SEP 25 1992
92 ERA 48

Arnold Gunderson

Complainant

   vs.

Nuclear Energy Services, Inc.

This proceeding arose under The Energy Reorganization Act of 1974, as amended, 42 U.S.C. 5851 (1982) and its implementing Regulations at 29 CFR Part 24.

On May 21, 1990, the complainant was discharged by the employer in connection with an alleged reduction in force. The complainant filed a complaint on June 8, 1990 with The United States Department of Labor (DOL) contending that his discharge was due to his activities as a whistleblower having discovered violations of The Energy Reorganization Act of 1974.

On July 12, 1990, DOL issued a decision, stating in substance, that the discharge was not motivated by claimant's whistleblowing but by a reduction in force. This determination noticed the complainant that he had five days to lodge an appeal to the Office of Administrative Law Judges. This appeal was not filed.

On September 4, 1990, complainant filed an appeal to the United States Court of Appeal to the Second Circuit asking for a review of the July 12, 1990 DOL decision. On December 13, 1990,

the court dismissed the appeal on account of the complainant's failure to comply with the brief scheduling order.

On December 20, 1990, the parties fully settled the case for $54,000.

On June 22, 1992 complainant, by counsel, filed a complaint with DOL. It alleged, in substance, his discriminatory discharge on May 21, 1990, and requested that the DOL void its July 12, 1990 determination that the claim was without merit. It contended that the initial determination of DOL was based on material false statements made by the employer. On July 28, 1992

DOL denied the second complaint on the grounds that the complainant failed to appeal the original determination to the Office of Administrative Law Judges within the 5 days required and the alleged material false statements were not related to the original DOL findings that Mr. Gunderson was terminated for business reasons.

The appeal to this office from the July 28, 1992 denial was filed August 4, 1992. On August 21, 1992, the respondent employer filed with this office a request to dismiss the complaint contending that the action was barred since the July 12, 1990 order of the Secretary was final and covered the area of the instant case and further the parties had entered into a binding settlement on December 20, 1990.

Oral argument on these issues was held on September 8, 1992 in a telephone conference call that was transcribed. Further the complainant and the respondent filed written arguments. These arguments have been considered in this decision.

29 CFR 24.4 (d)(3)(1) states that the order of the Administrator becomes the final order of the Secretary "unless within five calendar days of its receipt the respondent files with The Chief Administrative Law Judge a request by telegram for a hearing". (emphasis supplied) No such request was filed by complainant.

It is considered, by analogy, that equitable tolling of the five day requirement requires the consideration of these factors: "(1) whether the plaintiff lacked actual notice of the filing requirements; (2) whether the plaintiff lacked constructive notice, i.e. his attorney should have known; (3) the diligence with which the plaintiff pursued his rights; (4) whether there would be prejudice to the defendant if the statute would be tolled; (5) the reasonableness of the plaintiff remaining ignorant of his rights ... ". Wright v. State of Tenn., 628 F.2d 949 (6th Cir.1980). Applying the Wright factors to the case at hand requires one to conclude that the Secretary of Labor's decision became final five days after the Administrator's decision on July 12, 1990 and that no equitable tolling obtains.

There have been no arguments raised by the complainant which would invoke any of the five factors in his favor. The complainant and his counsel knew the filing requirement. Yet they

waited until June 22, 1992 until they attempted to, in effect, appeal a decision that had been made July 12, 1990. This reflects lack of diligence. There has been no valid excuse advanced for the late filing. The discovery by the complainant of new evidence that respondent actually violated the law in the handling of radioactive chemicals, even assuming the truth of this evidence, is not critical to his whistleblower case and would not excuse the failure to file here. There appears to be no new evidence advanced by complainant on the critical issue as to whether the reduction in force discharge was pretextual.

Additionally, it is noted that there have been no facts argued that suggest that the complainant was "prevented by circumstances beyond his control" from investigating his rights within the regulatory period. Accordingly, no case has been made-for equitable tolling and the Secretary of Labor's July 12, 1990 decision is final and is dispositive of the issues raised in the instant appeal. Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991).

Complainant argues, in effect, that the December 20, 1990 settlement must be approved by the Secretary of Labor and therefore the initial case is still open. True enough the statute does require approval of the Secretary of settlements. Fuchko v. Georgia Power Co., 89 ERA 9, 10. However the instant case was settled after the Secretary of Labor's order of July 12, 1990 had become final dismissing the case. It is not believed that the Secretary retains jurisdiction after such a dismissal. Assuming arguendo that there is still a residue of jurisdiction left on the issue of the settlement, the facts in the record before me would not permit me to recommend as to whether the settlement is fair, adequate and reasonable. For instance, I have not been made aware of the value of the property right that the claimant had in his job or factors in mitigation and I would therefore not be able to assess whether the amount agreed upon is reasonable. In the event the secretary believes that jurisdiction is still retained as to the settlement, a copy of the agreement is contained in the file for the Secretary's review.

Lastly, the complainant appears to argue that its appeal to the Circuit Court had the effect of tolling the time limitation. Its not clear to me the basis for such a contention especially since the Court of Appeals dismissed the case for a default on the part of Mr. Gunderson. Further, no authority is cited for this proposition.

The order that follows is based on the foregoing discussion and findings.

This matter having been previously disposed of by a final order of the Secretary of Labor on July 12, 1990, it is dismissed with prejudice.

      Glenn Robert Lawrence
      Administrative Law Judge