ARB CASE NOS. 02-077
02-078
03-044
ALJ CASE NO. 98-CAA-7
DATE: January 30, 2004
In the Matter of:
GREGORY C. SASSE,
COMPLAINANT,
v.
OFFICE OF THE UNITED STATES
ATTORNEY, UNITED STATES
DEPARTMENT OF JUSTICE,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant Steve Bell, Esq., The Simon Law Firm, LLP, Cleveland, Ohio Gregory A. Gordillo, Esq., Cleveland, Ohio
For the Respondent:
Marcia W. Johnson, Esq., Chief, Civil Division, U.S. Attorney's Office, Cleveland, Ohio
Carol Catherman, Esq., EOUSA, Department of Justice, Washington, D.C.
For theAmicus Curiae:
Allen H. Feldman, Associate Solicitor; Nathaniel I. Spiller, Deputy Associate Solicitor, Edward Sieger, Senior Appellate Attorney, U. S. Department of Labor,Washington, D.C.
FINAL DECISION AND ORDER
This case arises under the whistleblower protection provisions of the Federal Water Pollution Prevention Control Act (the Clean Water Act or CWA), 33 U.S.C.A. § 1367 (West 2001), the Clean Air Act (CAA), 42 U.S.C.A. § 7622 (West 1995), and the Solid Waste Disposal Act (SWDA), 42 U.S.C.A. § 6971 (West 1995), and implementing regulations at 29 C.F.R. Part 24 (2003). In 1996, Gregory C. Sasse, an Assistant United States Attorney, filed a complaint against his supervisors, the United States Attorney and the Executive Office for United States Attorneys (EOUSA) alleging that they took adverse employment actions against him and created a hostile working environment because of Sasse's prosecution of environmental crimes.1
1 The Respondent in interest is the Department of Justice. Sasse v. United States Dep't of Justice, No. 1998-CAA-00007 (ALJ Mar. 3, 1999), Order Dismissing Individual Respondents.
2 The ALJ R. D. & O. and ARB decisions are available at: www.oalj.dol.gov. We cite to the electronic opinions at this web site.
3 The Division Chief, with a supervisor present, held "file reviews" four times a year to discuss pending cases. See Tr. 132, 924-925.
4 On July 20, 2000, Representative Burton, as Chairman of the House Government Reform Committee, and Representative Kucinich wrote a letter to Attorney General Reno requesting her to detail Sasse to that Committee to assist in assessing the nature of the toxic contamination on the NASA site at the Cleveland Airport. CX 17-F, p. 166. The Justice Department officials in Washington responsible for responding to this request decided to deny the request because DOJ was at or near the "ceiling" it had established for detailees. RX Z-6, p. 1430. Accordingly, the Justice officials denied the request without discussing it with EOUSA or with the United States Attorney's office in the Northern District of Ohio. Id.; see also Tr. 833-834 (First Assistant did not see the request until a week and a half before the June 2001 ALJ hearing).
5 In his brief to the Board Sasse also argues that DOJ violated the whistleblower provisions in various respects in 1999 and 2000. Complainant's first Br. at 8, 14, 32, 33. The ALJ did not purport to amend, and DOJ did not consent to amendment of Sasse's complaint to add additional claims based on these post-complaint actions. Therefore, we need not discuss them here.
6 In his post-hearing brief and briefs on review, Sasse argues that Cain and others declined to prosecute the case because former EPA employees worked there. Sasse First Appeal Br. 16-23; Post-hearing Br. 32-36. This is a baseless accusation; not a scintilla of evidence supports the notion that Cain or anyone else was influenced by the fact that former EPA employees worked at the company in question.
7 With respect to the separation of powers argument, we note that the Supreme Court has "never held that the Constitution requires that the three branches of Government ‘operate with absolute independence.'" Morrison v. Olson, 487 U.S. 654, 689 n. 27 (1988). As OSHA concedes, courts have authority to review Constitutional claims against prosecutors. And the Appointments Clause of the Constitution provides that "the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the courts of Law, or in the Heads of Departments." U.S.C.A. Const. Art 2, § 2, cl. 2.
8 Sasse claims these ratings were the reason Sasse was not selected for two supervisory positions for which he applied. Tr. 301-303. But compare Tr. 477 (Sasse does not know why he was not for which selected). However, the record shows that the selecting officials chose other candidates based in large part on their supervisory and management experience – of which Sasse had none. RX Z-3. Cf. Bassett v. Niagara Mohawk Power Co., No. 86-ERA-2, elec. op. 6 (Sec'y Sept. 28, 1993) ("employer did not discriminate against Complainant by relying in part on Complainant's lack of recent supervisory experience); Stewart v. Ashcroft, 353 F.3d 422 (D.C. Cir. 2003) (superior managerial expertise of chosen applicant was legitimate, nondiscriminatory reason for attorney's nonselection for chief of DOJ's Environmental Crimes Section).
9 DOJ provided the letter announcing the proposed sanction and the letter announcing the final decision along with pay calculations for the Sasse's five-day suspension that the ALJ requested in the R. D. & O. DOJ Letter to ALJ dated June 6, 2002 with attachments.
Sasse objects to use of these letters on the ground that they exceed the scope of the ALJ's request for information for a backpay award. Complainant's Second Br. n.1. We note, however, that Sasse's testimony described the events leading up to his suspension. The two letters are corroborative and helpful in establishing dates.
The sequence of events is, of course, critical to Sasse's claim that the suspension was in retaliation for his January or February 2000 Congressional contacts. Sasse carried the burden for establishing a causal relationship between his protected Congressional contacts and the adverse personnel action. Sasse's testimony failed to establish the necessary chronology and therefore failed to support his claim of retaliation. Reference to the EOUSA letters is both helpful to an understanding of the case and harmless, since we do not rely on the letters in reaching the conclusion that Sasse did not prove that his Congressional contacts caused the suspension.
We also note that Sasse's own brief cites to information contained only in the second letter, viz., the fact that EOUSA issued is final decision suspending Sasse in May 2000. Complainant's Second Br. at 3, 19, 22.
10 As noted previously, Sasse filed a complaint with OSHA in 2000 alleging that the suspension was in retaliation for his filing the complaint in this case. OSHA investigated but concluded that the suspension was not retaliatory. Sasse did not appeal OSHA's determination.
11 The extreme seriousness of this offense is underscored by the fact that although Sasse claimed to be concerned about airport expansion into the landfill since Bogas, he did not raise alarms about a NASA coverup until after NASA turned him down for employment. Thus Sasse opened himself and the Cleveland U.S. Attorney's Office to the appearance of impropriety.