1 This appeal has been assigned to a panel
of two Board members, as authorized by Secretary's Order 2-96. 61 Fed. Reg. 19,978 §5 (May 3,
1996).
2. The first two cases, Moore v.
U.S. Department of Energy, ARB Case No. 99-094, ALJ Case No. 99-CAA-14 (alleging violations of
the CAA, CERCLA, and the Surface Transportation Assistance Act (STAA), 49 U.S.C. §31101) and
Moore v. U.S. Department of Energy, ARB Case No. 99-047, ALJ Case No. 1998-CAA-16 (alleging
violations of the CAA and the STAA), are pending before the Board.
3 Moore raises two evidentiary issues
on appeal. First, Moore argues that the ALJ erroneously failed to order DOE to produce Debbie Miller --
the upper level manager who set the Professionalism Team in motion and selected its leader -- for cross-
examination at the hearing. Complainant's Opening Brief (Comp. Br.) at 1-3. Moore argues that Miller's
testimony would have been relevant in establishing retaliatory motive on the part of DOE. Id. at 2. As
we conclude that there was no adverse action taken against Moore in issuing the draft standards, Miller's
motives in appointing the Professionalism Team are beside the point.
In a related point, Moore argues that the ALJ erred in allowing the "rank
hearsay" testimony of the leader of the Professionalism Team as to the directions Miller gave him when
she selected him to lead it. Id. Moore is mistaken. The team leader's testimony was not introduced
to prove the truth of Miller's statement, but rather to show what the team leader understood was the charge
to the team. See 29 C.F.R. §18.801(c) ("Hearsay is a statement . . . offered in evidence
to prove the truth of the matter asserted.").
4See Griffith v. Wackenhut
Corp., ARB Case No 98-067, ARB Dec. Feb. 29, 2000, slip op. at 11 ("personnel actions that
cause the employee only temporary unhappiness do not have an adverse effect on the employee's
'compensation, terms, conditions or privileges of employment'"). See also Ray v. Henderson,
217 F.3d 1234 (9th Cir. 2000) (surveying case law on adverse action under Title VII).