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| September 25, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter Gross v. Radian International, 1999-CAA-24 (ALJ Oct. 15, 1999)
DATE: October 15, 1999 CASE No.: 1999-CAA-24 In the Matter of
MICHAEL C. GROSS,
against
RADIAN INTERNATIONAL,
This proceeding arises under the employee protective provisions of the Clean Air Act ("CAA"), 42 U.S.C. § 7622 (1994), Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9610 and the regulations implementing the environmental whistleblower laws which appear at 29 C.F.R. Part 24 (1996). Respondents have submitted several motions which are pending before the court.
1. Radian International's ("Radian's") Motion for Continuance Radian submitted a Motion for Continuance dated September 23, 1999. The motion seeks a 30 day extension in which to file an Answer, and an additional 30 day extension of the hearing date. This motion was based in part on the re-assignment of the matter to new counsel, and in part on the "large number of allegations" in the Complaint. Despite these obstacles, Radian managed to submit an Answer only six days later, September 29, 1999. As Radian has already submitted an Answer within the required time period, this portion of the Motion for Continuance is moot. Regarding the request for additional time prior to the hearing, the court is disinclined to grant the motion. Very strict time limits have been set-up in which to hear and decide these types of cases, unless the parties agree otherwise. The applicable regulation, 29 C.F.R. § 24.6(a) provides that "no requests for postponement shall be granted except for compelling reasons or with the consent of all parties." As the court is not aware of any other party requesting or agreeing to a continuance, and the court finds no compelling reason for delay, the Motion for Continuance is hereby DENIED. [Page 2]
2. Motions to Dismiss As an initial matter, the court notes that 29 C.F.R. § 24.6 (e)(4)(ii) provides that where a dismissal is sought, the administrative law judge "shall issue an order to show cause why the dismissal should not be granted and afford all parties a reasonable time to respond to such order." However, due to the time constraints in this case, and the pleadings already filed, the court sees no need to issue a formal Order to Show Cause. Respondents have submitted arguments for dismissal of Complainant's case; Complainant has already filed a response imploring the court not to dismiss. Therefore, the court is persuaded that the parties have had an adequate opportunity to address these issues at the present stage of the proceedings.
2. Radian's Motion to Dismiss
Timeliness Both the CAA and CERCLA provide that any employee who believes he has been discharged or discriminated against in violation of the statute may file a Complaint with the Secretary of Labor within 30 days after the alleged violation occurred. (See also, 29 C.F.R. § 24.3(b)(1)). The applicable regulations provide that a Complaint must be in writing (see 29 C.F.R. § 24.3(c)); if filed by mail, the Complaint will be deemed filed as of the date of mailing. See 29 C.F.R. § 24.3(b)(1). Radian argues that Complainant failed to file his Complaint within the required 30 day period. Complainant was terminated May 17, 1999 (See Complainant's September 14, 1999 Complaint (submitted in accordance with the September 2, 1999 Pre-Hearing Order); August 16, 1999 letter from Edward Walton, U.S. Dept. Of Labor, p. 1 ("Walton Letter")); Complainant's first written Complaint to the U.S. Department Of Labor was dated July 18, 1999, and was not received (date stamped) until July 26, 1999. (See Walton Letter, pp. 2-3). Therefore, Radian argues that Complainant failed to file a valid Complaint under the regulations within the requisite thirty day period. (See Radian's September 29, 1999 Motion to Dismiss, p. 2). Complainant provided several excuses for the apparent late filing. First, Complainant states he was busy for several weeks seeking other employment opportunities. (Complainant's October 2, 1999 Letter Responding to the Motion to Dismiss, pp. 1-2). Despite Complainant's understandable desire to find another job, such activities are insufficient reason for the court to toll or excuse the running of the thirty day period. (See, e.g., Rose v. Nuclear Fuel Services, Inc., 87-ERA-19 (ALJ Jan. 25, 1988), aff'd, (Sec'y June 29, 1990), aff'd sub nom., Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam)(refusing to excuse delays in filing complaint based on pending unemployment application and