Wynn v. United States Enrichment Corp., 2001-ERA-23 (ALJ Mar. 25, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202 (513) 684-3252 (513) 684-6108 (FAX)

Issue date: 25Mar2002

Case No. 2001-ERA-23

In the Matter of

STEPHEN R. WYNN
    Complainant

    v.

UNITED STATES ENRICHMENT CORPORATION
    Respondent

BEFORE: RUDOLF L. JANSEN
    Administrative Law Judge

   This case is scheduled to be called for hearing on March 26, 2002 in Paducah, Kentucky. The matter had been scheduled for an earlier hearing on October 30, 2001 in Paducah but was postponed based upon the joint request of counsel for both parties. On October 24, 2001, I entered an Order of Postponement and Order to Produce which identified a potential timeliness problem and also directed each of the parties including the Occupational Safety and Health Administration (hereinafter, OSHA) to forward certain information to me. That Order directed in part as follows:

1. The Occupational Safety and Health Administration is to forward to me the complaint filed by Mr. Wynn together with the envelope by which it was transmitted which should include the postmark stamp; together with any other documentary or other evidence in it's possession relating to the complaint filing date.

2. The Respondent is to forward to me a verified statement indicating the date upon which the Complainant was notified of his termination from employment at United States Enrichment Corporation together with copies of documents supporting both the notification and termination dates.

3. Complainant is to forward to me a verified statement indicating the date that he was notified of his termination from employment at the United States Enrichment Corporation together with copies of any documents supporting both the notification and termination dates. In addition, the Complainant is to produce a copy of the complaint filed in this matter together with related certified mailing receipts.

4. Copies of all the produced materials are to be served upon each of the other parties to the proceeding including the Occupational Safety and Health Administration.

   In response to the Order, I received statements from both the United States Enrichment Corporation and also the Regional Administrator, OSHA. Documents related to the timeliness question were also attached to their responses. No dispositive motions accompanied the submissions. No response whatsoever was received from Complainant.

   On March 11, 2002, Respondent filed a Motion seeking Summary Decision. The Motion is based upon contentions that the Complainant did not file a valid complaint since it was lodged orally in a telephone conversation and has never been reduced to writing; and secondly, that the oral complaint was not made within 180 days following the adverse action. Following receipt of the Motion, I issued an Order on March 13, 2002 directing a response from Complainant by March 25, 2002. On that date, Complainant's counsel submitted a cursory response. The response argues without factual support that the complaint was adequate and timely filed. It also represents that the requirements for the applicability of the doctrine of equitable tolling have been met. No affidavits or other documents accompanied the response.

   The regulations implementing the Energy Reorganization Act which are found at 29 C.F.R. Part 24 do not specifically provide for summary decision or dismissal on the issue of timeliness. However, the procedural regulations found at 29 C.F.R. §§ 18.1, 18.40 and 18.41 are applicable to this case and provide authority for the granting of a Motion for Summary Decision. Howard v. TVA, 90-ERA-24 (Sec. July 3, 1991), slip op. at 4; Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec. Dec. 8, 1992). A finding by OSHA that the complaint was timely filed is not dispositive of the issue here since this proceeding requires de nova consideration of all the issues. Eisner v. U.S. Environmental Protection Agency 90-SDW-2 (Sec. Dec. 8, 1992). The raising of the limitations period by way of Motion for Summary Decision is not only appropriate but also timely. Wagerle v. The Hospital of the University of Pennsylvania, 93-ERA-1 (ALJ March 29, 1993); Smith v. Tennessee Valley Authority, 89-ERA-12 (ALJ Oct. 1, 1991).

   The formal record transmitted to this office for hearing includes comments in letters originating with OSHA that the telephonic complaint had been received in that office on February 28, 2001. The date appears in more than one letter. However, in the response to my Order, the Regional Administrator indicates that Stephen Wynn had originally contacted the OSHA Office via telephone on February 21, 2001 and that the telephone call was apparently accepted as a complaint filing by the Acting Regional Supervisory Investigator, Michael Moon. The recent submission of the Regional Administrator includes what appears to be an e-mail from Mike Moon which directed Wayne Fayard who is an Investigator in that office to investigate the complaint. Mr. Fayard's report is also enclosed and is dated February 28, 2001.

