Professional Documents
Culture Documents
_____________________________________________
_____________________________________________
1. Whether the ALJ Committed Reversible Error by Relying on FRCP Rule 12(b)(6) in
Dismissing the Complaint?
ANSWER: Yes
ANSWER: Yes
ANSWER: Yes
ANSWER: Yes
The instant action arose under the employee protection provisions of the ERA, as
amended, 42 U.S.C.A. §5851 and its implementing regulations at 29 C.F.R. Part 24. On July 27,
2010, Complainant filed an ERA whistleblower complaint as supplemented on August 17, 2010,
and filing 54-exhibits with the Occupational Safety and Health Administration (OSHA) alleging
that Progress Energy and Progress Energy Florida (hereinafter "Respondents"), retaliated against
him in violation of the ERA by refusing to hire [him] for various positions advertised by
2
Respondents for which Complainant made application. (Hereinafter "Complaint").
Complaint.
Complaint.
OSHA and request for hearing, the presiding ALJ issued a show-cause order (Order) to the
Complainant to show cause why the complaint should not be dismissed. According to the ALJ,
"...Review of the complainant [sic], supplemental complaint, and the request for hearing
demonstrate that the Complainant has failed to set forth facts of sufficient specificity to show that
there is a genuine issue as to whether Respondents' actions on the specified job applications are
barred by the ERA and 29 CFR §24.103(d)(2); whether adverse action has been taken by
Respondents as to other job applications; and, whether the Respondents' agent(s) who made a
determination not to hire the Complainant for specific jobs knew or suspected that the
Complainant had engaged in protected activity at the time a decision not to hire the Complainant
was made, if any. The Complainant is hereby given an opportunity to correct these noted
deficiencies. Id. at 5.
Cause Why Complaint Should Not Be Dismissed - responding to the issues raised in the ALJ's
3
Order - and specifically restated the issues for which the ALJ sought a response on the part of the
Complainant. Id. at 2.
Response to Order to Show Cause. Notably, Respondents also specifically restated the very same
issues cited by Complainant for which the ALJ sought a response on the part of the Complainant.
Id. at p.3.
On March 10, 2011, the ALJ issued an Order dismissing the complaint solely under the
Federal Rules of Civil Procedure (FRCP), Rule 12(b)(6) and canceled the scheduled hearing. The
ALJ held that, "...The remaining employment positions referred to by the Complainant . . . are
not time barred. Of these seven positions, the Parties, through their pleading, as amended, agree
that the positions. . . were filled by applicants other than the Complainant. Thus the Parties
through their pleading jointly assert that those four positions did not and do not remained [sic]
open and that the employer did not continue to seek applicants from persons with the
complainant's qualifications after the Complainant was rejected. Accordingly, as a matter of law,
the Complainant has failed to state a claim upon which relief can be granted under ERA as
related to those four positions. With regard to the remaining three positions. . . the Complainant
alleges in broad terms that he was not hired. However, the pleadings, as amended, lack the
specificity to demonstrate that any of the Complainant's three remaining applications has been
rejected and that any of these three positions remained open and the Respondent continued to
seek applicants from persons with the Complainant's qualifications after the Complainant's
application was rejected. Accordingly, as a matter of law, the Complainant has failed to state a
4
claim upon which relief can be granted under ERA for these three positions. Id. at 7-8.
On March 18, 2011, Complainant timely filed a petition for review with the ARB in
accordance with directions provided in the ALJ's Order dismissing the complaint; and stated
objections specific to the ALJ's findings in the Order dismissing the Complaint at 7-8. Id. at 1-3.
As stated immediately above, on March 10, 2011, the ALJ dismissed the complaint under
the Federal Rules of Civil Procedure (FRCP), Rule 12(b)(6) and canceled the scheduled hearing.
"The remaining employment positions referred to by the Complainant that are not
time barred from consideration are:
Of these seven positions, the Parties, through their pleading, as amended, agree
that the positions of (1) Nuclear Auxiliary Operator (Entry Level), Job ID 710BR,
(2) Nuclear Tech Assistant I, Job ID 738BR, (3) Assistant Nuclear Auxiliary
Operator, Job ID 863BR, and (4) Nuclear Manager of Maintenance, Job ID
914BR, were filled by applicants other than the Complainant.
Thus the Parties through their pleading jointly assert that those four positions did
not and do not remained open and that the employer did not continue to seek
applicants from persons with the complainant's qualifications after the
Complainant was rejected. Accordingly, as a matter of law, the Complainant has
failed to state a claim upon which relief can be granted under ERA as related to
those four positions.
