OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second Street, S.E.
Washington, DC 20540-1999
_________________________
RICHARD A. DUNCAN,
Complainant,
v. Case No. 02-AC-59(RP) August 5 , 2004 OFFICE OF THE ARCHITECT OF THE CAPITOL
Respondent.
_________________________
Before the Board of Directors: Susan
S. Robfogel, Chair; Barbara L. Camens, Alan V. Friedman; Roberta
L. Holzwarth; Barbara Childs Wallace, Members.
DECISION OF THE BOARD OF
DIRECTORS
I. Introduction
The Office of Compliance entered into
its records the attached decision of Hearing Officer Sylvia Bacon
in this proceeding. The hearing officer granted the Respondent/employing
office’s motion to dismiss the complaint concluding that (1)
the complaint fails to state a claim upon which the requested relief
may be granted; and (2) the claims made in the complaint are not
within the jurisdiction of the Office of Compliance as conferred
upon it by Congress. The Appellant/Complainant timely filed a petition
for review and a supporting brief. The Respondent timely filed its
opposition brief.
The Complaint alleges, in summary, that the
Complainant opposed unsafe work practices by refusing a superior’s
oral direction that he remove his safety hard hat although working
in a hard hat designated area. Consequently, that superior became
verbally offensive towards the Complainant and forcibly removed
Complainant’s hard hat from his head. Complainant alleges
consequential and lingering physical and emotional damages therefrom.
The Complaint also alleges (1) that the Respondent imposed discipline
upon the Complainant; (2) Respondent materially misrepresented facts
to prejudice Complainant’s related Workers Compensation claim
before the U.S. Department of Labor; and (3) Respondent wrongfully
denied the Complainant’s internal grievance, which was based
upon these events. Complainant alleges that each of Respondent’s
cited acts constituted retaliation proscribed by Section 207(a)
of the Congressional Accountability Act (“the Act”),
inflicted upon him because Complainant had opposed unsafe working
conditions.
II. The Hearing Officer’s Legal Conclusions
The hearing officer, noting that the Act’s
single anti-retaliation provision, Section 207(a), is placed in
Part A of Title II of the Act, concluded that 207(a) restricts its
protection solely to the exercise of rights under those laws applied
by Part A. The hearing officer accorded controlling significance
to the fact that the Occupational Safety and Health Act, under which
the Complainant claims protected activity, is applied by Section
215, which is placed in Part C of Title II of the Act.
The hearing officer specifically held that the
Complainant “is a Congressional employee to whom Congress
extended OSHA protections and remedies”. However, she found
it critical that the OSHA protections in Part C contained no “specific
cross-reference” to the remedial provisions in Part A, particularly
Section 207(a). The hearing officer ultimately concluded that the
Complainant’s anti-retaliation remedy exists under OSHA, in
common with non-Congressional employees covered by OSHA. The hearing
officer concluded that to accord the Complainant and other Congressional
employees “private rights of action” under Section 207(a)
would afford them greater remedial procedures than those enjoyed
by non-Congressional employees.
III. Discussion
Dismissal on the pleadings is only appropriate
“if it is clear that no relief could be granted under any
set of facts that could be proved consistent with the allegations.”
H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229,
249-50 (1989) (internal quotations and citations omitted). See also
Conley v. Gibson, 355 U.S. 41 (1957). In a motion to dismiss,
the court must accept as true all well-pleaded factual allegations
contained in the complaint and draw all reasonable inferences in
the plaintiff’s favor. In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1424-25 (3d Cir. 1997). However, a court
need not credit a complaint’s legal conclusions wherein factual
support is lacking. Glassman v. Computervision Corp., 90
F.3d 617, 628 (1st Cir. 1996).
The Board’s standard of review for appeals
from a hearing officer decision requires the Board to set aside
a decision if the Board determines it to be: (1)arbitrary, capricious,
an abuse of discretion, or otherwise not consistent with law; (2)
not made
consistent with required procedures; or (3) unsupported by substantial
evidence. Section 406(c), CAA; 2 U.S.C. §1406(c).
