DATE: October 16, 1987
CASE NO: 87-ERA-42

IN THE MATTER OF

CLARA LASTRE
    Complainant

    v.

VETERANS ADMINISTRATION
LAKESIDE MEDICAL CENTER
    Respondent

   The above styled action is a proceeding under the Toxic Substance Control Act, 15 U.S.C. 2622, (hereinafter called the Act), and implementing regulations at 29 C.F.R. Part 24, based upon a complaint filed by Clara Lastre versus the VA Lakeside Medical Center, Chicago, Illinois. A determination was made on July 13, 19871 by Daniel P. New, Area Director, Employment Standards Administration, Wage and Hour Division, United States Department of Labor (hereinafter called ESA) that the complaint was not timely filed. ESA advised the Complainant that a hearing could be requested by telegram to the Chief Administrative Law Judge for the Department of Labor within 5 days. The Complainant has requested a hearing by telegram on July 20, 1987. This matter was assigned on September 1, 1987, to the undersigned Judge for disposition.

   On September 2, 1987, an order was issued requiring the parties to respond with current addresses and telephone numbers, and to have counsel for the parties enter an appearance in the case so that a hearing could be scheduled.

   The response from ESA was forwarded to the undersigned by Mr. Lloyd J. Hill, Assistant Area Director, Employment Standards Administration. The documents filed by Mr. Hill consist of two complaints filed by the Plaintiff, Clara Lastre. The first complaint

is dated 9/29/86, but is stamped as having been received by "ESA/WHD Department of Labor, Chicago, AD" on May 19, 1987. The second complaint is dated May 15, 1987, and is also stamped as received on May 19, 1987. Both complaints allege that the Plaintiff was improperly denied a promotion on August 29, 1986. Thus, it appears on the face of both complaints that they were not filed within 30 days after the occurrence of an alleged violation of the Act as,required by 29 C.F.R. Section 24.3(b).

   The Plaintiff, Clara Lastre, has filed a response on September 15, 1987, and has included a number of documents relating to her actions in regard to this matter. However, in my review of these documents, there is no evidence that a complaint was filed with the Department of Labor within 30 days after the occurrence of an alleged violation of the Act as required by 29 C.F.R. Section 24.3(b).

   Accordingly, an order was issued on September 18, 1987, requiring the Plaintiff to show cause in writing within 20 days why an order should not be issued affirming the decision of the Employment Standards Administration, which denied her complaint on the grounds that it was not timely filed, pursuant to 29 C.F.R. Section 24.3(b).

   On September 29, 1987, an appearance was made by Tbornton E. Cherry, Esq., Attorney at Law, for the Respondent, VA Lakeside Medical Center; and included with that appearance was a motion on behalf of the Respondent to dismiss the complaint as untimely filed, The Plaintiff responded to the Order to Show Cause with a letter dated October 12, 1987. In her response, the Plaintiff indicates that she believes that her complaint was timely filed because she was originally told by the Department of Labor that it was timely since it had been included in her original claim at VA Lakeside Medical Center.

   The Plaintiff's complaint alleges that she was the victim of discrimination by the Respondent's notification on August 29, 1986, that she was not selected for the position of Supervisory Technologist, GS -644-11, Hematology Section. Assuming that the activities of the Plaintiff were protected activities under the Toxic Substance Control Act; and assuming that her failure to be promoted was the result of the Respondent's retaliation for such protected activities, 29 C.F.R. Section 24.3 (b) provides that,

Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purposes of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

   Thus, any complaint filed by the Plaintiff, in order to be timely filed, must have been at least mailed on or before September 29, 1986. The record in this case contains two complaints filed by the Plaintiff.

   The first complaint is dated 9/29/86, but is stamped as having been received by "ESA/WHD Department of Labor, Chicago AD" on May 19, 1987. This complaint consists of two pages, the first of which is a document entitled "Complaint of Discrimination in the Federal Government because of Race, Color, Religion, Sex or National Origin." On this first page of the complaint, there is no information at all which alleges a violation of the Toxic Substance Control Act. However, the statement, "See Attached," is inserted into the section (numbered "7"), where an explanation of the complaint of discrimination would be made.

   Page two of the complaint contains a 6 item explanation of how the Plaintiff maintains she was the result of discrimination. In item "4" of the second page, the Plaintiff does allege facts, which if credited, could form the basis of a complaint under the Act. However, this second page of the first complaint is dated at the top of the page, "10/8/86." This date is handwritten by an unknown author.

   The Plaintiff's second complaint is dated May 15, 1987, and is also stamped as received on May 19, 1987, by "ESA/WHD Department of Labor, Chicago, AD." However, it is clear on the face of this complaint that it was filed more than 8 months after the alleged discriminatory action by the Respondent.

   The Plaintiff has filed her response to my original order and the pre-hearing order on September 15, 1987 (prior to the issuance of the show cause order), in which she submits documentation in support of her claim. This documentation also includes another copy of her first complaint, which is identical to the copy described above, with three exceptions. On the first page, there is a date stamped which reflects the date of October 9, 1986 by "V----- (illegible) (I believe from the Plaintiff's Show Cause response that this is "VALMC"), Director, Chicago, Illinois", and additionally contains the initials "Jlm" at the top of the page. These markings are not on the earlier copy of the first complaint. The second page of this copy also differs from the

earlier copy, in that the handwritten date of "10/8/86" is not present, but instead contains the typed date of "October 8, 1986."

   I have carefully examined the documents provided by all parties, and particularly the Plaintiff including her response to the Order to Show Cause, and I find that there is no evidence that the Plaintiff filed a complaint in writing within 30 days of August 29, 1986, with any government agency which alleges a violation of the Toxic Substance Control Act.

   Even giving the Plaintiff the benefit of any doubt and assuming that she filed the EEO complaint with VA Lakeside Medical Center on September 29, 1986, that document makes no reference to any complaint of protected activities under the Toxic Substance Control Act. It is only on the second page of that document, which is clearly dated 10/8/86, that a reference is first made to the allegation of reprisal for protected activities. Thus, there is no evidence of the filing of a written complaint with any government agency within 30 days of August 29, 1986, which alleges discrimination due to the Plaintiff's protected activities. Therefore, I conclude that there is no factual issue in dispute which requires a formal hearing to be conducted. The motion of the Respondent to dismiss the complaint as untimely filed must be Granted.

   Accordingly, it is Recommended that the complaint of Clara Lastre must be dismissed as not having been timely filed under the provisions of 29 C.F.R. Section 24.3(b). Pursuant to 29 C.F.R. Section 24.6, this Recommended Decision shall be forwarded to the Secretary of Labor for a final order.

       RICHARD E. HUDDLESTON
       Administrative Law Judge