Nickerson v. Plains Dairy Products, 2001-CAA-10 (ALJ July 17, 2001)

USDOL/OALJ Reporter

Nickerson v. Plains Dairy Products, 2001-CAA-10 (ALJ July 17, 2001)

U.S. Department of Labor

Office of Administrative Law Judges
Heritage Plaza Bldg. - Suite 530
111 Veterans Memorial Blvd
Metairie, LA 70005

(504) 589-6201
(504) 589-6268 (FAX)

Issue date: 17Jul2001
CASE NO.: 2001-CAA-10

IN THE MATTER OF:

XAVIER NICKERSON
Complainant

PLAINS DAIRY PRODUCTS
Respondent

RECOMMENDED DECISION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND CANCELLING FORMAL HEARING

This proceeding arises under the Clean Air Act (CAA), 42 U.S.C. § 7622 and the regulations promulgated thereunder at 29 C.F.R. Part 24 which are employee protective provisions. The Secretary of Labor is empowered to investigate and determine "whistleblower" complaints filed by employees who are allegedly discharged or otherwise discriminated against with regard to their terms and conditions of employment for taking any action related to the fulfillment of safety or other requirements established by the Clean Air Act.

The Complainant has requested a hearing based upon the Secretary's findings that there is no merit to Complainant's complaints of discrimination against Respondent in violation of the employee protective provisions of the CAA.

On May 9, 2001, a Notice of Hearing and Pre-Hearing Order issued in this matter which required Complainant to file a Complaint by May 21, 2001, " . . . alleging in detail the nature of each and every violation as well as the relief sought." Complainant failed to file a Complaint.

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On June 1, 2001, an Order Rescheduling Hearing and Revised Pre-Hearing Order issued cancelling the scheduled hearing of June 12, 2001 in view of Complainant's failure to file a Complaint.

The Revised Pre-Hearing Order directed Complainant to file a detailed Complaint by June 18, 2001. Specifically, the revised pre-hearing order required Complainant to file a detailed Complaint alleging how this matter falls within the Clean Air Act, his activities in conformity with the Act which he considers protected and the specific discrimination alleged against Respondent. Complainant has again failed to file a Complaint. Untimely filing, or as in this case, no filing pursuant to a pre-hearing order are procedural grounds for dismissal of this case within the meaning of 29 C.F.R. § 18.6(d). In the initial Order Rescheduling, since Complainant was proceeding without counsel, or pro se, discretion was exercised to reschedule the formal hearing.

On June 25, 2001, Respondent filed a Motion For Summary Judgment and Motion To Dismiss pursuant to the Federal Rules of Civil Procedure since Complainant failed to present or state a claim for which this Court can grant relief.

On June 28, 2001, an Order To Show Cause issued which required Complainant to "show cause, if any there be, by July 13, 2001, why Respondent's Motion For Summary Judgment and Motion To Dismiss should not be granted for the reasons asserted therein." The Order specifically stated " . . . the July 13, 2001 due date includes mailing time and requires that any response be received in the office of the undersigned by July 13, 2001."

On July 16, 2001, Complainant untimely filed with the undersigned his "Answer, Motion For Summary Judgment, against Plains Dairy Products."

For reasons discussed hereinafter, I find and conclude that Complainant has failed to state a viable claim of Respondent's violations of "State and Federal Safety Laws, Rules and or Regulations." In sum, he has failed to plead or present any indicia of proof that Respondent violated any sections of the CAA.

DISCUSSION

General rules of pleadings prescribe construction to identify and particularize issues to be litigated, determine and establish defenses and narrow and clarify the differences between the parties. See Fed. R. Civ. P. 8. The main object of a pleading is to give the opposing party notice of the claim. Although pleadings filed by a pro se litigant are held to a less stringent standard, they must nonetheless meet minimal pleading requirements. See Salahuddin v. Jones, 992 F.2d 447 (2d Cir. 1993), cert. denied 510 U.S. 902 (1993); Beaudett v. Hampton, 775 F.2d 1274 (4th Cir. 1985), cert. denied 475 U.S. 1088 (1985). The Federal Rules of Civil Procedure shall apply in any situation not provided for or controlled by the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. See 29 C.F.R. § 18.1(b).

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Procedures for the handling of discrimination complaints under federal employee protection statutes provide that an administrative law judge may, at the request of any party, or on his own motion, issue a recommended decision and order dismissing a claim:

Upon the failure of the Complainant to comply with a lawful order of the administrative law judge.

29 C.F.R. § 24.6(e)(4)(i)(B).

The procedures for handling discrimination complaints under federal employee protection statutes also require that the form of a complaint be in writing and "include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation." 29 C.F.R. § 24.3(c) (emphasis added).