5
Plant Development, Job ID 131BR, and (3) Instrument & Controls Tech II-
Nuclear, Job ID 1141BR, the Complainant alleges in broad terms that he was not
hired. However, the pleadings, as amended, lack the specificity to demonstrate
that any of the Complainant's three remaining applications has been rejected and
that any of these three positions remained open and the Respondent continued to
seek applicants from persons with the Complainant's qualifications after the
Complainant's application was rejected. Accordingly, as a matter of law, the
Complainant has failed to state a claim upon which relief can be granted under
ERA for these three positions.
Order at 7-8.
In this case, the ALJ relied solely on Federal Rule of Civil Procedure 12(b)(6)1, and
without citation to even a single relevant case, in concluding that "four positions did not and do
not remained [sic] open and that the employer did not continue to seek applicants from persons
with the complainant's qualifications after the Complainant was rejected"; and that "the
Complainant has failed to state a claim upon which relief can be granted under ERA as related to
those four positions"; and that "the pleadings, as amended, lack the specificity to demonstrate
that any of the Complainant's three remaining applications has been rejected and that any of
these three positions remained open and the Respondent continued to seek applicants from
persons with the Complainant's qualifications after the Complainant's application was rejected";
and that "the Complainant has failed to state a claim upon which relief can be granted under ERA
for these three positions; and that "After deliberations on the pleadings, as amended, this
Administrative Law Judge finds that the Complainant has failed to set forth with specificity
1 The ALJ was well aware that ERA whistleblower complaints are reviewed under 29 C.F.R. Part 24 - as the ALJ
so indicated in [his] Jan. 28th, 2011 Order to Show Cause. Id. at 2.
6
sufficient facts, which if considered true, allege a prima facie case." Id. at 7-8.
LEGAL ARGUMENT
The Secretary of Labor has delegated authority to the ARB to issue final agency decisions
in cases arising under the ERA's employee protection provisions. Secretary's Order 1-2010
75 Fed. Reg. 3924 (Jan. 15, 2010); 29 C.F.R. §24.110. The ARB reviews an ALJ's grant of
summary decision de novo. Holland v. Ambassador Limousine/Ritz Transp., ARB No. 2005-
STA-050, slip op. at 1 (ARB Oct. 31, 2009); King v. BP Prod. N. Am., Inc., ARB No. 05-149,
ALJ No. 2005-CAA-005, slip op. at 4 (ARB July 22, 2008). Summary decision is appropriate "if
noticed show that there is no genuine issue as to any material fact and that a party is entitled to
The ARB will grant summary decision in favor of the moving party if, after viewing the
evidence in the light most favorable to the non-moving party, we conclude that there is no
genuine issue of material fact and the ALJ has correctly applied the relevant law. Santamaria v.
United States Envtl. Prot. Agency, ARB No. 04-063, ALJ No. 2004-ERA-006, slip op. at 4 (ARB
May 31, 2006); Demski v. Ind. Mich. Power Co., ARB No. 02-084, ALJ No. 2001-ERA-036, slip
op. at 3 (ARB Apr. 9, 2004); Honardoost v. Peco Energy Co., ARB No. 01-030, ALJ No. 2000-
ERA-036, slip op. at 4 (ARB mar. 25, 2003). The moving party may prevail by pointing to the
"absence of evidence proffered by the nonmoving party." Holland, ARB No. 07-013, slip op. at 2
7
(citation omitted). The nonmoving party, however, may not rest upon the mere allegations,
speculation or denials of his pleadings, but instead set forth specific facts which could support a
finding in its favor. See 29 C.F.R. §18.40(c). In reviewing an ALJ's summary judgment decision,
we do not weigh the evidence or determine the truth of the matters asserted. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1985); Hansan v. Enercon Services, Inc., ARB No. 05-037, ALJ
In the instant action, the ALJ dismissed the Complaint solely under FRCP 12(b)(6) which
is similar - but not identical to a motion for summary decision under 29 C.F.R. §18.40(c). A
motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), tests only the adequacy
of the complaint. United States v. City of New York, 359 F.3d 83, 87 (2d Cir. 2004). A Rule 12 (b)
(6) motion can be granted only if "it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-
46 (1957). A Rule 12(b)(6) motion to dismiss cannot be granted simply because recovery appears
remote or unlikely on the face of a complaint. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).
"The issue is not whether a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." Id. (quotation omitted)(emphasis added).
