Once the case was received, it was clear that an issue existed as to whether the claim had been timely filed. Accordingly, on June 3, 1996, the undersigned issued a Notice of Docketing and Pre-Hearing Order Number One. In this Order, I indicated that there was a possible dispositive issue regarding the timeliness of complaint. The parties were expressly informed in this order that "the only documents contained in the appeal file at present are the District Director's May 17, 1996 determination letter and the Complainant's May 24, 1996 telegram requesting a hearing" and that any documentation upon which the parties intended to rely must be resubmitted.

   On June 6, 1996, this Office received Complainant's Response to Case No. 96-ERA-24. This response listed "some of the dates of outside contacts made concerning discrimination." It consisted of eleven entries of various items of correspondence, some entries documenting claims filed by Complainant and some documenting correspondence received by Complainant. Of the four entries documenting claims filed by Complainant, every one had been sent to either the Ohio Civil Rights Commission and/or the Equal Employment Opportunity Commission. No reference was made to any letter mailed by Complainant during the month of January, 1995. The response does indicate that Complainant received a letter dated February 6, 1995 from the DOL acknowledging her "complaint filed January 12, 1995." Complainant did not submit a copy of this complaint to substantiate this notation, nor did she include in this list an entry indicating what, if anything, had actually been sent on that date.

   A conference call was held in this matter on June 10, 1996. During this conference call it was determined that the matter would be held in abeyance for one month so that Complainant could obtain counsel. According to the undersigned's Pre-Hearing Order Number Two, if she was unable to find counsel, she was to file a statement of intent to proceed without counsel no later than July 12, 1996.

   Complainant responded to the second pre-hearing order on July 9, 1996. In this response, she indicated that she was seeking to obtain representation through two law schools' clinical programs. Complainant further indicated that she would submit copies of the documents cited in her previous letter that would be considered timely. However, she inquired as to what documentation would be considered timely. Specifically, she asked "Would timely' material consist of the three charges I filed before July 18, 1994, but after November 1, 1993, plus any contacts I made up through January 14, 1995?" After two extensions of the stay so that she could continue her search for counsel, Complainant notified this Office that she had been unable to secure legal representation by letter dated September 22, 1996. In this letter, Complainant again asked that I provide her with legal assistance regarding how to prosecute her claim, i.e., what issues were to be addressed by our Office.

   On October 3, 1996, the undersigned issued a Proposed Decision and Order. This proposed decision and order specified that the only issue being dealt with at that time was the issue regarding the timeliness of filing. Specifically, this order indicated that the January 27, 1995 complaint filed with the DOE was more than 180 days from the date of discrimination. The parties were thus ordered to show cause why the matter should not be dismissed as untimely filed. In response to Complainant's requests that I provide her with guidance as to the handling of her claim, I attached copies of 29 C.F.R. Parts 18 and 24, as well as a copy of 42 U.S.C. § 5851. I further directed her to our Office's website as a research resource.

   Complainant's Justification of Timeliness was received on October 17, 1996. Complainant stated in this response that "at least one complaint, by pure luck, was filed within the 180 day limit." However, Complainant did not indicate which complaint, nor did she include a copy of any such complaint. Complainant further alleged that "it is not common knowledge that the U.S. Department of Labor handles safety and health related complaints. Had I known, all complaints would have been to the Labor Department first." Complainant further indicated her confusion as to why the date being referred to as the filing of the complaint was when she mailed her complaint to the DOE. Finally, she again included the two page list as to communications sent and received regarding this case which she described as constituting "some of the paper trail and verbal discussions as a historical background[.]" This time, the list expanded to 16 items. In this submission, six of the entries listed complaints filed by Complainant. However, the submission again omitted any reference to any letter or complaint filed with DOL in January, 1995. The complaints listed were filed with the Ohio Civil Rights Commission, the Equal Employment Opportunity Commission, the Internal Revenue Service, and the Environmental Protection Agency. She again listed a letter dated February 6, 1995, "from U.S. Department of Labor to Linda Roberts" and included a better description of the letter, "Re: acknowledge complaint dated January 12, 1995. Forward to Equal Employment Opportunity Commission." Again, Complainant did not submit a copy of this complaint to substantiate this notation, nor did she include in this list an entry indicating what, if anything, had actually been sent on that date. The only information submitted indicated that all complaints had been ultimately submitted with the Ohio Civil Rights Commission and/or the Equal Employment Opportunity Commission.

   On November 25, 1996, after having received responses from both parties, I ordered Complainant to submit all charges filed with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission so that I could fully assess the circumstances surrounding the timeliness issue. Complainant submitted those complaints on December 5, 1996. This order was issued as all documentation submitted by Complainant indicated that all prior complaints had dealt with civil rights related charges. Accordingly, these filings and submissions were needed to determine if Complainant had ever brought up any issues regarding retaliation under the ERA.

   Having provided ample opportunity to Complainant to submit the actual documentation regarding when she filed her complaint, I issued a Recommended Order Dismissing Complaint on December 18, 1996. First, it was determined that Complainant had failed to establish that she had filed any correspondence which could be interpreted as a complaint under the ERA prior to the January 27, 1995 letter, which was filed more than 180 days from the adverse action. Although her prior sex discrimination complaints did indicate "retaliation," there was nothing in the record to attribute this to anything other than the sexual discrimination claims. Second, it was determined that Complainant had failed to establish sufficient justification for applying the doctrine of equitable tolling to remedy her untimely filing. Accordingly, it was recommended that the claim be dismissed.

