DATE: MAY 6, 1992

CASE NO.: 92-ERA-29

In the Matter of

LINDA E. MITCHELL
    Complainant

    versus

ARIZONA PUBLIC SERVICE COMPANY

    and

ARIZONA NUCLEAR POWER PROJECT
    Respondents

   On April 13, 1992, Steve C. Thornton, counsel for the Respondents, filed a Motion to Dismiss in this case. The motion is predicated upon a contention that the Complainant deliberately and willfully refused to obey a lawful requirement of the Administrator of the Wage and Hour Division and secondly, upon the grounds that the Office of Administrative Law Judges (hereinafter OALJ) does not have jurisdiction to conduct a hearing in this case. David K. Colapinto responded on behalf of Complainant and urges denial of the motion for a variety of reasons.

   The record shows that Linda Mitchell (hereinafter Mitchell) filed her timely complaint on February 10, 1992. The regulations provide that the complaint is to be filed with the Office of the Administrator of the Wage and Hour Division, Employment Standards Division, U.S. Department of Labor (hereinafter DOL). 29 C.F.R. Section 24.3(d). That was done in this case and in addition, counsel for the Complainant requested an investigator of that office be assigned to the matter who had not been involved in two prior similar complaints. On February 14, 1992, Complainant was notified that the same investigator who had been involved in the earlier complaints was also being assigned to this case. By letter dated February 21, 1992, the Complainant lodged an objection to that assignment and also advised DOL that the Complainant would not be made available for a "personal interview." On February 26, 1992, by way of a telephone conversation, counsel for Mitchell advised DOL that they would soon be submitting documentary evidence in

support of the claim. The next day approximately 60 pages of documentary materials were submitted. On March 2, 1992, the Assistant District Director of the DOL investigative office advised that unless a personal interview with the investigator was permitted, that the office

would be "dropping our investigation." There is no indication that the materials previously submitted by Complainant were considered. On March 3, 1992, counsel for Mitchell objected to the "dropping" of the investigation and requested DOL's legal authority for that action. However, on March 4, 1992 the DOL office sent to Complainant a letter relating to the "results of our compliance actions" in her case.

   The DOL letter contains the following comments

As you were informed this investigation was assigned to Investigator Lisa Evans. Investigator Evans was in the process of conducting the investigation when your counsel, Mr. Colapinto, refused to allow Investigator Evans to interview you. This obstruction prevents us from concluding the fact finding phase of our investigation as necessary. Therefore any conclusion reached would not have been based on all available information.

Therefore I must regretfully inform you that we are terminating our investigation of this matter.

Following receipt of this letter from DOL, Mitchell filed her timely telegram appeal on March 7, 1992.

   Following consideration of the arguments made by both parties concerning the issue presented here, I conclude that the Motion to Dismiss must be Denied.

   The statute and regulations provide the procedures to be followed in the processing of a complaint filed pursuant to Section 210 of the Energy Reorganization Act. 29 C.F.R. Sections 24.3, 24.4, 24.5. In the recent case of Macktal v. Secretary of Labor, 923 F.2d 1150 (5th Cir. 1991), the Fifth Circuit Court of Appeals interprets the responsibility of DOL under this statute and implementing regulations to be as follows:

Once a complaint is filed the statutory language authorizes only three options: 1) an order granting relief; 2) an order denying relief; or 3) a consensual settlement involving all three parties. The Secretary has published regulations detailing the procedures she will follow to determine which of these three options she will choose. Under the regulations, the Wage and Hour Division conducts an investigation and makes a preliminary determination of the merits of the complaint. If either party disputes the initial finding of the Wage and Hour Division, the

regulations provide for an adversary hearing before an ALJ. In this hearing, each side presents arguments and evidence. Based on the hearing, the ALJ issues a recommended decision. (Footnotes omitted).

I fully agree with the Court's analysis of the statutory duties of DOL as stated in Macktal. The DOL's function is very narrowly defined and, in my judgment, permits no variation from the procedures outlined.