vacation to visit son). [Page 3] Secondly, Complainant contacted the U.S. Nuclear Regulatory Commission (NRC) on June 2, 1999 ( Respondents were engaged in the removal of radioactive soil); Complainant alleges he was told he had 180 days to file a Complaint, but was encouraged to contact the U.S. Dept. of Labor / Occupational Safety & Health Administration (OSHA) in case another agency had jurisdiction. (Complainant's October 2, 1999 Letter, pp. 2-3). Due to other commitments, Complainant did not contact OSHA until June 10, 1999, when he called the Kansas City office and spoke to Ms. Carol Brooks. (See id., p. 3). Complainant says Ms. Brooks informed him of the relevant 30 day time limit, but repeatedly assured him that his call would constitute the official date and time of filing for his claim. (See id., pp. 4-5). While OSHA's dismissal letter admits the call took place, it states that the "alleged information could not be verified." (Walton Letter, pp. 2-3). OSHA then admits to a mysterious chain of errors and delays: "for some unknown reason, the contact was not picked up on until June 28, 1999;" an investigator was assigned on June 30, 1999, but "first became aware of the assignment on July 7, 1999 and immediately phoned [Complainant]." (Walton Letter, p. 3). During this call, Complainant was again informed of the 30 day filing requirement. OSHA finally received a hand-written Complaint from Complainant on July 26, 1999 (the Complaint is dated July 18, 1999, and time stamped received July 26). (See Walton Letter, p. 3). Based on the above, OSHA recommended dismissal of the complaints as untimely. (See Walton Letter, p. 4). However, Complainant alleges he has since received a "very apologetic message stating that June 10, 1999 was in fact the official date [his] claim was received and filed . . . and [reassuring Complainant that he] had satisfied the 30-day time limit . . . ." (Complainant's October 2, 1999 Letter Responding to the Motion to Dismiss, p. 6). Complainant was fired May 17, 1999; the earliest date a written Complaint could be considered filed by Complainant is July 18, 1999, nearly sixty days later (assuming Claimant mailed his complaint that day under 29 C.F.R. § 24.3(b)(1)). Normally phone calls are not considered "filing a complaint," because the regulations clearly state that a Complaint must be written. (See 29 C.F.R. 24.3(c)). However, several decisions suggest that a written OSHA memorandum of telephoned allegations could be sufficient to satisfy the "written complaint" obligation. (See, e.g., Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1, n. 6 (CERCLA)(ARB Sept. 17, 1997), citing Dartey v. Zack Co. of Chicago, 82-ERA-2, at 5-6 (Sec'y, Apr. 25, 1983)). It is possible that later discovery of this case law or of a written memorandum of the call may have led to the "very apologetic message stating that June 10, 1999 was in fact the official date [his] claim was received and filed" which Complainant alleges he received. (See Complainant's October 2, 1999 Letter Responding to the Motion to Dismiss, p. 6). However, the existence of a written memorandum of the call is a factual question which must await the formal hearing. [Page 4]
Even if there is no written memorandum of Complainant's phone calls, the information
Complainant allegedly received from these calls may be grounds for "equitable tolling" of the filing
period.1 The Secretary has held that the limitations
periods provided by the environmental acts and analogous employee protection legislation are subject to
equitable modification. (See, e.g., Eisner v. United States Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992) slip op. at 7-9; Tracy v. Consolidated Edison Co. of New
York, 89-CAA-1 (Sec'y, July 8, 1992) slip op. at 3-8 and cases cited therein). The doctrine
of equitable tolling focuses on the question of whether a duly diligent complainant was excusably ignorant of his
rights, whereas the principle of equitable estoppel focuses on the issue of whether the employer misled the
complainant and thus caused the delay in filing the complaint. (See Tracy, slip op. at 7;
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450-52 (7th Cir. 1990)). The
Administrative Review Board has also stated that equitable tolling focuses on whether a duly diligent complainant
was excusably ignorant of his or her rights. (See Prybys v. Seminole Tribe of
Florida, 95-CAA-15 (ARB Nov. 27, 1996)). In School District of City of Allentown v.
Marshall, 657 F.2d 16 (3d Cir. 1981), a case involving the Toxic Substances Control Act, 15 U.S.C.
