ARB CASE NO. 05-098
ALJ CASE NO. 2005-CAA-009
DATE: September 25, 2007
In the Matter of:
ANTHONY ELLISON,
COMPLAINANT,
v.
WASHINGTON DEMILITARIZATION
COMPANY, A SUBSIDIARY OF
WASHINGTON GROUP, INTERNATIONAL,
INC., (AKA WESTINGHOUSE ANNISTON,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Mick G. Harrison, Esq., Berea, Kentucky
For the Respondent:
John J. Coleman, III and Katherine
Morris Willis, Burr & Forman LLP, Birmingham, Alabama
ORDER OF REMAND
Complainant Anthony
Ellison (Ellison) filed a complaint with the United States Department of
Labor’s Occupational Safety and Health Administration (OSHA) alleging that
Respondent Washington Demilitarization Company, a subsidiary of Washington
Group, International, Inc. (a.k.a. Westinghouse Anniston), retaliated against
him in violation of the employee protection provisions of the Clean Air Act,[1]
the Comprehensive
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Environmental Response, Compensation and Liability Act,[2]
the Federal Water Pollution Control Act,[3]
the Solid Waste Disposal Act,[4]
the Toxic Substances Control Act,[5]
the Safe Drinking Water Act,[6]
(known collectively as the environmental acts), and
their implementing regulations,[7]
and the Occupational Safety and Health Act.[8]
The Occupational
Health and Safety Administration (OSHA) investigated the complaint and found it
lacked merit. Ellison requested a hearing before a Department of Labor
Administrative Law Judge (ALJ). Prior to the scheduled hearing, the ALJ
granted Respondent’s Motion for Summary Disposition [sic] and canceled the
hearing. Ellison filed a Petition for Review of the ALJ’s Recommended Decision
and Order with the Administrative Review Board (Board). The Board issued a
Notice of Appeal on May 5, 2005. The issue before the Board is whether the ALJ
prematurely issued his Recommended Decision and Order granting Respondent’s
Motion prior to the expiration of the time permitted by regulation for Ellison
to respond to the Motion. For the following reasons, we find that the ALJ
prematurely ruled on Respondent’s Motion, and we remand the case to the ALJ.
Background
Ellison worked
at the Anniston Chemical Agent Disposal Facility in Anniston, Alabama from March
2003 until October 26, 2004, when his employer, Westinghouse Anniston,
terminated his employment. Ellison stopped rocket disposal work on September
10, 2004, because he had concluded that the operation was in violation of standard
operating procedures and would have been hazardous to two workers inside the
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disposal area. Ellison admitted when deposed that during the September 10,
2004 incident, he had cursed and yelled at two other employees, threatening
them by yelling, “[I]f you don’t stop, I’m going to come inside and you are not
going to f---ing like it.” Ellison Deposition at 199-201. The United States
Army permanently disqualified Ellison from the Chemical Personnel Reliability
Program (CPRP) due to his behavior during the September 10, 2004 incident. Without
the CPRP qualification, Ellison could not continue to perform his job handling
chemical materials in the Container Handling Building and Unpack Area of the
facility. On October 26, 2004, Westinghouse Anniston terminated Ellison’s
employment because the United States Army had disqualified him from the CPRP.
Ellison filed a Complaint
of Discrimination with OSHA on November 25, 2004, alleging that Westinghouse
Anniston terminated his employment because he had previously engaged in
protected activity, including “reporting unsafe [Washington Demilitarization
Company] practices during the disposal of rockets filled with chemical warfare
agent GB (sarin).”[9]
OSHA investigated the complaint and determined that Westinghouse Anniston had terminated
Ellison’s employment because the United States Army had disqualified him from retention
in the CPRP. Therefore, OSHA found that Westinghouse Anniston had a
non-discriminatory reason for terminating Ellison’s employment, which action they
would have taken against Ellison in the absence of any protected activity. OSHA
concluded that Ellison’s complaint had no merit and dismissed the case.
Ellison objected
to OSHA’s findings and requested a hearing before an ALJ. The ALJ issued certain
pre-hearing orders in which he, (1) set the hearing for May 2, 2005; (2) ordered
the parties to complete discovery by April 15, 2005; (3) ordered the parties to
file any dispositive motion by April 18, 2005, with the other party having five
days after service to respond to such motion; (4) ordered the parties to
exchange with each other and file with the ALJ a pre-hearing statement by April
22, 2005; and (5) allowed the parties to file and serve pleadings and documents
via facsimile.
