DATE: August 11, 1987

CASE NO. 87-ERA-26

IN THE MATTER OF

RUBEN RICHARD GARCIA,
    Complainant

    vs.

EBASCO SERVICES, INC.,
    Respondent

Appearances:

Billie Pirner Garde, Esquire
    For the Complainant

Before: C. RICHARD AVERY
    Administrative Law Judge

   This matter arises under the employee protection provisions of the Energy Reorganization Act (ERA), 42 U.S.C. § 5851. The Complainant filed a request for a hearing from the action of the Administrator, Employment Standards Administration, Wage and Hour Division (Administrator), who determined that the complaint in this matter was not timely filed.

   Ruben Richard Garcia (Complainant) filed a complaint under the employee protection provision of ERA. The envelope

containing the complaint was postmarked November 26, 1986. The complaint stated that the Complainant became aware of his rights under ERA on approximately October 26, 1986. By letter dated December 23, 1986, the Administrator determined the Complainant's complaint alleging job discrimination by EBASCO Services, Inc. (Employer), could not be considered and no investigation of the complaint would be conducted. As reasons, the Administrator stated that the complaint was not timely filed because the Complainant became aware of ERA on October 26, 1986, and did not file a complaint within 30 days thereafter. The letter of December 23, 1986, also provided that the Complainant had five days from the receipt of that letter in which to request a hearing. Nothing further was received from the Complainant until a telegram dated April 30, 1987, from an attorney, Billie Pirner Garde, stating that the Complainant had first become aware of the denial letter on April 29, 1987, The telegram was directed to the office of Administrative Law Judges and requested a hearing on the issues of timeliness and the merits of the complaint.

   1. Was Complainant's complaint timely filed?

   2. Did Complainant timely request a hearing from the Administrator's denial of his complaint?

   No hearing was held in this matter. By Order dated May 29, 1987, the Complainant was granted 20 days in which to show cause in writing, supported by affidavits and other documentary evidence, why his complaint should be considered timely and whether he timely requested a hearing regarding the rejection of his complaint. Opposing parties were granted 15 days thereafter in which to respond. By letter dated June 12, 1987, Complainant, through counsel, waived time requirements in the determination of this matter and sought, and was granted, an extension until the first week of July, 1987, in which to file a response. Complainant's response was received on July 6, 1987; however, because there was not service on all parties involved, Complainant's counsel was instructed by a staff member of this office to serve the response on all parties. According to a certificate of service received on July 20, 1987, all parties were served by mail on July 14, 1987. To date, however, no responses have been

forthcoming from any other parties and the time prescribed in the Show Cause Order has now passed. Consequently, it is the Complainant's brief, affidavits, and documentation upon which I rely in making my determination, all of which are made part of the record in this case.

   The first issue to be resolved is whether the Complainant's complaint was timely filed. Based upon the evidence I have before me and my interpretation of the applicable law, I find that it was timely filed.

   29 C.F.R. § 24.3(b) states that "For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing." In initially denying the claim as untimely, the Administrator found that because the Complainant first became aware of his rights under ERA on October 26, 1986, and the envelope in which his complaint was enclosed was postmarked November 26, 1986, that his complaint was filed one day beyond the 30 day limit set by 29 C.F.R. § 24.3(b). In the absence of other information, I understand the rationale behind the Administrator's determination, but now having the benefit of an uncontradicted affidavit of the Complainant wherein he swears that on Sunday, November 23, 1986, he "put" the complaint in "an out of town mail box in back of the Bay City, Texas, Post Office," I find that the complaint was actually mailed on November 23, 1986, and thus was timely filed within the 30 day period prescribed by 29 C.F.R. § 24.3(b). (See in this regard Rex v. EBASCO, 87-ERA-6, slip op. of April 13, 1987, wherein the Secretary of Labor held that the date of filing commences when the letter is placed in the mailbox, not the date the letter is postmarked.)

   The remaining issue to be resolved is whether the telegram of April 30, 1987, requesting a hearing from the Administrator's determination of December 23, 1986, was timely. I find that it was. 29 C.F.R. § 24.4(d)(2)(i) states that the Complainant must request a hearing "within five calendar days of its receipt." The Complainant has sworn without contradiction that he heard nothing concerning the Department of Labor's actions until his attorney informed him on April 29, 1987, that his complaint had been denied. To this end, Complainant's attorney, Billie Pirner Garde, has sworn that on April 29, 1987, she placed a telephone call to the Houston Wage and Hour Division and was directed to the Washington office of the Administrator, where she was

informed that the claim was denied on December 23, 1986. On the day following this telephone conversation a hearing was requested by telegram. Therefore, based upon the affidavits, and because 29 C.F.R. § 24.4(d)(2)(i) does not start the time running until "receipt" of the determination, I find that the Complainant timely sought a hearing once he received notice of the Administrator's determination.

   For the foregoing reasons, I find the Complainant's complaint and request for hearing were timely filed; however, as no investigation has been conducted in this matter pursuant to 29 C.F.R. § 24.4(b) the case must be remanded to the Administrator for such action.

   It is hereby ORDERED:

   1. That the complaint filed in this case under the Energy Reorganization Act of 1974 was timely;

   2. That the request for hearing on the complaint following the determination by the Administrator of the issue of timeliness was timely; and,

   3. That this case is remanded to the Administrator, Wage and Hour Division, Employment Standards Administration, for an investigation on a priority basis pursuant to 20 C.F.R. § 24.4.

       C. RICHARD AVERY
       Administrative Law Judge