DATE: JAN 27 1987
CASE NO. 87-ERA-6

IN THE MATTER OF

JOHN REX
    Complainant

    v.

EBASCO SERVICES, INC.
    Respondent

Appearances

Billie Pirner Garde, Esq.
    For the Complainant

Christopher Luis, Esq.
    For the Respondent

BEFORE: Joel R. Williams
    Administrative Law Judge

   This matter arises under the employee protection provisions of the Energy Reorganization Act (ERA), 42 USC 5851. The

Complainant filed a timely request for a hearing from the action of the Area Director, Employment Standards Administration, Wage and Hour Division, which determined that the complaint in this matter was not timely filed.

   A prehearing conference was held telephonically with counsel for the parties during which it was agreed that, in lieu of a formal hearing, the issue of timeliness of the complaint would be decided on the basis of briefs and documentary evidence. The Complainant has waived adherence to the statutory time constraints for resolution of his complaint. The parties have submitted their briefs and exhibits which are made part of the record in this case.

1. The Complainant, his spouse and child were on vacation in the North Central United States and absent from their usual residence in Bay City, Texas from September 11, 1986 until September 21, 1986.

   This finding is based on the Complainant's uncontradicted responses to interrogatories which are supported by travel documents, including air travel coupons and lodging and rental car receipts.

2. On Sunday September 21, 1986, the Complainant read the mail which had been delivered to his home during his absence. This included notice from the respondent that he had been terminated from his employment at the South Texas Nuclear Power Plant.

3. His complaint pursuant to Section 210 of the Energy Reorganization Act of 1974 was placed in the United States Mail by his attorney on October 21, 1986 in Appleton, Wisconsin.

   The complaint is dated October 21, 1986. The envelope in which it was mailed bears a return address in Appleton, Wisconsin and a post mark, dated October 22, 1986 in Oshkosh, Wisconsin. In her affidavit, dated December 15, 1986, Complainant's counsel states that the complaint was placed into a mail box in front of the Post Office in Appleton, Wisconsin between 6:00 P.M. and 6:30 P.M. on October 21, 1986. The mail box stated that the last pick up was at 7:00 P.M. Her subsequent investigation disclosed that mail from Appleton was picked up by truck and taken to Oshkosh,

Wisconsin for processing. Although mail placed in the mail box designated for last pick up at 7:00 P.M. was generally post marked on the day it was mailed, any one or combination of numerous factors could have occurred delaying the post marking in Oshkosh of a letter mailed in Appleton. I have no reason to doubt counsel's sworn statement that the complaint was placed in the mail on October 21, 1986.

1. The complaint in this matter was timely filed pursuant to the provisions of the Energy Reorganization Act of 1974, 42 USC 5851, and the regulations promulgated thereunder, 29 CFR § 24.3(b).

    Title 29 CFR § 24.3(b) provides:

"Time of filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing."

   It is contended on behalf of the Complainant that the complaint was mailed on the day it was deposited in the mail box. I agree. As stated in 30 Am Jur 2d 283-4, Evidence § 1117:

"It is well settled that the act of depositing a letter or other mail matter in a street letter box established by the postal authorities is as much a mailing of such letter or other mailing matter as though it were deposited in the proper place in a general Post Office, and proof of so depositing it is sufficient to establish the fact that it was mailed .... The post mark on the envelope is not conclusive evidence of its deposit in the Post Office; it may be shown the deposit was made at a time different from that which the post mark would indicate. There is no presumption that a letter was mailed on the day of its date or that the letter was not put into the Post Office until the date of the post mark, although the date of the post mark upon a letter is some evidence that it was forwarded on the day named."

   As I have found that the evidence in this case establishes that the complaint was, in fact, mailed on October 21, 1986, it follows that it was "filed" on that date.

