CASE NO. 90-ERA-22

In the Matter of

CURTIS GIBSON,
    Complainant,

    v.

ARIZONA PUBLIC SERVICE
COMPANY, and ARIZONA NUCLEAR
POWER PROJECT,
    Respondent.

   This proceeding arises under Section 210 of the Energy Reorganization Act (hereinafter "the Act"), 42, U.S.C. § 5851, and the regulations issued pursuant thereto 29 C.F.R. Part 24.

   Complainant, Curtis Gibson, appealed, on January 31, 1990, a determination finding his complaint under the Act to "contain insufficient information to determine the timeliness and coverage under applicable statues". Shortly after filing this appeal, Complainant, through counsel, filed a motion to remand this matter to the Wage and Hour Administrator.

   In this motion, Complainant asserted that the Assistant District Director's determination of insufficiency was improper and that remanding the matter for an investigation on a priority basis pursuant to 29 C.F.R. §24.4 was appropriate relief. In support of his contention that the determination was improper, Complainant asserted that in Bassett v. Niagara Mohawk Power Company, Case No. 86-ERA-2, "the Secretary of Labor ("SOL") issued an Order to Remand .... (after determining) that a 'Complainant is not required to set forth proof in his complaint, id., at p. 6, and that a complaint cannot be dismissed 'on the ground that it fails to state a cause of action'".

   Subsequent to filing this motion, Complainant filed an alternative motion to vacate the findings of Assistant District Director due to lack of subject matter jurisdiction. Complainant asserted that on February 8, 1990, the Acting Administrator advised Complainant that she was "vest[ing] the 'San Francisco Wage and Hour regional Office' with 'administrative jurisdiction' over Mr. Gibson's complaint." Complainant argued that because the Acting Administrator has jurisdiction to investigate claims filed under the Act, her decision to assign the complaint to the San Francisco regional office establishes that the Assistant District Director's determination of insufficiency was issued without authority.

   Respondent, Arizona Public Service Company and Arizona Nuclear Power Project, filed responses to both of Complainant's motions. With respect to the motion to remand, Respondent asserted that the complaint "falls far short of what is required under the federal regulations". Respondent cited subsection 24.3, which requires complaints to "include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation." 29 C.F.R. §24.3(c). Respondent argued that Complainant's failure to comply with the regulatory requirements was particularly inexcusable in light of the fact that at the time of filing, Complainant was not only represented by counsel, but that counsel drafted the complaint.

   Respondent also contends that the case law relied upon by Complainant is distinct from the instant matter and therefore fails to support the motion to remand. Respondent maintained that unlike Niagara Mohawk where the Secretary held that complaints are not required to contain proof of discrimination, this complaint was rejected because it "lacked the essentials to determine if Mr. Gibson was even covered under" the Act. Respondent also asserted that the complaint in Niagara Mohawk was found to contain "the necessary elements of a prima facie case", which is not true here.

   In Niagara Mohawk, the Secretary addressed the question of whether a complaint containing simply the allegation "that Respondent retaliated against him because Complainant performed his quality assurance functions of identifying deficiencies in Respondent's nuclear quality assurance program." Niagara Mohawk at 5. The Secretary ruled that this was a sufficient statement of the acts or omissions believed to constitute the violation.

   As both parties have indicated in their papers, the Secretary also stated that "it is not required that every element of a legal cause of action be set forth in an employee's section 5651 complaint." Id. As Respondent pointed out, however, Niagara Mohawk is not on all fours with the instant matter. The disputed in this matter is that the complaint does not contain a time reference, and therefore it is unclear whether the alleged violations took place within the statute of limitations.

   The regulations explicitly state that "the Administrator shall complete the investigation, determine whether the alleged violation has occurred, and give notice of the determination which shall contain a statement of reasons for the findings". 29 C.F.R. §24.4(d)(1) (emphasis added). Rejecting a complaint solely on the basis of nonconformity is neither contemplated under the regulations nor is it appropriate given the underlying policy of employee protection. Instead, the regulations dictate that these determinations shall consist solely of an assessment of whether the complaint is with or without merit. 29 C.F.R. §24.4(d)(2)(i) and 29 C.F.R. §24.4(d)(3)(i).

   Complainant's complaint is strikingly lacking in specific information about the alleged violation. It fails to provide Complainant's position, dates of employment, alleged protected activity with pertinent date(s), and alleged discriminatory act(s) with pertinent date(s). in view of the purposes of the Act, remanding the matter to the Assistant District Director is the only appropriate decision. However, on remand the Complainant is directed to supply the Assistant District Director with all information in his possession concerning the alleged acts of discrimination in compliance with the regulations at 29 C.F.R. §24.3.¹ Accordingly, this matter is REMANDED to the Assistant District Director for purposes of conducting an investigation consistent with the regulations.

   With respect to Complainant's motion to vacate the decision of the Assistant District Director for lack of subject matter jurisdiction, such motion is specious at best. Any confusion about the Assistant District Director's authority in this matter was created by Complainant's counsel, who filed multiple complaint's. Clearly the Assistant District Director has authority to conduct the necessary investigation. The motion is DENIED.

¹This office has no supervisory authority over the Administrator's investigation. However, as noted above, the regulatory scheme contemplates that an investigation of the allegations would take place. If the original complaint is deficient in detail, rather than summary dismissal, perhaps the better course would have been to seek additional data from Complainant. Perhaps such attempts were made in this case. However, the record before me does not indicate that additional data was sought.