The pre-hearing order issued in this matter by the undersigned required Complainant to file a complaint stating "in detail the nature of each and every violation as well as the relief sought." A review of the "Answer, Motion For Summary Judgment, against Plains Dairy Products" filed in this matter on July 16, 2001, reveals no specific statements of Respondent's acts and/or omissions that arguably constitute any possible violations of the CAA. Complainant merely stated Respondent had violated "Special Problems Related to Air Contaminant Emissions 382.021., Sampling Methods and Procedures 382.016., Monitoring Requirements Examination of Records 382.002., Policy and Purpose 382.01514., Sampling and Monitoring 382.082., Enforcement by Suit; notice and Orders 382.085., Unarthorized (sic) Emissions Prohibited; Civil Penalty 382.091., Criminal Offenses; all of Vernons (sic) Texas Codes, the Annointed (sic) Health and Safety Volume 2A. Also The United States Code Book Title 42 7622 Employee Protection, and 7651 Acid Deposition Control." His pleading however does not identify any specific violations of these aforementioned statutes by Respondent.

The Secretary of Labor has repeatedly articulated the legal framework under which parties litigate in retaliation cases. Under the burdens of persuasion and production in whistleblower proceedings, the Complainant must first present a prima facie case of retaliation by showing:

1) that the Respondent is governed by the Act;
2) that Complainant engaged in protected activity as defined by the Act;
3) that the Respondent was aware of that activity and took some adverse action against Complainant; and
4) that an inference is raised that the protected activity of Complainant was the likely reason for the adverse action.

See Hoffman v. Bossert, Case No. 94-CAA-4 @ 3-4 (Sec'y Sept. 19, 1995); Bechtel v. Construction Co. v. Secretary of Labor, 50 F.3d 926, 933 (11th Cir. 1995).

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In the present matter, Complainant has failed to allege or show any discriminatory allegations, which is a procedural requirement, or to allege or show that Complainant's "protected activity" was known to Respondent and that he was treated adversely or differently because of his protected activity.

Moreover, Complainant failed to allege any of the foregoing critical elements of his case in his "pleading." In his response to the show cause order, he again failed to provide any specificity regarding the alleged discrimination visited upon him by Respondent or the protected nature of his activity, if any.

Complainant has failed to allege any discriminatory violations worthy of a formal hearing. He has failed to allege the existence of any activity which gives rise to any protected status as a statutory whistleblower. He has failed to allege how and when Respondent allegedly discriminated against him. See Holtzclaw v. United States Environmental Protection Agency, Case No. 95-CAA-7 (ARB, Final Dec. and Order, Feb. 13, 1997) (Slip Op. @ 4); Acord v. Alyseska Pipeline Service Co., Case No. 95-TSC-4 (ARB, Final Dec. and Order, June 30, 1997) (Slip Op. @ 6).

The Administrative Review Board has noted that a complainant cannot simply "file a conclusory complaint not well-grounded in fact, conduct a fishing expedition for discovery, and only then amend the complaint in order to finally set forth well-pleaded allegations." Hasan v. Commonwealth Edison Co., Case No. 2000-ERA-01 (ARB, Final Dec. and Order, Dec. 29, 2000) (Slip Op. @ 5), quoting Oreman Sales v. Matshushita Elec. Corp., 768 F.Supp. 1174 (E.D. La. 1991). If the Complainant fails to allege a prima facie case, the matter is subject to immediate dismissal. Id., citing Lovermi v. BellSouth Mobility, Inc., 962 F.Supp. 136 (S.D. Fla. 1997).

In the absence of the details/specificity necessary to substantiate a CAA violation, Complainant has failed to state in detail the nature of any violation. Complainant has not advanced any cogent reason for failing to comply with the necessary requisites in his pleading or response to the show cause order. See Billings v. Tennessee Valley Authority, Case No. 91-ERA-12 (ARB, Final Dec. and Order, June 26, 1996); See generally Moore v. United States Department of Energy, Case No. 1998-CAA-16 (ARB, Final Order of Dismissal, June 25, 2001). In view of his failure to comply and utter failure to allege a viable claim that Respondent took adverse action against him, Respondent is entitled to Summary Decision and dismissal for all of the foregoing reasons.

CONCLUSION AND ORDER

In view of the foregoing rulings, I conclude that Respondent's Motion for Summary Judgment and Motion to Dismiss are hereby GRANTED for reasons discussed hereinabove. Complainant's Motion For Summary Judgment is hereby DENIED.

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IT IS FURTHER ORDERED that the formal hearing presently scheduled for July 31, 2001, be and it is hereby CANCELED.

ORDERED this 17th day of July 2001, at Metairie, Louisiana.

LEE J. ROMERO, JR.
Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review is timely filed with the Administrative Review Board with ten (10) business days of the date of this Recommended Decision and/or Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).