U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, N.W.
Washington, D.C 20001-8002
DATE: MAR 9 1992
CASE NO.: 91-ERA-4
In the Matter of:
LINDA PORTER,
Complainant,
v.
BROWN & ROOT, INC., and
TEXAS UTILITIES, Respondents.
ORDER
On January 23, 1991, Complainant filed a Motion to Amend
her complaint and an Amended Complaint, to which Respondents
filed their joint opposition on January 31, 1991. Complainant
filed a Request for Leave to Reply to Respondents' Opposition to
Motion to Amend and Complainant's Reply, on February 7, 1991. In
an Order dated February 21, 1991, Complainant's motion to amend
her complaint was denied. The Order explained that Complainant
failed to show (1) how the amendments would facilitate the
determination of the controversy or (2) how such amendments would
be reasonably within the scope of the original complaint. See 29
C.F.R. § 18.5(e).
On April 18, 1991 Complainant filed a Motion to Reconsider
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Amended Complaint. Respondents filed a Joint Opposition to
Complainant's Motion for Reconsideration, on May 2, 1991. In an
Order to Show Cause, issued May 20, 1991, Complainant was
directed to set forth any reasons why this matter should not be
dismissed for lack of a timely complaint, as the most recent
allegedly discriminatory act took place on March 24, 1988, and
the complaint of August 23, 1990 did not appear to be timely
filed. In addition, to protect the parties from potentially
unnecessary burdens and expenses, the Order stayed all further
discovery.
On June 14, 1991, Complainant filed a Brief in Response to
the Administrative Law Judge's Order to Show Cause. on June 25,
1991, Respondents filed their Joint Response. Complainant filed
her Motion for Leave to Reply and an accompanying reply to
Respondents' June 25 submission on July 19, 1991. Finally, on
July 24, 1991, the undersigned issued an Order accepting
Complainant's Reply of July 19, 1991. The Order directed that
any further response from Respondents was to be filed on or
before August 5, 1991. Additionally, the Order prohibited any
further submissions from any party on the issue of timeliness
after August 5, 1991. Respondents' filed their Rebuttal to
Complainant's July 19 Reply on August 5, 1991.
1. Timeliness of Complaint
The regulations governing the employee protection
provisions of the various statutes possibly at issue in this
proceeding require an employee to file his or her complaint
within 30 days after the occurrence of the alleged violation.
29 C.F.R. § 24.3; see also 42 U.S.C. §§ 5851, 9610.
Complainant alleges she was laid off from her position as
Journeyman Painter and Coatings Supervisor at the Comanche Peak
Steam Electric Station ("CPSES") of Glen Rose, Texas, on
March 24, 1988. She contends that prior to her termination, she
contacted the Occupational Safety and Health Administration
("OSHA") regarding nuclear, environmental and industrial safety
violations at CPSES. More specifically, she alleges that
reprisal actions were taken against her as a result of reporting
these violations to her employer. In addition, Complainant
alleges that she reported these violations to an on-site-
employee-concerns program known as SAFETEAM. Complainant submits
that on March 24, 1988 she notified OSHA, via telephone, of her
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termination and of her nuclear, environmental, and industrial
safety concerns, and on April 10, 1988, she filed a written
complaint with OSHA.
Following her complaint, OSHA undertook an investigation,
and on September 22, 1988, dismissed her complaint, explaining
that the burden of establishing that she had been discriminated
against could not be sustained. Complainant appealed the
determination, which presumably is still being investigated by
OSHA. She alleges that in mid-August of 1990, during a telephone
conversation with an OSHA investigator of the Washington, D.C.
office, in which she inquired as to the status of her complaint,
she was informed that the Wage and Hour Division of the U.S.
Department of Labor ("DOL") was the proper agency to contact for
the filing of a complaint concerning nuclear and environmental
issues.
On August 23, 1990 Complainant filed a complaint with the
Wage and Hour Division of DOL. On October 10, 1990, the Wage and
Hour Division concluded that Complainant's allegations could not
be substantiated. Complainant timely appealed the findings of
the Wage and Hour Division to the Office of Administrative Law
Judges on October 15, 1990.
As cited by Complainant and Respondents, issues of
statutory time limitations were relevantly considered by the
Third Circuit in Allentown v. Marshall, 657 F.2d 16 (3d Cir.
1981) and by the Secretary of Labor in Dartey v. Zack Company,
82-ERA-2, (Decision and Order of the Secretary of Labor, dated
April 25, 1983). Allentown provides that a statute of
limitations may be tolled in the following circumstances: (1)
where a defendant has actively misled the plaintiff with respect
to the cause of action; (2) where a plaintiff has in some
extraordinary way been prevented from asserting his or her
rights; and (3) where the plaintiff has raised the precise
statutory claim in issue but has mistakenly done so in the wrong
forum (although the filing still must have been timely).
Allentown at 19, citing Smith v. American President Lines, Ltd.,
571 F. 2d 102 (2d Cir. 1978); see also Burnett v. New York
Central Railroad, 380 U.S. 424, (1965). This equitable tolling
doctrine has been applied to consider the timeliness of numerous
and varied complaints: Meckes v. Reynolds Metals Co., 604 F.
Supp. 598 (N.D. Al. 1985); Posey v. Skyline Corporation, 702 F.
2d 102 (7th Cir. 1983); Bledsoe v. Pilot Life Ins. Co., Inc., 473
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F. Supp. 864 (M.D. N.C. 1978); Covey v. Arkansas River Co., 865
F. 2d (5th Cir. 1989), and Morgan v. Washington Manufacturing
Co., 660 F. 2d 710 (6th Cir. 1981).
In Dartey, the Secretary of Labor excused an untimely
filing which should have been filed with the Wage and Hour
Division, but was erroneously yet otherwise timely filed with
another agency within DOL. Id. at 6, n.1. More specifically,
the complainant had filed his complaint with OSHA before filing
it with Wage and Hour one year and four months later. (The
applicable whistleblower statute required filing with the
Secretary of Labor). The Secretary deemed OSHA and the Wage and
Hour Division to be "the Secretary of Labor, for filing
purposes," adding that "OSHA is not an independent government
agency, but is a component part of DOL" (Administrative Law
Judge's decision in Dartey at 2 and 4, which was adopted by the
Secretary).
In this matter, Complainant's filing with OSHA (and thus
DOL), on April 10, 1988, seventeen days after the alleged
discriminatory act, was within the thirty-day statutory deadline
for the filing of whistleblower complaints, and is thus
considered timely filed under the Secretary's decision in Dartey.
While Complainant's letter of April 10, 1988 does not detail any
specifics of her complaint, it meets the minimal criteria
necessary for a complaint under 29 C.F.R. § 24.3, and was
sufficient to put Respondents on notice as to the basis of the
complaint.1
1 This regulation provides:
"No particular form of
complaint is required, except that a complaint must be in writing
and should include a full statement of the acts and omissions,
with pertinent dates, which are believed to constitute the
violation."
2 The Comprehensive
Environmental Response,
Compensation and Liability Act authorizes state and federal
governments to institute actions for the containment, cleanup,
and removal of hazardous wastes (42 U.S.C. § 9604; see generally
U.S. v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1111, D.
Minnesota, 1982; City of Philadelphia v. Stepan Chemical Co., 544
F. Supp. 1135, 1140, E.D. Pa., 1982).