2011.03.28 Complainant's Initial Brief

8/7/2019 2011.03.28 Complainant's Initial Brief

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UNITED STATES DEPARTMENT OF LABOR

BEFORE THE ADMINISTRATIVE REVIEW BOARD

In the Matter of:

THOMAS SAPORITO ARB No.

Complainant,

ALJ NO. 2011-ERA-00006

v.

DATE: 28 MAR 2011

PROGRESS ENERGY AND

PROGRESS ENERGY FLORIDA,

Respondents.

_____________________________________________

COMPLAINANT'S INITIAL BRIEF

_____________________________________________

Thomas Saporito, pro se

[email protected] Associates

Post Office Box 8413

Jupiter, Florida 33468-8413Phone: 561-972-8363


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STATEMENT OF THE ISSUES

1. Whether the ALJ Committed Reversible Error by Relying on FRCP Rule 12(b)(6) in

Dismissing the Complaint?

ANSWER: Yes

2. Whether the ALJ Committed Reversible Error by Failing to Provide pro se

Complainant a form of notice sufficiently understandable to one in appellant's

circumstances fairly to apprise him of what is required when the ALJ issued [his]

show-cause order?

ANSWER: Yes

3. Whether the ALJ Committed Reversible Error by failing to provide pro se

Complainant [his] due-process right to present evidence and argument on theory ofliability alleged by the ALJ but never expressly claimed by the ALJ in [his] show-

cause Order; and never expressly claimed by Respondents?

ANSWER: Yes

4. Whether the ALJ Committed Reversible Error by failing to provide pro se

Complainant [his] due-process right to engage in the discovery process to gather

facts and evidence in support of the allegations set-out in [his] ERA complaint?

ANSWER: Yes

STATEMENT OF THE CASE

I. Statement of Facts and Procedural History

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

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Respondents for which Complainant made application. (Hereinafter "Complaint").

On August 31, 2010, Respondents filed a Statement of Position and Response to

Complaint.

On October 17, 2010, Complainant filed Complainant's Statement of Position in

Response to Respondents' Statement of Position to OSHA.

On December 2, 2010, OSHA issued an alleged "Secretary's Findings" dismissing the

Complaint.

On January 28, 2011, following Complainant's filing an objection to the findings of

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.

On February 7th, 2011, Complainant filed Complainant's Response to Order to Show

Cause Why Complaint Should Not Be Dismissed - responding to the issues raised in the ALJ's

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Order - and specifically restated the issues for which the ALJ sought a response on the part of the

Complainant. Id. at 2.

On February 24th, 2011, Respondents filed "Respondents' Reply to Complainant's

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

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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.

II. The ALJ's Decision

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 ALJ concluded that:

"The remaining employment positions referred to by the Complainant that are not

time barred from consideration are:

Nuclear Auxiliary Operator (Entry Level), Job ID 710BR;

Nuclear Tech Assistant I, Job ID 738BR;Nuclear Manager of Maintenance, Job ID 914BR;

Supervisor, Nuclear Electrical/I&C Maintenance, Job ID 96928;

Training Coordinator, Nuclear Plant Development, Job ID 131BR;

Assistant Nuclear Auxiliary Operator, Job ID 863BR; and,Instrument & Controls Tech II-Nuclear, Job ID 1141BR.

Of these seven positions, the Parties, through their pleading, as amended, agreethat 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 ID914BR, 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 seekapplicants 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 tothose four positions.

With regard to the remaining three positions of (1) Supervisor, NuclearElectrical/I&C Maintenance, Job ID 96928, (2) Training Coordinator, Nuclear

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Plant Development, Job ID 131BR, and (3) Instrument & Controls Tech II-

Nuclear, Job ID 1141BR, the Complainant alleges in broad terms that he was nothired. 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 toseek 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 underERA for these three positions.

After deliberations on the pleadings, as amended, this Administrative Law Judge

finds that the Complainant has failed to set forth with specificity sufficient facts,which if considered true, allege a prima facie case. Accordingly, the complaint

must be dismissed as a matter of law.

Orderat 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.

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sufficient facts, which if considered true, allege a prima facie case." Id. at 7-8.

LEGAL ARGUMENT

III. Jurisdiction and Standard of Review

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

(Delegation of Authority and Assignment of Responsibility to the Administrative Review Board),

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

the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially

noticed show that there is no genuine issue as to any material fact and that a party is entitled to

summary decision." 29 C.F.R. 18.40(d).

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

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(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

Nos. 2004-ERA-022, -027, slip op. at 6 (ARB May 29, 2009).

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

standard. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).

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.,

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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).

