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| September 25, 2008 DOL Home > OALJ Home > USDOL/OALJ Reporter |
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USDOL/OALJ Reporter Mecklosky v. Consolidated Edison, 2003-ERA-29 (ALJ Mar. 2, 2004)
Issue Date: 02 March 2004 CASE NO.: 2003-ERA-00029 In the Matter of:
RONALD MECKLOSKY,
v.
CONSOLIDATED EDISON,
Appearances:
David J. Reilly, Esquire
Before:
GRANTING RESPONDENT'S MOTION FOR SUMMARY DECISION AND DISMISSING THE COMPLAINT This proceeding arises under the employee protection provisions of the Energy Reorganization Act ("ERA" or "the Act"). 42 U.S.C. § 5851. I. PROCEDURAL BACKGROUND Complainant filed a complaint under the employee protection provisions of the ERA on August 27, 2003. The Occupational Safety and Health Administration ("OSHA") dismissed the complaint on September 2, 2003 finding that the complaint was not timely filed. On September 9, 2003, Complainant requested a formal hearing via facsimile to the Office of Administrative Law Judges ("OALJ"). The matter was referred to this office on September 17, 2003 and on September 22, 2003 I issued a Notice of Hearing setting the hearing for December 1, 2003 in New York, New York. Respondent moved for summary disposition on November 12, 2003 arguing, inter alia, that Complainant's claims are time barred. I reserved ruling on Respondent's motion and went forward with the December 1, 2003 hearing, allowing Complainant to testify. The transcript of the hearing will be cited as "Tr.--." [Page 2] Respondent filed a post-hearing brief on February 9, 2004. Complainant's brother filed a letter outlining Complainant's position that a court-appointed monitor (Mitchell Bernard) constituted a forum for the timely filing of his complaint. II. STANDARD FOR SUMMARY DISPOSITION The Rules of Practice and Procedure for Administrative Hearings ("Rules") before the OALJ provide, "[a]ny party may, at least twenty (20) days before the date fixed for any hearing, move with or without supporting affidavits for a summary decision on all or any part of the proceeding." 29 C.F.R. § 18.40(a). "Any other party may, within ten (10) days after service of the motion, serve opposing affidavits or countermove for summary decision." Id. The Rules specify that "[w]hen a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of such pleading." Id. at § 18.40(c). The opponent "must set forth specific facts showing that there is a genuine issue of fact for the hearing." Id. I will "enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision." Id. at § 18.40(d). III. ISSUE
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW A. Statement of Facts Complainant's Testimony Complainant testified that he raised "whistleblower" complaints with Mitchell Bernard on several occasions, first in 1995. (Tr. at 10-22, 27.) According to Complainant, Mr. Bernard never told him to file a complaint with the Department of Labor. (Tr. at 22.) When asked why he did not file a complaint with the Department of Labor within six months of his November 29, 2000 termination, he explained that he "didn't know [he] had to." (Tr. at 8, 22, 29.) Complainant was also clear, however, that he spoke to Mr. Bernard the day after he was fired, telling Mr. Bernard that he was terminated for whistle blowing; Complainant stated that he had "phoned him [Bernard]." (Tr. at 28, 36-37.) Mitchell Bernard A Stipulation and Order on Consent ("the Order") dated April 18, 2000 and entered into between the United States of America and Consolidated Edison Company of New York in the United States District Court for the Southern District of New York, noted Respondent's previous agreement to a three year appointment "until April 20, 1998" of Mitchell S. Bernard, Esq.. (Attached to Declaration of David J. Reilly as Exhibit-C hereafter referred to as "Exhibit-C.") Mr. Bernard's duties included, inter alia, reviewing the efforts of Con Edison to "develop and implement an effective environmental compliance program." (Exhibit-C, at 1.) Respondent therein agreed to allow Mr. Bernard to "examine and evaluate" Respondent's implementation of an Environmental Compliance Program, to examine any aspect of Respondent's business, and to discuss any aspect of his work with the United States Attorney for the Southern District of New York ("the Office"). (Exhibit-C, at 4.) Part of Mr. Bernard's duties, included reporting the results of his examination and recommendations to the Office and Respondent within one year of the April 18, 2000 Order. (Id.) The Office also had the discretion to elect to have Mr. Bernard conduct a second examination within two years of the date of the Order. (Exhibit-C, at 4-5.) [Page 3] Respondent's obligations under the Order included advising each of its employees within 30 days of the Order that Mr. Bernard had been appointed, that they must cooperate with Mr. Bernard, and that they would not be penalized for providing information to him. (Exhibit-C, at 5.) The District Court retained jurisdiction under the Order to supervise the implementation of it and to decide issues arising under it. (Exhibit-C, at 6.) B. Discussion The ERA states that "[a]ny employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within 180 days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (…) alleging such discharge or discrimination." 42 U.S.C. § 5851(b)(1). The regulations provide, "[u]nder the Energy Reorganization Act of 1974, any complaint shall be filed within 180 days after the occurrence of the alleged violation." 29 C.F.R. § 24.3(b)(2). The regulations go on to explain that "[n]o particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation." Id. at § 24.3(c) (emphasis added). Here, there is no question that Complainant failed to file his ERA complaint within the 180-day time frame. OSHA received his complaint on August 27, 2003 and the alleged violation (his termination) occurred on November 29, 2000. The August, 2003 filing therefore was well beyond 180 days of the November 29, 2000 termination. The only issue is whether Claimant's informal oral complaint to Mr. Bernard is sufficient to equitably toll the running of the statute of limitations. In Doyle v. Alabama Power Company, the Secretary of Labor set out the three circumstances under which a statute of limitations may be equitably tolled:
87-ERA-00043, at *2 (Sec'y Sept. 29, 1989) (citing City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981) (citing Smith v. Am. President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978))).
