Date: May 8, 1996
Case No.: 96-ERA-3
In the Matter of:
ZHAO-CHONG ZENG, M.D.,
Complainant
v.
COOPER HOSPITAL/MEDICAL CENTER,
Respondent
RECOMMENDED DECISION AND ORDER
Background
This proceeding arises under the employee protection
provision of the Energy Reorganization Act of 1974, as amended,
("ERA ), 42 U.S.C. § 5851. The complainant, Zhao-Chong
Zeng, is a medical doctor from the People's Republic of China
specializing in radiation oncology and nuclear medicine. In
1994, he came to the Department of Radiation Oncology of Cooper
Hospital in Camden, New Jersey, as a post-doctoral research
associate. The position was funded for two years, from June 1,
1994 through May 31, 1996. Complainant alleges that, during
September 1994, he and a colleague were required by Dr. Stanley
E. Order to conduct experiments using approximately 10 times the
accepted yearly exposure quantities permitted per person of a
radioactive isotope, 32Phosphorus (32P). (Part I of
complainant's
12/20/95 submission; Part 3 at 17, 20). He further alleges that,
in retaliation for complaining internally about the use of this
excessive level of radiation, and threatening to complain to the
Nuclear Regulatory Commission ("NRC ), he was terminated on June
30, 1995.
Complainant, by attorney Arthur W. Wang, filed his
complaint of retaliation with the Wage and Hour Division on July
19, 1995. On October 19, 1995, District Director Richard C.
Richards issued a determination dismissing the complaint on the
grounds that it was not timely filed. A certified mail return
receipt shows that this determination was received in the office
of Mr. Wang on October 30, 1995. On November 2, 1995,
complainant, by attorney Patricia O'Malley, filed an appeal to
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the Office of Administrative Law Judges, enclosing two letters to
the complainant dated January 10 and May 5, 1995, from Intae Lee,
Ph.D., the Director of the Division of Radiation Research of the
Department of Radiation Oncology, in support of his position that
the complaint was timely filed. On December 6, 1995, the
undersigned issued an Order treating complainant's appeal as a
motion for summary decision on the issue of timeliness, and
allowing the parties time for additional submissions.
On December 20, 1995, complainant, proceeding pro se,
filed a lengthy submission in support of his complaint but did
not address the timeliness issue. On January 11, 1996,
respondent filed a statement opposing complainant's appeal as
untimely, but served only attorney Patricia O'Malley. She
advised the court by letter of January 15, 1996 that her firm did
not represent the complainant, and had filed his appeal only to
preserve his rights. On February 13, 1996, the court received a
letter from the complainant seeking information on the status of
his appeal. Complainant's letter was dated February 2, 1996, and
was sent from his current place of employment in Shanghai,
Peoples' Republic of China. Because the complainant had not
received respondent's January 11, 1996 opposition to his appeal,
the court issued an order on February 14, 1996, allowing the
complainant additional time to file a reply. Complainant has
failed to file any reply.
Discussion
Respondent argues that both the complainant's original
complaint to the District Director and his appeal of the District
Director's dismissal to the Office of Administrative Law Judges
are untimely and that summary decision should be granted in its
favor. Summary decision is appropriate "if the pleadings,
affidavits, material obtained by discovery or otherwise, or
matters officially notice show that there is no genuine issue as
to any material fact ... . 29 C.F.R. § 18.40 (d). As set
forth below, I find no genuine issue of fact that the appeal was
timely but the original complaint was not, and recommend that
summary decision be granted in favor of the employer and the
complaint be dismissed.
