DOL Home > OALJ > Whistleblower > Greenwald v. The City of North Miami Beach, 80-SDW-2 (ALJ Mar. 11, 1980) |
80-SDWA-2
GLENN M. GREENWALD
Complainant
vs.
CITY OF NORTH MIAMI BEACH
Respondent
JOEL JOSEPH, ESQ.
for the Complainant
SIDNEY B. SHAPIRO, ESQ.
for the Respondent
This proceeding arises under the provisions of the Safe Drinking Water Act, section 1450(i), 42 U.S.C. § 300j- 9(i), and the regulations issued thereunder, found at 45 F.R. 1836 (Tuesday, January 8, 1980) (to be codified at 29 C.F.R. Part 24).
Glenn M. Greenwald, the Complainant, has alleged that the City of North Miami Beach, Respondent, has violated the Safe Drinking Water Act in that it has refused to hire or rehire him as a chemist because of his actions while employed by Respondent in attempting to achieve compliance with the Act and that in failing to rehire him the Respondent is continuing to discriminate against Complainant.
Complainant originally complained of his discharge to the Department of Labor in December 1977. That complaint was investigated and a formal hearing was held. The Administrative Law Judge recommended that the case be dismissed because of failure to file within the Act's time limitations. (Case No. 78-SDWA-1.) The Secretary approved and adopted the recommended decision.
In the instant proceeding, Complainant filed his complaint by mail on November 27, 1980, twenty-seven days after the mailing of Respondent's letter declining to hire him on the grounds that no vacancy existed. The complaint was received by the Department of Labor on December 12, 1977. An investigation was conducted and Claimant was informed of the result on January 7, 1980. He then requested a hearing. The hearing was conducted in West Palm Beach, Florida, on February 22, 1980. Neither Claimant nor his counsel was present, citing late receipt of the Notice of Hearing. (Counsel for Claimant had been given notice of my intent to hold the hearing at that time and location telephonically on February 8, and February 11, 1980, through his office and directly, by members of my staff.)
During the hearing, Respondent made a motion orally, and subsequently in writing, to dismiss the complaint on jurisdictional grounds. It cites the language of the Act and of the regulations to show that a cause of action over which the Department of Labor may exert jurisdiction must invoke an employer-employee relationship, and that therefore jurisdiction fails with regard to subject matter and to person.
In the instance of in personam jurisdiction, Respondent did not qualify its appearance at the hearing prior to its commencement and may be viewed thereby as having submitted to the jurisdiction of the Department, notwithstanding an untimely filing of its objection.
Subject-matter jurisdiction is a different problem in that defects in this kind of jurisdiction cannot be waived. A review of the statutory language, history, and cases provides no-basis for a complaint by an applicant for a position, unlike Title VII of the Civil Rights Act, nor is there any basis for complaint by a former employee whose previous employment relationship has already been subjected to an opportunity for hearing and is now closed off by a final order. To find jurisdiction here it would be necessary to go behind the earlier case, Case No. 78-SDWA-1, to find the employment relationship requisite to this proceeding, and to reopen issues involved there. The doctrine of res judicata bars reopening such matters which have become final.
Therefore absent the existence of an employer-employee relationship, there is no subject matter jurisdiction and the complaint must be dismissed.
I recommend that this complaint be dismissed for lack of subject matter jurisdiction.
NAHUM LITT
Chief Judge
Dated: March 11, 1980
Washington, D.C.