U.S. Department of Labor
OFFICE OF ADMINISTRATIVE LAW JUDGES
Mercedes City Center
200 S. Andrews Avenue, Suite 605
Ft. Lauderdale, FL 33301
Date: AUG 27 1991
IN THE MATTER OF
LARRY D HENDERSON
Complainant,
v.
TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 90-ERA-25
MICHAEL A. SMITH
Complainant,
v.
TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 90-ERA-50
DEWEY RAY SMITH
Complainant
v.
TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 91-ERA-51
LARRY D. HENDERSON
Complainant
v.
TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 91-ERA-26
MICHAEL A. SMITH
Complainant
v.
TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 91-ERA-5
[Page 2]
DEWEY RAY SMITH
Complainant
v.
TENNESSEE VALLEY AUTHORITY
Respondent,
Case No. 91-ERA-6
BEFORE: GILES J. MCCARTHY
Administrative Law Judge
RECOMMENDED DECISION FOR SUMMARY JUDGMENT
AND ORDER DISMISSING CASE NOS. 90-ERA-25, 90-ERA-50, and 90-ERA-51
This is a proceeding under the Energy Reorganization Act of
1974 (ERA) as amended 42 U.S.C. 5851 et. seq. Pursuant to joint
requests for consolidation of the cases appropriate orders
directing consolidation have been issued. Time limitations have
been waived by complainants.
In case nos. 90-ERA-50 and 90-ERA-51, complaints were filed
by Michael A. Smith and Dewey Ray Smith respectively on July 3,
1990 alleging that their jobs as Nuclear Inspectors, Grade SE-5,
at the Sequoyah plant of TVA were abolished effective June 16,
1989 by notice given them on May 8, 1989. In their response to
requests for admissions filed by TVA they so admitted.
In case no. 90-ERA-25, Larry D. Henderson filed a complaint
alleging his job as a Nuclear Inspector (NC) was abolished on
June 16, 1989 by notice dated May 8, 1989.
Henderson also alleged that he was discriminated against by
TVA "in the selection of nuclear inspectors after the reduction
in force to permanent positions. Many of the persons so selected
having less seniority less certification and a lower position on
the retention roster, with selections being made between June 16,
1989 and June 12, 1989 and continuing up to the date of the
complaint".
TVA has filed a motion for partial summary judgment in the
above three cases on the grounds of res judicata and untimely
filing.
Specifically, TVA contends that all the parties, who were
represented by counsel, participated in a hearing before the
[Page 2]
Merit Systems Protection Board (MSPB) on September 28 & 29, 1989,
that the A.L.J. in that case gave full opportunity for
complainants to air their grievances.
On November 2, 1989, the A.L.J. of the MSPB issued a
decision finding that the Reduction in Force was correct for
legitimate management reasons, that no nuclear inspector with
less retention standing than complainants were retained in their
competitive level and that complainants had not proved their
affirmative defense of reprisal. The decision became final on
failure of claimant to file an appeal with the U.S. Circuit
Court.
Answers to a Notice to Show Cause as to why the complaints
should not be dismissed as a partial summary judgment be issued
have been filed by counsel for complainants, alleging that the
doctrine of res judicata is unavailable for agency decisions.
I turn first to the issue of untimely filing. The Act and
implementing regulations require that a complaint be filed within
30 days. (42 U.S.C. 5851(b); 29 C.F.R. 24.3(b)).
In each of the three cited cases, the complainants received
notice on May 8, 1989 of their RIF effective June 16, 1989.
Complaints were filed on July 3, 1989.
Under these facts, I find that the complaints were first
notified of their reduction in force on May 8, 1989, and this
notice triggered the thirty day period to file. When Congress
spells out a strict time limit on filing a complaint, failure to
adhere thereto is fatal (Federal Group Insurance Corporation v.
Merrill, 332 U.S. 380 (1987).
In Delaware State College v. Ricks, 449 v. 250 (1980),
tenure was denied a faculty member. The Court noted that
"discrimination occurred --- and the filing
period therefrom commenced by the time the
tentative decision was communicated to Ricks.
This is so, even though the eventual loss of
a teaching position did not occur until
later."
The same position has been adopted by the Secretary of
Labor, in a virtually similar case to the present case. (Riden
[Page 4]
v. Tennessee Valley Authority, 89-ERA-89, final dec: C. July 18,
1989). The complainant a TVA employee, received notice of his
reduction in force on May 12, 1989, to be effective June 16,
1989: Complaint was filed on July 11, 1989. The Secretary in
her final decision and order accepted the recommended decision of
the Administrative Law Judge who found
"The time limits run from the time of the
discriminatory act. A complaint which is not
filed within thirty days after the
discriminatory act, is time barred.