On April 18,
2004, the Respondent filed with the ALJ its Motion for Summary Disposition. The
Respondent argued that summary decision was appropriate because the evidence
revealed no dispute as to any material fact.
On April 26,
2005, Ellison filed a Prehearing Submission with the ALJ in which he indicated,
inter alia, that “[o]ther matters that may assist in expediting the matter will
be presented in Complainant’s response to Respondent’s motion for summary
decision ….”[10]
That same day, the Respondent filed with the ALJ its Motion to Bar Opposing
Affidavits and Other Materials to Respondent’s Motion for Summary Disposition.
The
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Respondent argued that the time in which Ellison had to respond to its Motion
for Summary Disposition had expired April 25, 2005, pursuant to Fed. R. Civ. P.
6.[11]
Also on April
26, 2005, the ALJ issued his Recommended Decision and Order Granting Motion for
Summary Decision and Cancelling Formal Hearing (R. D. & O.).[12]
The ALJ initially noted that Ellison had not filed a response within five days
of the April 15, 2005 service of Respondent’s Motion, as the ALJ had ordered.
The ALJ added:
Ordinarily,
five (5) days are added to a prescribed period when documents are filed by
mail. See 29 C.F.R. § 18.4(c). However, on March 10, 2005, the
undersigned issued an “Order Granting Motion for Filing and Service of
Pleadings and Documents via Facsimile” to facilitate the expeditious nature of
this matter and its filings.
To
date, Complainant has filed no responsive pleadings to respondent’s motion. To
be timely, a response should have been filed by April 22, 2005. Pursuant to 29
C.F.R. § 18.4(a) in computing any period of time, the time begins with the day
following an act or event. When the period of time is less than seven (7)
days, as here, intermediate Saturdays, Sundays and holidays shall be excluded
in the computation.[[13]]
Considering the
merits of Respondent’s Motion “in the absence of any timely response or
affirmative evidence from Complainant,” the ALJ found that Ellison had failed
to put at issue any material fact, including whether the Respondent was ever his
employer, whether Ellison ever made a protected complaint, or whether a causal
nexus existed between any alleged complaint by Ellison and Westinghouse
Anniston’s decision to terminate his employment.[14]
Therefore, the ALJ concluded that the Respondent is
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entitled to summary
decision and granted its Motion for Summary Disposition.[15]
The ALJ thus cancelled the scheduled hearing.[16]
Ellison submitted
a Petition for Review of the ALJ’s R. D. & O. to the Board. In his
Petition, Ellison requests review of the ALJ’s “conclusion and finding that
Complainant was untimely in responding to Respondent’s motion for summary
decision, which is incorrect as a matter of fact, law, regulation and due
process.”[17]
We now consider Ellison’s Petition for Review and the parties’ briefs.
Jurisdiction and Standard of Review
The Board has
jurisdiction to review the ALJ’s R. D. & O.[18]
Under the Administrative Procedure Act, the Board, as the Secretary’s designee,
acts with all the powers the Secretary would possess in rendering a decision
under the whistleblower statutes. We review a decision granting summary
decision de novo. That is, the standard the ALJ applies, also governs our
review.[19]
Discussion
The Legal Standard
The rules of
practice and procedure for administrative hearings before the Office of
Administrative Law Judges are found in Part 18 of Title 29 of the Code of
Federal Regulations. These rules provide that “[a]ny party may, at least
twenty (20) days before the date fixed for any hearing, move with or without
supporting affidavits for a summary decision on all or any part of the
proceeding.”[20]
The regulation
at 29 C.F.R. § 18.4(a) addresses time computations generally. This regulation provides,
in pertinent part, that “time begins with the day following the act, event, or
default, and includes the last day of the period, unless it is a Saturday,
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Sunday or legal holiday observed by the Federal Government in which case the
time period includes the next business day,” and that when a period of time
prescribed “is seven (7) days or less, intermediate Saturdays, Sundays, and
holidays shall be excluded from the computation.”[21]
The regulation
at 29 C.F.R. § 18.4(c)(1) pertains to the computation for delivery of documents
by mail and provides that “[s]ervice of all documents other than complaints is
deemed effected at the time of mailing.” Under 29 C.F.R. § 18.4(c)(3), “[w]henever
a party has the right or is required to take some action within a prescribed
period after the service of a pleading, notice, or other document upon said party,
and the pleading, notice or document is served upon said party by mail, five
(5) days shall be added to the prescribed period.”
The regulation
at 29 C.F.R. §18.3(f)(1) provides, “Filings by a party may be made by facsimile
(fax) when explicitly permitted by statute or regulation, or when directed or
permitted by the administrative law judge assigned to the case.”