However, "bald assertions and conclusions of law will not suffice" to meet this pleading
The ARB reviews an ALJ's determinations on procedural issues and evidentiary rulings
under an abuse of discretion standard, i.e., whether, in ruling as he did, the ALJ abused the
discretion vested in him to preside over the proceedings. Stalworth v. Justin Davis Enter., Inc.,
8
ARB No. 09-038, ALJ No. 2009-STA-001, slip op. at 3 (ARB June 16, 2010); Harvey v. Home
Depot U.S.A., Inc., ARB Nos. 04-114, -115, ALJ Nos. 2004-SOX-020, -036, slip op. at 8 (ARB
June 2, 2006). The ARB "construe[s] complaints and papers filed by pro se complainants
'liberally in deference to their lack of training in the law' and with a degree of adjudicative
latitude." Hyman v. KD Res. ARB No. 09-076, ALJ No. 2009-SOX-020, slip op. at 8 (ARB
Mar. 31, 2010)(citations omitted)(emphasis added). The ARB has held "that adjudicators must
accord a party appearing pro se fair and equal treatment. . ." William Vinnett v. Mitsubishi Power
Systems, ARB Case No. 08-104; ALJ Case No. 2006-ERA-029 (ARB July 27, 2010).
"...it is a violation for any employer to intimidate, threaten, restrain, coerce, blacklist,
discharge, discipline, or in any other manner retaliate against any employee because the
employee has" engaged in any activity set forth in subsections (A) through (F) of paragraph (1)
of §5851 of the ERA, 29 C.F.R. §24.102(b) and (c). In order to state a general claim under the
ERA upon which relief may be granted, the complainant must allege the existence of facts that
make a prima facie showing that protected activity was at least a motivating factor in an adverse
9
See, 29 C.F.R. §24.104(f); 24 C.F.R. §18.1.
Section 211 of the ERA provides, in pertinent part, that "No employer may discharge or
otherwise discriminate against any employee with respect to his compensations, terms,
alleged violation of this chapter or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.). To
the evidence that (1) he engaged in protected activity; (2) the employer knew about the protected
activity; (3) the employer subjected him to an adverse action; and (4) his protected activity was a
contributing factor in the adverse action. 42 U.S.C.A. §5851(b)(3)(C); Muino v. Florida Poewr
& Light Co., ARB Nos. 06-092, -143, ALJ Nos. 2006-ERA-002, -008, slip op. at 7 (ARB Apr. 2,
2008). Protected activity under the ERA includes making an informal complaint about safety
hazards to a supervisor, but such complaints must relate to nuclear safety "definitively and
specifically"2. American Nuclear Res., Inc. v. U.S. Dept' of Labor, 134 F.3d 1292, 1295 (6th Cir.
1998); Speegle v. Stone & Webster Constr., Inc., ARB No. 06-041, ALJ No. 2005-ERA-006, slip
op. at 7 (ARB Sept. 24, 2009). The employee, however, does not have to prove an an actual
2 Complainant avers here that the ARB's reliance on the words "definitively and specifically" are contrary to the
broad and remedial purpose of the ERA for which Congress intended to "protect" whistleblower and "encourage"
whistleblower to raise nuclear safety complaints. Moreover, the ARB's continued reliance on the words
"definitively and specifically" in analyzing whistleblower complaints is contrary to public policy and under-cuts
the Congressional intent of the framers of ERA by heightening the pleading standard for nuclear workers seeking
protection from retaliation for raising nuclear safety concerns - and thereby instills a "chilling effect" dissuading
nuclear workers from engaging in ERA protected activities. The "chilling effect" will ultimately result in a
devastating nuclear accident similar to the Japanese nuclear accident which is ongoing - and spewing high-level
radiation and radioactive contamination into the environment. For these reasons, Complainant urges the ARB to
reject the terminology and use of the words "definitively and specifically" in analyzing whistleblower complaints
brought before the OALJs so as to promote a public policy which serves to protect public health and safety.
10
Speegle, ARB No. 06-041, slip op. at 7-8. "Relief may not be ordered . . . if the employer
demonstrates by clear and convincing evidence that it would have taken the same unfavorable
personnel action" in the absence of the protected activity. 42 U.S.C.A. §5851(b)(3)(D); Benson v.
North Ala. Radiopharmacy, Inc., ARB No. 08-037, ALJ No. 2006-ERA-017, slip op. at 7 (ARB
Apr. 9, 2010).
To effectuate the broad and remedial purpose of the Energy Reorganization Act (ERA),
judiciary bodies which operate within the U.S. Department of Labor (DOL) have consistently
complaints to further perpetuate the purpose of the ERA in deciding such actions on their merits
The ARB has interpreted the ERA statute to mean that it:
11
(Emphasis added). See, William Vinnett v. Mitsubishi Power Systems, ARB No. 08-104 (July 27,
Seven environmental whistleblower protection laws which are analogous to the instant
Complaint were passed in order to "encourage" employees to report safety violations and protect
their reporting activity. English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 2277, 110
(November 20, 1990)(the "paramount purpose" behind the whistleblower statutes is the
"protection of employees"). The U.S. Court of Appeals for the Third Circuit has approvingly
noted that the courts have "consistently construed" the environmental whistleblower laws "to
lend broad coverage" to employees. Passaic Valley Sewerage Comm. v. Department of Labor,
992 F.2d 474, 479 (3rd Cir. 1993). The Third Circuit's posture completely accords with
. . . from the legislative history and the court and agency precedents . . . it is clear
that Congress intended the 'whistleblower' statutes to be broadly interpreted to
achieve the legislative purpose of encouraging employees to report hazards to the
public and protect the environment by offering them protection in their
employment.
