DATE: July 11, 1989
CASE NO. 87-ERA-26

IN THE MATTER OF

RUBEN RICHARD GARCIA,
    COMPLAINANT,

    v.

EBASCO SERVICES, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   On August 11, 1987, Administrative Law Judge (ALJ) C. Richard Avery submitted to me a [recommended] Decision and order Reinstating Complaint and Remanding for Investigation (D. and O.) in this case arising under the employee protection provisions of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C. § 5851 (1982). The ALJ recommended that this matter be remanded to the Wage and Hour Division for investigation. The complaint had been rejected by the Wage and Hour Division on the ground that it was untimely.

   After receipt of a request for hearing from the Complainant, the ALJ issued an Order to Show Cause why Complainant did not file a request for a hearing within five days of the notification by the Wage and Hour Division of the rejection of his complaint, and why he failed to file his complaint "within 30 days after becoming aware of ERA." Complainant filed a response to the Order to Show Cause together with exhibits and affidavits. Respondent did not file any response to the Order to Show Cause or to Complainant's response.

   Based on the uncontradicted statement of Complainant in his affidavit that he mailed his complaint on November 23, 1986, although it was not postmarked until November 26, 1986, the ALJ held that Complainant had filed his complaint within

30 days of becoming aware of his rights under the ERA on October 26, 1986. Respondent argues before me that the 30 day time period for filing a complaint under the ERA runs from the date of the alleged violation, not from the time a complainant became aware of his rights under the Act. Without deciding the question, I agree with the ALJ's conclusion that this matter should be remanded to the Wage and Hour Division for a full investigation. In addition to Complainant's assertion that his complaint was made within 30 days of becoming aware of his rights under the ERA, Complainant has asserted that there was a continuing violation here, and has stated some facts which may support a finding of equitable tolling of the 30-day time limit. The facts on each of the issues should be more fully developed for me to reach a reasoned decision.

   The ALJ also held that Complainant did not receive notice of the rejection of his complaint by the Wage and Hour Division in a letter of December 23, 1986, until April 29, 1987, and that Complainant filed a request for a hearing within five days of that date, as provided in 29 C.F.R. § 24.4 (d) (2) (i) (1988). The ALJ relied on the uncontradicted statement of Complainant that he never received the Wage and Hour Division's letter of November 23, 1986. I would note that there is some information in the record which might tend to contradict this statement. Complainant stated in his Response to ALJ's Order to Show Cause, at page 7, that his correct address is 3700 Rose St. #7, Bay City, Texas, 77414. However, the return address on the envelope containing Complainant's original complaint was "3717 Rose St, Bay City Tex. 77414," the address to which the Wage and Hour Division letter was sent. The service sheet prepared and signed by Complainant's attorney certifying service of the Response to ALJ's Order to Show Cause listed the Complainant's address as 3717 Rose St., Bay City, TX 77414. In a letter to the Secretary of September 21, 1987, requesting the rescinding of the Scheduling Order in this case, Complainant's attorney attached a service sheet giving Complainant's address as 3717 Rose Street, By [sic] City, Texas 77414. I would also note that the November 23, 1986, letter from the Wage and Hour Division to Complainant was marked CERTIFIED MAIL -- RETURN RECEIPT REQUESTED, but there is no copy of the return receipt in the record nor any statement or affidavit from the Wage and Hour Division that one was or was not received. These facts as well should be more fully developed before I decide the issue of the timeliness of Complainant's request for a hearing.¹

¹ Complainant asserted in his Motion to Strike filed May 16, 1988, that Respondent had defaulted on the issues of timeliness, apparently because Respondent did not file a response to the ALJ's Order to Show Cause. The burden under the Order to Show Cause was clearly on Complainant to demonstrate why his complaint should not be dismissed for untimeliness. I do not conclude in that context that Respondent has waived its right to raise timeliness before the Secretary or that the ALJ's recommended decision is res judicata on that issue. As noted in the text, I am not prepared to reach a conclusion on this question on this record. A remand for further investigation and, if timely requested, a hearing, will give the parties an opportunity to develop the facts upon which a reasoned decision can be based.