B. The Parties’ Arguments
Ellison argues to
us that the ALJ prematurely issued his R. D. & O. before the expiration of the
time that he had to respond to Respondent’s Motion for Summary Disposition.[22]
Ellison asserts that the ALJ misapplied the regulations in determining that his
response was due April 22, 2005, failing to allot Ellison the five additional
days required by 29 C.F.R. § 18.4(c)(3) where Respondent’s Motion was served by
mail.[23]
Ellison surmises that the ALJ “may have omitted consideration of this provision
because he erroneously assumed that all filing and service would be by [facsimile].”[24]
Ellison notes, however, that the ALJ’s pertinent Order allowed filing or
service by facsimile and did not require filing or service by facsimile.[25]
Ellison asserts that he had until April 27, 2005, the day after the ALJ issued
his R. D. & O., to respond to Respondent’s Motion for Summary Disposition.
Lastly, Ellison challenges the Respondent’s assertion, raised in its Motion to
Bar Opposing Affidavits and Other Materials to Respondent’s Motion for Summary
Disposition filed with the ALJ, that the Federal Rules of Civil Procedure apply
where, as in this case, the Department of Labor has its own regulations to compute
response time.[26]
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The Respondent
contends that the ALJ issued his R. D. & O. in accordance with 29 C.F.R. §
24.1(b) that provides procedures for the “expeditious handling of complaints by
employees, or persons acting on their behalf, of discriminatory action by
employers.” The Respondent characterizes this provision as a “mandate to
expedite.”[27]
The Respondent also asserts that the ALJ modified the time computation
regulations provided in 29 C.F.R. § 18.4, as he is allowed to do under 29
C.F.R. § 18.1(b), in order to protect Part 24’s “mandate to expedite.”[28]
The Respondent also argues that assuming arguendo that the ALJ did not accord
Ellison the response time to which he was entitled, the error would not change
the outcome of the case because the Respondent is entitled to summary decision
on this record. Lastly, the Respondent argues that Ellison “should not be
awarded another opportunity to file responsive materials before the ALJ because
he has continually disregarded such deadlines.”[29]
Ellison has
filed a brief in rebuttal to the Respondent’s brief. Ellison argues that the Respondent’s
assertion that the ALJ modified the time computation regulations at 29 C.F.R. §
18.4 is refuted by the record. Ellison reiterates his argument that the ALJ
prematurely issued a decision on the merits of Respondent’s Motion for Summary
Disposition, before the expiration of his response time. Ellison asserts that
the ALJ erroneously deprived him of his opportunity to respond thereto.
C. Issuance of the ALJ’s R. D. & O.
In his pre-hearing
Order dated March 4, 2005, the ALJ set the hearing for May 2, 2005. The ALJ ordered
that any dispositive motion be filed no later than April 18, 2005. The Respondent
timely filed its Motion for Summary Disposition with the ALJ on April 18,
2005. The Respondent submitted proof to the ALJ that it served its Motion for
Summary Disposition by mail April 15, 2005, to Ellison’s counsel of record and
that counsel received the Motion April 18, 2005.[30]
Ellison does not dispute these facts. Because service of all documents other
than complaints is deemed effected at the time of mailing, we find that the Respondent
served its Motion on April 15, 2004, when it mailed it to Ellison’s counsel.[31]
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The ALJ ordered
that any response to a dispositive motion, such as the Motion for Summary
Disposition that the Respondent did file, be filed within five days after
service of such motion. Starting with the day after the Friday April 15, 2005 service
of Respondent’s Motion on Ellison’s counsel, and not counting Saturday April 16
or Sunday April 17, the ALJ required a response by Friday April 22 – five days
after service and not counting the intermediate Saturday or Sunday since that
prescribed period is “seven (7) days or less.[32]
This was error. While we find that the five-day response time or “prescribed
period” expired on Friday April 22, 2005, Ellison was entitled to five
additional days under 29 C.F.R. § 18.4(c)(3), time which the ALJ did not allot
to him.
Given that the
ALJ required that Ellison respond within five days after service of
Respondent’s Motion for Summary Disposition, and because service was by mail, 29
C.F.R. § 18.4(c)(3) requires that five days “shall be added” to the five-day
period the ALJ prescribed. Starting with the day after the April 22, 2005 expiration
of the five-day period and counting five days, Ellison had until Wednesday April
27, 2005, to file a response to Respondent’s Motion. When, on Tuesday April
26, 2005, the ALJ issued his R. D. & O., noting the absence of any timely
response from Ellison and ruling on Respondent’s Motion, we find that he acted
prematurely. We conclude that the ALJ erred by issuing a decision on the
merits of the Respondent’s motion in advance of the expiration of the time in
which Ellison had to respond to that motion.