Faulkner v. Olin Corp., 85-SWD-3, R. D&O of ALJ, pp. 5-6 (August 16, 1985), adopted by the
SOL (November 18, 1985). To achieve these ends, the law mandates that "employees must feel
secure that any action they may take" furthering "Congressional policy and purpose, especially in
the area of public health and safety, will not jeopardize either their current employment or future
12
Remand by SOL, pp. 7-8 (April 20, 1987). Consequently, when interpreting a case under these
laws, there is a need for "broad construction" of the statutes in order to effectuate their purposes.
DeFord v. Secretary of Labor, 700 F.2d 281,286 (6th Cir. 1983). "Narrow" or "hypertechnical"
Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir. 1985).
In framing the ERA statue, Congress intended to protect and encourage nuclear workers
to raise perceived safety concerns to prevent a catastrophic nuclear accident similar to the
nuclear catastrophe ongoing in the country of Japan where several large explosions breached
several nuclear reactor containment buildings in March of 2011, spewing high-level radioactive
It is for this very reason that the ARB has consistently held that the ERA statue
13
"...should be liberally interpreted to protect victims of discrimination and to further its
retaliation." See, Fields v. Florida Power Corp., ARB No. 97-070, ALJ No. 96-ERA-22 (ARB
Mar. 13, 1998) at 10 (decision under the Energy Reorganization Act, 42 U.S.C. §5851, citing
English v. General Elec. Co., 496 U.S. 72 (1990) and Bechtel Constr. Co. v. Secretary of Labor,
50 F.3d 926 (11th Cir. 1995)("it is appropriate to give a broad construction to remedial statues
such as nondiscrimination provisions in federal labor laws"). When interpreting a case under the
employee protections, there is a need for "broad construction" of the statues in order to
effectuate their purpose. DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983).
Congressional purposes. Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir.
1985).
protection provisions of the ERA, as well as other Environmental Acts passed by Congress,
clearly illustrate that administrative whistleblower complaints to the OSHA must not be held to
pleading standards that apply to litigation in federal court.3 Notably, in Evans, Judge E. Cooper
3 Whistleblower complaint dismissal under FRCP 12(b)(6), is not a matter of first-impression for the ARB as the
issue of dismissing whistleblower complaints under FRCP 12(b)(6) was amply argued by the parties in Douglas
Evans v. United States Environmental Protection Agency, ARB No. 08-059 (ARB April 30, 2010); and joined via
Amicus Brief submitted by the Assistant Secretary of Labor for OSHA on June 17, 2010. Through this reference,
Complainant adopts the pleadings and legal arguments and points of authority cited in Evans' pleadings and that
14
Brown dissented from the majority's conclusion that Evan's allegations of protected activity were
inadequate. FD& O at 10-15. The dissent specifically wrote that the "ALJ's requirement of
specificity imposes upon a claimant seeking whistleblower protection under the Environmental
Acts a heightened pleading that [was] expressly rejected by the Supreme Court" in a pre-Iqbal
decision, Swierkeiewicz v. Sorema N.A., 534 U.S. 506 (2002). FD& O at 11. The Supreme Court
held that Swierkeiewicz retained its vitality notwithstanding the Supreme Court's decisions in
Iqbal and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Moreover, Judge Cooper
Brown found that Evans's complaint satisfied the "minimal pleading requirements" set forth in
Swierkeiewicz. FD& O at 14. Judge Cooper Brown also broke from the majority's finding that
On January 18th, 2011, the ARB entertained oral argument to ask the parties involved in a
case arising under the Sarbanes-Oxley Act (SOX) - to address issues of how specific OSHA
complaints have to be - and whether ALJs can grant motions to dismiss on the pleadings, and the
nature of protected activity under SOX. Jonathan Rees (Rees) for the Solicitor of Labor's Office
explained to the ARB that 29 C.F.R. Section 1980.109 "reinforces that de novo review" is the
standard at the ALJ stage; and that is consistent with the notion that a case is not to be
adjudicated on the pleadings or on the OSHA complaint. (Emphasis added). Attorney Stephen M.
Kohn (Kohn) pointed the ARB to Passaic Valley Sewerage Comm. v. U.S. Department of Labor,
992 F.2d 474, 478-79 (3rd Cir. 1983); and explained that this particular case is the only case that
the Senate report cited to express the legislative intent about the scope of protected activity. See,
of the Assistant Secretary; and further, herein incorporates the same into Complainant's Initial Brief just the same
as if Complainant pleaded such independently.
