ARB CASE NO. 00-082
ALJ CASE NO. 2000-ERA-23
DATE: August 30, 2002
In the Matter of:
JEROME REID,
COMPLAINANT,
v.
NIAGARA MOHAWK POWER
CORPORATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Jerome Reid, pro se
For the Respondent:
Robert A. LaBerge, Esq., Michele F. Mitchell, Esq., Bond, Schoeneck & King, LLP, Syracuse, New York
DECISION AND ORDER OF REMAND
BACKGROUND
This case arose when Jerome Reid filed a complaint with the Department of Labor's Wage and Hour Division (Wage and Hour) alleging that Niagara Mohawk Power Corporation violated the whistleblower protection provisions of the Energy Reorganization Act (ERA), 42 U.S.C.A § 5851 (West 1995), by reducing his grade and pay level because he engaged in covered activities protected under these provisions. Recommended Decision and Order Dismissing Complaint (R. D. & O.) at 1-2. Wage and Hour investigated the complaint and determined that his allegations could not be substantiated. Id. In a letter dated July 30, 1993, a Wage and Hour Assistant Director informed Reid of the results of the Wage and Hour investigation and of Reid's right to request a hearing before a Department of Labor
[Page 2]
Administrative Law Judge if he disagreed with the determination. Id. Specifically, the Assistant Director wrote:
This letter is notification to you that, if you wish to appeal the above findings, you have a right to a formal hearing on the record. To exercise this right you must, within five (5) calendar days of receipt of this letter, file your request for a hearing by telegram to:
The Chief Administrative Law Judge
U.S. Department of Labor
800 K St., N. W.
Washington, D.C. 20001-8002
Unless a telegram is received by the Chief Administrative Law Judge within the five-day period, this notice of determination will become the final Order of the Secretary of Labor dismissing your complaint.
1 These regulations have since been amended. At the relevant time 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.
2 Reid maintains that he received the Wage and Hour determination on August 16, 1993, and Niagara Mohawk does not dispute this claim. Hearing Transcript (H. T.) at 71.
3 A complainant must serve a copy of any request for a hearing upon the Respondent and the Administrator. 29 C.F.R. § 24.4(d)(2)(ii). The ALJ noted in his R. D. & O. that "there is no contention made that the Complainant failed to serve his request upon the Respondent . . .." R. D. & O. at 5. The hearing request, which Reid alleges he faxed to the OALJ, indicates that he sent copies of the request to the Assistant District Director, USDOL, Wage and Hour Division in Syracuse, NY and to John J. Hennigan, Esq. at Niagara Mohawk Power Corporation. It appears that the copy to the Assistant District Director was received on August 26, 1993. (Exhibit D attached to Reid's initial brief).
5 In any event, as demonstrated by the Secretary's subsequent Order Denying Requests for Reconsideration in the case, the Secretary's decision on this issue in Crosier is dicta. Crosier v. Westinghouse Hanford Co., No. 92-CAA-3 (Sec'y Dec. 8, 1994). In addition to holding that Crosier's request for a hearing was untimely, the Secretary, in his initial decision, also determined that Crosier failed on the merits of his retaliation claim. Id. On reconsideration, the Wage and Hour Administrator took exception to certain aspects of the Secretary's determination that the hearing request was untimely. Id. In response, the Secretary held, "Although the Administrator's arguments concerning the timeliness of the hearing request seem meritorious, it is not necessary or in the interest of economy to reconsider the ruling on timeliness. Even if the hearing request were found to be timely, it would not alter the ultimate outcome: dismissal of the complaint on the merits." Id. at 5.
6 In Staskelunas v. Northeast Utilities Co., No. 97-ERA-8 (ARB May 4, 1998), the Board explained that "[a] complainant who relies on an alternative means of delivery, e.g., by mail, assumes the risk that the request may be received beyond the due date, and untimely." (Emphasis added). We note that Niagara Mohawk, citing to the holding of Staskelunas, has inaccurately paraphrased this quotation, stating in its memorandum of law, "a complainant who relies upon alternative methods of delivery not provided for in the regulations assumes the risk that the request may not be docketed within the prescribed time limits." Resp. Mem at 14. This incorrect statement of the Staskelunas holding is significant because the applicable regulation does not require the OALJ to docket the hearing request within five days; it only requires that the OALJ receive the request within five days. In this case the hearing request was received within the limitations period and was thus, timely filed.
7 Since we find that Reid was not derelict in any duty, we do not consider factor five, whether a lesser sanction should have been imposed.