U.S. Department of Labor
Office of Administrative Law Judges
Mercedes City Center
200 S. Andrews Avenue, Suite 605
Ft. Lauderdale, FL 33301
DATE: JAN 25 1988
CASE NO: 87-ERA-19
In the Matter of
CARL ROSE
Complainant,
v.
NUCULEAR FUEL SERVICES, INC.
Respondent,
SUMMARY DECISION
This matter arises pursuant to a complaint filed under
the Energy Reorganization Act, 42 U.S.C. Section 5851. The
employer protection provisions prohibit an employer from
discharging or otherwise discriminating against an employee
for engaging in a protected activity. An employee is protected
under these provisions where the employee has commenced a
proceeding or cause one to be commenced, has testified in or
is about to testify in a proceeding, or has assisted or
participated in any planner in a proceeding or in any other
action to carry out the purpose of the particular environmental
statute involved.
The hearing in the above-styled matter was held on July
14, 1987, at which time the parties presented evidence and testimony
regarding the issue of the timely filing of the complaint
and, in the alternative, the application of equitable tolling
principles.
Statement of the Case
Complainant's employment with Nuclear Fuel Services, Inc.
terminated on November 5, 1981. Complainant testified that
he was discharged due to his report to a Nuclear Regulatory
[Page 2]
Commission representative regarding an incident which occurred
at the Nuclear Fuels, Inc. site in late October, 1981.
On November 23, 1981, Complainant filed an application for
unemployment benefits with the Tennessee Department of
Employment Security. On December 31, 1981, Complainant's
attorney submitted a letter to the Department of Labor Wage
and Hour Division notifying the Department of Complainants
claim and specifically requesting that the 30 day limitation
filing provision be waived and extended.
Complainant testified that he had only two reasons for
waiting until December 29, 1981, to consult an attorney after
filing his unemployment application on November 23, 1981. He
wanted to wait for the determination of his eligibility for
unemployment compensation and he also took a one week vacation
during the holidays to visit his son.
On September 2, 1982, and March 20, 1987, the Department
of Labor declined to investigate Complainant's claim due to
their determination that the complaint was not filed in a
timely manner and that there was no basis for waiving the 30
day filing period requirement.
Claimant futher testified that no representative of
Nuclear Fuels, Services Inc. told him that he did not have a
right to file a complaint with the Department of Labor he
was not encouraged to refrain from seeking legal advice in
exchange for a promise to be re-hired by Nuclear Fuels Services
Inc. and no representative of Nuclear Fuel Services, Inc. told
him that they would protest his unemployment application if he
sought legal advice.
Findings of Fact
and Conclusions of Law
The findings of fact and conclusions of law which follow
are based upon my observation of the appearance and demeanor
of the witnesses who testified at the hearing and upon my
analysis of the entire record, arguments of the parties, and
applicable regulations, statutes and case law.
The implementing regulation at 29 C.F.R. Section 24.3(b)
[Page 3]
provides that:
Section 24.3 Complaint.
(b)Time of filing. Any complaint shall
be filed within 30 days after the
occurrence of the alleged violation.
For the purpose of determining
timeliness of filing, a complaint
filed by mail shall be deemed filed
as of the date of mailing.
I concur with the determination of the Department of Labor
Employment Standards Administration. I find that the complaint
submitted on December 31, 1981, was not timely filed and that
the equitable tolling principles are not applicable in this
instance.
There was no testimony or other significant evidence which
showed that the Complainant intended his state unemployment
application to be considered as a complaint arising under the
Energy Reorganization Act. Also, the Complainant does not
contend that he was actively mislead by the Respondent as to
his cause of action or that Respondent prevented him from
asserting his rights in some way.
Accordingly, I hereby order a summary decision in favor of
Respondent, Nuclear Fuel Services, Inc.
