Peters v. Tennessee Valley Authority, 2002-CAA-10 (ALJ July 23, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Issue date: 23Jul2002

Case No.: 2002-CAA-00010

In the Matter of

DR. GLENN ERICK PETERS, Ph.D.
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY
    Respondent

   This case arises under the employee protection provisions of the Section 312 of the Clean Air Act. Complainant appealed a ruling from the Occupational Safety and Health Administration (OSHA) that his initial complaint was untimely filed. The matter proceeded to formal hearing on June 18, 2002. Prior to the hearing, Respondent sought summary dismissal of Complainant's complaint upon the grounds that Complainant had filed no timely written complaint. Respondent's motion was denied on March 26, 2002; however, the denial contained the following provision: "If further information from Mr. Gilbert or OSHA provides more definite evidence on the subject, upon motion, I will revisit the issue or do so after a formal trial is held in this matter."

   At the formal hearing on June 18, 2002, the issue of timeliness was again raised. In support of its renewed position, Respondent produced for the first time a declaration from Kenneth Gilbert, the Area Director for the Occupational Safety and Health Administration in Indianapolis, Indiana, stating "I never received or saw a written complaint of discrimination by Dr. Peters on October 12, 2001. The first complaint I saw from Dr. Peters was on December 12, 2001." (TVA EX 22). Complainant countered this evidence with a copy of a letter dated October 11, 2001, addressed to Mr. Gilbert. Complainant testified the letter was prepared by him that date and mailed to Mr. Gilbert on that date. (CX 7). Additionally, Complainant placed in evidence, as his Exhibit 8, a "Discrimination Case Activity Worksheet" form signed by Roy Cooper, Jr., on January 9, 2002, bearing the notation under "Complaint Information," "Date Filed: 10/15/01."

   Because of the importance of this issue and the confusion which existed regarding the same and because both sides produced evidence on the subject for the first time at the hearing, at the conclusion of the trial the parties were granted until July 17, 2001, to develop further evidence on the issue of timeliness and file written briefs in support of their respective positions. Both parties complied, and this decision is based on the consideration of their evidence and arguments.

   Complainant was terminated on September 21, 2001. For his complaint to be considered under the Clean Air Act it must be filed in writing and filed within 30 days of the date of the alleged adverse action. 42 U.S.C. §7622(b)(1) and 29 C.F.R. §24.3(b).

   As conceded by Respondent, the Department of Labor (DOL) considers a claim to be effectively filed upon mailing, and the Complainant need only prove that the complaint was actually mailed. That the complaint was received by DOL is not a fact Complainant must prove.

   In this instance, Complainant has testified under oath, both at hearing and by affidavits, that the complaint dated October 11, 2001, was mailed by him on October 12, 2001, at the United States Post Office on Wal-Triana Highway in Madison, Alabama, with postage affixed, to Kenneth Gilbert, Area Director of OSHA at Indianapolis, Indiana.

   In an effort to defeat Complainant's sworn testimony, the Respondent provided at trial and post-trial the declarations of Mr. Gilbert as well as Roy Cooper, Jr., a Compliance Officer for OSHA in Indianapolis, both of whom declared that they were unaware of timely receipt of Complainant's letter.

   Based upon the declaration of these two men, as well as the argument that I should find Complainant's sworn testimony not credible, Respondent urges that Complainant's complaint was not timely filed and should be dismissed as untimely. I am unwilling to do so.

   Granted, the fact that there is no record of Complainant's letter of October 11, 2001, being received by the Indianapolis office of OSHA is curious; nevertheless, I am unwilling to find that Complainant has perjured himself in order for his complaint to be considered timely.

   This case is fraught with issues of fact I must decide, and in doing so, I will consider the evidence, both direct and circumstantial, provided in each instance; however, as to this single issue which lends itself to only one of two conclusions, I am unwilling to find Dr. Peters did not timely mail his complaint on October 12, 2001, as he has sworn he did.

   Complainant's complaint having been found to be timely filed, the parties are each given 30 days from the date of this Order to file briefs and proposed findings of facts and conclusions of law in support of their respective positions.

   SO ORDERED this 23rd day of July, 2002, at Metairie, Louisiana.

       C. RICHARD AVERY
       Administrative Law Judge