15
Cong. Rec. S7418, S7420 (daily ed. July 26, 2002). Kohn further explained to the ARB that the
Passaic Valley standard protects any concern that is not frivolous or an abuse of the stature; and
that it is inconsistent with the "definitively and specifically" standard. Kohn further explained to
the ARB that the "definitively and specifically" standard has a chilling effect on protected
activity and [he] urged the ARB to reject it. The idea is to protect the channels of communication
and encourage employees to raise concerns. See, Munsey v. Federal Mine Safety and Health
Review Comm'n, 595 F.2d 735, 742-743 (D.C. Cir. 1978). Judge Corchado asked if there is some
relatedness requirement for protected activity. Kohn answered yes - but urged the ARB to use
common sense.
Does Iqbal rest on an unsound theory of judgment and decision making? Can judges rely
on common sense, rather than evidence, to decide whether Black plaintiffs' claims of race
discrimination are plausible without drawing on implicit stereotypes? Have judges increased the
dismissal rate for Black plaintiffs' claims of race discrimination under Iqbal, and how have
unrepresented Black plaintiffs' fared? Do White and Black judges decide these cases differently?
[J]udges are fallible human beings. We need to see that biases and prejudices and conditions of
attention affect the judge's reasoning as they do the reasoning of ordinary men. . . . The study of
human nature in law . . . may not only deepen our knowledge of legal institutions but open an
unworked mine of judicial wisdom. - Jerome Frank, Law And The Modern Mind, 146 (1930).
[M]an has a propensity to prejudice. This propensity lies in his normal and natural tendency to
16
Notably, on January 26th, 2011, the U.S. District Court for the District of Connecticut
denied a Rule 12(b)(6) motion to dismiss a whistleblower retaliation claim brought under Section
806 of SOX. (18 U.S.C. §1514A) in Barker v. UBS AG & UBS Securities LLC (Case No. 09-CV-
2084). The Barker court analyzed the plaintiff's burden of alleging that she engaged in protected
activity cognizable under Section 806 and found that protected activity contributed to [her]
discharge. The court analyzed whether Barker pled sufficient facts to withstand a motion to
dismiss pursuant to the standards articulated in Bell Atlantic Corporation v. Twombly and Ascroft
v. Iqbal. Moreover, the court focused on whether Barker sufficiently alleged that she engaged in
protected activity and whether such activity contributed to her discharge. The court applied a
fairly light burden, and was not moved by the seven-month gap between Barker's disclosures and
her discharge or the reward she received for her work on the project at issue in her complaint.
With respect to the temporal gap, the court noted that, in addition to the discharge, the alleged
Here, in the instant action as in Evans, the ALJ's reliance on FRCP 12(b)(6) in summarily
dismissing the ERA whistleblower Complaint is misplaced and reversible error - because as in
Evans, the ALJ's reliance on FRCP 12(b)(6) specificity imposes upon a claimant seeking
whistleblower protection under the ERA a heightened pleading that [was] expressly rejected by
the Supreme Court. Instead, the ALJ was required to follow the Rules of Practice and Procedure
before the Office of Administrative Law Judges (OALJ's) under 29 C.F.R. Part 24 - which
administrative investigation by OSHA - not formal pleadings intended for litigation in federal
17
court. The Secretary of Labor has consistently held in the adjudication of whistleblower
complaints that "[n]o particular form of complaint is required," provided that a complaint "must
be in writing and should include a full statement of the acts and omissions, with pertinent dates,
which are believed to constitute the violations." 29 C.F.R. 24.103(b). See also, 29 C.F.R. 24.104,
confirms that complaints are to be filed with OSHA for purposes of initiating an investigation -
(2) a complaint must "allege the existence of facts and evidence to make a prima facie showing,"
complainant." Id. Thus, the implementing regulations themselves clearly demonstrate that the
filing of a whistleblower complaint under the ERA is an investigatory function, not adjudicative.
whistleblower complaint for failure to make a prima facie showing at the investigatory stage
after reviewing the complaint and conducting appropriate interviews, the regulations do not
contain similar language that authorizes an ALJ to dismiss a whistleblower complaint for failure
to make a prima facie showing. Indeed, there exists no requirement under Part 24 of the OALJ's
regulations that require a complainant to file a new or amended complaint when seeking relief
from an ALJ. See, 29 C.F.R. 24.106. Likewise, the OALJ's regulations under 29 C.F.R. 18.2(d)
clearly demonstrate that administrative complaints filed with OSHA are not likened to
complaints filed in federal court. Notably, the ALJ Rules define "complaint" as "any document
18
proceeding or otherwise." Thus, an ERA whistleblower complaint filed with OSHA to initiate an
investigation does not initiate an adjudicatory proceeding before the ALJ; but rather, challenges
OSHA's findings through objection to initiate an adjudicatory proceeding. See, 29 C.F.R. 24.106;
29 C.F.R. 24.110. For these reasons, a "complaint" filed with OSHA is not contained within the
definition of "complaint" used in the ALJ Rules - nor does a "complaint" filed with OSHA
constitute a legal "pleading" as defined under the Rules. See, 29 C.F.R. 18.2(i).
