Date: December 1, 1997

Case No.: 98-ERA-7

In the Matter of:

John Degostin
    Complainant

    v.

Bartlett Nuclear, Inc.

    and

Northeast Utilities Company
    Respondents

   On August 25, John Degostin ("Complainant") filed a complaint with the Occupational Safety and Health Administration's ("OSHA") Boston office. OSHA investigated this claim, and by a letter dated October 14, 1997, advised Complainant that its investigation did not verify that discrimination was a factor in the actions referenced in the complaint.

   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 January 19, 1998.

   Subsequently, upon review of Complainant's file, 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.

   By a letter dated November 18, 1997, mailed November 19, 1997, and filed with this office on November 21, 1997, Complainant's counsel has filed a letter outlining the time-line for Complainant's receipt of the above-referenced letters and documents, and requesting "a reasonable period of time within which to file an appeal from the October 14, 1997 decision of the U.S. Department of Labor."

   According to Complainant's counsel's November 18, 1997 letter, Complainant received the above-referenced documents in a convoluted order. First, Complainant received the

Order to Show Cause on an unspecified date. Next, "on or about November 9, 1997" Complainant received OSHA's October 14, 1997 letter of denial. Finally, Complainant received the Notice of Hearing on an unspecified date.

   For purposes of this case, the key date is when the Complainant received the letter of denial from OSHA.

   OSHA, by certified mail, sent the letter of denial to Complainant on October 14, 1997, however, it was returned to OSHA undelivered. By document filed November 20, 1997, OSHA has indicated that the Post Office attempted service on October 17, October 21, and November 2, 1997. The letter was returned to OSHA, and mailed out by regular mail. According to Complainant's counsel, letter, the OSHA letter of denial was received "on or around November 9, 1997."

   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, "[T]he 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)). This is in accordance with the tight time line set for so-called whistleblower cases, imposed by both statute and implementing regulations. For instance, the regulations provide strict timing requirements for the investigation of the complaint by the administrative agency. See 29 C.F.R. § 24.4(d)(1) (requiring that the investigation be completed within thirty days of filing of the complaint). Such a tight schedule, imposed by Congress, provides for a timely and efficient handling of these complaints.

   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 the Complainant has failed to file a timely appeal in this matter. OSHA's letter denying the claim was received by Complainant on or about November 9,

1997. As November 9, 1997 was a Sunday, for the purpose of this decision, I will treat the notice as received on Monday, November 10, 1997. Therefore, Complainant would have five days in which to file an appeal by one of the methods required by 29 C.F.R § 24(d)(2)(ii). Five days from November 10, is Saturday, November 15, 1997. As such, Complainant had until Monday, November 17, 1997 to file an appeal. The first correspondence¹ from Complainant was dated November 18, 1997, but not received and filed until November 21, 1997.² Therefore, Complainant failed to file a timely appeal, and this court lacks jurisdiction over this matter.

   While I acknowledge that Complainant received the various letters and Orders in this matter in a convoluted order, this is not grounds for tolling the filing requirement. To the contrary, the receipt of these documents actually should have served to let Complainant be even more aware of the necessity of filing a timely appeal.

   First, the dates on the OSHA letter, Notice of Hearing and Order to Show cause, clearly indicated the dates that they were issued. Second, the Order to Show Cause (received by the Complainant before November 9, 1997) recited the procedural history of this case. As such, Claimant had notice that his complaint was not verified by OSHA and that a timely appeal had to be filed with the Chief Administrative Law Judge in Washington, D.C.. Further, it provided a direct citation to the regulation that controls the method and timing of appeals. At that point, a date prior to November 9, 1997, Complainant had an opportunity to respond to the Order to Show Cause by stating that a denial from OSHA had not yet been received, and therefore the time for appeal had not yet begun to run. Additionally, the Order provided this Court's address and telephone number, should the Complainant have had any questions.

   The Complainant next received the denial from OSHA. This letter also referenced the time and filing requirements for appealing OSHA's decision. At this time Complainant knew three things: his complaint of discrimination was not verified, he had not appealed, and that the matter would be dismissed if an appeal was not filed within five calendar days.

   Finally, Complainant received a Notice of Hearing. I agree with Complainant's counsel that this letter "seems to suggest that [Complainant's claim] was treated as a matter in which there was an appeal file[d]." However, Complainant already had received the Order to Show Cause which clearly indicated that subsequent to the scheduling of hearing, this Judge, as part of the usual pre-hearing preparation, noted no notice of appeal in the file. The Order to Show Cause was intended to provide the Complainant the opportunity to explain the absence of an appeal request. Regardless of the sequence in which Complainant received the documents, when Complainant received the Notice of Hearing he was well aware that he had yet to request an appeal of OSHA's decision.

   In conclusion, Complainant had five days from November 10, 1997 to file an appeal in this matter, yet nothing was filed until November 21, 1997. Therefore, this Administrative Law Judge recommends that this matter be DISMISSED due to the fact that this Court lacks jurisdiction over the matter.

      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

² A copy of this letter was faxed to this office by the Hartford OSHA office, together with a letter detailing the mailing information relevant to this case. The actual letter from Complainant's Counsel, however, was not received by this office until November 21, 1997.