DOL Home > OALJ > Whistleblower > Daugherty v. General Physics Corp., 92-SDW-2 (ALJ Dec. 14, 1992) |
DATE:DECEMBER 14, 1992
CASE NO.:92-SDW-00002
In the Matter of
PAUL C. DAUGHERTY,
Complainant
v.
GENERAL PHYSICS CORPORATION,
Respondent
Appearances:
PAUL C. DAUGHERTY, Pro Se
For the Complainant
ROBERT B. BARNHOUSE, ESQ.
For the Respondent
BEFORE: E. EARL THOMAS
DISTRICT CHIEF JUDGE
Pursuant to the provisions of 24 C.F.R., Part 24, Complainant, Paul C. Daugherty, filed a complaint in which he contends that he was terminated by Respondent, General Physics Corporation (hereinafter "General Physics"), in violation of the following Federal employee protection statutes: Water Pollution Control Act, 33 U.S.C. 1367; the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610; the Toxic Substance Control Act, 15 U.S.C. 2622; the Safe Drinking Water Act, 42 U.S.C. 300j-9; the Solid Waste Disposal Act, 42 U.S.C. 6971; the Energy Reorganization Act, 42 U.S.C. 5851, and the Clean Air Act 42 U.S.C. 7622. After appropriate notice was given to interested parties, a hearing was held before the undersigned in Augusta, Georgia, on October 1, 1992.
Summary of Facts
U.S. Department of Energy. Westinghouse Savannah River Company (hereinafter "Westinghouse") is the site operator for SRS. Complainant was employed as an engineer for General Physics, a subcontractor for Westinghouse. Complainant worked for General Physics up until February 27, 1992, at which time his employment was terminated by his employer. Termination of Mr. Daugherty's employment was communicated to him by letter prepared on February 26, 1992 by Mr. Crawford, General Counsel for General Physics, and r. Harrison, General Physics' Vice President in charge of the unit in which Mr. Daugherty was employed. The letter cited various instances of inappropriate behavior allegedly committed by Mr. Daugherty as reason for his termination.
Mr. Daugherty filed a complaint with the District Director on March 24, 1992. In his complaint, Mr. Daugherty maintained that Respondent discriminated against him by terminating his employment because he participated in protected activities. Pursuant to an investigation, the Director determined that inappropriate behavior on the part of Mr. Daugherty, and not employer discrimination, was the motivating factor behind the action taken by Respondent. Mr. Daugherty appealed the findings of the Director, and the above mentioned formal hearing was held.
Issues in Controversy
Respondent moves to dismiss Complainant's appeal on the grounds that it was not properly filed.
Complainant asserts that Respondent has discriminated against him for engaging in protected activities by terminating his employment in violation of the Federal employee protection provisions of the various statutes listed above.
Discussion
Respondent moved to dismiss Complainant's appeal on the grounds that it was not properly filed. In particular, Respondent maintains that Complainant's appeal was not timely filed, nor was it filed in the manner required by the regulations.
The regulations state that,
if on the basis of the investigation, the
Administrator determines that the complaint is
without merit, the notice of determination shall include, or
be accompanied by notice to the complainant that the notice
of determination shall become the final order of the
Secretary denying the complaint unless within five calendar
days of its receipt the complainant files with the Chief
Administrative Law Judge a request by telegram for a hearing
for the complaint. 29 C.F.R. §24.4(d)(2)(i).
According to the evidence of record, the Complainant herein was given the proper notice of his right to appeal as per 29 C.F.R. §24.4(d)(3)(1). The Complainant was given such notice by letter dated June 1, 1992 from the District Director. Complainant maintains that he received such notice on or about February 3, 1992. Complainant chose to exercise his right to appeal and mailed a letter dated February 4, 1992 indicating such desire to the Chief Administrative Law Judge. Such letter was post marked June 6, 1992 and received by the Chief Administrative Law Judge on June 12, 1992.
As to the issue of the proper method to be used for filing a notice of appeal, Respondent maintains that Complainant failed to comply with the requirements of the act by giving such notice by letter instead of by telegram as is required by the act. According to the evidence of record, Complainant's notice of appeal did take the form of a letter and not a telegram. At the hearing, Complainant testified that although he was aware that the regulations called for the use of a telegram, he could not afford to use that means at that time. It is the finding of the undersigned, that although Complainant did not adhere to the letter of the regulations, Complainant's notice by letter was made in substantial compliance with the regulations, and he is therefore not in violation thereof. Wagner Tractor. Inc. v. Shields, 381 F.2d 441 (9th Cir. 1967). The Fifth Circuit has concluded that the requirements for the 'substantial equivalent' of a notice of appeal have been met where the notice of appeal specifies the party or parties taking the appeal; the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken. Greater Houston Chapter of American Civil Liberties Union v. Eckels, 763 F.2d 180 (9th Cir. 1985) citing Van Wyk El Paso Investment. Inc. v. Dollar Rent-A-Car Systems. Inc., 719 F.2d 806 (5th Cir. 1983). In the instant case, the record indicates that Complainant's notice of appeal has met the requirements of substantial compliance.