This petition for review implicates review ground
(1) supra., inasmuch as the appeal challenges the hearing officer’s
legal conclusions of her lack of jurisdiction to entertain the Complaint.
Accordingly, the Board’s review of those legal conclusions
should be de novo. Nebblett v. Office of Personnel Management,
237 F.3d 1353, 1356 (Fed. Cir. 2001).
We disagree with the hearing officer’s
conclusion that Section 207(a) does not protect from reprisal covered
employees who exercise their OSHA rights. We begin with Section
207(a) because it so unambiguously and clearly extends anti-reprisal
protection for opposition to any practice made unlawful by the CAA:
Sec. 207. Prohibition of Intimidation
or Reprisal
(a) IN GENERAL.-It shall be unlawful for an
employing office to intimidate, take reprisal against, or otherwise
discriminate against, any covered employee because the covered
employee has opposed any practice made unlawful by this
Act, or because the covered employee has initiated proceedings,
made a charge, or testified, assisted, or participated in any
manner in a hearing or other proceeding under this Act.
[Emphasis supplied].
This provision plainly prescribes that its anti-retaliation
protections attach to the exercise of rights across the entire Congressional
Accountability Act and not just to those rights applied by Part
A of Title II of the Act. Nor are we persuaded that the location
of Section 207(a) in Part A counsels to the contrary. The referenced
placement is consistent with the statutory scheme that places other
individual rights of covered employees within Part A of Title II
of the Act. These individual rights are enforced through the dispute
resolution procedures in Title IV of the Act. Section 401, CAA;
2 U.S.C. §1401 et seq. On the other hand, the laws applied
by Parts B-D of Title II (Public Services and Accommodations under
the Americans with Disabilities Act, Occupational Safety and Health
Act, and the Federal Labor-Management Relations Statute) are enforced
through proceedings brought by the Office’s General Counsel
rather than by covered employees. We will not construe the placement
of Section 207(a) in Part A to trump its express language when there
is another reasonable explanation for that placement.
The legislative history of the Act unequivocally supports this conclusion.
While the Act was unaccompanied by any committee reports, two major
Senate proponents of the Act, Senators Charles Grassley and Joseph
Lieberman, introduced into the Congressional Record their section-by-section
analysis of the Act. Addressing section 207(a), the document states,
in pertinent part, “This section provides one uniform remedy
for intimidation or reprisal taken against covered employees for
exercising rights and pursuing remedies of violations for the violation
of rights conferred by this act.” [Congressional Record,
p. S624, January 9, 1995].
We also disagree with the hearing officer’s
conclusion that covered employees possess a remedy against reprisal
under the Act’s OSHA provisions. In fact, Section 210 of the
Act selectively applies OSHA provisions, and does not apply OSHA’s
anti-discrimination/ retaliation provision, 29 U.S.C. §660(c),
which provides:
Discharge or discrimination against employee
for exercise of rights under this chapter; prohibition; procedure
for relief
(1) No person shall discharge or in any manner discriminate against
any employee because such employee has filed any complaint or
caused to be instituted any proceeding under or related to this
chapter or has testified or is about to testify in any such proceeding
or because of the exercise by such employee on behalf of himself
or others of any right afforded by this chapter.
(2) Any employee who believes that he has been discharged or otherwise
discriminated against by any person in violation of this subsection
may, within thirty days after such violation occurs, file a complaint
with the Secretary [of Labor] alleging such discrimination. Upon
receipt of such complaint, the Secretary shall cause such investigation
to be made as he deems appropriate. If upon such investigation
the Secretary determines that the provisions of this subsection
have been violated, he shall bring an action in any appropriate
United States District Court against such person. In any such
action the United States district courts shall have jurisdiction,
for cause shown to restrain violations of paragraph (1) of this
subsection and order all appropriate relief including rehiring
or reinstatement of the employee to his former position with back
pay.
