DOL Home > OALJ > Whistleblower > Allen v. EG&G Defense Materials, Inc., 97-SDW-8 (ALJ Jan. 26, 1998) |
DATE: January 26, 1998
CASE NOS.: 97-SDW-8
97-SDW-10
In the Matter of:
TRINA ALLEN,
Complainant,
v.
EG&G DEFENSE MATERIALS, INC.,
Respondent.
This matter arises under the employee protection provisions of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §300j-o (i) , the Clean Air Act ("CAA") , 42 U. S. C. §7622, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9610, the Federal Water Pollution Control Act ("FWPCA") , 33 U.S.C. §1367, the Solid Waste Disposal Act ("SWDA") , 42 U.S. C. §6971, and the Toxic Substances Control Act ("TSCA") , 15 U.S. C. §2622, and the regulations promulgated
thereunder and contained at 29 C.F.R. Part 24. It arises from numerous complaints filed by Trina Allen, Complainant, against EG&G Defense Materials Inc., Respondent.
Complainant filed her first Complaint against Respondent on April 28, 1997 (Case No. 97-SDW-8), alleging that Respondent had violated the employee protection provisions of the above-mentioned Acts. Complainant amended said Complaint on June 4, 1997.
On June 27, 1997, the U.S. Department of Labor informed Complainant via letter of the results of their investigation, whereby the Department of Labor found that the Complaint was found to have merit on one issue and no merit on another issue. Respondent appealed this determination on July 3, 1997, and requested a hearing before an administrative law judge. Complainant also appealed the determination on July 5, 1997, and requested a hearing on the matter.
On July 18, 1997, Chief Administrative Law Judge John Vittone issued a Notice of Hearing and Prehearing Order Number one, wherein a hearing was tentatively scheduled for the week of August 25, 1997.
On July 23, 1997, Complainant submitted a Memorandum in response to Judge Vittone's Notice of Hearing and Prehearing Order Number One. Complainant asserted that Salt Lake City, Utah would be the most desirable location for the hearing, and requested that the hearing be scheduled after December 8, 1997. In Respondent's Memorandum dated July 23, 1997, Respondent also stated a preference that the hearing be held in Salt Lake City, but that it be scheduled for November or December of 1997.
Complainant submitted a Corrected Scheduling Memorandum dated July 30, 1997, noting the appearance of Mick G. Harrison, Esq., as lead counsel for Complainant, and withdrawing the prior filed request for the hearing to be scheduled after December 8, 1997, and requesting the earliest possible hearing date.
On July 31, 1997, Judge Vittone issued Prehearing Order Number Two, wherein the hearing was tentatively rescheduled for the week of December 8, 1997. The date for the completion of discovery was set for November 14, 1997.
On August 12, 1997, Respondent served its First Set of Interrogatories and Request for Production of Documents upon Complainant.
On September 2, 1997, Judge Vittone issued Prehearing Order Number Three. Judge Vittone explained that he had not received Complainant's Corrected Scheduling emorandum until after the July 31, 1997 Prehearing Order Number Two had been issued. Therefore, Complainant was directed to file a written statement within 15 days of the date of the order clarifying whether she opposed the tentative December 8, 1997 hearing date.
Complainant had also filed a second Complaint against Respondent on July 29, 1997 (Case No. 97-SDW-10) On September 3, 1997, the Department of Labor notified Complainant that their investigation verified that discrimination was a factor in the actions comprising her Complaint, and it had been determined that the allegation of discriminatory actions occurring in violation of the ab ove-mentioned Acts were substantiated. Respondent appealed said determination on September 8, 1997, and requested a hearing before an administrative law judge.
On September 11, 1997, Complainant submitted a Request for Hearing and otion to Consolidate. Complainant requested a hearing to appeal the damage and remedy portion of the Department of Labor's September 3, 1997 determination as to her second Complaint. Complainant also withdrew her prior request to reschedule the hearing set on December 8, 1997, in Case No. 97-SDW-8, and requested that both cases be consolidated.
On September 12, 1997, this case was assigned to the undersigned administrative law judge, to be heard on a date of the undersigned's choosing in Salt Lake City, Utah.
On September 22, 1997, Respondent submitted via facsimile to the Washington D.C. Office of Administrative Law Judges (the "OALJ a Motion for Summary Decision, or in the Alternative, for Disqualification of Counsel, and opposition to Motion to Consolidate, with regard to the second Complaint and Case No. 97-SDW-10. Also submitted was a Memorandum and Affidavit of Lois Barr, Esq., attorney for Respondents, in support of said otion.1
On October 3, 1997, Respondent filed a Motion to Compel Discovery, or in the Alternative to Strike a Portion of Complainant's Complaint. A Memorandum and Affidavit of H. Douglas Owens, Esq., attorney for Respondent, and September 25, 1997 Notice of Deposition of Complainant were also enclosed in support of said motion.2 Although the Motion is captioned "97-SDW-8", it refers to both the amended Complaint filed in 97-SDW-8, and the second Complaint filed on July 29, 1997, in 97-SDW-10.
