U.S. Department of Labor
Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
DATE: April 18, 1991
CASE NO.: 91-ERA-21
IN THE MATTER OF:
Ralph Harrison
Claimant
AGAINST
Stone & Webster Engineering
Corporation
Respondent
Appearances:
Kenneth D. Murphy, Esq.
For Complainant
Walter E. Graham, Esq.
For Respondent
Before: ANTHONY J. IACOBO
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
DISMISSING COMPLAINT
This matter arises under the Energy Reorganization Act of 1974
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as amended (ERA), 42 U.S.C. Sec 5851, and its implementing
regulations, 29 C.F.R. Part 24 (hereinafter referred to as the
Act). The Act prohibits any person from discharging or otherwise
discriminating against a protected group of employees engaging in
certain protected activity. Assuming for the purpose of this
action that Complainant meets all of the other criteria required in
the Act, the question for resolution at this time is whether or not
the complaint filed by Mr. Ralph Harrison is timely.
Section 210 of the Act provides:
Any employee who believes that he has been discharged or
otherwise discriminated against by any person in
violation of subsection (a) of this section may, within
thirty days after such violation occurs, file ... a
complaint with the Secretary of Labor. . . alleging such
discharge or discrimination.
42 U.S.C. § 5851(b)(1); see also 29 CFR § 24.3(b)
for a parallel requirement in the Department of Labor's regulations.
The record in this proceeding consists of the following: The
determination of the Assistant District Director, Wage and Hour
Division, Employment Standards Administration (ESA) with a
photocopy of Mr. Harrison's letter of complaint and letter of
November 20, 1990 from the Nuclear Regulatory Commission (NRC)
attached, JX 1, 10 pages, ny Order to Show Cause, JX 2, 2 pages;
and the reply of Complainant's counsel, dated April 5, 1991, and
attached affidavit with attached photographs and Statement of
Position of Stone and Webster Engineering Corporation and Concern
Disclosure Statement, JX 3, 12 pages.
The statements proffered by Respondent are, on their face,
submitted beyond the date stated in my Order to Show Cause. They
are filed but not considered in my disposition of this matter
because they are untimely and no good reason is offered for me to
waive this untimeliness.
The Order to Show Cause notes that the complaint, filed
December 14, 1990, complains of an action taken in August 1990 (JX
1 p. 3). In his response Complainant argues: 1) He was unaware of
the Act's time constraints; (2) he acted within 30 days of the date
in November when he complained to the NRC and was advised by the
NRC of his rights under the Act; (3) he intended to complain
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earlier to the NRC but was fearful of retaliation and wanted to
secure his benefits before taking action; (4) he was unaware of the
posted notice regarding his rights and was not otherwise advised by
his employer; (5) he has recently received a "bad reference."
In his accompanying statement, Complainant's counsel argues
the posted notices were difficult to see and the print was small.
It is also argued that Mr. Harrison was laid off and not "fired",
leaving some doubt as to whether the action taken was sufficiently
final and unequivocal to trigger the 30 day limitation period ....
citing English v. Whitfield, 858 F.2d 957 (4th Cir. 1988). JX 3
p.1. He also appears to argue that the 30-day limitation is
permissive and not compulsory.
The English case, cited above, contrary to counsel's argument,
clearly stands for the proposition that once a discriminatory
action takes place, the 30-day limitation starts to run. In the
circumstances presented, the lay-off notice, if believed to be
initiated as a retaliatory measure because of protected activity by
the employee, triggers the running of the period from the time
Complainant received the notice. English at 961. Nunn v. Duke
Power Co., 84 ERA 27, 1 OAA1 No.
4, 261 (1987).