   Mr. Fayard represents in his written report that he experienced problems initially in contacting Mr. Wynn, but that he finally made telephonic contact on February 28, 2001. Mr. Wynn stated that he had been terminated by Respondent on or about August 24, 2000 for "falsification of records." He acknowledged that he had falsified some records pertaining to matters occurring during his shift and that these matters did not relate to safety and health concerns. Other matters concerning the termination were also discussed which are not pertinent to the timeliness question.

   Mr. Wynn also related to Mr. Fayard that:

    He mailed a complaint letter to the OSHA office in Atlanta, GA. during early February 2001, but stated that after talking to an OSHA man in Atlanta, OSHA returned his complaint letter to him. Mr. Winn (sic) advised that it was his belief that the person he talked to at OSHA was Mike Moon. Mr. Winn (sic) made this comment after being advised of the RSI's name.

Subsequent to his conversation with Mr. Wynn, the Investigator contacted Mike Moon who told him that he had not received nor returned any mailed materials to Mr. Wynn within the past weeks. Also attached to the filing of the Regional Administrator was a separate statement from Michael Moon who is identified as a whistleblower investigator which reads as follows:

    I do not recall receiving a letter of complaint from Mr. Wynn in early February, 2001. However, even if a letter was received, it would not have been returned. I did receive an inquiry from Mr. Wynn on February 21, 2001 and assigned the screening to Wayne Fayard on that date.

That statement is dated October 30, 2001.

   Also submitted in response to my Order of October 24, 2001 by Respondent was the Affidavit of Bill Harrison who is a Human Resources Generalist for Respondent. Mr. Harrison represents that the Complainant received notification of his termination on August 24, 2000 when he was handed a copy of a termination notice which carries that same date. A copy of the notice was included with this submission. Mr. Wynn also testified in his arbitration hearing that his last day of work was August 24, 2000. Most recently Mr. Wynn's deposition was taken by Respondent and he once again reiterated that he worked until August 24, 2000 which was the date upon which he was discharged.

   Thus, the record shows that the Complainant was discharged on August 24, 2000 and that his oral complaint was filed on February 21, 2001. Although a representation was made by Complainant that a written complaint had been filed earlier in February, no complaint has been produced and Mr. Wynn has failed to comply with my Order of October 24, 2001 which required him to submit a verified statement indicating the date he was notified of his termination and also "a copy of the complaint filed in this matter together with related certified mailing receipts." Since no response has been made to my Order, naturally no other material was submitted and I must assume that none exists.

   The Energy Reorganization Act provides as follows:

    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 180 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).

The regulations implementing the statute provide that a complaint "shall" be filed within 180 days after the occurrence of the violation. 29 C.F.R. § 24.3(b)(2). The time limitation period for filing a whistleblower complaint begins to run on the date that the employee receives final, definitive and unequivocal notice of the adverse employment action. Nunn v. Duke Power Co., 84-ERA-27 (Sec. July 30, 1987). Larry v. Detroit Edison Co., 86-ERA-32 (Sec. June 28,1991); Rainey v. Wayne State Union Lafaette Clinic, 89-ERA-8 (Sec. May 9, 1991) English v. Whitfield, 858 F.2d 957 (4th Cir. 1988). The employment action occurred by written notification on August 24, 2000 and both the arbitration proceeding and in the deposition testing of Mr. Wynn, he gave clear expressions concerning his knowledge of the firing and the reasons therefore. Since the telephonic complaint was not filed until February 21, 2001, the complaint was filed 181 days following the complainant's termination. Thus the complaint filing is untimely.