On October 8, 1997, Complainant submitted her Response in Opposition to EG&GIs Motion for Summary Judgment Decision and in Opposition to EG&G's Alternative Motion to Disqualify Counsel.
On October 13, 1997, Respondent submitted via facsimile to the Washington OALJ a Reply Memorandum in Support of Respondent EG&G's Motion for Summary Decision, or in the Alternative, for Disqualification of Counsel, and opposition to Motion to Consolidate, and a otion for Leave to File a Reply Memorandum in support of said motion3 .
On October 24, 1997, Complainant submitted via facsimile a Response in opposition to EG&G's Motion to Compel Discovery and in opposition to EG&G's Alternative otion to Strike a Portion of the Complaint.
On October 30, 1997, this office received Respondent's Motion and emorandum in Support of Motion to Dismiss Portions of Complainant's Complaint and for a ore Definite Statement of Certain Claims, in regards to Claimant's first Complaint, Case No. 97-SDW-8.
On November 10, 1997, this office received via facsimile Complainant's Combined Motion for Default Judgment and Response in opposition to Respondent's Motion to Dismiss Portions of Complainant's Complaint and for a More Definite Statement of Certain Claims.4
On November 12, 1997, the undersigned issued an Order to Show Cause. Respondent was given until November 24, 1997, to show cause, if any, why Respondent was not in default and subject to summary decision in Complainant's favor pursuant to 29 C.F.R. §18.5, for failure to timely file an Answer to Complainant's Complaint.
On November 24, 1997, this office received Respondent's Reply to Order to Show Cause and Answer opposing Complainant's Motion for Default Judgment.
Pursuant to a telephonic conversation on November 28, 1997, between the undersigned's legal technician and Counsel for Complainant, the undersigned granted Complainant'S Counsel five days from said date within which to respond to Respondent's Answer. On December 4, 1997, this office received Complainant's Response to Respondent's Answer and Reply to Order to Show Cause.
On December 4, 1997, the undersigned issued an Order acknowledging receipt of Respondent's Reply to Order to Show Cause, and Complainant'S Response to such, and further ordered the parties not to submit any further documents in regards to the undersigned's November 12, 1997 Order to Show Cause, except by order of the undersigned.
The undersigned also issued an Order Granting Complainant's Motion to Consolidate on December 4, 1997, whereby Case Nos. 97-SDW-8 and 97-SDW-10 were consolidated.
Complainant's Motion for Default Judgment
As previously noted, this office received Complainant's Motion for Default Judgment via facsimile on November 10, 1997. Complainant asserts that the failure of Respondent to timely file an Answer to the Complaint places Respondent in default and subject to summary decision in Complainant's favor, pursuant to 29 C.F.R. §18.5.
Complainant asserts that neither the belated filing of a Motion for a More
Definite Statement nor the belated filing of a Motion to Dismiss cures Respondent's failure to answer, since those motions were filed well beyond the thirty (30) day time period required for an Answer in 29 C.F.R. §18.5(a). Furthermore, Complainant asserts that since Respondent did not allege that all of the claims were in need of a more definite statement, there is no excuse for Respondent's failure to answer at least those claims.
Accordingly, Complainant moves for a decision in her favor, taking the allegations of her Complaint filed on April 28, 1997, and Amended Complaint of June 4, 1997, as true, based on Respondent's failure to file an Answer.
Respondent's Reply to Show Cause Order
Respondent's Reply to Order to Show Cause and Answer Opposing Complainant's Motion for Default Judgment was received in this office on November 28, 1997. Employer asserts that default judgment should not be granted because the Secretary of Labor has determined that complaints initiating proceedings before the Office of Administrative Law Judges under 29 C.F.R. Part 24 do not require an "answer."
In support of this assertion, Employer notes that in English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992), a complainant requested a hearing pursuant to the ERA.
In a ruling, which Employer asserts is directly applicable to this case, the Secretary of Labor held as follows:
Employer also points out that, in a footnote, the Secretary added: "I would note that I do not interpret the regulations implementing the ERA, 29 C.F.R. Part 24, as requiring an answer to a telegram requesting a hearing. " Id. at 7, n.5.