Further, the ALJ
relied on his March 10, 2005 Order Granting Motion for Filing and Service of
Pleadings and Documents via Facsimile as a reason for not adding five days to
the response time he allotted as required under 29 C.F.R. § 18.4(c)(3).[33]
The Respondent had filed a Motion requesting that the ALJ enter an Order “allowing”
both parties to file and serve pleadings and other documents, including discovery,
via facsimile.[34]
When, on March 10, 2005, the ALJ issued his Order granting this motion, he permitted
the parties to file by facsimile but did not direct them to do so as he implies
in his R. D. & O. Moreover, the ALJ in that Order did not change or otherwise
modify the applicable deadlines. Therefore, we conclude that the ALJ
mistakenly relied on his March 10, 2005 Order as a reason for not adding five
days to the prescribed period as required under 29 C.F.R. § 18.4(c)(3).[35]
Nothing in the ALJ’s March 10, 2005 Order allowing the parties to file
documents via facsimile changes our conclusion that he erred
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by issuing a
decision on the merits of Respondent’s Motion for Summary Disposition before
the expiration of Ellison’s response time.
Conclusion
The ALJ must
give Ellison the time required by the regulations to respond to Respondent’s
Motion for Summary Disposition where that motion was served by mail. By
issuing his R. D. & O. before the end of that response time, the ALJ
erred. Therefore,
we decline to adopt the ALJ’s recommendation and REMAND this case for
further proceedings consistent with this Order.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] 42 U.S.C.A. § 7622 (West 2003).
[2] 42 U.S.C.A. § 9610 (West 2005).
[3] 33 U.S.C.A. § 1367 (West 2001).
[4] 42 U.S.C.A. § 6971 (West 2003).
[5] 15 U.S.C.A. § 2622 (West 1998).
[6] 42 U.S.C.A. § 300j-9 (West 2003).
[7] 29 C.F.R. Part 24
(2006). The Department of Labor has amended these regulations since
Ellison filed his complaint in 2004. 72 Fed. Reg.
44,956 (Aug. 10, 2007). We have applied the regulations in effect when Ellison
filed his complaint, and in any event, application of the amended regulations
would not have altered our decision.
[8] 29 U.S.C.A. §§ 651 et seq. We note that
the Administrative Review Board does not have jurisdiction of Administrative Law
Judge decisions under this Act. See Secretary’s Order No. 1-2002, 67
Fed. Reg. 64,272 (Oct. 17, 2002).
[9] Complaint at 3.
[10] Complainant Anthony Ellison’s Prehearing
Submission at 1.
[11] The record contains no indication that the
ALJ ever ruled on Respondent’s Motion to Bar Opposing Affidavits and Other
Materials to Respondent’s Motion for Summary Disposition.
[12] The ALJ faxed and mailed copies of the R. D.
& O. to counsel for both parties on the day he issued it, April 26, 2005.
Service Sheet attached to R. D. & O.
[13] R. D. & O. at 2-3.
[14] Id. at 6.
[15] Id. at 7.
[16] Id.
[17] Petition for Review at 1.
[18] 29 C.F.R. § 24.8 (2006); Secretary’s Order
No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).
[19] 29 C.F.R. § 18.40 (2006).
[20] 29 C.F.R. § 18.40(a).
[21] 29 C.F.R. § 18.4 (a).
[22] Complainant’s Initial Brief at 10-11.
[23] Id. at 11-14.
[24] Id. at 13.
[25] Id.
[26] Id. at 17-18.
[27] Response Brief at 7, 8.
[28] Id. at 8.
[29] Id. at 22.
[30] Federal Express Shipment Notification attached
to Respondent’s Motion to Bar Opposing Affidavits and Other Materials to
Respondent’s Motion for Summary Disposition.
[31] 29 C.F.R. § 18.4(c)(1).
[32] 29 C.F.R. § 18.4 (a).
[33] R. D. & O. at 2.
[34] Respondent’s Motion for Filing Service of
Pleadings and Documents via Facsimile at 1, 2.
[35] We note that Ellison could have filed by fax
on April 27, 2005 a response to Respondent’s Motion for Summary Disposition and
that response would have been timely. See 29 C.F.R. §§ 18.3, 18.4. The
critical fact remains that the Respondent served Ellison by mail with its
Motion for Summary Disposition, entitling Ellison to five additional days in
which to respond. See 29 C.F.R. § 18.4(c)(3).