§§ 2601-2629, the court summarized the situations in which equitable tolling is applicable. The
following three situations were presented by the court as the "principal situations where tolling is
appropriate":
657 F.2d at 19-20 (quoting Smith v. American President Lines, Ltd., 571 F.2d
102, 109 (2d Cir. 1978)). However, in Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991),
a case involving the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, the court delineated five
factors to be considered in determining whether equitable tolling of a limitations period was appropriate.
Those factors were:
945 F.2d at 1335 (citing Wright v. State of Tenn., 628 F.2d 949, 953
(6th Cir. 1980)(en banc)).
The information Complainant was allegedly provided during his phone call to the
NRC is insufficient to find a tolling of the filing period. None of the information or advice provided
Complainant was incorrect, or could be seen as excusing Complainant's delay in filing a written complaint.
However, Complainant's alleged conversation with OSHA, a conversation OSHA admits took place
(although OSHA is apparently unable or unwilling to describe its substance), might be seen as sufficiently
misleading to toll the applicable statute. Complainant was told of the 30 day filing period under the CAA
and the applicable regulations, but he alleges he was told that the phone call and the information he
provided were sufficient. Whether Complainant is entitled to a tolling of the time period to file his claim
raises fact and credibility issues which the court can properly decide only after a formal hearing.
Therefore, Radian's Motion to Dismiss the Complaint as untimely is DENIED.
Protected Activity
Radian also argues that Complainant was not engaged in protected activity as defined
by the CAA, 42 U.S.C. § 7622(a). Radian argues Complainant never alleged he was engaged in
protected activity as defined by the statute, that Radian had no knowledge of Complainant engaging in any
of the activities listed under the statute, and that Radian never employed Complainant, and therefore could
not be liable for his discharge. (See Radian's September 29, 1999 Motion to Dismiss, pp. 2-3).
However, 29 C.F.R. § 42.1 provides that:
Complainant has alleged protected activity under this regulation, as he claims multiple reports of
violations made to both Radian and EDI while on-site, as well as multiple instances where he stopped work
in order to avoid potential or actual violations. Whether Radian actually had knowledge of these actions,
or should be viewed as Claimant's employer under the applicable statute and regulations are factual
questions (or mixed questions of law and fact) that the court is persuaded are best left for the formal
hearing.
Therefore, for the reasons discussed above, Radian's Motion to Dismiss for failure
to state a claim under 42 U.S.C. §7622 is DENIED.
3. Stone & Webster's Motion to Dismiss
Stone & Webster ("Stone") submitted a letter to the court dated
September 30, 1999 in which it also requests dismissal. This letter argues that Claimant made no
allegations against and has sought no relief from Stone. (See Stone Letter, p. 1). Stone further
argues that all of the discriminatory acts complained of occurred before it began work at the site, that it
never employed Complainant, and that it had no information regarding any of Complainant's allegations until
receiving a copy of his July 18, 1999 Complaint. (See Stone Letter, pp. 1-2). Finally,
Stone denies that it could or did commit any discriminatory acts against Complainant. (See Stone
Letter, p. 1).
However, after reviewing the various filings, the court is persuaded not to dismiss
Stone from the proceedings at this time. While Stone may not have begun work at the site until May 17,
1999, Stone was awarded the contract for the work in October 1998, and sent out requests for
subcontractor bids shortly thereafter; on May 7, 1999, Stone awarded the health physics support contract
to EDI, some ten days prior to the start of the work. (See Stone Letter, p. 2 and
Attachment 1 (Haase Affidavit). Despite Stone's assertion that Complainant has made no allegations
against it, the court finds that Complainant has made allegations against Stone, specifically that a letter from
Radian falsely complaining about Complainant was shown to Stone shortly before the work began, and that
Stone told EDI to "ban" Complainant from the job. Again, the court is persuaded that these
and other matters, such as whether Stone was aware of Complainant's alleged "protected
activity" and whether Stone should be considered an employer of Complainant, are best left for
resolution after the presentation of evidence at the formal hearing. Therefore, Stone's request for dismissal
is hereby DENIED.
So ORDERED.
RICHARD D. MILLS
1 "Tolling" refers to a temporary
suspension or stop in the running of the filing period. This is essentially what Complainant is arguing for,
despite his failure to so name his argument.
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