Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002
CASE NO.: 2001-ERA-0039
Issue date: 08Feb2002
IN THE MATTER OF:
John W. Johnson Complainant,
v.
Alliant Energy Respondent
ORDER
PARTIAL SUMMARY DECISION Regarding Timely Filing
John W. Johnson (herein "Johnson"), the Complainant, filed a whistleblower complaint against Alliant Energy ("Alliant"), alleging a discrimination violation under Section 211 of the Energy Reorganization Act of 1974, as amended, (ERA) 42 U.S.C. 5851. The Complainant is represented by Victoria L. Herring, Esquire, of Des Moines, Iowa, and the Respondent by Deborah M. Neyens, Esquire, of Cedar Rapids, Iowa.
On December 18, 2001, Complainant moved for partial summary judgment regarding the timeliness of the filing of his complaint. Complainant amended his motion on December 27, 2001, advising that some of the dates cited in the first Motion were incorrect, and he set forth amended dates. He alleges:
1. He was informed he would be disciplined by his employer, Alliant Energy, on November 22, 1999.
2. He was forced to resign his position with Alliant Energy, and did so on November 23,1999.
3. On May 19, 2000, he delivered his complaint to the United States Post Office for mailing. Through no fault of his own, postage was not properly placed on the envelope, delaying the delivery of the complaint.
4. The letter was re-mailed the following day, and delivered on May 23, 2000.
An affidavit and a brief in support were submitted with Complainant's initial motion for partial summary judgment. The Respondent has not responded to either motion.
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The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d). This section, which is derived from Fed. Civ. P. 56, permits an ALJ to recommend summary decision for either party where "there is no genuine issue as to any material fact." 29 C.F.R. § 18.40(d). The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Gillilian v. Tennessee Valley Authority, 91-ERA-31 (Sec'y 8/28/95) (CitingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The determination of whether a genuine issue of material of fact exists must be made viewing all the evidence and factual inferences in the light most favorable to the non-movant. Id. (Citing OFCCP v. CSX Transp., Inc., 99-OFC-24 (Asst. Sec'y 10/13/94)). See also Laniok v. Advisory Committee, 935 F.2d 1360 (2nd Cir. 1991) (denying summary judgment based on the existence of genuine issues of material fact which the trial court had incorrectly assumed in favor of the moving party); George v. Mobil Oil Corp., 739 F.Supp. 1577 (S.D.N.Y. 1990) (denying summary judgment even though many of the Bormann factors, as discussed below, weighed in defendants' favor because genuine issues of material fact remained as to whether plaintiff voluntarily executed the release).
The Complainant's affidavit states that he filed his complaint on May 19, 2000, by taking the letter to the United States Post Office in Cedar Rapids, Iowa, and:
"[P]urchasing postage to send the letter of complaint by certified mail, return receipt requested. I properly addressed the envelope and, as shown by the attached receipts, paid for the proper delivery in the amount of $3.64. The next day, the letter was delivered back to my home address because the post office clerk had forgotten to put postage on the letter. I took the letter back to the postoffice, showed the clerk the letter without postage affixed, and my receipt. The clerk put postage on the letter mailed and dropped it in the mail chute.My complaint alleged wrongful actions, retaliation and harassment, discrimination, arising on November 22, 2000, in response to my expression of a safety concern.
I find that there are no issues of material fact that are in dispute. As such, I find the Complainant's verified rendition with respect to timeliness to be the undisputed facts concerning the timeliness of Complainant's filing.
Following an initial investigation, the Department of Labor concluded that discrimination was not a factor in the actions comprising Complainant's complaint. The Department of Labor further concluded that the Complainant's allegation was untimely filed.
The rules for the time of filing a complaint are set forth at 29 C.F.R. § 24.3(b). Under the Energy Reorganization Act, any complaint shall be filed within 180 days after the occurrence of the alleged violation. 29 C.F.R. § 24.3(b)(2). Under the environmental statutes, the time for filing a complaint begins to run from the date of the adverse action, not the date the employee engaged in the protected activity. Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001) (citing 29 C.F.R. § 24.3(b)). Additionally, for purposes of determining timeliness of filing, a complaint filed by mail shall be deemed a filed complaint as of the date of the mailing. 29 C.F.R. § 24.3(b)(1); Webb v. Carolina Power & Light Co., 93-ERA-42, slip op. at 6 n.3 (ARB Aug. 26, 1997) (citing 29 C.F.R. § 24.3(b)).
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According to Complainant's motion for partial summary judgment, as well as his affidavit, the alleged violation his forced resignation occurred on November 23, 1999. In whistleblower cases, statutes of limitation run from the date an employee receives final, definitive and unequivocal notice of an adverse employment decision. The date that an employer communicates a decision to implement such a decision, rather than the date the consequences of the decision are felt, marks the occurrence of a violation. Claim accrual is the date a statute of limitations begins to run, i.e., the date a complainant discovers he or she has been injured. Accrual may differ from the date the respondent decides to inflict injury which may pre-date a complainant's discovery of the injury. The ARB applies a discovery rule in whistleblower cases: limitations periods begin to run on the date when facts which would support a discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his or her rights. Overall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001). Upon review of all of the salient facts, I accept that November 23, 1999 is the operative date.
With November 23, 1999 as the date of the alleged violation, Complainant's 180 day statutory period to file a complaint under the Energy Reorganization Act would have concluded on May 22, 2000. As a result of the alleged mix-up at the post office, Complainant mailed his complaint on May 20, 2000 the 178th day. The fact that the complaint was not delivered until May 23, 2000 the 181st day has no bearing because the rule set forth in 29 C.F.R. § 24.3(b)(1) clearly states that a complaint filed by mail shall be deemed a filed complaint as of the date of the mailing.
As there are no facts in dispute with regard to the date that the Complainant mailed or more importantly filed the complaint, I find that the Complainant's complaint was timely filed within the 180 day statutory period as provided by 29 C.F.R. § 24.3(b)(2). Moreover had the filing been on the 180th day, Complainant has exhibited good cause and good faith as he as he justifiably relied on the Postal Service to mail his complaint. The "mail box rule" creates a rebuttable presumption that a document deposited in the mail in a properly addressed and sealed envelope that bears sufficient postage, is received by addressee.1 See In re Longardner & Assocs., 855 F.2d 455, 459 (7th Cir.1988) (holding that denial of a receipt is not sufficient to rebut mailbox presumption). In this case no one has challenged the presumption.
