Dated: December 5, 1997
Case No.: 98-ERA-6

In the Matter of:

Stephen L. Jackson
    Complainant

    v.

Northeast Utilities Company
    Respondent

   This proceeding arises under Section 211 of the Energy Reorganization Act of 1974 ("ERA"), as amended, 42. U.S.C. 5851, and its implementing regulations. The issue presented is whether Complainant filed a timely appeal of the Occupational Safety and Health Administrations's ("OSHA") administrative decision that discrimination was not a factor in the actions referenced in Mr. Jackson's complaint.

   On September 4, 1997, Stephen L. Jackson ("Complainant") filed a complaint with OSHA's Boston office. OSHA investigated this claim, and by a letter dated October 15, 1997, advised Complainant that its investigation did not verify that discrimination was a factor in the actions referenced in the complaint. The file does not indicate when the Notice of Denial was received by Complainant.

   By an Order of Reference dated October 16, 1997, the Area Director of OSHA transmitted Complainant's file to the Office of Administrative Law Judges ("OALJ"). This file was docketed at the OALJ and, on October 24, 1997, was assigned to this Administrative Law Judge for a hearing. On October 28, 1997, this Judge issued a Notice of Hearing and Pre-hearing Order, setting the matter for a hearing on November 24, 1997. By document filed November 4, 1997, Respondent requested a continuance and on November 6, 1997, this Judge issued an Order Postponing Hearing in this matter.

   Concurrently, upon review of Complainant's file as part of the usual pre-hearing preparation, this Judge found no notice of appeal in this matter. Accordingly, on November 6, 1997, I issued an Order to Show Cause to Complainant as to why this matter should not be dismissed for lack of jurisdiction.

   To date Complainant has filed no response to the Order to Show Cause.

   Under the ERA and its implementing regulations, a decision of the administrative agency will become final, unless a timely appeal is taken. 29 C.F.R. § 24.4(d)(2)(i) provides, in pertinent part: "the notice of determination shall become the final order of the Secretary denying the complaint unless within five calendar days of its receipt the complainant files with the Chief Administrative Law Judge by facsimile (fax), telegram, hand delivery, or next-day delivery service, a request for a hearing on the complaint." 29 C.F.R. § 24.4(d)(2)(i) (emphasis added). The Administrative Review Board, in discussing this provision, has noted that the time limitations are to be strictly construed. Backen v. Entergy Operations, Inc., 95-ERA-46 (ARB June 7, 1996) (citing Gunderson v. Nuclear Energy Services, Inc., 92-ERA-48 (Sec'y Jan. 19, 1993)). Under certain specific circumstances, however, the period may be subject to equitable tolling. An administrative law judge may toll the time limitation where (1) the employer has concealed or misled the employee; (2) where complainant in some extraordinary way has been presented from asserting his rights; or (3) complainant raised the precise statutory claim in the wrong forum. City of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981). In discussing the second reason for tolling the Secretary noted that a complainant who received notice late due to travel fails to come within the exception. Crosier v. Westinghouse Hanford, 92-CAA-3 (Sec'y Jan. 12 1994). Additionally, a complainant who seeks tolling based on ill health must show legal incapacity. Ellis v. Ray A. Schoppert Trucking, 92-STA-28 (Sec'y Sept. 23, 1992).

   In the present case Complainant has failed to file a notice of appeal. Therefore, this Court lacks jurisdiction over this matter.

   Finally, I pause to note that even assuming that this Court has jurisdiction over this matter, the claim should still be dismissed. Pursuant to 29 C.F.R. § 24.5(e)(4), an administrative law judge may dismiss a case if a party fails to respond to an Order of the court. On November 6, 1997, this Judge issued an Order to Show Cause. To date, Complainant has failed to respond to this Order. Therefore, this matter should be dismissed due to Complainant's failure to prosecute his claim and respond to an Order of this Court. 29 C.F.R. § 24.5(e)(4).

   Accordingly, I hereby recommend that this matter be DISMISSED for lack of jurisdiction based upon Complainant's failure to file an appeal.

       DAVID W. DI NARDI
       Administrative Law Judge

   This Recommended Order of Dismissal and the administrative file in this matter will be forwarded for review to the Administrative Review Board, U.S. Department of Labor, Frances Perkins Building, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. The Administrative Review Board is the authority vested with the responsibility of rendering a final decision in this matter in accordance with 29 C.F.R. Part 24.6.

Boston, Massachusetts
DWD:pte