DOL Home > OALJ > Whistleblower > Straub v. Arizona Public Service Co., 95-ERA- 10 (ALJ Feb. 23, 1995) |
DATE: February 23, 1995 CASE NO.: 95-ERA-10 In the Matter of: JOSEPH ROY B. STRAUB, Complainant, vs. ARIZONA PUBLIC SERVICE COMPANY/ ARIZONA NUCLEAR POWER PROJECT, (APS), Respondent. RECOMMENDED DECISION AND ORDER OF DISMISSAL This is a proceeding brought under the employee protection provisions of the Energy Reorganization Act of 1974 as amended 42 U.S.C. 5811 et seq., ("the Act"), and the regulations at 29 C.F.R. Part 24. The Act prohibits a Nuclear Regulatory Commission license, such as the 11/21/94 Complaint here states Arizona Public Service Company/Arizona Nuclear Power Project ("APS") is, from discharging or otherwise discriminating against an employee who was engaged in activities protected by the Act's provisions. The Act was designed to protect "whistleblowing" employees from their employer's retaliatory or discriminatory actions. Following the assignment of this matter to this ALJ, Case No. 95-ERA-10, and review of the 11/12/94 Complaint and the Assistant District Director's 11/18/94 decision, the 12/6/94 Order to Show Cause was issued. This Order stated Mr. Straub's 11/12/94 95-ERA-10 Complaint indicated it arose out of a hearing currently being held before another ALJ, Judge David Di Nardi, in Case No. 94-ERA-37. Mr.Straub's Case No. 94-ERA-37 Complaint was that as a direct result of his having raised safety concerns at Palo Verde during his APS employment, he had been terminated 2/19/94 as a Palo Verde technician. Here Mr. Straub, through his representative Thomas J. Saporito, stated that at the hearing before Judge Di Nardi, Mary Piogia, an employee of APS testified at length about the "hostile work environment" at APS's Palo Verde facility. He indicated he anticipated calling Ms. Piogia back as a rebuttal witness at the 1/95 reconvened 94-ERA-37 proceeding. He stated Ms. Piogia now indicates she will not again testify in Case No. 94-ERA-37
[PAGE 2] because she is afraid of losing her job and, because of the same fear, she has advised him she is reluctant to assist NRC investigators concerning Palo Verde safety issues. Mr. Straub's 95-ERA-10 Complaint averred this hostile work environment, which has affected Ms. Piogia's willingness to testify as his rebuttal witness, has prejudiced his right to due process in Case No. 94-ERA-37, and he generally pled APS is liable for Ms. Piogia's conduct. 11/12/94 Complaint paragraph 9. Complainant made no further specific 11/12/94 request as to s. Piogia's 1/95 presentation and testimony in Case No. 94-ERA- 37. And his Prayer for Relief in this Case, 95 ERA-10, based on these alleged facts, was a requested finding of generally-stated discrimination and retaliation against him, for which he requested job reinstatement and back wages. This, and his generally-stated request for appropriate redress of this matter, appeared to be a supplementation and amendment of what he requested in his currently pending hearing in Case No. 94-ERA-37. The Complainant's representations here, in Case No. 95-ERA- 10, appeared intertwined with, and integral with those in pending Case No. 94-ERA-37, with appropriate procedural action to be taken by Complainant in Case No. 94-ERA-37 in accord with Part 18, 29 C.F.R. The Complainant was so notified in my Show Cause Order. The Order stated he should advise as to why, given the provisions of Part 18, 29 C.F.R., the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges, 29 C.F.R. §18.1, §18.24 (subpoenas), and §18.11 (hearings' consolidation - see also 29 C.F.R. §24.5(a)), § 18.5(e) (amendments and supplemental pleadings), and the provisions of the Energy Reorganization Act, 42 U.S.C. § 5851, and given what his 11/12/94 Complaint set forth, a recommended Order dismissing this matter, should not be issued. Complainant was also to advise why any further appropriate actions, in accord with his 11/12/94 Complaint's representations were not to be taken by him in accord with these provisions. These actions would be taken by him in Case No. 94- ERA-37, his then currently pending hearing. Complainant's Response to my Show Cause Order was subsequently received, as was APS 's Answer to his Response. Complainant's Response contends either an order should be issued setting the matter for a public hearing on the merits of his 95-ERA-10 claim, or an order should be issued here consolidating his 11/12/94 Complaint with his 94-ERA-37 Complaint. Complainant's Response apparently agrees his 11/12/94 Complaint's concerns are intertwined and integral to those scheduled for 1/95 continued hearing, and fall under the
[PAGE 3] consolidation provisions of 29 C.F.R. § 18.11. However he states only that he would not oppose a consolidation of his two claims under 29 C.F.R. § 18.11, § 24.5(b). He does not and did not, as far as is known,[1] move for such consolidation in accord with the applicable procedural provisions. Complainant's concerns as expressed, which apparently motivate and decide Complainant from not moving in accord with these procedures' requirements, appear a component of his Case No. 94- ERA-37 trial strategy. The due process right, 'hostile work environment,' and continuing violation contentions of Complainant's Response have their genesis in Complainant's representations as to Ms. Piogia's presentation as his rebuttal witness in Case No. 94- ERA-37. For these concerns and contentions the Complainant has had and has full remedy and recourse in Case No. 94-ERA-37, under the procedural provisions available to him and cited in my Order. There is no independent cause of action stated in the 11/12/94 Complaint, the allegations of which cannot be divorced from the proceeding in Case No. 94-ERA-37, by virtue of which Complainant had and has full remedy and recourse for the relief he seeks by this action and Complaint. Therefore, it is recommended that the matter here be DISMISSED. ELLIN M. O'SHEA Administrative Law Judge NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Office of Administrative Appeals, U.S. Department of Labor, Room S4309, Frances Perkins Building, 200 Constitution Ave., NW, Washington, DC 20210. The Office of Administrative Appeals has the responsibility to advise and assist the Secretary in the preparation and issuance of formal decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990). [ENDNOTES] [1] A copy of Judge Di Nardi's 1/3/95 Order Denying Continuance has been received and is included in the record forwarded to the Secretary. Copies of this ALJ's Show Cause Order, the 11/12/94 Complaint and Director's 11/18/94 Decision were forwarded to Judge Di Nardi's Office 1/3/95.