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| September 25, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Office of Administrative Law Judges Heritage Plaza, Suite 530 111 Veterans Memorial Blvd. Metairie, LA 70005 (504) 589-6201
Date: December 24, 1998
In the Matter of
Walter Moore
v.
U. S. Department of Energy
By seven page complaint dated July 31, 1998, Complainant initiated this claim alleging actionable violations under both the Clean Air Act (CAA) and the Surface Transportation Assistance Act (STAA). Specifically, Complainant stated he has been an employee of the Department of Energy (DOE) for almost ten (10) years charged with the duties of transportation and guarding of nuclear weapons and materials. During his tenure, Complainant alleges he has raised various concerns with DOE about environmental, safety and health issues involving the transportation of nuclear weapons and materials. Complainant further alleges a meeting with DOE management occurred at Kirkland Air Force Base in Albuquerque, New Mexico, where employees were verbally threatened. Although not present at this meeting because he was on leave without pay, Complainant alleges that on July 2, 1998, he viewed a video of that meeting and heard and observed a DOE consultant, Mr. Moe, make threatening statements to DOE employees (couriers) which amounted to a "gag order." As a result of the statements contained in this video, Complainant alleges his "free speech rights as a DOE employee protected by STAA and CAA" were "chilled" and this caused him "suffering, pain and worry." Claimant urges [Page 2] that DOL has jurisdiction of this matter under the STAA by virtue of Flor v. U. S. Department of Energy, 93-TSC-1 (Sec'y 12/9/94) and under CAA "which protects employees raising concerns where there is a nexus to environmental protection." For relief, among other things, Complainant seeks "a suitable position in a non-hostile working environment," compensatory damages, attorney's fees and expenses and various injunctive relief to prevent further "gag orders or discrimination against other employees." Following the filing of Complainant's complaint, an investigation was conducted by OSHA. By letter dated September 14, 1998, Complainant was informed that his complaint lacked merit (1) because STAA protection did not extend to employees of the United States Government; (2) that any claim under CAA was untimely inasmuch as Complainant had been on leave from his government employment since December, 1997; and (3) that there was no evidence the video addressed issues protected by either Act. Complainant appealed the decision of OSHA, and the matter was referred to the Office of Administrative Law Judges where by request of Complainant the requirement for an expedited hearing was relaxed and the case set for trial on March 1, 1999. By Motion filed November 9, 1998, DOE sought to dismiss Complainant's actions and stay discovery until the Motion is ruled upon. The Motion to Dismiss is based upon the allegations (1) that STAA does not extend to an employee of the United States Government; (2) that the complaint filed by Complainant on July 31, 1998, was untimely under the CAA; and (3) that the Complainant also fails to allege essential elements of a prima facie case under the CAA. Pending a ruling on its Motion, DOE requested a stay of all discovery. In response to DOE's Motion, Complainant on November 9, 1998, filed written objections to delaying discovery and denied the allegations contained in DOE's Motion on several grounds, three of which are as follows: (1) that pursuant to Flor v. DOE, 93-TSC-1 (Sec'y 12/9/94) Complainant as a federal employee falls within the protection of the STAA; (2) that Complainant is still an employee of the federal government and filed a timely complaint dated July 31, 1998, and (3) that Complainant is entitled to a partial summary judgment based upon his unrefuted sworn declaration contained in his initial complaint dated July 31, 1998. In response to these motions an Order issued on November 16, 1998, staying discovery and providing each party the opportunity to file briefs in support of their respective positions. The parties filed supplemental briefs the last being received on December 21, 1998, and this Order addresses those motions.
STAA Jurisdiction There appears no factual issue that at all times relevant Complainant was and is an employee of the United States Government on leave without pay. Not only has Complainant made such allegations, but attached to his attorney's letter of November 19, 1998, is a "Standard Form 50-b" confirming that fact. Therefore, assuming all allegations [Page 3] by Complainant to be otherwise true, the issue of jurisdiction is clearly a legal one as to whether Complainant falls within the protection of STAA; and I find the clear answer is that he does not.
An "employee" under the STAA does not include ". . .
an employee of the United States Government, a state or a political subdivision of a state acting
in the course of employment." 29 C. F. R. §1978.101(d); 49 U. S. C.
§31101(2)(B); and an "employer" under the STAA does not include the United
States Government, a state or a political subdivision of a state. 49 U. S. C. §31101(3)(B).
Complainant, as an employee of the United States Government, is expressly excluded from the
protection of this Act, and therefore I grant Respondent's Motion to Dismiss Complainant's
Complaint under the STAA. 1
A complaint must be filed under the CAA within 30 days of the alleged
adverse action. 29 C. F. R. §24.3(b). In this instance, Complainant alleges that this action
arises out of a video which he viewed on July 2, 1998. His complaint is dated July 31, 1998.
Therefore, without passing on the merits of Complainant's complaint, it would appear on its face
from the record in existence at this time that Complainant's written complaint was within 30 days
of the event which he alleges to be an adverse action. Therefore, I am unwilling to grant
Respondent's Motion to Dismiss on the grounds of timeliness under the CAA.
Both parties seek summary relief on the primary issues in this case. The
Respondent maintains Complainant has failed to allege essential elements of a prima facie case
under the CAA; and Complainant maintains he is entitled to partial summary relief based upon his
sworn complaint of July 31, 1998, and subsequent attachments. I agree with neither. It is premature
to rule on the factual matters at this time.
42 U. S. C. §7622, 29 C. F. R. §24.2(a) provides that an employer
cannot "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 engages in protected activity." 29 C. F. R. §24.2(c) defines protected activity
to include, among other things, notification to employer of an alleged violation of a Federal statute.
Under the CAA, Complainant has the burden of proving (1) that he is a
covered employee; (2) that he is engaged in protected activity; (3) that the employer knew of that
activity; and (4) that he has been subjected to adverse action as a result thereof. Respondent here
argues I should dismiss Complainant's CAA complaint because it does not allege with sufficient
specificity the exact protected activity Complainant allegedly engaged in; why or how Respondent
was aware of such activity or what retaliatory or adverse action Respondent allegedly took against
Complainant for such alleged activity.
Pursuant to 29 C. F. R. §24.3(c) a complaint is not required to be in a
particular form, and according to 29 C. F. R. §24.6(c) formal rules of evidence do not apply.
Granted, Complainant's complaint is lacking in specific details, but is sufficient to require
investigation. I know far too little about the factual details of this case (including the content of the
video) to make the leap Respondent requests and summarily dismiss Complainant's complaint at this
point in time. Likewise, I am unwilling to grant partial summary decision to Complainant based on
his complaint and subsequent attachments. Evidence will have to be developed regarding the
essential elements of this case and these issues revisited either in a later motion or at trial.
The previous stay of discovery is vacated. Discovery may proceed by methods
prescribed by 29 C. F. R. §18.13 and within the scope set forth in 29 C. F. R. §18.14.
Complainant's complaint under the STAA is hereby DISMISSED for lack of
jurisdiction. All other relief sought by the parties in their respective motions is DENIED at this time
without prejudice. Discovery may resume.
SO ORDERED this 24th day of December, 1998, at Metairie, Louisiana.
C. RICHARD
AVERY
CRA:kw
1 Complainant relies on Flor v. U.
S. Department of Energy, 93-TSC-1 (Sec'y 12/9/94) for the proposition that he falls within
STAA protection; however, that case does not specifically address the clear statutory language, and
I am unwilling and lack the authority to ignore the mandates of Congress.
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