Wherefore, because the requirements of the ALJ Rules related to complaints are
inapplicable to administrative complaints filed with OSHA; and because federal court pleading
requirements should not be applied to whistleblower complaints to OSHA; and because the ALJ
departed from relevant law and based [his] decision solely on FRCP 12(b)(6) pleading
requirements4 in dismissing the Complaint in the instant action, the ARB must reverse the ALJ's
dismissal of the Complaint and remand this case for a hearing on the merits of the Complaint as a
matter of law.
4 The Ohio Supreme Court has twice reaffirmed the stringent standard against dismissals under Rule 12(b)(6),
stating that "[a] Civ.R. 12(B)(6) dismissal based on the merits is unusual and should be granted with caution."
State ex rel. Lindenschmidt v. Butler Cty. Bd. of Commrs., 72 Ohio St.3d 464, 467 (1995); State ex rel. Edwards
v. Toledo City School Dist. Bd. of Edn., 72 Ohio St.3d 106, 109 (1995).
19
"...Complainant has failed to set forth facts of sufficient specificity to
show that there is a genuine issue as to whether Respondents' actions on
the specified job applications are barred by the ERA and 29 CFR
§24.103(d)(2); whether adverse action has been taken by Respondents as
to other job applications; and, whether the Respondents' agent(s) who
made a determination not to hire the Complainant for specific jobs knew
or suspected that the Complainant had engaged in protected activity at the
time a decision not to hire the Complainant was made, if any. The
Complainant is hereby given an opportunity to correct these noted
deficiencies. Id. at 5.
Cause Why Complaint Should Not Be Dismissed (Response). In his Response, Complainant
advised the ALJ that he was before the Court pro se without the benefit of any legal training and
without the benefit of an attorney at law - and asked the ALJ to assist him. Id. at 1. Complainant
specifically restated the issues stated in the ALJ's Order. Id. at 2. Complainant averred that the
complaint as filed and supplemented sufficiently set forth the specific facts showing that a
genuine issue of material fact exists upon which relief should be granted - and that the ARB has
consistently held that whistleblower complaints should be liberally construed on behalf of the
supplemented sufficiently set forth the specific facts showing that a genuine issue of material
fact exists upon which relief should be granted. Id. at 2. Complainant suggested to the ALJ that
OSHA's findings were not before the Court and that the ALJ was required to review the
supplemented his Complaint by providing the ALJ with a copy of Complainant's October 17,
20
that Respondents and/or their agents failed to select Complainant for the jobs that [he] made
application for . . . solely because of Complainant's engagement in ERA protected activity when
[he] worked at Respondents' Crystal River nuclear plant; and because of Complainant's well-
know [sic] (and nationally advertized) reputation in the nuclear industry as a whistleblower - for
which Respondents and/or their agents who rejected Complainant's job applications were aware.
Complainant asserted that he has not had any opportunity to engage in discovery and requested
the ALJ to provide him with such opportunity to engage in discovery. Id. at 3-5. Had the ALJ
able to access evidence in further support of his ERA Complaint. William Vinnett v. Mitsubishi
Power Systems, ARB Case No. 08-104; ALJ Case No. 2006-ERA-029 (ARB July 27, 2010), Id.
at 12-13. Complainant avers here that under the ERA and Part 24, the ALJ was required to
consider the pleadings and all other evidence in the record (including Complainant's 54-exhibits
placed in the record by OSHA) in light most favorable to Complainant - but the ALJ failed to do
Supplemental Complaint (Supplement), he cites to various record exhibits in support of his ERA
prima facie case. Complainant pointed to his ERA protected activity during his employment at
the Crystal River nuclear plant. Id. at 3; his ERA protected activity in filing nuclear safety
concerns with the U.S. Nuclear Regulatory Commission (NRC) seeking enforcement action by
under Rule 12(b)(6); and under Part 24 of the OALJ's Rules. However, the ALJ failed to point to even one of the
fifty-four exhibits placed in the record by OSHA when the ALJ dismissed the Complaint.
6 Due to the page limitations set-out in the ALJ's Order, Complainant cannot further elaborate on the relevancy of
the other pleadings and on the 54-exhibits; however, Complainant has attached an Appendix to this pleading for
consideration by the ARB which contains those documents. Complainant urges the ARB to consider this
evidence placed in the record by OSHA.
