Power Servs., LLC., ARB No. 05-047, ALJ No.
2004-CAA-014, slip op. at 31-2 (ARB Feb. 28, 2007).
[7] Morriss, ARB No. 05-047, slip op. at
31-2; Lopez v. Serbaco, Inc., ARB No. 04-158, ALJ No. 2004-CAA-005, slip
op. at 4 (ARB Nov. 29, 2006); Schlagel v. Dow Corning Corp., ARB No. 2002-092,
ALJ No. 2001-CER-001, slip op. at 5 (ARB Apr. 30, 2004).
[8] Schlagel, ARB No. 02-092, slip op. at 5.
[9] 42 U.S.C.A. § 2000e, et seq.
[10] Hirst v. Southeast Airlines, Inc., ARB
Nos. 04-116, 04-160, ALJ No. 2003-AIR-047, slip op. at 9 (ARB Jan. 31, 2007); Jenkins
v. EPA, ARB No. 98-146, ALJ No. 1988-SWD- 002, slip op. at 17 (ARB
Feb. 28, 2003).
[11] Schlagel ARB No. 02-092, slip
op. at 5 n.1.
[12] Id. at 6 n.1; Jenkins, ARB No. 98-146, slip op. at 16-17.
[13] Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 255 n.10 (1981).
[14] Morriss, ARB No. 05-047, slip op. at
32; Schlagel, ARB No. 02-092, slip op. at 6 n.1; Jenkins,
ARB No. 98-146, slip op. at 18. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
[15] Morriss, ARB No. 05-047, slip op. at
32; Schlagel, ARB No. 02-092, slip op. at 6 n.1; Schwartz
v. Young’s Commercial Transfer, Inc., ARB No. 02-122, ALJ No. 2001-STA-033,
slip op. at 9 n.9 (ARB Oct. 31, 2003), Kester v. Carolina Power & Light
Co., ARB No. 02-007, ALJ No. 2000-ERA-031, slip op. at 6 n.12 (ARB Sept.
30, 2003), Simpkins v. Rondy Co., Inc., ARB No. 02-097, ALJ No.
2001-STA-059, slip op. at 3 (ARB Sept. 24, 2003), Johnson v. Roadway Express,
Inc., ARB No. 99-111, ALJ No. 1999-STA-005, slip op. at 7-8 n.11 (ARB Mar.
29, 2000). Accord U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-14 (1983)(“Because this case was tried on the merits, it is
surprising to find the parties and the Court of Appeals still addressing the
question whether Aikens made our a prima facie case.”).
[16] Andreae v. Dry Ice, Inc., ARB No.
97-087, ALJ No. 95-STA-24, slip op. at 2 (ARB July 17, 1997).
[17] Morriss, ARB No. 05-047, slip op. at
32; Schlagel, ARB No. 02-092, slip op. at 6 n.1.
[18] [18] See 42 U.S.C.A. § 300f(4)(West 2007).
[19] H.R. Rep No. 93-1185 (1974), as reprinted
in 1974 U.S.C.C.A.N. 6454.
[20] 824 F.2d 1258, 1268 (1987).
[21] See also United States v. Mass. Water
Res. Auth., 256 F.3d 36, 38 (1st Cir. 2001)(“In 1974, Congress . . . passed
the Safe Drinking Water Act . . .with the basic goal of protecting the purity
of the drinking water provided by the nation’s public water systems.”).
[22] 42 U.S.C.A. § 300j-9(i)(1).
[23] See Hall v. U.S. Dep’t of Labor,
ARB Nos. 02-108, 03-013, ALJ No. 1997-SDW-005, slip
op. at 6 (ARB Dec. 30, 2004) (failure to present argument or pertinent
authority waives argument), aff'd, 476 F.3d 847, 861 n.8 (“allegations
unsupported by legal argument or citation to evidentiary support in the record
are insufficient to raise the specific legal theory [appellant] now alleges ARB
overlooked”).
[24] 42 U.S.C.A. § 300j-9(i)(1).
[25] Hall, ARB Nos. 02-108, 03-013, slip op. at 6.
[26] Morriss, ARB No. 05-047, slip op. at 32-4.
[27] Gale v. Ocean Imaging, ARB No. 98-143,
ALJ No. 1997-ERA-038, slip op. at 10 (ARB July 31, 2002)(citing Kahn v. U.S.
Sec’y of Labor, 14 F.3d 342, 349 (7th Cir. 1994)). Accord Ransom v. CSC
Consulting, Inc., 217 F.3d 467, 471 (7th Cir. 2000), (“[t]his court does not
sit as a super-personnel department and will not second-guess an employer’s
decisions”); Skouby v. The Prudential Ins. Co., 130 F.3d 794, 795 (7th
Cir. 1997) (same); Bienkowski v. American Airlines, Inc., 851 F.2d 1503,
1507-1508 (5th Cir. 1988) (discrimination statute “was not intended to be a
vehicle for judicial second-guessing of employment decisions, nor was it
intended to transform the courts into personnel managers;” statute cannot
protect employees “from erroneous or even arbitrary personnel decisions, but
only from decisions which are unlawfully motivated”).
[28] See n.31 supra.
[29] See Secretary’s Order 1-2002
(Delegation of Authority and Responsibility to the Administrative Review
Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. §
1980.110.
[30] See 29 C.F.R. § 1980.110(b).
[31] 5 U.S.C.A. § 557(b).
[32] See Getman v. Southwest Sec., Inc., ARB
No. 04-059, ALJ No. 2003-SOX-008, slip op. at 7 (ARB July 29, 2005).
[33] 18 U.S.C.A. § 1514A(a).
[34] 18 U.S.C.A. § 1514A(b)(2)(C).
[35] Getman, slip op. at 8; see AIR
21, § 42121(a)-(b)(2)(B)(iii)-(iv). See also Peck v. Safe Air Int’l, Inc.
d/b/a Island Express, ARB No. 02-028, ALJ No. 2001-AIR-003, slip op. at
6-10 (ARB Jan. 30, 2004).
[36] § 42121(a)-(b)(2)(B)(iv); Peck, slip op. at 10.
[37] 15 U.S.C.A. § 78l (West 2007).
[38] Welch, ARB No. 05-064, slip op. at 8.
[39] Platone v. FLYi, Inc., ARB No.
04-154, ALJ No. 2003-SOX-027, slip op. at 17 (ARB Sept. 29, 2006).
[40] Harvey v. Home
Depot, U.S A., Inc., ARB Nos. 04-114, 115; ALJ Nos. 2004-SOX-020, 36, slip op. at 14 (ARB June 2, 2006).
[41] See Secretary’s Order 1-2002 (Delegation of Authority and
Responsibility to the Administrative Review Board).
