DATE: February 19, 1987
CASE NO.: 84-ERA-6

IN THE MATTER OF

CHARLES STOKES,
    COMPLAINANT

    v.

PACIFIC GAS & ELECTRIC CO./
BECHTEL POWER CORP.,
    EMPLOYER

BEFORE: THE SECRETARY OF LABOR

    This matter is before me for review of the July 27, 1984, recommended Order Granting Motion to Dismiss (R.O.) issued by Administrative Law Judge (ALJ) Alfred Lindeman pursuant to Section 210 of the Energy Reorganization Act of 1974 (ERA or the Act), 42 U.S.C. § 5851 (1982), and the regulations issued thereunder at 29 C.F.R. Part 24 (1986).

    Section 5851 of the ERA prohibits an employer from discharging

or otherwise discriminating against any employee with respect to the employee's compensation, terms, conditions or privileges of employment because the employee has engaged in certain conduct protected by ERA. Both the Act and the implementing regulations require that a complaint alleging a violation of Section 5851 be filed within thirty days after the occurrence of the alleged violation. 42 U.S.C. § 5851 (b)(2)(A); 29 C.F.R. § 24.3(b).

    The ALJ's order recommended dismissing this complaint because it was not filed within thirty days of the alleged violation and because the Complainant failed to establish any basis for tolling or otherwise excusing the statutory time requirements. The alleged violation in this case, notification from Lead Pipe Engineer, Leonard B. Mangoba, to Complainant, that Complainant was to be terminated that day, occurred on Friday, October 14, 1983. R.O. at 2; Mangoba Affidavit. It is undisputed that Complainant filed his complaint by letter dated Monday, November 14, 1983. R.O. at 2; Ex. A.

    The regulation provides that "[f]or 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). Thus the complaint was filed on the day it was mailed, Monday,¹ November 14, 1983. The fact that November 14th fell on a Monday is of critical importance because:

[i]n computing any period of time under these rules² ... 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) (1986) (emphasis added).³

    The Complaint here must be "deemed filed," 29 C.F.R. § 24.3(b), on November 14, 1983, which as the ALJ noted was the thirty first day after the alleged violation. R.O. at 3. The ALJ failed to note, however, that November 14th was a Monday and thus he did not

consider whether the complaint was timely filed because the thirtieth day fell on a Sunday. I find that the complaint was timely filed. Therefore, I do not adopt the ALJ's recommended decision. I will remand the case to the ALJ so that Complainant may pursue the merits of his allegations if he wishes.⁴

    Accordingly, the ALJ's Order Granting Motion to Dismiss IS VACATED and this case IS REMANDED to the ALJ for further consideration.

    SO ORDERED.

       WILLIAM E. BROCK
       Secretary of Labor

Washington, D.C.

¹ I take administrative notice that in 1983, November 14 fell on a Monday.

² The Part 18 rules for practice before the Office of Administrative Law Judges are applicable in accordance with 29 C.F.R. § 18.1(a) (1986).

³Fed. R. Civ. 6(a) is in accord on this point. See also Wirtz v. Local Union 611, International Hod Carriers' Building and Common Laborers' Union of America, 229 F. Supp. 230 (D. Conn. 1964) (the last day of a period of time prescribed or allowed by these rules [Fed. R. Civ. P.] shall be included unless it is a Sunday, thereby permitting the next business day to be included in the computation of a period of time for filing suit which would otherwise end on Sunday).

⁴The record reflects that the Complainant was willing to withdraw his complaint or to have it dismissed without prejudice. See letter from Complainant's counsel to ALJ Lindeman, dated July 6, 1984. In considering such a request the parties and the ALJ are referred to my order in Nolder v., Raymond Kaiser Engineers, Inc., Case No. 84-ERA-5, issued June 28, 1985.