Secondly, Employer asserts that the contents of Judge Vittone's Notice of Hearing and Prehearing Order Number One, dated July 18, 1997, belies any claim that an answer
was to be filed in this proceeding. Said Notice instructs the parties of the manner in which to pursue their right of appeal before an ALJ.
Employer notes the Order states that "discovery may commence immediately" and directs the parties to exchange witness lists and prehearing briefs within a month of the notice. Employer finds it significant that Judge Vittone cites 29 C.F.R. §18.6(d) (2) for the applicable penalties should the parties not comply with the Order, since §18.6 follows Rule §18.5, and §18.5 is entitled -Responsive Pleading - Answer and Request for Hearing."
Thus, Employer asserts that the Order reflects Judge Vittone's interpretation of the regulations in the same manner as did the Secretary of Labor in English. Employer also contends that default judgment at this point in the case violates §554 and §555 of the Administrative Procedures Act, and is inappropriate as Respondent has actively defended this case.
Complainant's Response to Respondent's Answer
On December 4, 1997, this office received Complainant's Response to Respondent's Answer and Reply to Order to Show Cause. Complainant asserts that Respondent's prior motions to dismiss and for a more definite statement have treated the Complaint as if it were a formal pleading initiating adjudicatory proceedings, subject to the procedural requirements of 29 C.F.R. Part 18 and Federal Rules of Civil Procedure regarding complaints. These requirements include the obligation of a respondent to file a timely answer under 29 C.F.R. §18.5.
Furthermore, Complainant states that Respondent has failed to acknowledge in its Answer and Reply that it has relied on, and explicitly and impliedly asserted the applicability of both 20 C.F.R. Part 18 and the Federal Rules of Civil Procedure to whistleblower cases brought under 29 C.F.R. Part 24 in the filing of those two prior motions. Thus, Complainant contends that if those motions have a basis in law (i.e. that a Part 24 whistleblower complaint is subject to motions for failure to state a claim and for more definite statement), then those complaints are also the type that require a timely answer pursuant to Part 18 and the Federal Rules of Civil Procedure.
In Complainant's view, it is bad faith for Respondent to attempt to have the law applied one way, in Respondent's favor in regards to its motions, and then in the same case to have the law decided to the contrary but again in its favor, in regards to Complainant's Motion for Default Judgment. Complainant asserts that either both parties should have the benefits of formal treatment of the Complaint or neither should.
Complainant also contends that English, supra, did not involve the same circumstances as here, where Respondent, prior to Complainant's Motion for Default, had treated the Complaint as a formal pleading and moved for dismissal for failure to state a claim and for a more definite statement based on the wording of the complaint alone.
Complainant asserts that either Respondent is in default for failure to answer, or alternatively, Respondent has filed motions that it knew or should have known had no basis in law. Thus, Complainant requests that default judgment be entered against Respondent, or in the alternative, Respondent's pending motions to dismiss and for a more definite statement should be denied.
29 C.F.R. Part 18 provides for the Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges. 29 C.F.R. §18.5 provides in pertinent part:
In the present case/ Respondent has not filed an Answer to the Complaint of
April 28, 1997, the Amended Complaint of June 4, 1997 (Case No. 97-SDW-8), nor the second
Complaint filed on July 29, 1997(Case No. 97-SDW-10).5 The failure of Respondent to timely file an Answer to the Complaints places
Respondent in default and subject to summary decision in Complainant's favor pursuant to 20 C.F.R.
§18.5.
Furthermore, Section 554(b) of the Administrative Procedure Act (the
"APA") provides that:
In extensive reports on the pending legislation, both the Senate and the
House explained the meaning of Section 5:
The House Judiciary Committee Report on the APA contains the identical,
underlined language as the Senate Report. H.R.Rep. No. 1980, 79th Cong., 2d Sess. 36-37 (1946),
Leg. Hist., 261.
It is clear to the undersigned that the express language of §554 and the
legislative history of the APA require that a respondent in a whistleblower case give notice to the
complainant of the issues of law or fact which respondent controverts. In the present case,
Respondent's argument that an answer is not required to be filed in response to a whistleblower
complaint would in fact mean that the notice requirements of §554 of the APA could be
dispensed with in these cases.
If an answer were not filed, a complainant would arrive at the hearing without
any knowledge as to which allegations the respondent was admitting or denying, and which issues
were still controverted by the respondent at the time of hearing. Such a result is inapposite to the
mandatory, and not merely directory, notice requirement contained in §554 of the APA.
In the present matter, the Complainant initiated the proceedings by the filing
of her complaints, and thus is the moving party. As such, she was entitled to receive prompt notice
from Respondent pursuant to §554 as to which of her claims Respondent admits or denies.
