UNITED STATES DEPARTMENT OF LABOR BEFORE THE ADMINISTRATIVE REVIEW BOARD COMPLAINANT'S INITIAL BRIEF

Transcription

1 UNITED STATES DEPARTMENT OF LABOR BEFORE THE ADMINISTRATIVE REVIEW BOARD In the Matter of: THOMAS SAPORITO Complainant, v. PROGRESS ENERGY AND PROGRESS ENERGY FLORIDA, Respondents. ARB No. ALJ NO ERA DATE: 28 MAR 2011 COMPLAINANT'S INITIAL BRIEF Thomas Saporito, pro se Saprodani Associates Post Office Box 8413 Jupiter, Florida Phone:

2 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 of liability alleged by the ALJ but never expressly claimed by the ALJ in [his] showcause 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 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 2

3 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 (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 3

4 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 4

5 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, agree that 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 ID 914BR, 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 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 of (1) Supervisor, Nuclear Electrical/I&C Maintenance, Job ID 96928, (2) Training Coordinator, Nuclear 5

6 Order at 7-8. Plant Development, Job ID 131BR, and (3) Instrument & Controls Tech II- Nuclear, Job ID 1141BR, 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 claim upon which relief can be granted under ERA 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. 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. 6

7 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 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board), 75 Fed. Reg (Jan. 15, 2010); 29 C.F.R The ARB reviews an ALJ's grant of summary decision de novo. Holland v. Ambassador Limousine/Ritz Transp., ARB No STA-050, slip op. at 1 (ARB Oct. 31, 2009); King v. BP Prod. N. Am., Inc., ARB No , ALJ No 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 (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 , ALJ No ERA-006, slip op. at 4 (ARB May 31, 2006); Demski v. Ind. Mich. Power Co., ARB No , ALJ No ERA-036, slip op. at 3 (ARB Apr. 9, 2004); Honardoost v. Peco Energy Co., ARB No , ALJ No 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 , slip op. at 2 7

8 (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 (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 , ALJ Nos 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 (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, (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., 8

9 ARB No , ALJ No STA-001, slip op. at 3 (ARB June 16, 2010); Harvey v. Home Depot U.S.A., Inc., ARB Nos , -115, ALJ Nos 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 , ALJ No 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 ; ALJ Case No 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 (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 a motivating factor in the adverse action. 9

10 See, 29 C.F.R (f); 24 C.F.R 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 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 , -143, ALJ Nos 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 , ALJ No 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 the broad 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" dissuading nuclear 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 to reject 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. 10

11 Speegle, ARB No , 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 , ALJ No 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 the production, 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 of the ERA or the Atomic Energy Act of Nuclear safety is encouraged by protecting workers from retaliation because they report safety concerns. 'The whistleblower provision in the [ERA] is modeled on, and serves an identical purpose to, the provision in the Mine Health and Safety Act [sic]. They share a broad, remedial purpose of protecting workers from retaliation based on their concerns for safety and quality.'...congress amended the ERA in 1992 to expand its whistleblower protection to workers who report safety violations to their employers..." 11

12 (Emphasis added). See, William Vinnett v. Mitsubishi Power Systems, ARB No (July 27, 2010) at pp B. Remedial whistleblower statutes are construed broadly by the courts to accomplish their purpose. Seven environmental whistleblower protection laws which are analogous to the instant Complaint were passed in order to "encourage" employees to report safety violations and protect their reporting activity. English v. General Elec. Co., 496 U.S. 72, 110 S.Ct. 2270, 2277, 110 L.Ed.2d 65 (1990); Wagoner v. Technical Products, Inc., 87-TSC-4, D&O of SOL, p. 6 (November 20, 1990)(the "paramount purpose" behind the whistleblower statutes is the "protection of employees"). The U.S. Court of Appeals for the Third Circuit has approvingly noted that the courts have "consistently construed" the environmental whistleblower laws "to lend broad coverage" to employees. Passaic Valley Sewerage Comm. v. Department of Labor, 992 F.2d 474, 479 (3rd Cir. 1993). The Third Circuit's posture completely accords with Department of Labor interpretation of these laws:... from the legislative history and the court and agency precedents... it is clear that Congress intended the 'whistleblower' statutes to be broadly interpreted to achieve the legislative purpose of encouraging employees to report hazards to the public and protect the environment by offering them protection in their employment. Faulkner v. Olin Corp., 85-SWD-3, R. D&O of ALJ, pp. 5-6 (August 16, 1985), adopted by the SOL (November 18, 1985). To achieve these ends, the law mandates that "employees must feel secure that any action they may take" furthering "Congressional policy and purpose, especially in the area of public health and safety, will not jeopardize either their current employment or future employment opportunities." Egenrieder v. Metropolitan Edison Co./GPU, 85-ERA-23, Order of 12

