DATE: December 2, 1987
CASE NOS: 87-ERA-33
    88-ERA-5

In the Matter of

GARY M. HOFFMAN,
    Complainant,

    v.

FUEL ECONOMY CONTRACTING,
    Respondent,

    and

OMAHA PUBLIC POWER DISTRICT,
    Respondent.

    On October 30, 1987, Omaha Public Power District [hereinafter OPPD] filed a motion "pursuant to 29 CFR § 18.6 or in the alternative to 29 CFR § 18.40 to dismiss the Amended Complaint served upon it on October 26, 1987" in Case No. 87-ERA-33. In response to an Order dated November 10, 1987, OPPD filed copies of four documents to supplement its motion and the complainant, through counsel, submitted his response to the motion to dismiss together with seven exhibits. Based on the pleadings filed with respect to both of these cases and the copies of the documents submitted by the complainant and OPPD, I make the following findings for purposes of ruling on the motion to dismiss.

    1. By handwritten letter dated May 26, 1987, Gary M. Hoffman advised the U.S. Department of Labor that be "was terminated on May 20, 1987 from Fuel Economy Contracting and the Omaha Public Power District." He claimed in that letter that he was terminated because he made his supervisor and the Nuclear Regulatory Commission "aware of errors that were being perpetuated in the work process." Attached to that letter is a three page typed statement containing the complainant's allegations against Fuel Economy Contracting [hereinafter FEC] and OPPD regarding his termination from employment at the Ft. Calhoun Nuclear Station. (Complainant's Exhibit 1).

    2. James L. Skolaut, Area Director, Employment Standards Administration, Wage and Hour Division, U.S. Department of Labor, Omaha, Nebraska, by letter dated June 1, 1987, advised Wayne Gary Gates, Manager, Fuel Economy Contracting, Ft. Calhoun Station, Ft. Calhoun, Nebraska, of the complaint filed by Mr. Hoffman alleging discriminatory employment practices in violation of Public Law 95-601, Energy Reorganization Act (ERA), Section 210, 42 U.S.C. 5851. That letter further advised that if a mutually agreeable settlement could not be achieved, that "the law requires that a fact-finding investigation be conducted as soon as possible." (Complainant's Exhibit 2).

    3. By letter dated June 5, 1987, J. M. Reiter, Assistant Vice-President of FEC, advised Mr. Skolaut that Mr. Hoffman's complaint had been brought to his attention but that the notice of the complaint was sent to Mr. Gates, who is not an employee of FEC. Mr. Reiter further advised that his company did not consider the notice to Mr. Gates to be proper and that if the Department of Labor intended to pursue the matter, a proper notice should be sent to FEC. (Complainant's Exhibit 3).

    4. Mr. Skolaut in response to the above letter of Mr. Reiter notified FEC, by letter dated June 8, 1987, of the complaint filed by Mr. Hoffman. That letter is identical to the letter issued to Mr. Gates on June 1, 1987 except that it was addressed in accordance with Mr. Reiter's letter of June 5, 1987. (Complainant's Exhibit 4).

    5. By letter dated June 18, 1987, Mr. Skolaut notified the complainant of the results of his office's "compliance actions" regarding Mr. Hoffman's complaint that was received on May 27, 1987. That letter is referenced to Gary M. Hoffman vs. Fuel Economy Contracting. Mr. Hoffman also was advised that the fact

finding investigation did not verify that discrimination was a factor in the actions comprising his complaint. Mr. Skolaut went on to conclude that Mr. Hoffman's allegations could not be substantiated because "[e]vidence indicates your termination resulted from the confrontation between you and your supervisor, Gene Brazeal, on May 20, 1987, and not as a result of your engaging in a protected activity under the Act." Mr. Skolaut further notified the complainant that if Mr. Hoffman wished to appeal the findings he had a right to a formal hearing on the record. The letter provided that to exercise his appeal rights, Mr. Hoffman needed to file his request by telegram to a specified address within five calendar days of the receipt of the letter. Complainant was further advised that if he requested a hearing, it would be necessary for him to send a copy of the telegram to FEC and to Mr. Skolaut's office address. That letter provided other information to the complainant but it contained no reference to OPPD. (Complainant's Exhibit 5).