21
the NRC against Progress Energy and the Crystal River nuclear plant. Id at 4; his ERA protected
activity in providing testimony at an ERA hearing involving Terry Dysert and Progress Energy
(ALJ 1993-ERA-00023). Id at 4; his ERA protected activity in engaging the NRC Petition
Review Board (PRB) related to a 2.206 petition seeking enforcement against against
Respondents in connection with a failure of the Crystal River nuclear plant containment building
citing exhibits CX-046 at p.7.; and CX-026; CX-027. Id at 4. Respondents were well aware of
this protected activity. Id. at 5. Complainant then described in detail the jobs that he made
application for at Respondents and cited to relevant exhibits in the record. Complainant alleged
that Respondents retaliated against him because of his engagement in protected activity for
which Respondents were well aware7. Id. at 5-12. Thus, the Complaint along with other
pleadings and record evidence (54-exhibits) clearly set forth Complainant's prima facie case with
sufficient specificity to survive Rule 12(b)(6) and/or a motion for summary decision under Part
24.8 Thus the ARB is require to reverse the ALJ's decision and remand this case for a hearing on
the merits of the Complaint as a matter of law. For the reasons discussed below and in
connection with paragraph VII above, the ALJ failed to provide Complainant with notice
required when the ALJ issued the show cause order in this matter.
7 Complainant avers here that Respondents failed to provide even a single affidavit to the ALJ in support of their
bald assertions that they did not retaliate against Complainant in failing to hire him. Instead, Respondents simply
recited legal argument and conjecture and legal conclusions without evidence to support their bald allegations.
8 Complainant continues to assert that Rule 12 (b)(6) is inapplicable to whistleblower complaints before the OALJ
and that the ALJ committed reversible error by solely relying on Rule 12(b)(6) in dismissing the Complaint in
this proceeding as a matter of law.
22
PRESENT EVIDENCE AND ARGUMENT ON THEORY OF LIABILITY
ALLEGED BY THE ALJ BUT NEVER EXPRESSLY CLAIMED BY THE
ALJ IN [HIS] SHOW CAUSE ORDER; AND NEVER EXPRESSLY
CLAIMED BY RESPONDENTS
As stated earlier, on March 10, 2011, the ALJ issued an Order dismissing the ERA
Complaint in this matter under Rule 12(b)(6) and stated in relevant part that:
Id. at 7-8.
First, Complainant avers here that contrary to the ALJ's allegations stated immediately
23
above, the pleadings along with the other record evidence, including but not limited to,
Complainant's 54-exhibits that OSHA placed in the record - amply satisfy all the elements of
Complainant's prima facie case. However, the ALJ's issues or findings (as stated immediately
above) were not presented in a form of notice to Complainant in the ALJ's Order to Show Cause
- but instead, the show cause order focused on whether Complainant engaged in ERA protected
activity; and whether Respondents were aware of Complainant's protected activity when
Respondents failed to hire Complainant; and other issues in the show cause order. Nowhere in
the ALJ's show cause order did the ALJ provide a form of notice to sufficiently apprise
Complainant that he would be expected to present evidence and argument on a theory of liability
with respect to whether the positions that Complainant made application for at Respondents
remained open; and whether the employer continued to seek applicants from persons with the
Complainant's qualifications after Complainant was rejected. The ALJ however, was required to
provide fair notice about this issue to pro se Complainant sufficiently understandable to one in
appellant's circumstances. Hooker v. Washington savannah River Co., ARB No. 03-036, ALJ No.
2001-ERA-016 (ARB Aug. 26, 2004) Id. slip op. at 4. See also, Darius Motarjemi v.
Metropolitan Council Metro Transit Division, ARB Case No. 08-135; ALJ Case No. 2008-NTS-
002 (ARB Sept. 17, 2010). Moreover, Complainant has a "due-process" for an opportunity to
present evidence and argument on a new theory of liability never expressly claimed by
Respondents or by the ALJ prior to the issuance of the ALJ's Order dismissing the Complaint in
this matter. Williams v. American Airlines, Inc., ARB No. 09-018, ALJ No. 2007-AIR-4 (ARB
Dec. 29, 2010). In Williams, the Respondent argued on appeal that the ALJ violated its due
24
process rights by inserting a new theory of liability. The ARB agreed that a due process violation
had occurred - and found that "When issues not raised by the pleadings are reasonably within the
scope of the original complaint and are tried by express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the pleadings. Implied consent cannot
be automatically attached to every potential issue related to evidence introduced at trial." Id. at
Slip op. at 17-18. The ARB found that the Respondent had never been given notice or an
opportunity to defend against the second theory of liability - and remanded the case to the ALJ to
take additional evidence and argument on the issue. Here, in the instant matter, there was no
hearing - and the ALJ was the sole author of the new theory of liability in this matter as stated
earlier above. Complainant avers here that the evidence in the record including, but not limited
to, the pleadings and Complainant's 54-exhibits which OSHA placed in the record, more than
sufficiently satisfy the new theory of liability which the ALJ inserted into this proceeding sua
sponte and without fair notice to pro se Complainant. Thus, the ALJ committed reversible error
and the ARB must remand this matter for a hearing on the merits of the Complaint as a matter of
law.
