U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 97-038
ALJ CASE NO. 96-ERA-24
DATE: June 4, 1997
In the Matter of:
LINDA ROBERTS,
COMPLAINANT,
v.
BATTELLE MEMORIAL INSTITUTE,
ET AL.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This matter arises under the employee protection provision of the
Energy Reorganization Act, as amended (ERA), 42 U.S.C. § 5851 (1988 and Supp. IV
1992). Complainant Linda Roberts filed a complaint with the Department of Labor in which
she alleged that Respondents, Battelle Memorial Institute and five individuals, suspended her
without pay and discharged her from employment because she made health and safety
complaints protected under the ERA. In a Recommended Decision and Order (R. D. and O.)
(attached), the Administrative Law Judge recommended dismissing the complaint because it
was not timely filed.1 We
agree.
Linda Roberts was employed by Respondent Battelle Memorial Institute
and made verbal and written complaints of an unspecified nature to Battelle management and
its ethics committee between 1990 and her discharge in 1994. See Complainant's
[Page 2]
Justification of Timeliness (Comp. Justification), dated Oct. 16, 1996, at ¶1. She filed
sex discrimination and equal pay charges against Respondents with the Ohio Civil Rights
Commission (OCRC) and the Equal Employment Opportunity Commission (EEOC) in March
1994 (March charges). Roberts filed additional charges with the OCRC and EEOC on June
6 and 23, 1994. Neither the March nor the June 23 charges mention health or safety
complaints as issues raised by Roberts. Of these charges, Roberts alleges that only the June
6 charge constitutes an ERA whistleblower complaint. See Comp. Justification at ¶3.
The closest the June 6 charge comes to stating a claim under the ERA's employee protection
provision is where Roberts alleges that she was retaliated against due to the filing of her March
charges because she was "forced to report directly to a Sub-Contractor rather than
Respondent, and this has created a hostile and unsafe environment."
Battelle suspended Roberts without pay from June 21 through June 23,
1994 and discharged her on July 18, 1994. On August 2, 1994, Roberts made a telephone
complaint of an unspecified nature to the Department of Energy concerning Respondents.
Comp. Justification ¶5. The Energy Department allegedly advised Roberts to use
internal methods of appeal. Id.
1 The ERA provides that
"[a]ny employee who believes that he has been discharged or otherwise discriminated against by
any person in violation of [the employee protection provision of the statute] may, within 180 days after
such violation occurs, file . . . a complaint with the Secretary of Labor . . . alleging such discharge or
discrimination." 42 U.S.C. § 5851(b)(1).
2 Since there was no hearing in this
case, we do not make findings of fact. Like the ALJ, we will rely upon the facts alleged by Roberts
in various submissions to the ALJ and to this Board.
3 The January 12, 1995 letter was
not sent to Respondents and is not in the record.
4 Although the ALJ sometimes
referred to the letter as "received by the Department of Energy" on January 27, 1995, R.
D. and O. at 4, he also states that "Complainant filed a complaint with the U.S. Department of
Energy by letter dated January 27, 1995." R. D. and O. at 2. Roberts indicates that she mailed
the letter on that date. Comp. Justification ¶7.
5 The ALJ assumed, for the purpose
of rendering a summary decision, that the safety issue Roberts raised was within the purview of the
ERA, and we agree with that assumption. See Battelle's August 12, 1994 submission to
OCRC, Attachment A at p. 9 ("In general, the purpose of the [Battelle division for which Roberts
worked] is to clean and restore Battelle facilities which contain residual fixed radioactive contamination
as a result of Battelle research for the U.S. Government.").
6 A valid basis for equitable tolling
of the limitation period may exist where the complainant "has raised the precise statutory claim
in issue but has mistakenly done so in the wrong forum." School District of City of
Allentown v. Marshall, 657 F.2d 16, 20 (3rd Cir. 1981), quoting Smith v. American
President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978).