(3) Within 90 days of the receipt of a complaint filed under this
subsection the Secretary shall notify the complainant of his determination
under paragraph (2) of this subsection.
Unless Section 207(a)’s reference to “any
practice made unlawful by this Act” is understood to encompass
practices made unlawful by the Act’s OSHA provisions, covered
employees would have no rights or remedies if subjected to intimidation
or reprisal for opposing such practices. However, our view of the
clear import of Section 207(a) avoids this result.
Once again an examination of the legislative
history is quite elucidating. In January 1995, the House of Representatives
unanimously passed H.R. 1, which tracked H.R. 4822
from the previous 103rd Congress. H.R. 1 contained an anti-retaliation
provision (Sec. 101(a)(2)) limiting its scope to the exercise
of rights under statutes applied by that section, which did not
include OSHA. Instead, H.R. 1 provided a separate anti-retaliation
provision in the bill’s OSHA section that would have afforded
prosecutorial discretion to the Office of Compliance’s General
Counsel. [H.R. 1, Section 106(c)]. [See, generally, Legislative
History, Congressional Accountability Act of 1995, Volume 1, Proceedings
in the 103d Congress, Prepared by the Office of Senate Legal Counsel,
June 1995, pp. ii-xiii.) Essentially, H.R. 1 would have
afforded the OSHA anti-retaliation non-private right of action envisioned
by the Hearing Officer.
However, Congress instead ultimately passed
S. 2, which: (1) imposed a general anti-retaliation provision
in Section 207(a) to protect exercise of all rights under
the Act; and (2) afforded the General Counsel no role in investigating
and prosecuting OSHA anti-retaliation claims. It is therefore clear
that the Congress considered and rejected the remedial enforcement
scheme that the Hearing Officer found to be operative herein. Instead,
Congress opted that OSHA retaliation claims be processed under Section
207(a) of the Act.
Accordingly, we reverse the hearing officer’s
decision to grant Respondent’s motion to dismiss the Complaint.
ORDER
Pursuant to Section 406(e) of the Congressional
Accountability Act and Section 8.01(d) of the Office’s Procedural
Rules, the Board remands this matter to the hearing officer to proceed
as is consistent with this opinion.
It is so ordered.
Issued, Washington, D.C.: August 5 , 2004
CERTIFICATE
OF SERVICE
I hereby certify that on this Fifth (5th) day
of August 2004, I delivered a copy of this Decision of the Board
of Directors to the following parties by the below identified means:
First-Class Mail Postage-Prepaid
Jeffrey H. Leib, Esq.
Attorney at Law
5104 34th Street, N.W.
Washington, D.C. 20008
First-Class Mail Postage-Prepaid,
& Facsimile Mail (w/o Hearing Officer
Decision)
Christine Cooper, Esq.
McGuiness, Norris & Williams, LLP
1015 Fifteenth Street, NW
Washington, DC 20005
______________________________
G. Ann Woodbury
Office of Compliance
August 5, 2004
Jeffrey H. Leib, Esq.
Attorney at Law
5104 34th Street, N.W.
Washington, D.C. 20008
Christine Cooper, Esq.
McGuiness, Norris & Williams, LLP
1015 Fifteenth Street, NW
Washington, DC 20005
Re: Richard A. Duncan, Complainant v. Office of
the Architect of the Capitol, Case No. 02-AC-59(RP)
Dear Counsel:
Pursuant to Section 8.01(e) of the
Procedural Rules of the Office of Compliance I am hereby providing
you with the Decision of the Board of Directors, dated August 5,
2004, remanding the matter to the Hearing Officer to proceed in
accordance with the Board’s opinion.
Sincerely,
Paul M. Coran
Acting Executive Director
cc: Hearing Officer
Sylvia Bacon
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