Therefore, in addition to failing to file an answer as required by 29 C.F.R. §18.5, Respondent's
lack of filing an answer has also violated the notice requirement contained in §554 of the
Administrative Procedures Act.
Respondent contends that a complaint filed pursuant to 29 C.F.R. Part 24,
which provides for the procedures for the handling of discrimination complaints under Federal
employee protection statutes, does not require an answer. As previously noted, Respondent states
that in English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992), the
Secretary of Labor determined that complaints filed under 29 C.F.R. Part 24 do not require an
answer.
However, the undersigned disagrees with Respondent's assertion that the
English decision is "directly applicable" to the present case. Prior to
Complainant's Motion for Default Judgment, Respondent filed a Motion for More Definite
Statement. As will be discussed further below, the basis of Respondent's motion contains an
admission on its part that an answer should be filed in this matter. Thus, English did not
involve the same circumstances as here, where Respondent has treated the complaint as a formal
proceeding and subject to the rules contained in Part 18 in a prior motion.
Furthermore, nothing in the Acts identified in 29 C.F.R. §24.1
authorizes the Secretary of Labor to disregard the notice provisions of the Administrative Procedures
Act, as well as 29 C.F.R. Part 18, in implementing Part 24. Part 24 supplements, not supplants, the
APA and the procedural rules contained at Part 18. A determination that an answer is not required
in this matter would violate the previously discussed notice requirement contained at §554 of
the APA.
Moreover, the issue of the APA was not as squarely before the administrative
law judge or the Secretary of Labor in English, as in the present matter. Thus, neither the
ALJ nor the Secretary addressed the notice requirements of §554, which do require that a
complainant in a whistleblower proceeding be given prompt notice of issues in fact or law
controverted by the respondent. Therefore, the issue of the APA notice requirements was not
properly considered in English, which notably distinguishes that decision from the present
case.
As the Secretary has no statutory authority to displace the provisions of the
APA in a whistleblower complaint, the undersigned determines that a whistleblower complaint filed
pursuant to Part 24 does require an answer, which Respondent has failed to provide in either 97-SDW-8 or 97-SDW-10.
Respondent also notes that pursuant to Fed.R.Civ.P. 12(e), a motion for a more
definite statement is permitted in lieu of an answer where "a pleading is so vague or
ambiguous that a party cannot reasonably be required to frame a responsive pleading." Thus,
Respondent contends that it could properly elect to respond to the Complaint either by filing an
answer or by filing a motion pursuant to Rule 12 of the Federal Rules of Civil Procedure, as
incorporated at 29 C.F.R. §18.1(a).
As previously noted, Respondent's Motion for a More Definite Statement was
received by the OALJ on October 28, 1997. Respondent specifically asserted that those claims
alleging blacklisting and injury to professional reputation, contained in paragraphs 11 and 14 of the
Complaint filed on April 28, 1997, and the Amended Complaint filed on June 4, 1997, were vague
and ambiguous. However, Respondent clearly did not allege that all the claims were in need of a
more definite statement, and the undersigned agrees with Complainant that there is no excuse for
Respondent's failure to answer at least those claims.
Furthermore/ said Motion concerns only 97-SDW-8. Thus, Respondent has
still failed to file a timely answer or request a more definite statement as to the second Complaint,
97-SDW-10. Finally, Respondent's Motion for a More Definite Statement was filed over three and
a half months after Complainant's Amended Complaint, and was therefore filed well beyond the 30
day time period required for an Answer at Fed.R.Civ.P 12(e).
For the above-stated reasons, it is determined that Respondent's Motion for
ore Definite Statement filed in 97-SDW-8 does not rectify the fact that Respondent has failed to
timely answer the complaints in both cases.
Moreover, the very words used by Respondent in its Memorandum in support
of the Motion for More Definite Statement illustrate that Respondent was aware that an answer
should be filed. Respondent states the "The rules applicable to this proceeding provide that
'[i]f a pleading ... is so vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite statement' before
answering", and that the claims "are so vague and ambiguous that the respondent
cannot answer, even with a simple denial, in good faith or without prejudice to
itself." [Emphasis added) Thus, in asserting the position that certain claims require a more
definite statement, Respondent has admitted that an Answer is, in fact, required in this matter.
Furthermore, the undersigned attaches little significance to Judge Vittone's
Notice of Hearing and Prehearing Order Number One, dated July 18, 1997, as being dispositive of
the present issue. The primary purpose of this order was to inform the parties that discovery could
commence immediately, and it did not address the current dispute that has subsequently arisen since
its issuance.
