Overton v. Shell Oil Co., 2000-WPC-3 (ALJ Oct. 10, 2000)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

DATE: OCTOBER 10, 2000

CASE NO. 2000-WPC-3

IN THE MATTER OF

WILLIAM C. OVERTON,
    Complainant,

    against

SHELL OIL COMPANY,
    Respondent

   On October 3, 2000, Counsel for Complainant filed an unopposed motion to withdraw appeal of the U. S. Department of Labor's April 18, 2000 determination finding that Complainant had filed an untimely appeal under the Federal Water Pollution Control Act, (FWPCA), 33 U.S.C. 1367 of a January 19, 2000 performance evaluation and dismissing his complaint against Respondent.

   Having reviewed the motion and Respondent's pre-hearing submission, it appears as though the instant complaint which was filed with the Department's OSHA office on February 28, 2000 was untimely in that more than 30 days had passed since the alleged discriminatory act occurred, and there were no extenuating circumstances permitting an equitable tolling of the 30 day time period for filing such a complaint after occurrence of the alleged discriminatory action.

   Accordingly, I grant the motion to withdraw appeal and dismiss the hearing request.

   IT IS HEREBY ORDERED that the hearing scheduled for October 26, 2000 is hereby CANCELED.

   IT IS FURTHER ORDERED that the motion to withdraw appeal is GRANTED.

   ORDERED this 10TH day of OCTOBER, 2000, at Metairie, Louisiana.

       CLEMENT J. KENNINGTON
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room, S-4309, Frances Perkins Building, 200 Constitution Ave., N.W Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge, See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614(1998).