U.S. Department of Labor Office of Administrative Law
Judges Heritage Plaza, Suite 530 111 Veterans Memorial Blvd. Metairie, LA
70005
DATE: August 11, 1987
CASE NO. 87-ERA-26
IN THE MATTER OF
RUBEN RICHARD GARCIA,
Complainant
vs.
EBASCO SERVICES, INC.,
Respondent
Appearances:
Billie Pirner Garde, Esquire
For the Complainant
Before: C. RICHARD AVERY
Administrative Law Judge
DECISION AND ORDER REINSTATING COMPLAINT
AND REMANDING FOR INVESTIGATION
Background
This matter arises under the employee protection provisions
of the Energy Reorganization Act (ERA), 42 U.S.C. § 5851. The
Complainant filed a request for a hearing from the action of the
Administrator, Employment Standards Administration, Wage and Hour
Division (Administrator), who determined that the complaint in
this matter was not timely filed.
Ruben Richard Garcia (Complainant) filed a complaint under
the employee protection provision of ERA. The envelope
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containing the complaint was postmarked November 26, 1986. The
complaint stated that the Complainant became aware of his rights
under ERA on approximately October 26, 1986. By letter dated
December 23, 1986, the Administrator determined the Complainant's
complaint alleging job discrimination by EBASCO Services, Inc.
(Employer), could not be considered and no investigation of the
complaint would be conducted. As reasons, the Administrator
stated that the complaint was not timely filed because the
Complainant became aware of ERA on October 26, 1986, and did not
file a complaint within 30 days thereafter. The letter of
December 23, 1986, also provided that the Complainant had five
days from the receipt of that letter in which to request a
hearing. Nothing further was received from the Complainant until
a telegram dated April 30, 1987, from an attorney, Billie Pirner
Garde, stating that the Complainant had first become aware of the
denial letter on April 29, 1987, The telegram was directed to
the office of Administrative Law Judges and requested a hearing
on the issues of timeliness and the merits of the complaint.
Issues
1. Was Complainant's complaint timely filed?
2. Did Complainant timely request a hearing from the
Administrator's denial of his complaint?
Findings of Fact and Conclusions of Law
No hearing was held in this matter. By Order dated May 29,
1987, the Complainant was granted 20 days in which to show cause
in writing, supported by affidavits and other documentary
evidence, why his complaint should be considered timely and
whether he timely requested a hearing regarding the rejection of
his complaint. Opposing parties were granted 15 days thereafter
in which to respond. By letter dated June 12, 1987, Complainant,
through counsel, waived time requirements in the determination of
this matter and sought, and was granted, an extension until the
first week of July, 1987, in which to file a response. Complainant's
response was received on July 6, 1987; however, because
there was not service on all parties involved, Complainant's
counsel was instructed by a staff member of this office to serve
the response on all parties. According to a certificate of
service received on July 20, 1987, all parties were served by
mail on July 14, 1987. To date, however, no responses have been
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forthcoming from any other parties and the time prescribed in the
Show Cause Order has now passed. Consequently, it is the
Complainant's brief, affidavits, and documentation upon which I
rely in making my determination, all of which are made part of
the record in this case.
The first issue to be resolved is whether the Complainant's
complaint was timely filed. Based upon the evidence I have
before me and my interpretation of the applicable law, I find
that it was timely filed.
29 C.F.R. § 24.3(b) states that "For the purpose of
determining timeliness of filing, a complaint filed by mail shall be
deemed filed as of the date of mailing." In initially denying the
claim as untimely, the Administrator found that because the
Complainant first became aware of his rights under ERA on October
26, 1986, and the envelope in which his complaint was enclosed
was postmarked November 26, 1986, that his complaint was filed
one day beyond the 30 day limit set by 29 C.F.R. § 24.3(b). In
the absence of other information, I understand the rationale
behind the Administrator's determination, but now having the
benefit of an uncontradicted affidavit of the Complainant wherein
he swears that on Sunday, November 23, 1986, he "put" the
complaint in "an out of town mail box in back of the Bay City,
Texas, Post Office," I find that the complaint was actually
mailed on November 23, 1986, and thus was timely filed within the
30 day period prescribed by 29 C.F.R. § 24.3(b). (See in this
regard Rex v. EBASCO, 87-ERA-6, slip op. of April 13, 1987,
wherein the Secretary of Labor held that the date of filing
commences when the letter is placed in the mailbox, not the date
the letter is postmarked.)
The remaining issue to be resolved is whether the telegram
of April 30, 1987, requesting a hearing from the Administrator's
determination of December 23, 1986, was timely. I find that it
was. 29 C.F.R. § 24.4(d)(2)(i) states that the Complainant must
request a hearing "within five calendar days of its receipt."
The Complainant has sworn without contradiction that he heard
nothing concerning the Department of Labor's actions until his
attorney informed him on April 29, 1987, that his complaint had
been denied. To this end, Complainant's attorney, Billie Pirner
Garde, has sworn that on April 29, 1987, she placed a telephone
call to the Houston Wage and Hour Division and was directed to
the Washington office of the Administrator, where she was
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informed that the claim was denied on December 23, 1986. On the
day following this telephone conversation a hearing was requested
by telegram. Therefore, based upon the affidavits, and because
29 C.F.R. § 24.4(d)(2)(i) does not start the time running until
"receipt" of the determination, I find that the Complainant
timely sought a hearing once he received notice of the
Administrator's determination.
Conclusion
For the foregoing reasons, I find the Complainant's
complaint and request for hearing were timely filed; however, as
no investigation has been conducted in this matter pursuant to 29
C.F.R. § 24.4(b) the case must be remanded to the Administrator
for such action.
ORDER
It is hereby ORDERED:
1. That the complaint filed in this case under the Energy
Reorganization Act of 1974 was timely;
2. That the request for hearing on the complaint following
the determination by the Administrator of the issue of timeliness
was timely; and,
3. That this case is remanded to the Administrator, Wage
and Hour Division, Employment Standards Administration, for an
investigation on a priority basis pursuant to 20 C.F.R. § 24.4.