U.S. Department of Labor Office of Administrative Law Judgs 41870 Merchants Walk - Suite 204 Newpert News, VA 23606, (757) 591-5140, (757) 581-5150 (FAX) CASE NO.: 2021-AIR-00007 In the Matter of: JOHN M. BARNETT, Complainant, w ‘THE BOEING COMPANY, Respondent. DER DENYIN ONDENT’S PART! ‘TION TO DI ‘This proceeding arises out of a complaint filed under the employee protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR-21 or the Act). On January 16, 2017, John Barnett (Mr. Barnett or Complainant) filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging The Boeing Company (Boeing or Respondent) retaliated against him in violation of the Act. On November 24, 2020, OSHA issued a letter advising there is no reasonable cause to believe Boeing violated the Act. On December 23, 2020, Mr. Barnett filed an objection to OSHA's finding letter and requested a hearing before the Office of Administrative Law Judges (OALJ). This matter was originally assigned to Administrative Law Judge Dana Rosen. In her initial Notice, Judge Rosen ordered Complainant to file a “detailed Pleading Complaint” containing a list of alleged protected acts and adverse actions and the dates on which they occurred. On May 4, 2021, Complainant filed his First Amended Complaint. Complainant alleges Respondent subjected him to a hostile work environment for engaging in AIR-21 protected activity, which led to his constructive discharge. On May 18, 2021, Respondent filed a response and a partial motion to dismiss. Respondent requests dismissal of all but one allegation? for failure to state a claim and untimeliness. On June 22, 2021, Complainant filed a ‘The only claim Respondent does not seek to dismiss is the allegation that Complainant was denied a lateral transfer to the Propulsion division at Boeing South Carolina's North Charleston facility in retaliation for engaging in protected activity. Partial Motion to Dismiss at 1, n. 1.response in opposition to the partial motion to dismiss? On September 8, 2021, Complainant filed a motion for summary decision. A ruling on the motion for summary decision was stayed pending resolution of the partial motion to dismiss. “A party may move to dismiss part or all of the matter for reasons recognized under controlling law, such as lack of subject matter jurisdiction, failure to state a claim upon which relief can be granted, or untimeliness.” 29 CFR. § 18.70(0). When ruling on a motion to dismiss, the administrative law judge must “accept the non-movant's factual allegations as true and draw all reasonable inferences in his favor.” Mawhinney v. Trans. Workers Union, Local 591, ARB No. 2019-0018, OALI No. 2012-AIR-00014, slip op. at 2 (Dee. 9, 2020). Respondent moves for dismissal of Complainant's hostile work environment and constructive discharge claims for failure to state a claim. Partial Motion to Dismiss at 6-10. Respondent argues Complainant has not alleged facts sufficient to sustain either claim, emphasizing the high bar necessary to prevail.” Complainant responds that his First Amended Complaint adequately alleges Respondent maintained a hostile work environment and that Respondent's retaliatory acts caused Complainant severe stress that led him to take medical leave and an early retirement. Opposition at 5, 10. Upon review of the filings, I agree with Complainant and conclude the First Amended Complaint adequately states a claim for hostile work environment and constructive discharge. Respondent moves for dismissal of Complainant's undated claims for failure to state a claim, Partial Motion to Dismiss at 10. Respondent argues Complainant failed to stato the “pertinent dates’ for many of the alleged adverse actions in the First Amended Complaint.” Id. (citing 29 C.F.R. § 1979.108(b)). Respondent also highlights Judge Rosen’s order instructing Complainant to file a detailed complaint with dates. d., n. 6 (citing Fed. R. Civ. P. 41(b) (“If the plaintiff fails to ... comply with ... a court order, a defendant may move to dismiss the action or any elaim against it...”). Complainant responds that the First Amended Complaint * On September 8, 2021, Complainant filed a motion for summary decision. A ruling on the motion for summary decision was stayed pending resolution of the partial motion to dismiss. 5 To prevail on a hostile work environment claim, a complainant must show: (1) he engaged in protected activity; (2) he suffered intentional harassment related to that activity; (3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive work environment; and (4) the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant. ‘Sasse v. Off. of the U.S. Attorney, U.S. Dept. of Justice, ARB Nos. 02-077, 02-0778, 03-044, OALJ No. 98-CAA-7, slip op. at 35 (Jan. 30, 2004). To prevail on a constructive discharge claim, a complainant must show “working conditions were so difficult or unpleasant that a reasonable person in the employee's shoes would have found continued employment intolerable and would have been compelled to resign.” Gattegno v. Prospect Energy Corp. etal, ARB No. 06-118, OALS No. 2008-SOX-008, slip op. at 21 (May 29, 2008). -2-“chronologically lists each and every accusation,” and that “providing time periods with specific language should suffice at this stage of the litigation.” Opposition at 14, 15-16. Upon review of the filings, T agree with Complainant and conclude the First Amended Complaint provides Respondent with adequate notice of the time period during which the alleged adverse actions occurred and it substantially complies with Judge Rosen’s order. Respondent moves for dismissal of Complainant's claims regarding his downgraded performance reviews, corrective action plan, removal from investigations, denial of transfers, harassment/denigration, and hostile work environment/constructive discharge claims for untimeliness. Partial Motion to Dismiss at 10-17. Respondent emphasizes the Act’s 90-day statute of limitations. Id. at 10 (citing 49 U.S.C. § 42121(b)(1) (“A person who believes that he or she has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, not later than 90 days after the date on which such violation gcours...”) (emphasis added). Complainant responds this argument “ignores the fact that the Amended Complaint alleges that Boeing engaged in a pattern of conduct that amounted to a hostile work environment.” Opposition at 12. Complainant cites the Supreme Court’s decision in Nat'l. RR. Passenger Corp. v. Morgan, 586 U.S. 101 (2002). In Morgan, the Court held a “hostile work environment claim will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.” Id, at 122. Upon review of the filings and the Court's holding in Morgan, I agree with Complainant and conclude that the First Amended Complaint adequately alleges a pattern of retaliatory conduct that rises to the level of a hostile work environment. Since at least one alleged adverse act occurred within the statute of limitations, Complainant’s complaint is not time-barred. ORDER Based on the foregoing, IT IS ORDERED that Respondent's partial motion to dismiss is DENIED; and Respondent shall file a response to Complainant's motion for summary decision no later than 60 days after issuance of this Order. SO ORDERED. PAMELA A. KULTGEN Administrative Law Judge PAK/PMLijcb Newport News, Virginia