Pybus v. Williams Coating Inc., 86-ERA-7 (ALJ Jan. 14, 1986)

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Pybus v. Williams Coating Inc., 86-ERA-7 (ALJ Jan. 14, 1986)

U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036

Case No. 86-ERA-7

In the Matter of

WILLIAM PYBUS

v. WILLIAMS COATING, INC., AND
GEORGIA POWER COMPANY

ORDER

This case arises under the Energy Reorganization Act of 1974, as amended, 42 U.S.C.. § 5851 and the regulations promulgated thereunder at 29 C.F.R. Part 24. It is before this office for consideration of Petitioner's Motion to Remand filed November 14, 1985 and Respondents' Motion to Dismiss filed December 12, 1985.

On September 6, 1985 Petitioner William Pybus was discharged by Williams Coating, Inc., a subcontractor at Georgia Power Company's Nuclear Plant Vogtle. On Monday, October 7, 1986 Petitioner filed a complaint with the Savannah Office of Employment Standards Administration Wage and Hour Division of the Department of Labor (Wage and Hour Division). The Wage and Hour Division received the complaint October 8, 1985.

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On October 11, 1985 the Wage and Hour Division responded to Pybus' complaint. In their response the Wage and Hour Division stated that Petitioner had failed to file the complaint within 30 days as required by 29 C.F.R. § 24.3(b). Consequently, the Wage and Hour Division determined that, due to the untimeliness of the complaint, they could not take any action on behalf of Pybus. Petitioner Pybus requested a hearing on the Wage and Hour Division's determination by telegram dated october 23, 1985. On November 14, 1985 this office received Petitioner's Motion to Remand the instant case to the Wage and Hour Division for investigation pursuant to 29 C.F.R. 24.4(b). Petitioner argues that the Wage and Hour Division miscalculated the amount of time that Petitioner had to file his complaint by failing to take into account the regulations at 29 C.F.R. § 18.4(a). According to Pybus, the last day of his allotted 30-day time frame to file his complaint fell on a Sunday: October 6, 1985. Since his last day to timely file his complaint fell on a Sunday the regulations at 29 C.F.R. § 18.4(a) state that one is, therefore, allowed to file on the next business day. In this case: October 7, 1985, a Monday.

Respondents' Joint Motion to Dismiss was filed with this Office on December 12, 1985. The basis for this Motion is that Petitioner was required by 29 C.F.R. § 24.4(d)(2)(i) to appeal the Wage and Hour Division's adverse determination dated October 11, 1985 within 5 days of receipt. Respondents contend that since Petitioner did not request a hearing on the adverse determination until october 23, 1985, Petitioner's request is untimely and must be dismissed.

The controlling statute requires employees who believe that they have been discharged in violation of the Act to file their complaint within 30 days after the occurrence of the disputed action. 42 U.S.C. § 5851(b)(1). The implementing regulation also contains the 30-day filing window:

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

29 C.F.R. § 24.3(b). Although both provisions use similar language, neither the statute nor the regulation gives more specific guidance regarding commencement of the 30-day time frame.

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The Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges govern proceedings before this office unless inconsistent with a rule of special application contained in a statute, executive order, or regulation. 29 C.F.R. § 18.1(a). The general rule regarding time computation states:

In computing any period of time under these rules or in an order issued hereunder the time begins with the day following the act, event, or default, and includes the last day of the period unless it is a Saturday, Sunday, or legal holiday observed by the Federal Government in which case the time period includes the next business day.

29 C.F.R. § 18.4(a). Since neither 42 U.S.C. § 5851 nor any of the regulations promulgated pursuant to it are in conflict with this rule establishing a uniform reference point for time computation, it is controlling.