   Twenty-nine C.F.R. Section 24.4(d)(1) provides that following its investigation, DOL is to determine whether the alleged violation occurred and to give notice of the determination including a statement of the reasons for its findings and conclusions. As noted above, DOL's letter notifying Mitchell of the results of its compliance action does not contain a statement of the reasons for the findings or the basis of the conclusions stated. DOL determined that since counsel for the Complainant refused to allow the investigator to interview Mitchell, that that action was construed to be an obstruction which prevented the office from concluding the fact finding phase of the investigation. The narrow question raised by the Motion to Dismiss is whether DOL's letter of March 4, 1992 is essentially a determination letter which authorized the Complainant to perfect an appeal for de novo review of the matter by this office. It is my conclusion and I so construe the letter of March 4, 1992 to be a determination as referred to by 29 C.F.R. Section 24.4(d)(1).

   As the court in Macktal indicates, DOL has only three options once it receives a complaint. It may grant the relief requested, it may deny the relief or a consensual settlement involving all the parties may be entered. Neither the statute nor the regulations authorize DOL to terminate an investigation of a timely-filed complaint or to dispose of it in any other manner. I find no authority in either the statute or the regulations for refusing to consider the merits of a complaint simply because the filer refuses to grant an interview. Obviously the DOL action did not relate to settlement nor did it grant the relief requested. It did constitute a denial of that relief even though the action was couched in terms of the termination of the investigation.

   Was the investigation of the facts alleged by Mitchell complete at the time the letter of March 4, 1992 was sent by DOL? I doubt that it was since I find no indication that DOL considered any of the approximate 60 pages of documentary materials submitted by Complainant on February 27, 1992. I believe that the investigation was prematurely terminated and that fact is supported by the comment in DOL's letter of March 4, 1992 indicating that the "fact finding phase of our investigation" was not concluded. Nonetheless, I accept that letter as being DOL's determination compelled by statute and from

which a legitimate, timely appeal was initiated by the Complainant. She is entitled under the law to a de novo hearing to consider the merits of her complaint.

   Additionally, Respondents move for dismissal pursuant to the provisions of the Rules of Practice and Procedure of this office and also pursuant to a Federal Rule of Civil Procedure. I am aware of no legal authority supporting the proposition that the Office of Administrative Law Judges may recommend dismissal of a Section 210 complaint solely upon the basis of the proceedings which took place before DOL. This proceeding is de novo in nature and must be kept separate from the investigatory function performed by DOL. As the court in Macktal noted, the determination by DOL is "preliminary" and represents an "initial finding." Neither the procedural rules of this office nor the Federal Procedural rules apply to the events surrounding the DOL investigation of a complaint under Section 210.

   I have given consideration to the possibility of remanding this case to the Wage and Hour Division to allow it to complete its investigation and to issue a determination letter which would more fully comply with the requirements of 29 C.F.R. Section 24.4(d)(1). A remand under these circumstances would not be unusual. Rex v. Ebasco Services, Inc., 87-ERA-06, 1 OAA 2, p. 429. However, it is my belief that no useful purpose would be served by that action and that the facts will be more fully developed by permitting counsel to conclude the discovery phase of this case based upon the procedures provided by the Rules and Regulations applicable to cases being processed through this office. Courts have allowed extensive discovery in employment discrimination cases. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Failing to adhere to a "liberal spirit" of discovery is an abuse of discretion. Duke v. University of Texas at El Paso, 729 F.2d 994 (5th Cir. 1984) cert. denied, 105 S.Ct. 386, 469 U.S. 982 (1984); Morrison v. City and County of Denver, 80 F.R.D. 289 (D. Colo. 1978). A remand would benefit only the Complainant and the Complainant has not seen fit to request the same. Therefore, I reject the notion that a remand would be beneficial to the expeditious handling of this case.

   As a part of the Motion to Dismiss, the Respondents have also requested oral argument on that motion. That request is hereby denied.

   Finally, counsel for Complainant contend that the Motion to Dismiss was frivolous and that pursuant to Fed. R. Civ. P. 11, the Complainant should be awarded attorney fees and costs incurred in responding to the motion. I do not find the motion to be frivolous in any respect and, in fact, I believe that it

has raised an interesting legal argument which this Order may not finally lay to rest. Therefore, the request for attorney fees and costs is also hereby denied.

      RUDOLF L. JANSEN
      Administrative Law Judge