    6. The complainant, by telegram dated June 19, 1987 to the Office of Administrative Law Judges, appealed the findings of the letter dated June 18, 1987 regarding Gary M. Hoffman vs. Fuel Economy Contracting and requested a formal hearing. The case was docketed on that date as Case Number 87-ERA-33.

    7. By Order dated July 1, 1987, I advised the parties that Case Number 87-ERA-33 had been assigned to me on June 26, 1987 and that a formal hearing was scheduled to commence on July 28, 1987 at Omaha, Nebraska.

    8. The complainant and FEC subsequently advised me that they had obtained counsel. Pursuant to the parties' waiver of the time constraints opposed under 42 U.S.C. § 5851(b)(2) and both parties' request, the scheduled hearing was continued. By Order dated September 1, 1987, the parties were advised that the hearing was rescheduled to commence on December 1, 1987. Both parties subsequently commenced discovery proceedings.

    9. By letter dated October 6, 1987 to Mr. Skolaut, complainant's counsel, Billie Pirner Garde, advised that in reviewing the file and "the information provided to me under the Freedom of Information Act it is clear that Mr. Hoffman brought his complaint against both Fuel Economy & Omaha Public Power District." She stated that Mr. Skolaut's letter of June 18, 1987 does not include a specific determination about OPPD. She went on to confirm

other information from her telephone conversation with Mr. Skolaut of that same date and requested that he provide "a letter as soon as possible stating that your initial determination also excused OPPD, and that the failure to include them in your aforementioned letter to Mr. Hoffman was an oversight." (Complainant's Exhibit 6).

    10. On October 15, 1987, complainant's counsel served an amended complaint in Case No. 87-ERA-33 to include OPPD in Mr. Hoffman's complaint of May 26, 1987.

    11. Mr. Skolaut, in reply to the letter of complainant's counsel dated October 6, 1986, advised by letter dated October 16, 1987, that "our subject investigation disclosed that Omaha Public Power District was not Mr. Hoffman's employer and did not participate in any action effecting [sic] his status." He went on to conclude the letter by stating "[c]onsequently, we determined that Omaha Public Power District did not discharge or otherwise discriminate against your client in violation of the Engery [sic] Reorganization Act. (Complainant's Exhibit 7).

    12. By telegram dated October 19, 1987, Gary M. Hoffman appealed "the October 16, 1987 denial of the Wage and Hour Division into his complaint against Omaha Public Power District for violation of his rights under 42 USC 5851." Mr. Hoffman requested a hearing and consolidation with his case against FEC, Case No. 87-ERA-33. The case was docketed by this office on October 20, 1987 as Case Number 88-ERA-5.

    13. On October 20, 1987, complainant commenced discovery proceedings against OPPD in Case Number 87-ERA-33.

    14. OPPD filed a motion to dismiss in Case Number 87-ERA-33 on October 30, 1987. As previously indicated, the motion was brought pursuant to 29 C.F.R. § 18.6, or in the alternative, 29 C.F.R. § 18.40. OPPD's principal reason for requesting the dismissal is that the complainant's appeal dated June 19, 1987 of the findings set forth in the letter of the Area Director of the Wage and Hour Division dated June 18, 1987, did not include OPPD as an employer and therefore the amended complaint is "untimely and without effect." In support of the motion, OPPD states that the Area Director's letter dated June 18, 1987 notified the complainant that the investigation did not verify that discrimination was a factor in connection with the complainant's termination from employment by his employer, FEC. OPPD notes that the

determination was referenced "Hoffman vs. Fuel Economy Contracting" and counsel alleges that "by implication it was determined that OPPD was not an employer within the meaning of the Act."

