Modina v. American Linen Corp., 2003-WPC-8 (ALJ Sept. 24, 2003)

Modina v. American Linen Corp., 2003-WPC-8 (ALJ Sept. 24, 2003) Recommended Order of Dismissal Russell D. Pulver Modina v. American Linen Corp., 2003-WPC-8 (ALJ Sept. 24, 2003)

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Modina v. American Linen Corp., 2003-WPC-8 (ALJ Sept. 24, 2003)

U.S. Department of Labor Office of Administrative Law Judges
50 Fremont Street, Suite 2100
San Francisco, CA 94105
(415) 744-6577
(415) 744-6569 (FAX)
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Issue Date: 24 September 2003

CASE NO: 2003-WPC-00008

In the Matter of:

BOBBY MODINA,
Complainant

AMERICAN LINEN CORPORATION,
Respondent

RECOMMENDED ORDER OF DISMISSAL

Background

This proceeding arises under Section 507(a) of the Federal Water and Pollution Control Act ("WPCA"), 33 U.S.C. 1367, Section 7001 of the Solid Waste Disposal Act of 1976, 42 U.S.C. 6971 and the implementing regulations found at 29 C.F.R. §24.3. These Federal employee protection provisions were the result of congressional concern for the protection of "whistle blower" employees from discriminatory actions by their employees. Pulliam v. Worthington Service Corporation, 81-WPC-1 (ALJ May 15, 1981).

On December 18, 2002, Complainant, Bobby Modina, filed a complaint with the Department of Labor alleging retaliatory termination by his employer American Linen Corporation. Complainant was terminated by Respondent on October 30, 2002 and contends the termination resulted from earlier complaints to Respondent regarding the company's practice of disposing untreated wastewater in violation of health and safety standards.

On April 30, 2003, an Occupational Safety and Health Administration ("OSHA") investigation dismissed the complaint for lack of merit. OSHA determined Complainant did not meet threshold requirements for a field investigation because he failed to file the complaint within 30 days of the alleged violation. The determination letter advised that a Request for Hearing must be filed within 5 days of the receipt of such letter.

On August 5, 2003, Complainant mailed his Request for Hearing by International Express Mail. The matter was docketed in the Office of Administrative Law Judges and assigned to the undersigned who scheduled a hearing date of September 15, 2003.

On August 25, 2003, Complainant filed a request for a continuance because he lacked legal representation and was unable to finance a trip to the United States from the Phillipines.¹ On September 2, 2003, I vacated the hearing date and issued an Order to Show Cause why the case should not be dismissed in its entirety for failure to file the claim within 30 days of the termination and failure to file a Request for Hearing within 5 days of receipt of OSHA's determination.

On September 8, 2003, Complainant answered the Order to Show Cause by stating his failure to timely file was because "I am not a lawyer. I am an engineer from a foreign country. . . How are employees of a company, without legal assistance, to know of such laws?"

After reviewing all of the evidence, it is therefore ordered that the complaints filed herein by Complainant be dismissed as untimely.

Discussion

Under the statutory employee protection provisions and the implementing regulations, a complaint alleging discrimination must be filed by a complainant within 30 days of the alleged action. 33 U.S.C. 1367(b); 42 U.S.C. 6971(b); 29 C.F.R. §24.3(b). The 30 day statute of limitations has been strictly enforced. However, the Secretary of Labor and the courts have developed two exceptions to the 30 day filing requirement based on the concepts of equitable tolling and a continuing pattern of retaliation that is only apparent with the passage of time. Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001).

Complainant argues his complaint and Request for Hearing should not be dismissed because he was unaware of the law and its filing requirements. Complainant's argument amounts to no more than pleading ignorance of the law. As a general principle, ignorance of the law is no excuse. Furthermore, ignorance of legal rights or failure to seek legal advice does not toll the statute of limitations. Quina v. Owens-Corning Fiberglas Corp., 575 F.2d 1115, 1118 (5th Cir. 1978); quoting Howard v. Sun Oil Co., 404 F.2d 596, 601 (5th Cir. 1968).

[Page 2]

First, since Complainant was terminated on October 30, 2002, a complaint would have been timely if filed with the Department of Labor by November 30, 2002. However, Complainant's complaint was not received by the Department of Labor until December 18, 2002, well after the 30 day requirement. Clearly, Complainant is outside the 30 day prescriptive period rendering the complaint time barred on its face.

Complainant's argument of his unawareness of the law is not persuasive. Complainant's unawareness of the law did not prevent him from filing this complaint against Respondent. The complaint also demonstrates Complainant was in a position to know or find out the applicable filing requirements. Additionally Complainant has not argued that any of the exceptions to the 30 day filing requirement apply, and therefore at least to the Respondent's termination action on October 30, 2002, the complaint is untimely.

Second, Complainant's Request for Hearing was untimely as well. Complainant had 5 days from the April 30, 2003 determination to file a Request for Hearing before an Administrative Law Judge. A request would have been timely if filed by May 5, 2003.² Consequently, Complainant ignored the 5 day filing requirement as he mailed via International Express Mail his Request for Hearing on August 5, 2003, more than three months after the required period of time. Furthermore, it was not necessary for Complainant to have knowledge or conduct research of the law because the 5 day filing requirement was advised in his determination letter and printed in capital letters.

Therefore, Complainant has failed to show that his December 18, 2002 complaint and August 6, 2003 Request for Hearing was timely filed.

Order

It is therefore ORDERED that the complaint filed herein by the Complainant be DISMISSED as untimely.

Russell D. Pulver
Administrative Law Judge

NOTICE: This Recommended Order of Dismissal will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order of Dismissal, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.7(d) and 24.8.

[ENDNOTES]

¹ Complainant returned to the Phillipines on December 28, 2002 after the expiration of his visa.

² According to the April 30, 2003 determination letter, Complainant was to file his request by "facsimile, overnight mail or telegram."