UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
DOL OALJ Case No.: 2002-SWD-00001
HUDALJ Case No. 02-01-NA
Issued: February 10, 2003
Jean F. Greene,
Complainant,
v.
EPA Chief Judge Susan Biro, U.S.
Environmental Protection Agency (EPA),
EPA Office of Inspector General (OIG),
and EPA Office of Administrative Law
Judges (OALJ)
Respondents.
1Complainant submitted a "Motion for Partial Summary Judgment," and Respondent Environmental Protection Agency submitted a "Motion to Dismiss or, in the alternative, for Summary Decision." Both motions were submitted pursuant to 29 C.F.R. § 18.40, and the EPA motion was also submitted pursuant to 29 C.F.R. § 18.6(a).
2Complainant inexplicably did not file her retaliation complaint under the whistleblower statute specifically applicable to Federal employees. See 5 U.S.C § 1221.
3Because the Complaint is vague as to the specific circumstances (e.g., dates, times, and pertinent details) of the named Respondents' alleged misconduct, I provided Complainant's Counsel an opportunity to file a new complaint. He did not avail himself of this opportunity, but stated that in his opinion the Complaint of 30 pages was sufficiently specific. He elected to orally "refile" the Complaint during the prehearing conference call.
4Although DOL has jurisdiction over TSCA, and EPA is subject to it, the courts have held that the United States has waived sovereign immunity, and made itself subject to, the TSCA employee whistleblower protection provisions only for whistleblower complaints involving certain defined lead-based paint hazards. See Stephenson v. NASA, ARB Case No. 98-025, Final Dec. and Ord., slip op. at 7, n. 6 (July 18, 2000) (citing 15 U.S.C. § 2688 (1994) and Berkman v. United States Coast Guard Academy, ARB Case No. 98-056, ALJ Case Nos. 97-CAA-2 and 97-CAA-9, Final Dec. and Ord., slip op. at 13-14 (Feb. 29, 2000).
5Although a chief ALJ is an office director, charged with providing administrative support to the other ALJs in his or her office, he or she cannot evaluate the performance of other ALJs, or revise or review other ALJs' work product unless asked to do so by that ALJ.
6Sec. 24.1 Purpose and scope. (a) This part implements the several employee protection provisions for which the Secretary of Labor has been given responsibility pursuant to the following Federal statutes: Safe Drinking Water Act, 42 U.S.C. 300j-9(i); Water Pollution Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C. 2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42 U.S.C. 7622; Energy Reorganization Act of 1974, 42 U.S.C. 5851; and Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9610.
Sec. 24.2 Obligations and prohibited acts. (a) No employer subject to the provisions of any of the Federal statutes listed in Sec. 24.1(a), or to the Atomic Energy Act of 1954 (AEA), 42 U.S.C. 2011 et seq., may discharge any employee or otherwise discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee, or any person acting pursuant to the employee's request, engaged in any of the activities specified in this section.
(b) Any employer is deemed to have violated the particular federal law and the regulations in this part if such employer intimidates, threatens, restrains, coerces, blacklists, discharges, or in any other manner discriminates against any employee because the employee has:
(1) Commenced or caused to be commenced, or is about to commence or cause to be commenced, a proceeding under one of the Federal statutes listed in Sec. 24.1(a) or a proceeding for the administration or enforcement of any requirement imposed under such Federal statute;
(2) Testified or is about to testify in any such proceeding; or
(3) 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 such Federal statute.
7Complainant asserts that Chief Judge Biro directed Ms. Mulkey to have the EPA attorney on the case move for trial instead of settling. Respondent Biro and Ms. Mulkey have both provided statements as to the content of the conversation, and there is a copy of Respondent Biro's memo to Complainant written at the time. The documents in the case do not provide support for Complainant's assertion and directly contradict it. However, even assuming Complainant's assertion to be true, Complainant has failed to show how such direction, a matter of procedure and not substance, could have constituted an ex parte communication, an improper communication, or a communication that created a violation of the SWDA or treated the other side unfairly.
8Among the numerous incidents of alleged retaliation by Chief Judge Biro, the Complaint alleges an incident in which Chief Judge Biro had falsely accused Complainant of having engaged in an ex parte conversation. Complainant had included the above definition in this Complaint to demonstrate that Judge Biro should have known that this conversation was not ex parte.
9The record does not reflect that counsel for Babcock and Wilcox ever complained about the Biro-Mulkey conversation.