I. Timeliness of Complainant's November 2, 1995 appeal to
Office of Administrative Law Judges from the District
Director's October 19, 1995 determination
The ERA requires the District Director to notify the
respondent, the complainant, and any person acting in his behalf,
of the results of an investigation, in writing, by certified
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mail. A dissatisfied party must appeal to the Office of
Administrative Law Judges within five calendar days of receipt of
the District Director's determination. 42 U.S.C. § 5851(b)
(1995); 29 C.F.R. § 24.4(d)(1), (2)(I). Respondent argues
that complainant's appeal is untimely, because the District
Director's determination was mailed to complainant's counsel on
October 19, 1995, but complainant did not appeal until November
2, 1995.
The District Director's U.S. Postal Service return receipt
for the October 19, 1995 determination confirms that it was
received by complainant's counsel, attorney Yang, on October 30,
1995. Complainant then filed his appeal via facsimile on
November 2, 1995. Respondent argues that complaint has failed to
explain the lapse of time between the date of the determination
and the date of the appeal. No explanation is necessary,
however, because the relevant time period is between the date of
the receipt of the determination and the date of the
appeal. Because there is no genuine issue that the appeal here
was filed within five calendar days of the receipt of the
determination, I find that it is timely.
In addition, equitable tolling of the time limit might be
appropriate here even if the appeal had not been filed within
five calendar days of the receipt of the determination. Tolling
is proper where:
1) the employer has actively mislead the complainant
respecting the cause of action,
2) the complainant has been prevented from asserting his
rights, or
3) the complainant has raised the precise statutory claim
in issue but has mistakenly done so in the wrong forum.
Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan.
12, 1994); City of Allentown v. Marshall, 657 F.2d 16,
19-21 (3rd Cir. 1981); Lastre v. Veterans Admin. Lakeside
Medical Ctr., 87-ERA-42 (Sec'y Mar. 31, 1988).
The ERA states, in pertinent part, that "the Secretary ...
shall notify in writing the complainant (and any person acting in
his behalf) and the person alleged to have committed such
violation of the results of the investigation ... . 42 U.S.C.
§ 5851(b)(2)(A). Thus, the Wage-Hour determination should
have been served on the complainant as well as any
representative. SeeMiriello v. Carolina Power & Light
Co., 87-ERA-17, slip op. at 8 (Sec'y January 23, 1992).
Since the record contains no evidence that the determination was
served on the complainant in addition to his representative at
the time, attorney Arthur Wang, the complainant would obviously
have a well-founded argument that
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the time limit for appeal should be tolled because he was
prevented from asserting his rights by the Secretary's failure to
comply with the statute.
II. Timeliness of Complainant's July 19, 1995 complaint to
the District Director
A complaint must be filed within 180 days of an alleged ERA
violation. 42 U.S.C. § 5851(b)(2)(A) (1995). Respondent
contends that, because complainant was informed of his allegedly
discriminatory termination by Dr. Paul E. Wallner, Chief of the
Department of Radiation Oncology, on December 16, 1994, his
complaint, filed on July 19, 1995, is untimely, even though
complainant was not actually terminated until June 30, 1995.
Complainant argues that, because he did not receive final notice
of his termination until Dr. Intae Lee's May 5, 1995 letter, his
complaint was filed within the 180-day period and is therefore
timely.
The courts have held that, in cases involving challenged
adverse employment decisions such as allegedly retaliatory
discharges, the complaint filing period begins to run at the time
the complainant is notified of the adverse employment decision,
rather than at the time the effects of the decision are
ultimately felt when the complainant's employment is actually
terminated. Delaware State College v. Ricks, 449 U.S. 250
(1980)(Title VII, Civil Rights Act of 1964); Chardon v.
Fernandez, 454 U.S. 6 (1981)(42 U.S.C. § 1981); Price
v. Litton Business Systems, 694 F.2d 963 (4th Cir. 1982);
English v. Whitfield, 858 F.2d 957 (4th Cir. 1988)(ERA);
Ballentine v. Tennessee Valley Auth., 91-ERA-23 (Sec'y
Sept. 23, 1992); Patton-Davis v. Tennessee Valley Auth.,
90-ERA-61 (Sec'y Feb. 22, 1994). The notification of a
challenged employment decision with delayed consequences must be
final and unequivocal. English, 858 F.2d at 961;
Ballentine, supra at 2. The issue to be determined
here is whether Dr. Wallner's notification of termination on
December 16, 1994 was less than final and unequivocal and
therefore did not commence the complaint filing period.