IV. WHISTLEBLOWER PROTECTION PROVISIONS, 5851 OF THE ERA

A. The "whistleblower protection" provisions of 5851 of the ERA provide,

in relevant part that:

"...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

action. The complaint, supplemented with documentary evidence, depositions, affidavits,

admissions as may be appropriate, must demonstrate when considered as true, that:

1. the complainant engaged in a protected activity;2. the respondent knew or suspected that the complainant engaged in protected activity;

3. the complainant suffered an adverse action;

4. the circumstances were sufficient to raise the inference that the protected activity was amotivating factor in the adverse action.

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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,

conditions, or privileges of employment because the employee . . . notified his employer of an

alleged violation of this chapter or the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.). To

prevail on an ERA whistleblower complaint, a complainant must prove by a preponderance of

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

violation of a nuclear safety law or regulation; a reasonable belief of a violation is sufficient.

2 Complainant avers here that the ARB's reliance on the words "definitively and specifically" are contrary to thebroad 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" dissuadingnuclear 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 toreject 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.

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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).

V. THE ERA IS REMEDIAL IN PURPOSE AND MUST BE INTERPRETED

AS SUCH TO PROTECT EMPLOYEES IN THE NUCLEAR INDUSTRY

A. The ERA is remedial and must be broadly interpreted to protect and

encourage employees to raise perceived safety concerns.

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

maintained great flexibility in accepting, interpreting, and construing ERA whistleblower

complaints to further perpetuate the purpose of the ERA in deciding such actions on their merits

before an administrative law judge (ALJ).

The ARB has interpreted the ERA statute to mean that it:

"...protects 'any employee' who engages in protected activity. Congress

passed the ERA in 1974 as part of its continuing effort to regulate theproduction, use, and control of nuclear energy. An employee protection

provision was added in 1978 to protect employees who assist or

participate in any proceeding to administer or enforce the requirements ofthe ERA or the Atomic Energy Act of 1954. Nuclear safety is encouraged

by protecting workers from retaliation because they report safety

concerns. 'The whistleblower provision in the [ERA] is modeled on, andserves an identical purpose to, the provision in the Mine Health and

Safety Act [sic]. They share a broad, remedial purpose of protectingworkers from retaliation based on their concerns for safety and quality.' . .

.Congress amended the ERA in 1992 to expand its whistleblowerprotection to workers who report safety violations to their employers..."

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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"

interpretations to these laws, are to be avoided as undermining Congressional purposes. Kansas

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

particles into the environment as pictured below.

It is for this very reason that the ARB has consistently held that the ERA statue

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"...should be liberally interpreted to protect victims of discrimination and to further its

underlying purpose of encouraging employees to report perceived...violations without fear of

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).

"Narrow" or "hypertechnical" interpretations to these laws, are to be avoided as undermining

Congressional purposes. Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1512 (10th Cir.

1985).

VI. THE ALJ COMMITTED REVERSIBLE ERROR BY RELYING ON FRCP

RULE 12(b)(6) IN DISMISSING THE COMPLAINT

A. Whistleblower Complaints to OSHA Are Informal Documents Intended

for Investigation, Not Adjudication.

In order to perpetuate the purpose of the ERA as intended by Congress, employee

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 viaAmicus 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

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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 Swierkeiewiczretained its vitality notwithstanding the Supreme Court's decisions in

Iqbaland 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

summary dismissal was warranted. FD& O at 15.

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.

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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 Iqbalrest 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 underIqbal, 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

form generalizations, concepts, categories, whose content represents an oversimplification of his

world experience. - Gordon Allport, The Nature Of Prejudice, 27 (1954).

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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 Barkercourt 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 whetherBarkerpled 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 whetherBarkersufficiently 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

retaliation included poor performance reviews and undesirable assignments. Id.

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

contemplate that whistleblower complaints are informal documents intended to initiate an

administrative investigation by OSHA - not formal pleadings intended for litigation in federal

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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,

which governs OSHA investigations under the environmental whistleblower provisions -

confirms that complaints are to be filed with OSHA for purposes of initiating an investigation -

with no mention of an adjudicatory proceeding. Moreover, although under 29 C.F.R. 24.104(d)

(2) a complaint must "allege the existence of facts and evidence to make a prima facie showing,"

it also provides that a complaint can be "supplemented as appropriate by interviews of the

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.

Notably, although 29 C.F.R. 24.104(d)(1) provides OSHA with authority to dismiss a

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

initiating an adjudicatory proceeding, whether designated a complaint, appeal or an order for

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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

requirements4in 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.

VII. THE ALJ COMMITTED REVERIBLE ERROR BY FAILING TOPROVIDE PRO SE COMPLAINANT A FORM OF NOTICE

SUFFICIENTLY UNDERSTANDABLE TO ONE IN APPELLANT'S

CIRCUMSTANCES FAIRLY TO APPRISE HIM OF WHAT IS REQUIRED

WHEN THE ALJ ISSUED [HIS] SHOW CAUSE ORDER

A. The ALJ failed to provide pro se Complainant a form of notice

sufficiently understandable to one in Complainant's circumstances fairly

to apprise him of what is required when the ALJ issued the show cause

order.