    15. Pursuant to my Order dated November 10, 1987, complainant filed a response to OPPD's motion to dismiss on November 20, 1987. The arguments advanced in that response subsequently will be discussed but it is important to note that complainant's counsel stressed in the response that she confirmed in a telephone conversation that OPPD's "motion does not raise the substantive issue of whether OPPD is an employer under the Act."

    16. On November 20, 1987, OPPD filed its answer to the amended complaint without waiving its motion to dismiss. The answer included both Case Numbers 87-ERA-33 and 88-ERA-5.

    17. The hearing scheduled for December 1, 1987 was continued generally by Order dated November 25, 1987 based upon complainant's unopposed motion.

    In view of the contents of OPPD's motion and the above-mentioned statement in complainant's response to that motion, it should initially be noted that the following conclusions relate solely to the question of whether the motion to dismiss should be granted on the grounds the complainant's appeal is untimely. Secondly, it is assumed that the motion also is intended to apply to Case No. 88-ERA-5, although it is directed to the amended complaint in Case No. 87-ERA-33.

    I initially choose to dispose of what I perceive to be the easier of the questions surrounding OPPD's motion to dismiss, that being whether the motion should be granted with respect to Case Number 88-ERA-5. I consider this to be easily resolved because there should be no doubt in anyone's mind that Mr. Skolaut's letter to complainant's counsel dated October 16, 1987 is not and was not intended to be a "notice of determination" of the Administrator as provided in 29 C.F.R. § 24.4(d). Rather, it represents nothing more than a reply to the letter of complainant's counsel dated October 6, 1987 explaining that the investigation of Mr. Hoffman's complaint disclosed that Omaha Public Power District was not Mr. Hoffman's employer and did not participate in any action affecting his status. Since I find the letter of Mr.

Skolaut dated October 16, 1987 does not constitute a "notice of determination" of the Administrator under 29 C.F.R. § 24.4(d), the document affords the complainant no appeal rights under the Act and regulations. Therefore, I find OPPD's motion to dismiss with respect to Case Number 88-ERA-5 should be granted. For both procedural and appeal purposes, however, this will be resolved through a separate recommended decision pertaining specifically to that case.

    OPPD contends the amended complaint filed in Case Number 87-ERA-33 should be dismissed as untimely because the complainant's October 19, 1987 telegram appeal was well over five days subsequent to the June 18, 1987 notice of determination. 29 C.F.R. § 24.4 (d)(2)(i). I reiterate that it is OPPD's position that although the notice was referenced "Hoffman vs. Fuel Economy Contracting," it implied that the Area Director of the Wage and Hour Division had determined that OPPD was not an employer of the complainant within the meaning of the Act.

    In arguing that his appeal is timely, complainant stresses the fact that the letter of the Area Director dated June 18, 1987 contains no reference to OPPD. He therefore contends that he neither had knowledge or should have known "that the absence of reference to OPPD was a 'red flag', communicating that a clear decision had been made about OPPD." Mr. Hoffman argues that until the October 16, 1987 letter of Mr. Skolaut, he was not aware that the notice of determination was intended to apply to OPPD. He goes on to argue at some length that the five day statute of limitations which is applicable to the filing of an appeal from the notice of determination, is an equitable statute and should be tolled essentially because he was "misled" and prevented from appealing because of "extraordinary circumstances." It is noted by his attorney that at the time Mr. Hoffman filed his original appeal, he was unrepresented by counsel, yet "did not sleep on his rights." His final contention is that OPPD would not be subject to prejudice by including that company in his action because it had notice of Mr. Hoffman's complaint "from the outset, and participated in the investigation."