   In response to the Motion for Summary Decision, Mr. Wynn suggests that the doctrine of equitable tolling should apply, based upon Wright v. State of Tenn., 628 F.2d 949 (6th Cir.1980), and Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988). The Sixth Circuit Court of Appeals, in Wright, suggested five factors be considered in determining whether equitable tolling is appropriate in a given case. Those factors are:

1. Whether the plaintiff lacked actual notice of the filing requirements;

2. Whether the plaintiff lacked constructive notice, i.e., his attorney should have known;

3. The diligence with which the plaintiff pursued his rights;

4. Whether there would be prejudice to the defendant if the statute were tolled; and

5. The reasonableness of the plaintiff remaining ignorant of his rights.

Id. at 953. Mr. Wynn asserts, without any factual discussion whatsoever that he meets this standard and that the statute of limitations was, therefore, tolled.

   In cursory response to the Summary Decision Motion, Mr. Wynn concedes that he is not basing his assertion of equitable tolling on any factual issues. Without a factual basis, I must assume that he is asserting ignorance of the law regarding his lack of actual notice concerning the filing requirements. It is well-settled that ignorance of the law alone is not sufficient to warrant equitable tolling. Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991); Akron Presform Mold Co. v. McNeil Corp., 496 F.2d 230, 234 (6th Cir.), cert. denied, 419 U.S. 997, 95 S.Ct. 310 (1974).

   As early as November 24, 2000, Mr. Wynn exhibited a suspicion that his termination was not legitimate by filing a complaint with the Equal Employment Opportunity Commission (hereinafter EEOC) for race discrimination. In a later deposition, Mr. Wynn was questioned regarding the allegation of racial discrimination. He stated that he felt he was "terminated because I complained," and "that is the reason why I felt like they terminated me." (Deposition of Stephen R. Wynn, pg. 57) If Mr. Wynn consulted an attorney at the point of his EEOC complaint, he certainly had constructive knowledge of the filing requirements at that point; and if he did not contact an attorney, he has offered no reasons for that failure, and therefore provided no reasons to justify equitable tolling of the limitation period. See Rose, supra.

   Mr. Wynn asserts that he exhibited due diligence in pursuing his rights. The doctrine of equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if "despite all due diligence he is unable to obtain vital information bearing on the existence of his claim." Archer v. Sullivan County, Tenn., 129 F.3d 1263 (6th Cir.1997), citing Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990), cert. denied, 501 U.S. 1261 (1991). He has presented no evidence whatsoever to demonstrate that he was in any way prevented from investigating his rights within the limitations period. Nor has he demonstrated that he was later made aware of new facts with regard to his firing. Having immediate knowledge of the basis for his termination, he had the prescribed limitation period in which to investigate and file a complaint. He failed to do so.

   Mr. Wynn also asserts that it was reasonable for him to remain ignorant of his rights. However, he asserts no facts or circumstances upon which he could have reasonably relied in delaying his action under the Act. See Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988).

   Finally, Mr. Wynn points to a lack of prejudice to Respondent in going forward with this action. Absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply, once a factor that might justify such tolling is identified. It is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723 (1984).

   After evaluating the recognized factors for establishing applicability of the doctrine of equitable tolling, it is clear that the doctrine does not apply and I so find. I cannot casually ignore the statutory limitation period. Rose, supra, citing School Dist. Of the City of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981).

   Even though the Motion for Summary Decision must be granted since the complaint accepted by OSHA was not received until the 181st day following the employment action, I believe that some comment is required concerning the acceptance by OSHA of an oral complaint filing. The formal record gives no indication that the Complainant ever filed any type of a writing which could be considered a complaint. I have rejected Complainant's representation that a written complaint was filed earlier in February and then returned to Complainant since neither the original of that alleged writing nor a copy of that writing has been forwarded in response to my earlier Order. Thus this case has been processed based upon a telephonic complaint.

   Respondent argues in his motion that if "Mr. Wynn merely telephoned a complaint to an OSHA office, his telephone call does not constitute a proper complaint." Respondent cites as authority for that proposition the case of Mitchell v. EG&G (Idaho) a.k.a EG&G Services and Tennessee Valley Authority, Respondents, 87-ERA-22 (Sec. July 22, 1993). The Secretary's opinion in that case includes strong comments suggesting that a written complaint is absolutely essential. Those comments include:

I agree with the ALJ that a complaint must be in writing under the ERA. See references in 42 U.S.C. § 5851(b)(1) and (b)(2)(A) and b(2)(B) to "file . . . a complaint", "the filing of the complaint", "a complaint filed", "receipt of such complaint", and "response to a complaint filed", which clearly connote a written complaint because a verbal complaint lacks the physical durability and permanence inherent in a filing. Further, 29 C.F.R. § 24.3(c) specifically states that "a complaint must be in writing."