13 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 13

14 "...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 , 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 (ARB April 30, 2010); and joined via Amicus Brief submitted by the Assistant Secretary of Labor for OSHA on June 17, Through this reference, Complainant adopts the pleadings and legal arguments and points of authority cited in Evans' pleadings and that 14

15 Brown dissented from the majority's conclusion that Evan's allegations of protected activity were inadequate. FD& O at 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 Swierkeiewicz retained its vitality notwithstanding the Supreme Court's decisions in Iqbal and 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 "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, (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. 15

16 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, (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 Iqbal rest 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 under Iqbal, 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). 16

17 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 Barker court 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 whether Barker pled 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 whether Barker sufficiently 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 17

18 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 (b). See also, 29 C.F.R , 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 (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 (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 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 18

19 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 ; 29 C.F.R 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 requirements 4 in 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 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 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). 19

20 "...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 (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 (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 Position 5 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 20

21 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 wellknow [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 ; ALJ Case No ERA-029 (ARB July 27, 2010), Id. at 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 the fifty-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 for consideration by the ARB which contains those documents. Complainant urges the ARB to consider this evidence placed in the record by OSHA. 21

22 the NRC against Progress Energy and the Crystal River nuclear plant. Id at 4; his ERA protected activity in providing testimony at an ERA hearing involving Terry Dysert and Progress Energy (ALJ 1993-ERA-00023). Id at 4; his ERA protected activity in engaging the NRC Petition Review Board (PRB) related to a 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. Id at 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 aware 7. Id. at 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 Thus 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 their bald 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 OALJ and 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. 22

23 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: Id. at 7-8. "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 employment positions 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 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 claim upon which relief can be granted under ERA for these three position." First, Complainant avers here that contrary to the ALJ's allegations stated immediately 23

24 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 , ALJ No ERA-016 (ARB Aug. 26, 2004) Id. slip op. at 4. See also, Darius Motarjemi v. Metropolitan Council Metro Transit Division, ARB Case No ; ALJ Case No 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 , ALJ No AIR-4 (ARB Dec. 29, 2010). In Williams, the Respondent argued on appeal that the ALJ violated its due 24

25 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 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 and evidence 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 25

26 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 ; ALJ Case No 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 that he 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 The Board has held that ALJs have wide discretion to limit the scope of discovery and 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 to a party opposing the motion.' 10 We have said that adjudicators must accord a party appearing 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 fired him because of it." Id. at 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 , ALJ No 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) C.F.R (d). 26

27 opportunity to engage in discovery. Thus, the ALJ committed reversible error by failing to provide pro se Complainant his due process right to engage in discovery to gather evidence in support of his prima facie complaint. Therefore, as in Vinnett, the ARB must remand the instant case to the ALJ and require that the ALJ provide Complainant an opportunity to engage in discovery; and to hold a hearing on the merits of the Complaint as a matter of law. CONCLUSION FOR ALL THE ABOVE STATED REASONS, and because genuine issues of material fact exist with respect to each of the issues raised in the ALJ's Order dismissing the Complaint, the ARB must find that FRCP Rule 12(b)(6) is inapplicable to whistleblower complaints brought before the OALJs; and that the ALJ committed reversible error by (1) improperly dismissing the Complainant in relying solely on Rule 12(b)(6); and by (2) 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 the show cause order; and by (3) failing to provide pro se Complainant his due process right to present evidence and argument on a new theory of liability inserted by the ALJ - but never expressly claimed by the ALJ in the show cause order and never expressly claimed by Respondents; and by (4) failing to provide pro se Complainant his due process right to engage in the discovery process to gather facts and evidence in further support of the allegations set-out in the ERA Complaint filed in this matter. Wherefore, the ARB must reverse the ALJ's decision in this matter and remand this case for a hearing on the record as a matter of law. To do otherwise would seriously undermine the intent and purpose for which Congress enacted the ERA, to protect whistleblowers and to encourage the reporting of nuclear 27

28 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 Associates Post Office Box 8413 Jupiter, Florida Phone: (561) Taken in Japan - March,