It is well settled in cases arising under the various whistleblower statues that
25
complainants must be afforded broad discovery in order to support the allegations of retaliation
Power Systems, ARB Case No. 08-104; ALJ Case No. 2006-ERA-029 (ARB July 27, 2010), the
"The ALJ referred to Vinnett's 'disjointed' deposition testimony and the absence of
documents in the record that establish MPS's knowledge of protected activity. It is
important to note that Vinnett is proceeding pro se. Thus, MPS controlled the
deposition testimony and bears some responsibility for the fact that it was
'disjointed.' It is also worth noting that, although Vinnett belatedly sought more
time to file a motion to compel, he had complained throughout the litigation that
MPS was not cooperating in the discovery process. Thus, Vinnett requested
documents that could have provided him with evidence to support his claim that
he engaged in protected activity and was terminated because of it, but MPS did
not produce any documents, except a partial excerpt from Vinnett's personal log,
which was heavily redacted. . . " Id. at 12-13.
The Board has held that ALJs have wide discretion to limit the scope of discovery
and will be reversed only when such evidentiary rulings are arbitrary or an abuse
of discretion. A pro se litigant 'cannot generally be permitted to shift the burden of
litigating his case to the courts, nor avoid the risks of failure that attend his
decision to forego expert assistance.'9 The OALJ Rules of Practice and Procedure,
however, provide that '[t]he [ALJ] may deny the motion [for summary judgment]
whenever the moving party denies access to information by means of discovery to
a party opposing the motion.'10 We have said that adjudicators must accord a party
appearing pro se fair and equal treatment. . . Only after such documents are
produced should the ALJ determine whether a genuine issue of fact exists
concerning whether or not MPS knew about Vinnett's protected activity and fired
him because of it." Id. at 13-14.
As stated earlier, pro se Complainant specifically asked the ALJ for an opportunity to
engage in the discovery process in responding to the ALJ Order to show cause. However, the
ALJ never responded to pro se Complainant's reaching out to the ALJ for assistance - an
9 Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 1997-ERA-052, slip op. at 10 n.7 (ARB Feb. 29, 2000),
quoting Dozier v. Ford Motor Co., 707 F.2d 1189, 1194 (D.C. Cir. 1983).
10 29 C.F.R. §18.40(d).
26
opportunity to engage in discovery. Thus, the ALJ committed reversible error by failing to
provide pro se Complainant his due process right to engage in discovery to gather evidence in
support of his prima facie complaint. Therefore, as in Vinnett, the ARB must remand the instant
case to the ALJ and require that the ALJ provide Complainant an opportunity to engage in
discovery; and to hold a hearing on the merits of the Complaint as a matter of law.
CONCLUSION
FOR ALL THE ABOVE STATED REASONS, and because genuine issues of material
fact exist with respect to each of the issues raised in the ALJ's Order dismissing the Complaint,
the ARB must find that FRCP Rule 12(b)(6) is inapplicable to whistleblower complaints brought
before the OALJs; and that the ALJ committed reversible error by (1) improperly dismissing the
Complainant in relying solely on Rule 12(b)(6); and by (2) failing to provide pro se Complainant
him of what is required when the ALJ issued the show cause order; and by (3) failing to provide
pro se Complainant his due process right to present evidence and argument on a new theory of
liability inserted by the ALJ - but never expressly claimed by the ALJ in the show cause order
and never expressly claimed by Respondents; and by (4) failing to provide pro se Complainant
his due process right to engage in the discovery process to gather facts and evidence in further
support of the allegations set-out in the ERA Complaint filed in this matter. Wherefore, the ARB
must reverse the ALJ's decision in this matter and remand this case for a hearing on the record as
a matter of law. To do otherwise would seriously undermine the intent and purpose for which
Congress enacted the ERA, to protect whistleblowers and to encourage the reporting of nuclear
27
safety concerns to protect public health and safety from the inherent dangers of nuclear power
Respectfully submitted,
28
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing document was provided to those
Associate Solicitor
Division of Fair Labor Standards
U.S. Department of Labor
Room N-2716, FPB
200 Constitution Avenue, N.W.
Washington, D.C. 20210
{Sent via U.S. Mail}
Douglas E. Levanway
Wise Caters Child & Caraway, P.A.
P.O. Box 651
Jackson, MS 39205
{Sent via Electronic Mail}
{DEL@WISECARTER.COM}
By: ____________________
Thomas Saporito
29