Office of Administrative Law Judges 2600 Mt. Ephraim Avenue
Camden, NJ 08104
(856) 757-5312 856-757-5403 (FAX)
Issue date: 30Aug2000
CASE NO.: 2000-ERA-00023
In the Matter of:
JEROME REID Complainant
v.
NIAGARA MOHAWK POWER CORP. Respondent
RECOMMENDED DECISION AND ORDER DISMISSING COMPLAINT
I. Statement of the Case
This proceeding arises under the employee protection provisions of the
Energy Reorganization Act of 1974, as amended ("ERA"), 42 U.S.C. §5851,
and the
regulations promulgated thereunder at 29 C.F.R. Part 24. The matter is now before me on a
request for hearing filed in August 1993 by Jerome Reid (the "Complainant") and on
a motion to dismiss filed by Niagara Mohawk Power Corporation (the
"Respondent"). Because I find for the reasons set forth below that the Complainant
has failed to diligently pursue his complaint under the ERA, thereby resulting in prejudice to the
Respondent, I have concluded that the Respondent's motion to dismiss should be granted.
1 The Complainant filed his first
complaint on September 17, 1992. On October 15, 1992, The Assistant District Director of the
Wage and Hour Division issued a determination that prohibited discrimination did not take place
as alleged in the complaint. The Complainant timely requested a hearing, and a hearing was held
before Administrative Law Judge Ainsworth Brown on June 29, 1993. On August 9, 1993,
Judge Brown issued a Recommended Order of Dismissal of Complainant Without Prejudice and
Denial of Motion for Summary Decision, dismissing the complaint due to Complainant's failure
to appear at the hearing. The Secretary affirmed Judge Brown's Order by Final Order of
Dismissal issued on February 14, 1994. Reid v. Niagara Mohawk Power Corp., 1993-
ERA-3.
2 The documentary evidence in the
record will be referred to herein as "ALJX" for the formal papers offered by the
administrative law judge, "CX" for exhibits offered by the Complainant, and
"RX" for exhibits offered by the Respondent. References to the hearing transcript
will be designated as "TR".
3 Also attached to the
Complainant's letter to the Chief Administrative Law Judge was a copy of a letter dated
December 16, 1999 which the Complainant had sent to the Wage and Hour Division inquiring
into the status of his request for hearing.
4 During the time period
applicable to Complainant's request for a hearing, the regulations provided:
If on the basis of the investigation the Administrator determines that the complaint
is without merit, the notice of determination shall include, or be accompanied by
notice to the complainant that the notice of determination shall become, the final
order of the Secretary denying the complaint unless within five calendar days of
its receipt the complainant files with the Chief Administrative Law Judge a
request by telegram for a hearing on the complaint. The notice shall give the
address of the Chief Administrative Law Judge. 29 C.F.R. § 24.4(d)(2)(i)
(revised as of July 1, 1993).
5 The regulations
governing the investigation and adjudication of whistleblower complaints,
including those filed under the ERA, require action to be taken within extremely
strict time limits. For example, within 30 days after the filing of a complaint, the
Assistant Secretary of Labor must complete an investigation, determine whether a
violation has occurred, and issue a notice of determination. 29 C.F.R.
§24.4(d)(1). After issuance of this notice of determination, any party who
desires review of the determination has five days within which to file a request for
a hearing. 29 C.F.R. §24.4(d)(2). Within seven days after a party has filed a
request for a hearing, the administrative law judge to whom the case is assigned is
required to notify the parties of the day, time, and place of the hearing. 29 C.F.R.
§24.6(a). These strict time limitations are intended to provide prompt
adjudication of discrimination claims brought under the federal employee
protection statutes in order to protect the rights of both complainants and
respondents.