   On January 2, 1997, Complainant submitted a Request for Reconsideration of Recommendation for Dismissal. The request highlighted her prior letters which indicated a complaint dated January 12, 1995. However, Complainant did not submit this complaint, nor was such a complaint contained in the files. As she had failed to submit additional facts or legal argument, her motion for reconsideration was denied on January 6, 1997.

Roberts v. Battelle Memorial Institute, et al., ARB Case No. 97-038 (Final Dec. and Ord., June 4, 1997).

   A hearing was held before the undersigned on November 19, 1998 in Columbus, Ohio. One day was allocated for the hearing and the arguments were limited to the issue of the authenticity of the "January 12, 1995" five-page letter submitted to this Office by Complainant on August 7, 1998.

   At the hearing, I ordered the Complainant to submit to this Office a disk copy and/or hard-copy of the file list of the computer directory in which the alleged "January 12, 1995" letter was saved. Ordinarily, the file list shows when a file was last modified and when the file was created. On November 30, 1998, Complainant complied with such order, submitting both a computer disk copy and a paper copy of the "file list." However, the file list submitted by Ms. Roberts indicated that the "January 12, 1995" document had been modified and created on November 20, 1998 one day after the hearing. In her letter attached to the file list, Ms. Roberts asserts that "the three files from January 1995 were inadvertently permanently updated from Wordperfect to Microsoft Word when [she] was transferring them via FAX. The dates of origination no longer show on the directory."

as having been received is the claim form which Complainant mailed on January 12, 1995. The evidence indicating that no government office appears to have ever received this letter supports the proposition that the letter was never mailed. This is supported by the fact that OFCCP's February 5, 1995, acknowledgment of the January 12, 1995, claim form as a complaint filed under Executive Order 11246 lends credence to the suggestion that the January 12, 1995 submission did not include the alleged letter. (RX 3). Such a conclusion is supported by OFFCP's response to the undersigned's inquiries that Complainant's claim "was determined to be an individual allegation of gender discrimination" and was thus forwarded to the EEOC.

   Despite the absence of evidence of actual receipt of the alleged letter by either OFCCP or EEOC, at the hearing, I ordered Complainant to submit either a printout of the Windows file manager which would show the last time the file was modified or to submit the diskette upon which she saved the letter in order to establish the date when the file was created or modified last. This order was made to give Complainant an opportunity to submit evidence tending to prove the submission of the January 12, 1995 letter. Complainant was specifically instructed not to fax this information, but to send it by mail. (Tr. 51). However, Complainant chose to submit this information by facsimile anyway. Further, the disk directory shows that these files were all updated on November 20, 1998, the day after the hearing where she was ordered to produce this information. Complainant alleges in her complaint that she "inadvertently updated the files requested . . . when she attempted to FAX them locally on November 20, 1998." She does not state to whom she was faxing these documents or why she failed to print out the disk directory prior to this attempt. If Complainant had managed to check the disk directory when she was printing out the copies faxed on November 19, 1998, Complainant may have been able to preserve the best evidence of when this alleged letter was created. Her excuses for her failure to do so simply stretch the bounds of credibility. Of course, the changed date does not prove that the letter was not submitted. However, the alteration of the creation date, accidental or not, destroyed evidence that may have tended to substantiate the authenticity of the letter purportedly mailed on January 12, 1995.

   Without the above evidence to clearly substantiate when the letter was created, I must turn to the remaining evidence in the record, and the inferences that may be drawn there to determine if this letter was actually submitted on January 12, 1995. In viewing this evidence, several reasons remain to doubt that this letter was timely submitted even if it was created at the time Mrs. Roberts alleges.

   In the prior proceedings before this Office there was no mention or copy of any letter dated January 12, 1995 alleging ERA whistleblower type retaliation in the record. No such mention was made despite the fact that the timeliness of the filing was clearly at issue, and only now, on remand, is the alleged letter submitted. In fact, in the original proceeding, Complainant merely submitted a list of correspondence with minimal description, thus placing the administrative law judge in the role of investigator, and left it to the undersigned to determine, without benefit of the actual letters, if she had, at any time, submitted anything that might possibly be considered a complaint under the ERA. Even in doing this, Complainant failed to list the January 12, 1995 letter that she now alleges was such a complaint. The only references made to such a January 12, 1995 submission involved the acknowledgment of receipt of the pre-printed claim form filed under Executive Order 11246, which deals with sex discrimination. No reference is made to any other letter allegedly mailed on that date.

   I also find significant that the January 27, 1995 complaint that initiated this proceeding filed with the U.S. Department of Energy refers to "filling out" a complaint on January 12, 1995 with DOL. (CX 2). This language by Complainant tends to prove that she is referring to the claim form and not the letter. She also does not indicate any other complaints in her January 16, 1995 follow up letter; this letter merely discusses Complainant's sex discrimination complaints. Finally, two federal agencies confirmed that the only submissions received were the claim form and the January 16, 1995 follow up letter.

   In reviewing all of the above, it is apparent that no credible evidence exists that would substantiate Complainant's allegation that she included the letter in question as an attachment to the claim form. As she is unable to prove that the alleged letter was actually sent to the OFCCP as claimed, I must rely on the records that the agencies have been able to produce. According to these records, the alleged letter was never received, and Complainant thus failed to timely file her complaint in this matter. Accordingly,

   I hereby RECOMMEND that this case be DISMISSED.

   SO ORDERED.

       JOHN M. VITTONE
       Chief Administrative Law Judge

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