Where the alleged discriminatory act is a
reduction in force, the discriminatory act is
the communication of notice of RIF to the
plaintiff, as opposed to the last date of
employment."
The Secretary, accordingly adopted the recommended decision
that the claim was time barred and dismissed the claim (See also
McGarvey v. EG & G Idaho and Earl A. Bradford, 87 ERA-31, final
decision September 10, 1990).
Nor do I find any allegation that the complainants were
misled in any way by T.V.A. Each admitted he was notified on May
8, 1989 that he would be terminated effective June 16, 1989 in
clearly unmistakable terms. Accordingly, it is recommended that
the claims of the three complaints be dismissed for untimely
filing. I find no allegation of equitable tolling.
This case also involves the issue of whether res judicata
(or collateral estoppel) is applicable in light of the MSPB final
decision.
The Deputy Secretary of Labor in the case of Vissi
Corporation DBA National Security Services and Andrew Godbort
issued a final Decision and order, case no. SCA-1233 affirming
such procedures. In that case under the McNamara O'Hara Service
Contract Act of 1965 as amended, the Solicitor introduced in
evidence the CAB decision and argued that because the issue of
identity of contractors had been previously litigated before an
administrative judge acting in a judicial capacity, the decision
of the agency on the issue must be given binding effect in the
MSCA proceeding.
[Page 5]
The Deputy Secretary found it was error for the A.L.J. to
refuse to give preclusive effoct as to issues decided in the CAB
decision, citing the U.S. Supreme Court in the case of Federated
Department Stores Inc. v. Moltie, 452 U.S. 394, 398-399 (1981).
The Deputy Secretary also found that
"the CAB decision must be given preclusive
effect in the present proceeding. It is well
settled that an administrative decision may
be given preclusive effect. The test, as
stated by the Supreme Court, is when an
administrative agency is acting in a judicial
capacity and resolves disputed questions of
fact properly before it which the parties
have had an adequate opportunity to litigate
the courts have not hesitated to apply res
judicata to enforce repose" United States v.
Utah Const. & Mining Co., 384 U.S. 394, 422
(1986).
Citing Montana v. United States 440 U.S. 147, 153 (1979)
the Deputy Secretary found that the test for preclusion involves
three distinct tests. "(1) is the issue identical to that
actually decided by another decision made (2) was the issue
necessary to the earlier judgment? and (3) did the party against
whom preclusion would operate have a full and fair opportunity to
litigate the issue."
In the MSPB proceeding, identical issues were involved. The
MSPB was an administrative hearing in which claimants and their
counsel fully participated and the issues presented here were
issues necessary to the prior MSPB decision, and counsel for
complainants was given full, fair opportunity to litigate the
issues.
As pointed out by the Deputy commissioner in the Nissi case
"If respondents were dissatisfied with the
CAB decision, they could have sought a
correction on direct appeal --- which they did
not do. Accordingly the A.L.J. here erred in
refusing to give preclusive effect to the
issues litigated in the CAB decision --- "
[Page 6]
Accordingly, I find the complaints herein, based upon the
prior decision in the MSPB case involving the same parties and
issues, precluded further litigation thereto. Accordingly, I
recommend that the cases 90-ERA-50 and 90-ERA-51 be dismissed on
the grounds of res judicata; and that 90-ERA-50, 90-ERA-51 and
90-ERA-25 be dismissed as untimely.
I note that complainants have, by telegram dated August 16,
1991 requested that the cases not be dismissed since their
counsel has suddenly retired. However, I note that in the three
cases where I have recommended dismissal, a Notice to Show Cause
was issued and briefs were received from complainants' prior
counsel. The remaining cases are not dismissed at this time.
Recommended Decision
It is recommended that case nos. 90-ERA-25, 90-ERA-50 and
90-ERA-51 be DISMISSED.
The Act grants an award of attorney's fees solely in cases where the
claimant is adjudged to be entitled to benefits. Since benefits were not awarded in this case, the
Act prohibits the charging of any fee to Claimant for representation services rendered in pursuit
of this claim.
GILES J. McCARTHY
Administrative Law Judge
GJM/dle
Ft. Lauderdale, FL
NOTICE OF APPEAL RIGHTS: Any party dissatsified with this Decision and Order may
appeal it to the Benefits Review Board within 30 days from the date of this decision by filing a
Notice of Appeal with the Benefits Review Board, 1111 20th Street, N.W., Suite 757,
Washington, D.C. 20036.