Steffenhagen v. Securitas Sverige, AB, et al., 2004-ERA-3 (ALJ Dec. 16, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002 (856) 486-3800

Issue Date: 16 December 2003

CASE NO.: 2004-ERA-00003

In the Matter of

TIMOTHY L. STEFFENHAGEN
   Complainant

   v.

SECURITAS SVERIGE, AB, et al.,
   Respondents

    This case arises out of a complaint of discrimination filed pursuant to the employee protection provisions of the Energy Reorganization Act of 1974 (ERA), codified at 42 U.S.C. section 5851. The Act provides protection to employees who believe they have been discriminated against by an employer. The Office of Administrative Law Judges for the U.S. Department of Labor ("OALJ") has jurisdiction over such complaints, and the procedures set forth in 29 C.F.R. part 24 apply to the investigation and adjudication of such complaints.

    On May 25, 2003, Timothy L. Steffenhagen ("Complainant") filed a complaint with the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA"), alleging that he had been subjected to adverse employment actions in violation of the ERA. On May 10, 2003, Complainant had filed a complaint alleging violations of other statutes. On July 18, 2003, OSHA issued findings that concluded that the "complaint was not timely filed, lacked jurisdiction and no contact information regarding information concerning the respondents named in your allegations was provided. (Despite repeated requests for this information, you never provided it.)". See, Findings of OSHA dated July 18, 2003. By letter to counsel for Complainant dated October 6, 2003, OSHA advised that its findings of July 18, 2003 "include your June 25, 2003 letter".

    On October 10, 2003, Complainant filed a request with OALJ for a hearing on the "June 25 blacklisting complaint." Complainant also alleged that the complaint was not investigated, and requested remand to OSHA. In response to a request by OALJ, counsel clarified the jurisdictional underpinnings of Complainant's instant complaint. The case was then assigned to me for adjudication.

   Pursuant to 29 C.F.R. section 24.4(d)(3) "[a] copy of the request for a hearing shall be sent by the party requesting a hearing (emphasis added) to the complainant or the respondent (employer) as appropriate, on the same day that the hearing is requested……" The regulations setting forth the Rules of Practice and Procedure before OALJ also require that "copies of all documents shall be served on all parties of record." 29 C.F.R. section 18.3(a). The regulations further state that "[s]ervice of complaints or charges in enforcement proceedings shall be made either:

(1) By delivering a copy to the individual, partner, officer of a corporation, or attorney of record;
(2) by leaving a copy at the principal office, place of business or residence;
(3) by mailing to the last known address of such individual, partner, officer or attorney. If done by certified mail, service is complete upon mailing. If done by regular mail, service is complete upon receipt by addressee.

29 C.F.R. section 18.3 (d).

   The record does not reflect that Complainant served the named Respondents with notice of his request for hearing. Although the request includes a notation that suggests certain individuals were provided copies of the document, none of those individuals are among the named Respondents to Complainant's action.¹ Complainant has named seventeen Respondents, including alleged foreign corporations, individuals, labor unions and the United States Department of Energy. See, Request for Hearing of Complainant.

   In my Order of November 10, 2003, I directed Complainant to show cause in writing why his case should not be dismissed for failure to provide notice of the request for hearing to Respondents. Complainant, through counsel, filed an untimely response on November 28, 2003, and moved for instanter, which I GRANT.

   In his response, Complainant asserted that OSHA has responsibility to serve the complaint upon Respondents, and moved again for remand. The record reflects that the complaint was dismissed by OSHA because Complainant failed to provide sufficient information to OSHA to permit service upon Respondents. In its findings, OSHA asserted that Complainant failed to comply with repeated requests for contact information concerning the named respondents. I find that Complainant had ample opportunity to provide OSHA with information it needed to conduct its investigation when his complaint was before that agency. Complainant's motion for REMAND is denied.

   Furthermore, I find that OSHA's responsibility to effect service of the initial complaint before it does not relieve Complainant of his responsibility to effect service of his request for a hearing before OALJ, in compliance with 29 C.F.R. section 24.4(d)(3) and 29 C.F.R. section 18.3. Complainant has recognized this to some degree by serving one of the named

¹ The individuals noted after "c:" are: Mr. Timothy L. Steffenhagen[,] Honorable Hillary Rodham Clinton, U.S.S.[,] Ms. Patricia K. Clark, Regional Administrator[,] Honorable John R. Spear[,] Administrative Review Board[,] Honorable Howard Radzely, Acting Solicitor (via fax)[,] Mr. Marc Johnston, Esquire (via fax)