Dr. Wallner's letter of December 16, 1994 to complainant
stated that his position would not be funded after June 30, 1995
and that he might be terminated sooner contingent upon his work
in the laboratory as judged by his supervisor. (Part 3 of
complainant's 12/20/95 submission, at 14). On January 10, 1995,
Dr. Lee, his supervisor, wrote to complainant, stating, in
pertinent part, that "[a]ccording to Dr. Paul Wallner's letter
dated on 20 December 1994, your appointment will end as of June
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30, 1995 . ... and "[i]n addition, after various discussions
with Dr. Paul Wallner in the future, I will give you my written
notice at the beginning of April 1995 whether your appointment
will continue for your second year. (Part 3 of complainant's
12/20/95 submission, at 21). On May 5, 1995, Dr. Lee wrote to
complainant stating that, "[s]ince I received Dr. Wallner's
letter [of December 20, 1994), I advised you to look for a
position in other laboratories and "I would like to remind you
in a written form that your appointment will end as of June 30,
1995. (Part 3 of complainant's 12/20/95 submission, at 23). On
June 19, 1995, Dr. Wallner wrote to complainant reiterating that
his position would be eliminated as of June 30, 1995. (Part 3 of
complainant's 12/20/95 submission, at 15).
Complainant's May 2, 1995 appeal argues that Dr. Lee's
letters dated January 10, 1995 and May 5, 1995 "make clear that
final notice to Dr. Zeng of the termination of his employment did
not occur until May 5, 1995" and that Dr. Zeng's complaint was
therefore timely filed. I do not agree. Dr. Lee's January 10
letter did no more than leave open the possibility that something
else might be available in her laboratory for Dr. Zeng after his
appointment ended on June 30, 1995, but did not revoke Dr.
Wallner's December 16, 1994 letter. Dr. Wallner's December 16,
1994 letter was unambiguous. It did not include any reference to
a right of review or appeal. As Chief of the Department of
Radiation Oncology, Dr. Wallner was Dr. Lee's superior, and
therefore Dr. Lee was not in a position to rescind or make any
less final Dr. Wallner's decision. Accordingly, I find no
genuine issue of fact that, on December 16, 1994, Complainant
received final and unequivocal notice that his position would no
longer be funded effective June 30, 1994. Because the alleged
discriminatory act occurred on December 16, 1994, the limitations
period for filing a complaint under the ERA began on that date.
As the complaint was filed on July 19, 1995, more than 180 days
after December 16, 1994, the complaint must be dismissed as
untimely. Wagerle v. Hospital of the Univ. of
Pennsylvania, 93-ERA-1 (Sec'y Mar. 17, 1995); Larry v.
Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).
I also find no grounds for equitable tolling of the 180-day
limitations period. There is no evidence of record that
complainant was actively misled by respondent respecting his
cause of action, that he was prevented from asserting his right
to complain to Wage Hour, or that he raised the precise claim in
issue in the wrong forum. Accordingly, it is recommended that
summary decision be granted in favor of Cooper Hospital, and the
complaint be dismissed as untimely.
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EDITH BARNETT
Administrative Law Judge
EB/BLS:bdw
g:\barnett\96era3.fo1
NOTICE OF REVIEW
NOTICE: This Recommended Decision and Order and the admin-
istrative file in this matter will be forwarded for review by the
Secretary of Labor to the Office of Administrative Appeals, U.S.
Department of Labor, Room S-4309, Frances Perkins Building, 200
Constitution Ave., N.W., Washington, D.C. 20210. The Office of
Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final
decisions. See 55 Fed. Reg. 13250
(1990).
