Rose v. Nuclear Fuel Services, Inc., 87-ERA-19 (Sec'y June 29, 1990)

	U.S. Department of Labor Office of Administrative Law Judges

www.oalj.dol.gov

[skip navigational links] Search | A-Z Index

Find It! on DOL | OALJ Home | OALJ Law Library | About Us

September 24, 2008 DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter
Rose v. Nuclear Fuel Services, Inc., 87-ERA-19 (Sec'y June 29, 1990)

U.S. DEPARTMENT OF LABOR

OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20210

DATE: June 29, 1990
CASE NO. 87-ERA-19

IN THE MATTER OF

CARL ROSE,
COMPLAINANT,

NUCLEAR FUEL SERVICES, INC.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

Administrative Law Judge (ALJ) E. Earl Thomas issued a [Recommended] Summary Decision on January 25, 1988,¹ in this case arising under the employee protection provision of the Energy Reorganization Act of 1974, as amended (ERA or the Act), 42 U.S.C. § 5851 (1982). Following a hearing on July 14, 1987,² the ALJ found that the complaint submitted on December 31, 1981, was not timely filed under 29 C.F.R. § 24.3(b) and that the equitable tolling principles were not applicable in this instance. The parties were afforded an opportunity to file briefs in support of or in opposition to the ALJ's decision, and both Complainant and Respondent submitted letters indicating that they would rely on their respective briefs submitted before the ALJ.

Based on a review of the record in this case, I adopt and append the ALJ's discussion ³ and reasoning in his ruling on the issue of timeliness. The record supports the ALJ's findings of fact and conclusions of law, and his analysis is consistent with the case law and prior decisions of the Secretary on the issue of

[Page 2]

timeliness and equitable tolling. See School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981) (holding 30-day time limit for filing a whistleblower complaint is in the nature of a statute of limitations); Doyle v. Alabama Power Co., Case No. 87-ERA-43, Sec. Final Decision and Order, September 29, 1989, slip op. at 2-6, appeal docketed, No. 89-7863 (11th Cir. Nov. 28, 1989); Lastre v. Veterans Administration Lakeside Medical Center, Case No. 87-ERA-42, Sec. Final Decision and Order, March 31, 1988) slip op. at 2-4. In addition, I note that the language of the ERA is explicit in establishing thirty days as the period within which a complaint alleging violation of the Act may be filed. 42 U.S.C. § 5851(b)(1).

Accordingly, the complaint in this case is DISMISSED.

SO ORDERED.

ELIZABETH DOLE
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹The ALJ's decision is not entitled a "Recommended Decision," but under the regulations implementing the ERA, an ALJ's decision is only a recommended decision except in limited circumstances. See 29 C.F.R. § 24.5(e) (1989). Final orders are issued by the Secretary. 29 C.F.R. § 24.6.

²The record establishes compliance with the order of the United States Court of Appeals for the Sixth Circuit which remanded this case to the Administrator for issuance of proper notice to Complainant concerning the right to an ALJ hearing upon request, pursuant to 20 C.F.R. § 24.4(d)(2)(i). Rose v. Secretary of the Department of Labor, 800 F.2d 563, 565 (6th Cir. 1986).

³In adopting the ALJ's discussion, the following corrections are noted:

page line correction

Caption 7 Change "Nuculear" to "Nuclear"

One 7 Change "cause" to "caused"

Two 12 Change "futher" to "further"

Two 13 Delete comma after "Fuels"

Two 14 Add ", and" after "Labor"

Three 5 Change "mislead" to "misled"