U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201
Date: August 17, 1995
CASE NO.: 95-ERA-46
In the Matter of
ROGER J. BACKEN
Complainant
v.
ENTERGY OPERATIONS, INC.
Respondent
RECOMMENDED DECISION AND ORDERBa ckground
The Complainant, who apparently is still employed with
Respondent, filed a complaint dated April 4, 1995, alleging
violations by Respondent of Section 211 of the Energy
Reorganization Act of 1974, as amended (Act). The complaint was
investigated by the Occupational Saf ety & Health Administration
of the U.S. Department of Labor, and by letter dated July 8,
1995, copy of which is attached as Exhibit A, Complainant was
advised that the investigation did not verify discrimination
which was protected under the Act. The letter contained the
following specific language concerning Complainant's appeal
rights:
This letter is notification to you that, if you wish to
appeal the above findings you have the right to a formal
hearing on the record. To exercise this right you must,
within five (5) calendar days of receipt of this letter,
file your request for a hearing by telegram to:
[PAGE 2]
Chief Administrative Law Judge
U.S. Department of Labor
Suite 400, Techworld Building
800 K Street
Washington, D.C. 20001-8002
Unless a telegram is received by the Administrative Law
Judge within the five-day period, this notice of
determination will become the final order of the Secretary
of Labor dismissing your complaint. ....
By certified mail, Claimant took delivery of the
determination letter on July 10, 1995. Upon receipt of the
letter, Claimant obviously prepared an appeal dated July 11,
1995, but did not mail the appeal to the office of Administrative
Law Judges until July 22, 1995. The Office of Administrative Law
Judges received Complainant's appeal on July 25, 1995. Upon
receipt of the appeal a formal hearing was scheduled.
Based on these facts, Respondent's counsel has filed a
"Motion to Dismiss for Failure to Timely File Notice of Appeal."
In the Motion, Respondent, through counsel, points out the facts
which I have previously recited and urges that the facts clearly
demonstrate Complainant failed to comply with 29 C.F.R.
§§24.4 (d)(2)(i) and (ii) because he did not file a
timely notice of appeal.
A show cause order issued. By response received August 14,
1995, Complainant stated ".... apparently I did not meet the five
day deadline for filing for an appeal. I cannot dispute that
either way." He then urges consideration of the merits of his
complaint, stating that he did not have counsel and concludes by
saying "so if I messed up on the legalities and requirements of
this Appeal it is because of my ignorance."
Findings of Fact and Conclusions of Law
29 C.F.R. §24.4(d)(2)(i) is quite clear:
(2)(i) 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
[PAGE 3]
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.
As earlier set out, almost the exact language found in the
regulations is also stated in the admonition contained in the
Administrator's determination letter of July 8, 1995. The
instructions explain what the Complainant must do to appeal his
complaint so as to prevent the unfavorable determination from
becoming the final order of the Secretary. All Complainant
needed to have done was act upon those instructions.- He
certainly needed no legal training to follow the plain language,
nor has he asserted any valid reason for not doing so.
Consequently, I find Complainant's lack of timeliness fatal to
his appeal.
RECOMMENDED ORDER
Based upon Complainant's failure to follow the requirements
of 29 C.F.R. §§24.4 (d) (2) (i) and (ii) , I recommend
that Complainant's complaint be dismissed and that the
determination dated July 8, 1995, which is attached as Exhibit A,
become the final Order of the Secretary of Labor.
SO ORDERED this 17th day of August, 1995, at Metairie,
Louisiana.
C. RICHARD AVERY
Administrative Law Judge
CRA: kw
NOTICE: This Recommended Decision and order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the office of Administrative
Appeals, U.S. Department of Labor, Room S4309, Frances Perkins
Building, 200 Constitution Ave., N.W., Washington, D.C. 20210.
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary in the preparation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 29 C.F.R. Parts 24 and 1978. See
Fed.Reg. 13250 (1990).
[PAGE 4]
U S. Department of Labor
Occupational Safety and Health Administration
525 Gri ffin Street, Room 602
Dallas, Texas 75202-5024
Repl y to the Attention of: Discrimination
Investi gations
July 8, 1995
Roger J. Backen
3505 Lavey Lane
Baker, LA 70714
Entergy Operations, Inc. / Backen
6-0150-95-803
Dear Mr. Backen:
This is to notify you the results of the investigation in the above
noted case, in which you alleged violations of Section 211 of the
Energy Reorganization Act of 1974, as amended. . Our initial
efforts to conciliate the matter did not result in a mutually
agreeable settlement. A fact finding investigation was then
conducted. The investigation did not verify that discrimination
was a factor in the actions comprising your complaint.
Consequently, it is determined that your allegations cannot be
substantiated for the following reasons:
The evidence does not establish that the activities which you
engaged in, which could be considered to be protected by the
Act, became a contributing factor in your unfavorabgle
ranking. The evidence indicates that you were permanently
assigned to the Director of Nuclear Safety in July 1994. The
Director alleged his disppointment of your work performance in
a memo to you in December 1994, which culminated in the
unfavorable ranking. There is no evidence that the Nuclear
Safety Director was involved in a conspiracy against you.
This letter is notification to you that, if you wish to appeal the
above findings you have the right to a formal hearing on the
record. To exercise this right you must, within five (5) calendar
days of receipt of this letter, file your request for a hearing by
telegram to:
[PAGE 5]
Chief Administrative Law Judge
U.S.Department of Labor
Suite 400, Techworld Building
800 K Street
Washington D.C. 20001-8002
Unless a telegram is received by the Administrative Law Judge
within the five-day period, this notice of determination will
become the final Order of the Secretary of Labor dismissing your
complaint. Entergy Operations, Inc. is being advised of the
determination in this case and your right to a hearing. A copy of
this letter has also been sent to the Chief Administrative Law
Judge with your complaint. If you decide to request a hearing, it
will be necessary for you to send copies of the telegram to Entergy
Operations, Inc. and also to this office at the address noted in
the above letter head. If you have any questions, please do not
hesitate to call me at (214) 767 4991.
It should be made clear to all parties that the U.S.Department of
Labor does not represent any of the parties in a hearing. The
hearing is an adversarial proceeding in which the parties will be
allowed an opportunity to present their evidence for the record.
The Administrative Law Judge who conducts the hearing will issue a
recommended decision to the Secretary based on the evidence,
testimony, and arguments presented by the parties at the hearing.
The Final Order of the Secretary will then be issued after
consideration of the Administrative Law Judge's recommended
decision and the record developed at the hearing and will either
provide for appropriate relief or dismiss the complaint.
GERALD T. FOSTER
Regional Supervisor