    The courts, as well as the Secretary of Labor, have considered the applicability of the doctrine of equitable tolling of the statute of limitations to various cases involving the untimely filing of a complaint under a federal statute. See Coke v. General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981);

School District of City of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981); Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980); Cooper v. Bell, 628 F.2d 1208 (9th Cir. 1980); Nielsen v. Western Electric Co., 603 F.2d 741 (8th Cir. 1979); Kephart v. Institute of Gas Technology, 581 F.2d 1287 (7th Cir. 1978); Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff'd, 434 U.S. 99 (1977); and, Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (1987); French v. Tennessee Valley Authority, 86-ERA-14 (1986); Norman v. Niagara Mohawk Power Corp., 85-ERA-35 (1985); Stokes v. Pacific Gas & Electric Co., 84-ERA-6 (1984); Hick v. Western Concrete Structures, 82-ERA-11 (1983). In Smith v. American President Lines, Ltd., 571 F.2d 102 (2d Cir. 1981), the court interpreted the Supreme Court's decisions that the theory of equitable tolling "may be appropriate only when": (1) the plaintiff has been actively misled by the defendant respecting the cause of action; (2) the plaintiff in some extraordinary way has been prevented from asserting his rights; or, (3) the precise statutory claim has been mistakenly raised by the plaintiff in the wrong forum. School District of the City of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981).

    While there is no allegation that Mr. Hoffman did not timely file his complaint against FEC and OPPD, it would appear reasonable to apply the doctrine of equitable tolling to this case assuming I found that he untimely appealed the notice of determination dated June 18, 1987. I agree with Mr. Hoffman's allegations that he did not sleep on his rights although he was not initially represented by counsel. Moreover, I find that it could be successfully argued, if necessary, that he was "misled" because of "extraordinary circumstances" in that the notice of determination contains no explicit reference to OPPD. However, I find it unnecessary to apply the doctrine of equitable tolling to this case.

    There is no question that Gary Hoffman's timely complaint was against both FEC and OPPD. (Complainant's Exhibit 1). Moreover, it is uncontroverted that the investigation under the Act also included Mr. Hoffman's allegation of discrimination by OPPD. I find that unfortunately the notice of determination issued on June 18, 1987 does not clarify that the investigation by the Wage and Hour Division led that agency to conclude that OPPD was not an employer within the meaning of the Act. Indeed, that notice fails to include OPPD in the caption or indicate to the complainant that he needed to send a copy of his request for

hearing to OPPD if he chose to contest the determination. Further, there is no evidence indicating a copy of the notice of determination was served on OPPD.

    I agree with the complainant that there was no way he knew or should have known that the notice of determination was intended to apply to OPPD. Although unrepresented, Mr. Hoffman strictly complied with all of the instructions given to him by the Department of Labor regarding the filing of an appeal. I find it reasonable to assume that if the notice had indicated that the determination also pertained to OPPD, then Mr. Hoffman would have properly included that party in his appeal. In fact, it is conceivable that OPPD may never have been included in this action but for the complainant's retention of counsel and her diligence in developing evidence. Such omission, I find, has been averted through the issuance of Mr. Skolaut's letter of explanation dated October 16, 1987.

    I reiterate that OPPD argues that it was included in the notice of determination by implication. If so, it is logical to conclude that it also was implicitly included in Mr. Hoffman's timely appeal of that determination. I therefore find that complainant's strict adherence to the appeal procedures as outlined to him in the notice of determination is sufficient to perfect his appeal against OPPD. Although Mr. Hoffman attempted to bring OPPD into this litigation by the filing of what he captioned an amended complaint to his complaint of May 26, 1987, I find such action was unnecessary because OPPD was initially made a party to that complaint. Regardless of the style, I accept that document as an amended pleading relating back to Mr. Hoffman's original pleading and that it was served with the purpose of adding OPPD as a party to Case No. 87-ERA-33. I find that the request to include Omaha Public Power District as a respondent in Case No. 87-ERA-33 should be granted. The relief requested by the complainant shall be granted by a separate Order pertaining specifically to that case.

    I finally note that I find OPPD has not been prejudiced by this action. It timely was advised of the complaint by Mr. Hoffman. It essentially received as much notice regarding the substance of the notice of determination as did the other parties. OPPD can now maintain its defense of this litigation on an equal basis with FEC and pursue discovery, as deemed appropriate.

       DONALD W. MOSSER
       ADMINISTRATIVE LAW JUDGE