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| September 25, 2008 DOL Home > OALJ Home > USDOL/OALJ Reporter |
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USDOL/OALJ Reporter Reid v. Niagara Mohawk Power Corp., 2003-ERA-17 (ALJ Aug. 29, 2003)
Issue Date: 29 August 2003 CASE NO.: 2003-ERA-00017 In the Matter of
JEROME REID
v.
NIAGARA MOHAWK POWER CORPORATION
This proceeding arises from a complaint filed by Jerome Reid ("Reid") alleging that Niagara Mohawk Power Corporation ("Niagara Mohawk") terminated his employment in violation of the employee protection provisions of the Energy Reorganization Act of 1974, as amended ("ERA"), 42 U.S.C. § 5851, and the regulations promulgated thereunder at 29 C.F.R. Part 24. The case is now before me on Reid's appeal and request for hearing following an investigative finding by the Secretary of Labor that the evidence did not support his allegations of unlawful termination. Since it appeared from the documents in the case file that Reid's appeal and hearing request were filed outside of the time limits established by the applicable regulations, an order was issued, directing Reid to show cause why his complaint should not be dismissed as untimely. Reid has not responded to the order to show cause, and I find upon review of the record that the appeal and hearing request were not timely filed and that grounds for tolling the filing limitation period have not been established. Accordingly, I conclude that his complaint must be dismissed.
The record shows that Reid filed his complaint with the New York Regional Office of the Occupational Safety and Health Administration ("OSHA") on May 15, 2002. OSHA investigated the complaint, and the OSHA Regional Director issued a notice of determination pursuant to 29 C.F.R. § 24.4(d) (1998) in a letter to Reid dated July 1, 2002, stating in pertinent part, that "[t]he preponderance of credible evidence clearly indicates that your separation from employment . . . was for legitimate business reasons and [Page 2] not a discriminatory reprisal in violation of Section 211 of the Energy Reorganization Act of 1970." Notice of Determination at 1. The letter further states,
Notice of Determination at 1-2 (boldface in original). Reid signed a return receipt for the Notice of Determination letter on July 12, 2002. On May 6, 2003, Reid called Michael Mabee, a supervisory investigator in the OSHA New York Regional Office and requested a copy of the return receipt that he signed for the Notice of Determination letter. He also faxed copies of two letters to Mr. Mabee. One letter, dated June 18, 2002, is addressed to a Matthew A. Gilmartin at the OSHA Regional Office and states, "I Jerome Reid appeal the recent findings by your office and I would like for your Office to re-evaluate those findings by the field investigator for the following reasons: 1) all documentation and witnesses weren't examine [sic] or interviewed." The second letter dated October 11, 2002 is also addressed to Mr. Gilmartin and is labeled, "Second Request". This letter repeats Reid's request for re-evaluation of the investigative findings. Mr. Mabee responded to Reid by letter dated May 6, 2003, stating that he had reviewed OSHA's files and could find no evidence that the New York Office ever received either letter prior to May 6, 2003. Mr. Mabee further stated that all ERA appeals must be addressed to the Chief Docket Clerk at the Office of the Chief Administrative Law Judge. The record shows that Reid next sent an undated letter to the Chief Docket Clerk whose office received the letter via facsimile transmission on June 27, 2003. In this letter, Reid stated that he was submitting an appeal for processing and that he had previously "supplied US DOL OSHA with an appeal letter on or about June 18, 2002 and also faxed a copy of this letter on July 18, 2002." Attached to this letter is a document dated June 27, 2003 and entitled, "TRANSMISSION LOG", which appears to be a record of facsimile transmissions and which shows that one page was faxed to (212) 337-2371 on July 18. The year of the transmission is not shown, and there is a handwritten notation identifying this telephone number as belonging to OSHA. Reid's appeal was docketed by the Office of the Chief Judge on June 27, 2003. The matter was then assigned to me, and I issued a Notice of Hearing, Order to Show Cause and Pre-Hearing Order on July 8, 2003. The Order to Show Cause stated,
[Page 3]
Reid signed a certified mail return receipt for this order on July 10, 2003. The order was also served on his attorney in a related case, 2000-ERA-00023, and she too signed a return receipt. No response to the order has been filed by or on behalf of Reid. Niagara Mohawk responded by letter dated August 8, 2003, in which it urges that the complaint be dismissed based on Reid's failure to respond to the order to show cause. Reid has not responded to this letter either. The regulations establish the following time limit and procedure for filing an appeal of a notice of determination on and ERA complaint:
29 C.F.R. 24.4(d) (1998).1 As discussed above, Reid was specifically notified by OSHA in the July 1, 2002 Notice of Determination letter that he had to file a request for hearing with the Chief Administrative Law Judge. Although OSHA's letter incorrectly referred to five calendar days instead of five business days, I find that this error is harmless since Reid filed nothing with the Office of the Chief Administrative Law Judge until June 27, 2003, more than eleven months after he had received OSHA's Notice of Determination letter. See Howlett v. Northeast Utilities, USDOL/OALJ Reporter (HTML), ARB No. 99-044, ALJ No. 1999-ERA-1 (ARB Mar. 13, 2001). I similarly find that the erroneous reference to May 12, 2002 instead of July 12, 2002 as the date of Reid's receipt of the Notice of Determination in the order to show cause is harmless since Reid never responded to the order. While filing periods may be equitably tolled in appropriate circumstances; see, e.g., Overall v. Tennessee Valley Authority, USDOL/OALJ Reporter (HTML), ARB No. 98-111, ALJ No. 1997-ERA-53 at 37 (ARB Apr. 30, 2001); Reid has offered no evidence or argument to invoke equitable doctrines to revive his untimely hearing request. In view of the facts that (1) the Notice of Determination clearly informed Reid of the procedural requirements for filing a request for hearing, (2) Mr. Mabee's letter of May 6, 2003 reiterated these requirements and (3) Reid filed nothing with the Office of the Chief Administrative Law Judge until June 27, 2003, I conclude that Reid was on notice of the procedural requirements for filing a timely request and simply chose to ignore them. Such unexcused failure to properly file his request in a timely manner requires dismissal of his complaint. Backen v. Entergy Operations, Inc., USDOL/OALJ Reporter (HTML), ALJ No. 95-ERA- 46 (ARB June 7, 1996).
The complaint filed by Jerome Reid on May 12, 2002, alleging that Niagara Mohawk Power Corporation terminated his employment in violation of the Energy Reorganization Act of 1974 is DISMISSED with prejudice.
SO ORDERED.
DANIEL F. SUTTON
Boston, Massachusetts
NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).
1 The Part 24 regulations were amended effective March 11, 1998 to permit the filing of a request for an ALJ hearing in an ERA case within five business days of the receipt of the OSHA determination letter. 63 Fed. Reg. 6622 (Feb. 9, 1998). The regulation had previously required that the hearing request be filed within five calendar days. 29 C.F.R. §24.4(d)(3)(i)(1997).
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