ARB CASE NO. 00-015
(Formerly ARB 97-038)
ALJ CASE NO. 96-ERA-24
DATE: April 30, 2001
In the Matter of:
LINDA ROBERTS,
COMPLAINANT,
v.
BATTELLE MEMORIAL INSTITUTE,
ROBERT W. SMITH, JR.; ROBERT E. LINCOLN;
KATHY OLSON; K.C. BROG; AND V.E. CASTLEBERRY,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Linda Roberts, pro se, West Jefferson, Ohio
For the Respondent:
Adele E. O'Conner, Esq., Porter, Wright, Morris & Arthur, Columbus, Ohio
FINAL DECISION AND ORDER
This matter is before this Board for the second time. We dismiss the complaint as untimely filed.
[Page 2]
Complainant Linda Roberts was employed by Respondent Battelle Memorial Institute from September 1979 until her termination on July 18, 1994. On January 27, 1995, Roberts sent a letter to the Department of Energy in which she alleged that Battelle had retaliated against her for raising safety issues. The letter was forwarded to the Department of Labor, which treated it as a complaint of retaliation pursuant to the whistleblower provision of the Energy Reorganization Act of 1974, as amended (ERA), 42 U.S.C.A. §5851 (1995). The Department's Wage and Hour Division determined that the complaint was not filed within the ERA's 180-day limitations period. 42 U.S.C.A. § 5851(b). Roberts requested a hearing before a departmental ALJ, who dismissed the complaint as untimely filed.
1 A detailed description of the procedural history of this case is set out in the ALJ's Recommended Decision and Order Dismissing Complaint (RD&O) at 1-6.
2 Roberts submitted a copy of the purported January 12 letter for the first time before the Court of Appeals, but the court granted the government's motion to strike the letter because it was not part of the record before the ARB.
3 The ALJ apparently assumed, by analogy to the Federal Tort Claims Act, that "there must be evidence of actual receipt" of a complaint. RD&O at 7. On the contrary, pursuant to Rule 24.3(b) the relevant question is whether the complaint was actually mailed.