However, the undersigned notes that said Order contains numerous references
to Part 18: §18.3(f) (filing and service by use of facsimile); §18.8 (prehearing
conferences); and §18.9(e)(1)(appointment of settlement judge). The Order also advises the
parties that they are subject to default judgment and other sanctions for failure to follow the
procedural requirements of Part 18. Therefore, contrary to Respondent's assertion that the Order
implies that this complaint does not require an answer, the undersigned finds that its contents would
give the parties notice that Part 18 is applicable to this matter.
Finally, the undersigned agrees with Complainant that Respondent has
attempted to have the law applied in one manner, in Respondent's favor in regards to its motions for
Dismissal for Failure to State a Claim and for a More Definite statement, and then argues to have
the law applied in a contrary manner, but again in its favor, in relation to Complainant's Motion for
Default Judgment.
As previously discussed above, Respondent admitted the applicability of 29
C.F.R. Part 18 and the Federal Rules of Civil Procedure to this matter, and the requirement that an
answer be filed in this case when requesting that the undersigned grant its Motion for More Definite
Statement. Furthermore, in regards to its Motion for Dismissal for Failure to State a Claim,
Respondent has asserted that the rules applicable to this proceeding are 29 C.F.R. §18.1(a) and
Fed.R.Civ.P. 12(b) (6), and that they provide for dismissal for failure to state a claim upon which
relief can be granted.
Thus, in filing its two prior motions in this case, Respondent has relied on, and
asserted the applicability of both 29 C.F.R. Part 18 and the Federal Rules of Civil Procedure to
whistleblower cases brought under 29 C.F.R. Part 24. If a Part 24 whistleblower complaint is subject
to motions to dismiss for failure to state a claim and for a more definite statement pursuant to Part
18 and the Federal Rules of Civil Procedure, as Respondent asserts, then Respondent must also
concede that they are also the type of complaints that require a timely and adequate answer pursuant
to Part 18 and the Federal Rules.
Respondent has had no difficulty asserting the applicability of 29 C.F.R. Part
18 and the Federal Rules of Civil Procedure to whistleblower complaints when the applicability of
these rules is to their tactical advantage. But now that Respondent is faced with this Motion for
Default Judgment, Respondent asserts that whistleblower complaints are not true complaints
requiring an answer, but only documents that initiate an investigation. Respondent simply cannot
have its cake and eat it, too. Respondent has previously conceded in its Motion for a More Definite
Statement that the complaints in this matter require an answer, and thus Respondent is estopped from
denying that requirement in regards to the present Motion for Default Judgment.
In conclusion, the undersigned determines that an answer to Complainant's
Complaints is required pursuant to 29 C.F.R. §18.5 (a) and §554 of the Administrative
Procedures Act. Respondent has failed to file an answer to either Complainant's Amended
Complaint of June 4, 1997, and the second Complaint dated July 29, 1997, within the thirty (30)
days after service of a complaint as required by 29 C.F.R. §18.5(a).
Accordingly, Complainant's Motion for Default Judgment shall be granted
pursuant to 29 C.F.R. §18.5(b), and default judgment shall be entered in Complainant's favor
on all provisions of both complaints, taking the allegations in her Amended Complaint (Case No.
97-SDW-8) and second Complaint (Case No. 97-SDW-10) as true.
IT IS ORDERED that Complainant"s Motion for Default
Judgment is HEREBY GRANTED. IT IS FURTHER ORDERED that:
Entered this 26th day of January, 1998, at Long Beach, California.
SAMUEL J. SMITH
1This office received the originals of
those pleadings on October 27, 1997.
2This office received a copy of
these pleadings on October 27, 1997.
3This office received the Reply
emorandum and Motion for Leave on October 27, 1997.
4The original, signed Combined
otion and Response was received in this office on November 17, 1997.
5Complainant states that
Respondent has also failed to file an answer in response to the undersigned's November 12, 1997
Order to Show Cause, and that 29 C.F.R. §18.5(d) appears to require that an answer be
filed in response to the Order to Show Cause, in addition to any arguments that the proposed
sanction should not be issued. 29 C.F.R. §18.5(d) provides in part that: "[a]ny person
to whom an order to show cause has been directed and served shall respond to the same by filing
an answer in writing." However, it is not clear that the term "answer" as used
in this section is meant to refer to filing an answer in response to a complaint. Rather,
"answer" seems to be referring to a document specifically filed in response to a show
cause order, that contains arguments as to why the proposed sanction in an order to show cause
should not be levied upon the party. Respondent did timely file a response to the undersigned's
order to Show Cause with this office on November 24, 1997.
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Administrative Law
Judge