September 24, 2008 DOL Home > OALJ Home > Whistleblower Collection |
USDOL/OALJ Reporter Office of Administrative Law Judges John W. McCormack Post Office and Courthouse Boston, Massachusetts 02109 DATE: April 18, 1991 CASE NO.: 91-ERA-21 IN THE MATTER OF:
Ralph Harrison AGAINST
Stone & Webster Engineering Appearances: Kenneth D. Murphy, Esq. For Complainant
Walter E. Graham, Esq.
Before: ANTHONY J. IACOBO
DISMISSING COMPLAINT This matter arises under the Energy Reorganization Act of 1974 [Page 2] as amended (ERA), 42 U.S.C. Sec 5851, and its implementing regulations, 29 C.F.R. Part 24 (hereinafter referred to as the Act). The Act prohibits any person from discharging or otherwise discriminating against a protected group of employees engaging in certain protected activity. Assuming for the purpose of this action that Complainant meets all of the other criteria required in the Act, the question for resolution at this time is whether or not the complaint filed by Mr. Ralph Harrison is timely. Section 210 of the Act provides:
42 U.S.C. § 5851(b)(1); see also 29 CFR § 24.3(b) for a parallel requirement in the Department of Labor's regulations. The record in this proceeding consists of the following: The determination of the Assistant District Director, Wage and Hour Division, Employment Standards Administration (ESA) with a photocopy of Mr. Harrison's letter of complaint and letter of November 20, 1990 from the Nuclear Regulatory Commission (NRC) attached, JX 1, 10 pages, ny Order to Show Cause, JX 2, 2 pages; and the reply of Complainant's counsel, dated April 5, 1991, and attached affidavit with attached photographs and Statement of Position of Stone and Webster Engineering Corporation and Concern Disclosure Statement, JX 3, 12 pages. The statements proffered by Respondent are, on their face, submitted beyond the date stated in my Order to Show Cause. They are filed but not considered in my disposition of this matter because they are untimely and no good reason is offered for me to waive this untimeliness. The Order to Show Cause notes that the complaint, filed December 14, 1990, complains of an action taken in August 1990 (JX 1 p. 3). In his response Complainant argues: 1) He was unaware of the Act's time constraints; (2) he acted within 30 days of the date in November when he complained to the NRC and was advised by the NRC of his rights under the Act; (3) he intended to complain [Page 3] earlier to the NRC but was fearful of retaliation and wanted to secure his benefits before taking action; (4) he was unaware of the posted notice regarding his rights and was not otherwise advised by his employer; (5) he has recently received a "bad reference." In his accompanying statement, Complainant's counsel argues the posted notices were difficult to see and the print was small. It is also argued that Mr. Harrison was laid off and not "fired", leaving some doubt as to whether the action taken was sufficiently final and unequivocal to trigger the 30 day limitation period .... citing English v. Whitfield, 858 F.2d 957 (4th Cir. 1988). JX 3 p.1. He also appears to argue that the 30-day limitation is permissive and not compulsory.
The English case, cited above, contrary to counsel's argument,
clearly stands for the proposition that once a discriminatory
action takes place, the 30-day limitation starts to run. In the
circumstances presented, the lay-off notice, if believed to be
initiated as a retaliatory measure because of protected activity by
the employee, triggers the running of the period from the time
Complainant received the notice. English at 961. Nunn v. Duke
Power Co., 84 ERA 27, 1 OAA1 No.
4, 261 (1987).
Addressing the points raised in the affidavit submitted by
Complainant: (1) ignorance of the Act's provisions is no excuse,
(2) filing a complaint with another government agency may serve to
toll the statute but not, as here, when the complaint with the
other agency is, itself, not within 30 days of the aggrieving
action, (3) the fear of retaliation by employer is is not a valid
excuse, any other holding would vitiate the statute's time
limitation, (4) absent any showing of a clear intention by the
employer to preclude information from its employees, ignorance of
ones rights under the Act is no excuse; See English at 963. and (5)
if Complainant believes he has received a poor letter of reference
motivated by his protected activity he may file a timely complaint.
Absent any showing of a continuing course of discriminatory conduct
by the employer, an employee must file a new complaint for any
specific allegedly discriminatory action by an employer. Id.
Given the circumstances presented, the complaint is untimely.
It is recommended that the complaint be dismissed because it
was untimely filed.
ANTHONY J. IACOBO
Dated: Apr 18 1991
|
||||||||
|