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 15, 1999
CASE No.: 1999-CAA-24
In the Matter of
MICHAEL C. GROSS, Complainant
against
RADIAN INTERNATIONAL,
ENVIRONMENTAL DIMENSIONS, INC.,
STONE & WEBSTER,
Respondents
ORDER DENYING MOTIONS
This proceeding arises under the employee protective provisions of the Clean Air Act
("CAA"), 42 U.S.C. § 7622 (1994), Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9610 and the regulations
implementing the environmental whistleblower laws which appear at 29 C.F.R. Part 24 (1996). Respondents
have submitted several motions which are pending before the court.
1. Radian International's ("Radian's") Motion for Continuance
Radian submitted a Motion for Continuance dated September 23, 1999. The motion
seeks a 30 day extension in which to file an Answer, and an additional 30 day extension of the hearing date.
This motion was based in part on the re-assignment of the matter to new counsel, and in part on the "large
number of allegations" in the Complaint. Despite these obstacles, Radian managed to submit an Answer
only six days later, September 29, 1999. As Radian has already submitted an Answer within the required time
period, this portion of the Motion for Continuance is moot.
Regarding the request for additional time prior to the hearing, the court is disinclined to
grant the motion. Very strict time limits have been set-up in which to hear and decide these types of cases,
unless the parties agree otherwise. The applicable regulation, 29 C.F.R. § 24.6(a) provides that
"no requests for postponement shall be granted except for compelling reasons or with the consent of all
parties." As the court is not aware of any other party requesting or agreeing to a continuance, and the
court finds no compelling reason for delay, the Motion for Continuance is hereby DENIED.
[Page 2]
2. Motions to Dismiss
As an initial matter, the court notes that 29 C.F.R. § 24.6 (e)(4)(ii) provides that
where a dismissal is sought, the administrative law judge "shall issue an order to show cause why the
dismissal should not be granted and afford all parties a reasonable time to respond to such order."
However, due to the time constraints in this case, and the pleadings already filed, the court sees no need to issue
a formal Order to Show Cause. Respondents have submitted arguments for dismissal of Complainant's case;
Complainant has already filed a response imploring the court not to dismiss. Therefore, the court is persuaded
that the parties have had an adequate opportunity to address these issues at the present stage of the proceedings.
2. Radian's Motion to Dismiss
Timeliness
Both the CAA and CERCLA provide that any employee who believes he has been
discharged or discriminated against in violation of the statute may file a Complaint with the Secretary of Labor
within 30 days after the alleged violation occurred. (See also, 29 C.F.R. § 24.3(b)(1)). The
applicable regulations provide that a Complaint must be in writing (see 29 C.F.R. § 24.3(c));
if filed by mail, the Complaint will be deemed filed as of the date of mailing. See 29 C.F.R. §
24.3(b)(1).
Radian argues that Complainant failed to file his Complaint within the required 30 day
period. Complainant was terminated May 17, 1999 (See Complainant's September 14, 1999
Complaint (submitted in accordance with the September 2, 1999 Pre-Hearing Order); August 16, 1999 letter
from Edward Walton, U.S. Dept. Of Labor, p. 1 ("Walton Letter")); Complainant's first written
Complaint to the U.S. Department Of Labor was dated July 18, 1999, and was not received (date stamped)
until July 26, 1999. (See Walton Letter, pp. 2-3). Therefore, Radian argues that Complainant failed
to file a valid Complaint under the regulations within the requisite thirty day period. (See Radian's
September 29, 1999 Motion to Dismiss, p. 2).
Complainant provided several excuses for the apparent late filing. First, Complainant
states he was busy for several weeks seeking other employment opportunities. (Complainant's October 2, 1999
Letter Responding to the Motion to Dismiss, pp. 1-2). Despite Complainant's understandable desire to find
another job, such activities are insufficient reason for the court to toll or excuse the running of the thirty day
period. (See,e.g.,Rose v. Nuclear Fuel Services, Inc., 87-ERA-19 (ALJ Jan.
25, 1988), aff'd, (Sec'y June 29, 1990), aff'd sub nom., Rose v. Dole,
945 F.2d 1331 (6th Cir. 1991) (per curiam)(refusing to excuse delays in filing complaint based on pending
unemployment application and vacation to visit son).
[Page 3]
Secondly, Complainant contacted the U.S. Nuclear Regulatory Commission (NRC) on
June 2, 1999 ( Respondents were engaged in the removal of radioactive soil); Complainant alleges he was told
he had 180 days to file a Complaint, but was encouraged to contact the U.S. Dept. of Labor / Occupational
Safety & Health Administration (OSHA) in case another agency had jurisdiction. (Complainant's October 2,
1999 Letter, pp. 2-3). Due to other commitments, Complainant did not contact OSHA until June 10, 1999,
when he called the Kansas City office and spoke to Ms. Carol Brooks. (Seeid., p. 3).
Complainant says Ms. Brooks informed him of the relevant 30 day time limit, but repeatedly assured him that
his call would constitute the official date and time of filing for his claim. (Seeid., pp. 4-5).
While OSHA's dismissal letter admits the call took place, it states that the "alleged information could not
be verified." (Walton Letter, pp. 2-3).
OSHA then admits to a mysterious chain of errors and delays: "for some unknown
reason, the contact was not picked up on until June 28, 1999;" an investigator was assigned on June 30,
1999, but "first became aware of the assignment on July 7, 1999 and immediately phoned
[Complainant]." (Walton Letter, p. 3). During this call, Complainant was again informed of the 30 day
filing requirement. OSHA finally received a hand-written Complaint from Complainant on July 26, 1999 (the
Complaint is dated July 18, 1999, and time stamped received July 26). (See Walton Letter, p. 3).
Based on the above, OSHA recommended dismissal of the complaints as untimely. (See Walton
Letter, p. 4). However, Complainant alleges he has since received a "very apologetic message stating that
June 10, 1999 was in fact the official date [his] claim was received and filed . . . and [reassuring Complainant
that he] had satisfied the 30-day time limit . . . ." (Complainant's October 2, 1999 Letter Responding to
the Motion to Dismiss, p. 6).
Complainant was fired May 17, 1999; the earliest date a written Complaint could be
considered filed by Complainant is July 18, 1999, nearly sixty days later (assuming Claimant mailed his complaint
that day under 29 C.F.R. § 24.3(b)(1)). Normally phone calls are not considered "filing a
complaint," because the regulations clearly state that a Complaint must be written. (See 29
C.F.R. 24.3(c)). However, several decisions suggest that a written OSHA memorandum of telephoned
allegations could be sufficient to satisfy the "written complaint" obligation. (See,e.g.,Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1, n. 6 (CERCLA)(ARB
Sept. 17, 1997), citingDartey v. Zack Co. of Chicago, 82-ERA-2, at 5-6 (Sec'y, Apr.
25, 1983)). It is possible that later discovery of this case law or of a written memorandum of the call may have
led to the "very apologetic message stating that June 10, 1999 was in fact the official date [his] claim was
received and filed" which Complainant alleges he received. (See Complainant's October 2,
1999 Letter Responding to the Motion to Dismiss, p. 6). However, the existence of a written memorandum of
the call is a factual question which must await the formal hearing.
1 "Tolling" refers to a temporary
suspension or stop in the running of the filing period. This is essentially what Complainant is arguing for,
despite his failure to so name his argument.