It is undisputed that Petitioner William Pybus was discharged on September 6, 1985. Under § 18.4(a) the 30-day filing period began to run on September 7, the next day. Therefore, the thirtieth day was Sunday, October 6, 1985. Because the last day of the filing period was a Sunday, the rule included the next business day in the filing window. Petitioner's complaint was filed by mail on Monday, October 7, 1985, and was therefore filed in a timely manner.¹

The case law cited by Respondents does not change this result. In both Chardon v. Fernandez, 454 U.S. 6 (1981) and Delaware State College v. Ricks, 449 U.S. 250 (1980) the critical determination was when the causes of action accrued. It is undisputed that Petitioner Pybus' claim accrued when he was discharged on September 6, 1985. However, the controlling rule of procedure explicitly started the 30-day period running on the day after the disputed discharge, and allowed an additional business day for filing a complaint because the time period ended on a Sunday. In Stokes v. Pac. Gas & Electric Co., 84-ERA-6 (July 27, 1984) the Administrative Law Judge failed to consider § 18.4(a) in his decision. The Petitioner had argued that § 18.4(c) added 5 days to the 30-day filing period when complaints are filed by mail. However, Judge Lindeman believed that provision, to be inconsistent with § 24.3(b) and declined to apply it. Assuming arguendo that

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this interpretation is correct, it does not follow that the same conflict exists with § 18.4(a). Subsection (a) does not extend the filing window. It merely clarifies for purposes of time computation when it begins to run.

Petitioner's complaint was deemed filed when mailed on October 7, 1985. Under 29 C.F.R. § 18.4(a) the 30-day filing period included that day, and, therefore, I find that Petitioner Pybus' complaint was timely filed.

Respondents Williams Contracting, Inc. and Georgia Power Co. have moved to dismiss this proceeding on the ground that Petitioner's request for a hearing was untimely.

The regulation establishing the procedure for requesting hearings after an adverse determination by the Wage and Hour Division provides:

If on the basis of the investigation the Administrator determines that the complaint is without merit, the notice of determination shall include, or be accompanied by notice to the complainant that the notice of determination shall become the final order of the Secretary denying the complaint unless within five calendar days of its receipt the complainant files with the Chief Administrative Law Judge a request by telegram for a hearing on the complaint. The notice shall give the address of the Chief Administrative Law Judge.

29 C.F.R. 24.4(d)(2)(i). Petitioner's attorney was notified of the Wage and Hour Division's adverse determination by letter dated October 11, 1985. A telegram requesting a hearing on the complaint was sent on October 23, 1985, and was received by this Office on October 25, 1985.

The only evidence submitted regarding when the October 11, 1985 letter was received is the Affidavit of Laurie Fowler dated December 23, 1985. Ms. Fowler is Petitioner Pybus' attorney and she was the addressee of the Wage and Hour Division's notice of determination. Ms. Fowler states in her affidavit that she did not receive the October 11 letter until October 21, 1985. There being no further evidence on this question, I find that the Wage and Hour Division's notice of determination was not received by Petitioner's attorney until October 21, 1985. Under § 24.4(d)

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(2)(i) the 5-day period for requesting a hearing does not begin to run until receipt of the notice of determination. Therefore Petitioner's request for a hearing was timely.

Because I find that Petitioner Pybus' request for a hearing was filed within 5 days of receipt of the adverse determination, Respondents' Motion to Dismiss must be denied. Moreover, because I find that Petitioner's complaint was also filed in a timely manner with the Wage and Hour Division, I will grant Pybus' Motion to Remand. The Wage and Hour Division did not conduct an investigation in accordance with 29 C.F.R. § 24.4 because of its initial determination that Petitioner's complaint had not been filed within the time period allowed. Thus, a hearing would be inappropriate. The Wage and Hour Division must be allowed an opportunity to investigate this matter and render a determination.

Accordingly, Respondents' Motion to Dismiss is DENIED, and I hereby GRANT Petitioner's Motion to Remand the instant case tO the Savannah Office of the Employment Standards Administration Wage and Hour Division of the Department of Labor for investigation of Petitioner's complaint pursuant to 29 C.F.R. § 24.4.

E. EARL THOMAS
Deputy Chief Judge

Dated: Jan. 14, 1986
Washington, D. C.

EET/JMM/SKS/tt

[ENDNOTES]

¹ The same result would be reached if Fed. R. Civ. P. 6(a) were applied pursuant to 29 C.F.R. § 18.1(a). The Federal Rule states that in computing time periods, time does not begin to run until the day after the event in question, and it also includes the next business day in a time period which ends on a Saturday, Sunday, or legal holiday.