    It is contended on behalf of the Respondent that even assuming the complaint was "filed" on October 21, 1986, it was not timely as the period for such filing commenced on September 20, 1986. It is noted in this regard that, as September 21, 1986 was a Sunday, it must be assumed that the Notice of Employment Termination was received at the Complainant's residence no later than September 20, 1986. In support of its contention that delivery of the letter to Complainant's address signified receipt and began the counting period, Respondent has cited cases arising under Title VII of the 1964 Civil Rights Act, 42 USC 2000e et seq. These include Krieger v. Republic Van Lines of Southwest, 435 F. Supp. 335 (D.C., Tex. 1977) (counting period began the date a letter was received and signed for at plaintiff's address even though he did not receive or see the letter until 3 days later); Law v. Hercules, Inc., 713 F. 2d 691, 693 (11th Cir. 1983) (letter held received on the date it was picked up by plaintiff's son even though the plaintiff did not open it until 1 or 2 days later); Bell v. Eagle Motor Lines, 693 F. 2d 1086 (11th Cir. 1983) (tolling period begins upon receipt of the letter and not when plaintiff, who was out of town on vacation, read it 8 days later); Espinoza. v. Missouri Pacific R.R. Co., 754 F. 2d 1247 (5th Cir. 1985).

   Respondent's reliance on the above cited cases is misplaced. Each arose pursuant to the provisions of 42 USC 2000e-5(f)(1) which provides the filing of a civil action within 90 days after the right to sue notice from the Commission or Attorney General.

   The analogy between the instant case and the Civil Rights Act lies in 42 USC Section 2000e-5(e) which covers the time limit for filing charges with the Commission. This subsection provides that the charge shall be filed within 180 days "after the alleged unlawful employment practice occurred." Similarly, the time for filing a complaint under the Energy Reorganization Act of 1974, 42 USC 581, is 30 days "after the occurrence of the alleged violation."

   In interpreting the time for filing provisions of 42 USC § 2000e-5(e) the United States Courts of Appeals for both the

Fifth and the Eleventh Circuits have held that the time commences when the complainant learns or could reasonably be expected to learn of the discriminatory act. Reeb v. Economic Opportunity Atlanta, Inc., 516 F. 2d 924 (5th Cir. 1975); Bickham v. Miller, 584 F. 2d 736 (5th Cir., 1978): Hamilton v. General Motors Corp., 606 F. 2d 576 (5th Cir. 1979,); McWilliams v. Escambia County School Bd., 658 F. 2d 326 (5th Cir., 1981); Watson V. National Linen Service, 686 F. 2d 877 (11th Cir., 1982). In McWilliams, the Court noted that this rule, i.e., that the limitations period begins to run from the time that the complainant knows or reasonably should know that the complained of act has occurred, is consistent with the Supreme Court's holding in Delaware State College v. Ricks, 449 US 250 (1980). There it was held that the filing period commences from the time the employer makes the decision and communicates it or makes it apparent to the complainant.

   The Complainant did not actually learn of his termination until he read his mail on September 21, 1986. I see no reason why he should have reasonably been expected to learn of such action at an earlier date. There is no showing that the Complainant had any advanced warning of this action on the basis of which he might have reasonably taken steps (e.g. left a forwarding address with the employer or made arrangements for the forwarding of his mail) to assure that he would be promptly notified of the same. I conclude under the facts of this case that the period for filing the complaint commenced on September 21, 1986.

   I note that even if the cases cited by the respondent were gername, the instant case is distinguishable. The time limit established under the Energy Reorganization Act is substantially shorter than that under Title VII. The Complainant has more than amply documented his absence from home. Additionally, there is no showing that any person was present at his residence to receive the notice during his absence.

   Section 24.4(b) of 29 CFR provides that the Administrator of the Wage and Hour Division shall, on a priority basis, investigate and gather data concerning a timely filed complaint. As no investigation has been conducted in the instant matter to date, the case is being remanded to the Administrator for such

action.

1. The complaint filed in this case under the Energy Reorganization Act of 1974, 42 USC 5851, is timely.

2. This case is remanded to the Administrator, Wage and Hour- Division, Employment Standards Administration for an investigation on a priority basis pursuant to 20 CFR § 24.4.

       JOEL R. WILLIAMS
       Administrative Law Judge