As stated earlier, the ALJ provided notice to Complainant that:

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).

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"...Complainant has failed to set forth facts of sufficient specificity to

show that there is a genuine issue as to whether Respondents' actions onthe 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) whomade 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. TheComplainant is hereby given an opportunity to correct these noted

deficiencies. Id. at 5.

On February 7th, 2011, Complainant filed Complainant's Response to Order to Show

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

complainant. Complainant further averred that a liberal reading of the complaint as

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

Complaint de novo at a hearing on the merits of the Complaint. Complainant further

supplemented his Complaint by providing the ALJ with a copy of Complainant's October 17,

2010 Response to Respondent's Statement of Position5 to OSHA. Id. at 3. Complainant averred

5 The Complaint filed in the instant action with OSHA was supported with 54-exhibits which were placed in the

record by OSHA and are therefore part of the record before the ALJ which the ALJ was required to consider

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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

provided Complainant an opportunity to engage in discovery, Complainant would have been

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

so and committed reversible error as a matter of law.6

Notably, in Complainant's First

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 thefifty-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 forconsideration by the ARB which contains those documents. Complainant urges the ARB to consider this

evidence placed in the record by OSHA.

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the NRC against Progress Energy and the Crystal River nuclear plant. Idat 4; his ERA protected

activity in providing testimony at an ERA hearing involving Terry Dysert and Progress Energy

(ALJ 1993-ERA-00023). Idat 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. Idat 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

24.8Thus 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

sufficiently understandable to one in appellant's circumstances fairly to apprise him of what is

required when the ALJ issued the show cause order in this matter.

VIII. THE ALJ COMMITTED REVERIBLE ERROR BY FAILING TO

PROVIDE PRO SE COMPLAINANT [HIS] DUE PROCESS RIGHT TO

7 Complainant avers here that Respondents failed to provide even a single affidavit to the ALJ in support of theirbald 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 OALJand 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.

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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

B. The ALJ failed to provide pro se Complainant a form of notice

sufficiently understandable to one in appellant's circumstances

fairly to apprise him of what is required when the ALJ issued the

show cause order in the instant action - where the ALJ inserted a

new theory of liability into the proceeding in dismissing the

Complaint - without providing Complainant a form of notice and

opportunity to respond to such new theory with legal argument

and submission of evidence.

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:

"After deliberations on the pleadings, as amended, this Administrative Law Judge

finds that the Complainant has failed to set forth with specificity sufficient facts,

which if considered true, allege a prima facie case...The remaining employmentpositions referred to by Complainant. . .are not time barred from

consideration. . .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 fourpositions did not and do not remained [sic] open and that the employer did not

continue to seek applicants from persons with the complainant's qualificationsafter the Complainant was rejected. Accordingly, as a matter of law, theComplainant 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 theComplainant'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 position."

Id. at 7-8.

First, Complainant avers here that contrary to the ALJ's allegations stated immediately

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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

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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.

IX. THE ALJ COMMITTED REVERIBLE ERROR BY FAILING TO

PROVIDE PRO SE COMPLAINANT [HIS] DUE PROCESS RIGHT TO

ENGAGE IN THE DISCOVERY PROCESS TO GATHER FACTS AND

EVIDENCE IN SUPPORT OF THE ALLEGATIONS SET-OUT IN [HIS]

ERA COMPLAINT

A. The ALJ failed to provide pro se Complainant opportunity to

engage in any discovery in the instant action to gather facts andevidence in further support of the allegations set-out in the

Complaint and in opposition to the ALJ's show cause order.

It is well settled in cases arising under the various whistleblower statues that

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complainants must be afforded broad discovery in order to support the allegations of retaliation

and discrimination in the whistleblower complaint. Notably, in William Vinnett v. Mitsubishi

Power Systems, ARB Case No. 08-104; ALJ Case No. 2006-ERA-029 (ARB July 27, 2010), the

ARB held that:

"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 thathe 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 discoveryand 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 toa party opposing the motion.'10 We have said that adjudicators must accord a partyappearing 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 firedhim 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).

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safety concerns to protect public health and safety from the inherent dangers of nuclear power

generation in the United States of America.

Respectfully submitted,

Thomas Saporito, pro se

Saprodani AssociatesPost Office Box 8413

Jupiter, Florida 33468

Phone: (561) 972-8363

[email protected]

Taken in Japan - March, 2011

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing document was provided to those

shown below by means indicated on this 28th day of March, 2011:

Administrative Review Board

U.S. Department of LaborSuite S-5220

200 Constitution Avenue, N.W.

Washington, D.C. 20210Original + 4-copies}

{Sent via U.S. Mail}

Associate Solicitor

Division of Fair Labor StandardsU.S. Department of Labor

Room N-2716, FPB200 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}

{[email protected]}

By: ____________________

Thomas Saporito

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