Thus, like the ALJ, we will not toll the ERA's 180-day limitation period. Accordingly, we DISMISS Howell's complaint because he did not timely file it.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 The statute provides, in pertinent part, that "[n]o employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee . . . [notifies a covered employer about an alleged violation of the ERA or the Atomic Energy Act (AEA) (42 U.S.C. § 2011 et seq. (2000)), refuses to engage in a practice made unlawful by the ERA or AEA, testifies regarding provisions or proposed provisions of the ERA or AEA, or commences, causes to be commenced or testifies, assists or participates in a proceeding under the ERA or AEA]." 42 U.S.C.A. § 5851 (a)(1) (West 2003).
2 42 U.S.C.A. § 5851 (b)(1).
3 OSHA investigates ERA whistleblower complaints and determines whether the employer violated the ERA's employee protection section. OSHA then notifies both parties by certified mail of its findings and conclusions as to whether the employer violated the ERA. 29 C.F.R. §§ 24.4, 24.5 (2006).
4 29 C.F.R. § 24.4 (d)(2). See March 9, 2005 Secretary's [OSHA's] Findings Re: PPL Services, Inc./Howell/3-0110-05-002.
5 "A copy of the request for a hearing shall be sent by the party requesting a hearing to the complainant or the respondent (employer), as appropriate, on the same day that the hearing is requested, by facsimile (fax), telegram, hand delivery, or next-day delivery service." 29 C.F.R. § 24.4 (d)(3).
6 March 15, 2005 Appeal From Dismissal of Complaint, page 1.
7 Id., page 2.
8 April 4, 2005 letter from Howell's attorney to ALJ.
9 PPL's Opposition to Complainant's Letter Response to Order to Show Cause.
10 R. D. & O. at 4-5.
11 Id. at 4. "This procedural requirement is jurisdictional in nature, and without compliance therewith, I am deprived of authority to hear the merits of his complaint."
12 See 29 C.F.R. § 24.8; Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the Administrative Review Board the Secretary of Labor's authority to review cases arising under, inter alia, the statutes listed at 29 C.F.R. § 24.1(a)); 5 U.S.C.A. § 557(b) (West 2003) ("On appeal from or review of the initial [ALJ's] decision, the agency [Administrative Review Board] has all the powers it would have in making the initial decision . . . .").
13 ARB No. 04-101, ALJ No. 2004-ERA-9, slip op. at 9 (ARB Oct. 31, 2005).
14 657 F. 2d 16, 19-21 (3d Cir. 1981). See e.g. Ilgenfritz v. U.S. Coast Guard Acad., ARB No. 99-066, ALJ No. 99-WPC-3 (ARB Aug. 28, 2001); Hall v. E. G. & G. Def. Materials, ARB No. 98-076, ALJ No. 97-SDW-9 (ARB Sept. 30, 1998).
15 15 U.S.C.A. § 2622 (West 2004).
16 Allentown, 657 F. 2d at 20 (internal quotations omitted).
17 Accord Wilson v. Sec'y , Dep't of Veterans Affairs, 65 f. 3d at 404 (complaining party in Title VII case bears burden of establishing entitlement to equitable tolling).
18 Accord Wakefield v. R.R. Retirement Bd., 131 F.3d 967, 970 (11th Cir. 1997); Hemingway v. Northeast. Utils., ARB No. 00-074, ALJ Nos. 99-ERA-014, 015, slip op. at 4-5 (ARB Aug. 31, 2000).
19 Howell's Brief, entitled "Brief In Response To Order To Show Cause," at 1-2 (arguing that Howell's first attorney "either knew nothing about available administrative remedies or knew about them but did not convey the information to Howell").
20 See Higgins v. Glen Raven Mills, Inc., ARB No 05-143, ALJ No. 2005-SDW-7, slip op. at 9 (ARB Sept. 29, 2006); Dumaw v. International Brotherhood of Teamsters, Local 690, ARB No. 02-099, ALJ No. 2001-ERA-6, slip op. at 5-6 (ARB Aug. 27, 2002). Accord Blodgett v. Tenn. Dep't of Env't & Conservation, ARB No. 03-043, ALJ No. 03-CAA-7, slip op. at 2-3 (ARB Mar. 19, 2004); Steffenhagen v. Securitas Sverige, AR, ARB No. 03-139, ALJ No. 03-SOX-024, slip op. at 4, (ARB Jan. 13, 2004); Herchak v. Am. W. Airlines, Inc., ARB No. 03-057; ALJ No. 02-AIR-12 slip op. at 6 (ARB May 14, 2003); Hemingway v. Northeast Utils., ARB No. 00-074, ALJ Nos. 99-ERA-014, 99-ERA-015 (ARB Aug. 31, 2000). The Supreme Court did note in Link v. Wabash R. R. Co. however, that "if an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice." 370 U.S. 626, 634 n.10 (1962).