In addition, in order to effectuate the remedial purposes of the relevant provisions of the various environmental statutes, the undersigned acknowledges that the provisions must be broadly construed. The Court in Mackowiak v. University of Nuclear Systems. Inc., 735 F.2d 1159 (9th Cir. 1984), has stated that the ERA and other provisions share a broad, remedial purpose of protecting workers from retaliation based on concerns for safety and quality. Mackowiak, at 1163. Further, the
Tenth Circuit has stated that a narrow, hypertechnical reading of the [ERA] will do little to effect the statute's aim of protection. Wells v. Kansas Gas & Electric Co., 780 F.2d 1505, 1512 (lOth Cir. 1985), cert. denied, 106 S.Ct. 3311 (1986). It is well established that the main purpose behind these provisions is that of protecting a complainant. In the instant case, where the Complainant's form of notice is in substantial compliance with the regulations, and where no other party has asserted that they would suffer undue harm, the undersigned finds that a broad construction of the statues is proper in order to avoid defeating their remedial purpose. Under the facts of this case, Complainant's notice by letter is found to be sufficient notice, and therefore not in violation of the regulations.
As to the issue of timeliness, Complainant has complied with the requirements of the regulations. Complainant filed notice of his intent to appeal to the Chief Administrative Law Judge. Such notice was mailed by Complainant within 5 days of his receipt of the notification of the results of the compliance actions. Although Respondent may not have received notice of Complainant's intent to appeal until June 15, 1992, by letter post marked June 10, 1992, the regulations require a party's notice of appeal to be filed with the Chief Administrative Law Judge within the time indicated. It is the finding of the undersigned that Complainant's notice of appeal was timely filed.
Accordingly, the Respondent's motion to dismiss is hereby DENIED.
Complainant asserts that the Respondent herein terminated his employment because he was involved in protected activities, and that such termination is in violation of the Federal employee protection provisions of the statues listed above. In particular, Complainant asserts because he engaged in protected activities, Respondent discriminated against him by threatening, harassing, intimidating and ultimately terminating his employment.
Respondent argues that the termination of Complainant's employment was due to his inappropriate behavior while at work. In particular, Respondent maintains that:
The undersigned concludes that the Respondent herein did not terminate the Complainant's employment in violation of the Federal employee protection provisions of the above listed statutes. The Federal employee protection provisions of the various statutes cited by the Complainant generally provide:
Essentially, a complainant has the initial burden of showing:
The complainant must also present evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse action. Ellis Fischel State Cancer Hoso. v. arshall, 629 F.2d 563, 566 (8th Cir. 1980), cert. denied, 450 U.S. 1040 ( 1981) .
In the instant case, it is the finding of the undersigned that the Complainant has failed to allege a set of facts which would establish a prima facie case. Although a complainant, such as Mr. Daugherty, who proceeds pro se cannot be held to the same standard for pleadings as one represented by legal counsel, a complainant must allege a set of facts which, if proven, could support the claim of entitlement to relief. Grizzard v. Tennessee Valley Auth., 90-ERA-52 (Decision of the Secretary, September 26, 1991).
Complainant has failed to show that he has engaged in protected activities. Complainant has not alleged to have commenced a proceeding with any government agency, nor to have testified or assisted in such proceeding nor that he was about to take such action. Further, Complainant has not alleged that he has filed an internal safety complaint, (see, e.g., Mackowiak, supra, broadly interpreting protected activity' to include the filing of internal safety complaints). Even a liberal look at the electronic mail memorandum which the Complainant sent to the DOE employee does not allow for it to be considered an internal complaint that is
protected activity. The Secretary of Labor has stated that reporting violations of the environmental statutes enumerated in 29 C.F.R. §24.1 internally to one's employer is a protected activity. Donald J. Willy v. The Coastal Corp. and Coastal States Management Corp., 85 CAA 1, 1 OAA 3, p.382 (Sec. of Labor June 6, 1987). According to the evidence of record, the memo sent by Mr. Daugherty did not specifically address a quality or safety concern nor was it sent to Complainant's employer.
The record further indicates that upon various occasions, Complainant made out of context comments and general threats to various employees at General Physics which remained unexplained and unsubstantiated. In light of the beneficent purposes of the provisions at issue, there is a concomitant need to weigh factual records liberally with a view towards furthering those purposes. S.M.A. Hasan v. Nuclear Power Services. Inc., 86-ERA-24, 1-OAA-5, p.102 at 104, October 21, 1987. Notwithstanding these objectives, coupled with the need to view the pleadings more leniently where the Complainant is proceeding pro se, the undersigned, even assuming arguendo that such actions were 'internal safety complaints to his employer' within the meaning of the relevant protection provisions, could not find that Respondent has violated those provisions. Complainant has demonstrated no evidence, circumstantial or other, which would support even an inference that Respondent was motivated by Complainant's conduct when it discharged the Complainant. The alleged discriminates must present a prima facie case by presenting evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Larry v. Detroit Edison Comp., 86 ERA 32 (Sec'y June 28, 1991). Complainant has not met this burden, and consequently has failed to prove a prima facie case. Further, with ample evidence in the record of Complainant's repeated hostile, inappropriate behavior, Respondent has propounded legitimate, non-discriminatory reasons for discharging Complainant.
In conclusion, Complainant has failed to prove his claim of discriminatory discharge on the part of Respondent. There having been no violation of the Federal employee protection provisions of the various statutes cited above, Complainant's claim should be dismissed.
It is therefore ordered that the complaint of Paul C. Daugherty be DISMISSED.
E. Earl Thomas
District Chief Judge
EET/BMS/pc
Ft. Lauderdale, FL