At the time of the hearing, I concluded that Complainant had not set forth facts sufficient to position this case within the parameters of the first prong. (Tr. at 31; 34; 40.)1 That conclusion is hereby reaffirmed as there is insufficient evidence in this record to establish that Bernard actively misled Complainant regarding his cause of action. I left open, however, the possibility that Complainant's communication with Mr. Bernard might constitute sufficient grounds to toll the statute of limitations under the third prong.2
Complainant has presented no formal argument other than a post-hearing letter wherein his brother has argued that Mr. Bernard was a forum in which to file his complaint. Employer relies on Burnett v. New York Central Railroad Company, 380 U.S. 424 (1965), distinguishing this case therefrom.
In Burnett, the Court held that "when a plaintiff begins a timely FELA action in a state court having jurisdiction, and serves the defendant with process and plaintiff's case is dismissed for improper venue, the FELA limitation is tolled during the pendency of the state suit." 380 U.S. at 434-35. The Court noted the policy behind statue of limitations as promoting "justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Id. at 428.
Here, there is no question that Complainant actively pursued his whistleblower grievances against Respondent with Mr. Bernard almost immediately following his termination in November, 2000. Moreover, it is also clear to me that under the Order entered into between the Office and Respondent, Mr. Bernard was given broad authority to facilitate Respondent's compliance with federal environmental laws during his tenure up until April 20, 1998. Whether Mr. Bernard had authority to assure Respondent's compliance with the employee protection provisions of the ERA during his later tenure beginning April 18, 2000 is far less clear. At best, Mr. Bernard was, at the time of Complainant's November, 2000 termination, what the Order described him to be, a "Consultant" to Respondent (Exhibit-C, at 3-4), not a court, agency, or tribunal. Therefore, I cannot conclude that Mr. Bernard was a "forum" within the meaning of the third prong noted above.
Even if I were able to equate Mr. Bernard with a "forum" for raising a discrimination complaint under the ERA, Complainant would in any event have been required to raise the precise statutory claim with him to toll the 180-day deadline. Doyle, 87-ERA-00043, at *2 (citations omitted). The regulations governing discrimination complaints under the ERA require that "a complaint … be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation." 29 C.F.R. § 24.3(c). Because Complainant never asserted his rights under the ERA in any writing to Mr. Bernard, I must conclude that he never "raised the precise statutory claim" under the third prong for tolling.
Furthermore, I am persuaded by the distinctions that Respondent draws between Burnett and the instant case. In Burnett, the plaintiff had filed a formal complaint in state court prior to the running of the statue of limitations. 380 U.S. at 424-25. Only after the statute of limitations had run did the plaintiff discover that state court was not the proper venue. Id. at 425. Plaintiff then commenced suit in federal district court after the limitation period had run. Id.
Here, Complainant merely made phone calls to Mr. Bernard. As Respondent notes, between November 2000 and August 2003, Complainant never commenced a court action, never filed an administrative charge, and never attempted to transfer a claim from an improper venue, timely filed, to a proper one where it would be untimely filed. Therefore, I am persuaded that the equities discussed in Burnett, though applicable in that case, are not applicable here.
V. CONCLUSION
Because Complainant failed to file a complaint within 180 days of his November 29, 2000 termination and has not invoked grounds sufficient to toll the running of the statute of limitations, Respondent is entitled to summary decision dismissing the complaint.
Respondent's Motion for Summary Decision is GRANTED, and this matter is DISMISSED.
RALPH A. ROMANO
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. §§ 24.7(d) and 24.8.
1 Moreover, in any event, there is no preponderant evidence that Mr. Bernard was an agent of Respondent for purposes of this first prong. See infra
2The second prong has neither been raised nor supported.
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