The comments appear to be unequivocal and directive in concluding that some form of writing is required under the Energy Reorganization Act to satisfy complaint filing requirements. However, I believe that there exist indications in dicta included within the Mitchell decision that the Secretary does not consider the filing restriction to be so narrow.

   In the Mitchell case, the Complainant argued that the Tennessee Valley Authority's written report or other written documentation of the Complainant's oral concerns be construed to be a written complaint. The Complainant argued:

What possible difference could it make if Mr. Mitchell had committed his claim to writing instead of the TVA representative? If, indeed, a writing is essential, the identity of the hand which wrote the words is immaterial. Thus, even within the narrow sweep attributed by the ALJ to the doctrine of equitable tolling falls Mr. Mitchell's timely but mistaken resort to the TVA complaint.

In response to that comment, the Secretary indicates that:

    Although Complainant's argument may have some theoretical merit, it cannot be considered since such internal TVA documents were not part of the record below. Thus a determination cannot be made on whether such TVA's written records were prepared within the thirty day filing period or whether this material raises the precise statutory claim at issue in this proceeding.

Those comments were made in regard to the written filing requirement as it related to the

   The Mitchell case presented a factual circumstance wherein the Complainant actually filed a written complaint outside of the thirty day statutory filing limitation period and the issue of equitable tolling was raised by Complainant in an effort to cause timely filing. These actions were initiated by an attorney on Mitchell's behalf. In the Stephen R. Wynn case, the formal record gives no indication that Mr. Wynn ever filed any type of a written statement which could be characterized as a complaint under the Energy Reorganization Act. However, the formal record does include an e-mail statement from the recipient of Mr. Moon's phone call who directed the investigation of his allegations to an internal investigator with the comment that:

Allegation: Wrongfully discharged and accused him of falsifying records.

The telephone conversation between Mr. Wynn and Mr. Moon clearly gave rise to the acceptance by OSHA of Mr. Wynn's comments as being in the nature of a complaint and it caused an internal investigation of those comments and allegations. Mr. Wynn was acting pro se and without attorney representation.

   No need exists for me to decide whether a written complaint made by a Complainant is absolutely and unequivocally required under the Energy Reorganization Act since the complaint here was filed untimely. However, under the circumstances of this case, I would accept the office record generated by OSHA at the time of Mr. Wynn's telephone call as a written complaint filing. I do not believe that that conclusion would necessarily be in conflict with the Mitchell decision. I note that the filing of complaints under the various whistleblower statutes do not require a formal pleading. Sawyers v. Baldwin Union Free School District, 88-TSC-1 (Sec. Oct. 5, 1988). Even an informal letter directed to the Secretary of Labor which details a whistleblower's concerns can be accepted as being equivalent to the filing of a formal legal complaint. Kansas City & Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 478 U.S. 1011, 92 L Ed.2d 724, 106 S.Ct. 3311 (1986). It has also been said by the Secretary that a complaint is an informal pleading filed for the purpose of initiating an investigation by the Wage and Hour Division on behalf of the Secretary of Labor. Richter v. Baldwin Associates, 84-ERA-9 (Sec. March 12, 1986) (Order of Remand, Slip. Op. at 9). The cases seem to be saying that some formal action must be initiated by a Complainant within the 180 day period but that the action taken need be only informal in nature. I would suggest that a written document in the handwriting of a government official which codifies remarks made in a telephone conversation by a potentially aggrieved employee satisfies the statutory filing requirement. That whole question, however, has been rendered moot as a result of my conclusion that the 180 day statutory period for filing had been violated.

   It is HEREBY RECOMMENDED that the Motion for Summary Decision filed by United States Enrichment Corporation be granted and this case dismissed with prejudice.

       Rudolf L. Jansen
       Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9 as amended by 63 Fed. Reg. 6614 (1998).