Roberts v. Battelle Memorial Institute, ARB No. 00-015, ALJ No. 1996-ERA-24 (ARB Apr. 30, 2001)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 00-015
    (Formerly ARB 97-038)
ALJ CASE NO. 96-ERA-24
DATE: April 30, 2001

In the Matter of:

LINDA ROBERTS,
    COMPLAINANT,

    v.

BATTELLE MEMORIAL INSTITUTE,
ROBERT W. SMITH, JR.; ROBERT E. LINCOLN;
KATHY OLSON; K.C. BROG; AND V.E. CASTLEBERRY,
    RESPONDENTS.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

Appearances:

For the Complainant:
    Linda Roberts, pro se,
      West Jefferson, Ohio

For the Respondent:     Adele E. O'Conner, Esq.,
       Porter, Wright, Morris & Arthur, Columbus, Ohio

   This matter is before this Board for the second time. We dismiss the complaint as untimely filed.

   Complainant Linda Roberts was employed by Respondent Battelle Memorial Institute from September 1979 until her termination on July 18, 1994. On January 27, 1995, Roberts sent a letter to the Department of Energy in which she alleged that Battelle had retaliated against her for raising safety issues. The letter was forwarded to the Department of Labor, which treated it as a complaint of retaliation pursuant to the whistleblower provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.A. §5851 (1995). The Department's Wage and Hour Division determined that the complaint was not filed within the ERA's 180-day limitations period. 42 U.S.C.A. § 5851(b). Roberts requested a hearing before a departmental ALJ, who dismissed the complaint as untimely filed.

   On review before the Administrative Review Board, Roberts asserted that on January 12, 1995 (which would have been within the limitations period), she filed a complaint with the Department of Labor's Office of Federal Contract Compliance Programs, which raised claims cognizable under the ERA. However, she did not produce a copy of that complaint.¹ The Board dismissed Roberts' complaint on the ground that it was not filed within the limitations period. The Board stated that "[a]lthough it is possible that the complaint included statements that would constitute a cognizable claim under the ERA, since a copy of the complaint has not been produced for review, there is no basis from which the Board can conclude that it did. Therefore, we find that the January 12, 1995 letter did not constitute an ERA complaint." Roberts v. Battelle Memorial Institute, ARB No. 97-038, ALJ No. 96-ERA-24, slip op. at 4 (ARB June 4, 1997).

   On review the United States Court of Appeals for the Sixth Circuit vacated and remanded the case to the ARB, ruling that the ARB's conclusion that the January 12, 1995 letter did not constitute a complaint under the ERA was not supported by substantial evidence since the letter was not before the Board.² Roberts v. United States Dep't of Labor, 149 F.3d 1184 (Table), 1998 WL 381666, *2 (6th Cir. 1998). The Court ruled that the Board's

characterization of the letter as not constituting a complaint under the Energy Reorganization Act is unsupported in the record. While the Board relied upon the fact that the Department of Labor forwarded the letter of complaint to the EEOC for processing as evidence that the complaint was brought under an Executive Order prohibiting discrimination on the basis of race, color, religion, sex, and national origin, this evidence is unsubstantial under the circumstances of this case. Petitioner denies that she filed the complaint pursuant to the Executive Order prohibiting discrimination on the basis of race, color, religion, sex, and national origin. Although petitioner may have been remiss in not filing the letter of record, it is not clear that plaintiff has a copy of her original letter. Clearly, the letter would be part of the record had the Department of Labor filed it as a complaint under the Energy Reorganization Act. In any event, we conclude that the only evidence of record that supports the Board's determination that the January 12, 1995, letter did not constitute a complaint under the Energy Reorganization Act is not substantial. Under these circumstances, we conclude that a remand is warranted so that the nature of the letter can be more precisely determined.

   Under the regulations applicable to the filing of whistleblower complaints with the Department of Labor, a complaint "shall be deemed filed as of the date of mailing." 29 C.F.R. § 24.3(b) (2000).³ The ALJ based his conclusion that the January 12 letter of complaint was never mailed upon the fact that neither the OFCCP nor the EEOC possessed in their files any document bearing a resemblance to Roberts' purported complaint, and on his implicit determination that Roberts was not a credible witness. As the ALJ found, "it is difficult, if not impossible, to believe Complainant's allegation that the purported letter of January 12, 1995 was ever sent to any government agency." RD&O at 7. We agree with the ALJ's assessment of the record and conclude that Roberts' testimony is not credible, that she did not mail the January 12 letter, and therefore did not file a timely complaint under the ERA.

¹ A detailed description of the procedural history of this case is set out in the ALJ's Recommended Decision and Order Dismissing Complaint (RD&O) at 1-6.

² Roberts submitted a copy of the purported January 12 letter for the first time before the Court of Appeals, but the court granted the government's motion to strike the letter because it was not part of the record before the ARB.

³ The ALJ apparently assumed, by analogy to the Federal Tort Claims Act, that "there must be evidence of actual receipt" of a complaint. RD&O at 7. On the contrary, pursuant to Rule 24.3(b) the relevant question is whether the complaint was actually mailed.