Date: July 19, 1996
Case No.: 96-ERA-8

In the Matter of

Donna Fred

Complainant

V.

The Wackenhut Corporation and Omaha Public Power District

Respondents

    Complainant, Pro Se, has requested a hearing before an Administrative Law Judge for alleged violations of the Whistleblower provisions of the Energy Reorganization Act, 42 U.S.C. § 5851, (ERA). The telegram requesting the hearing was received in the Office of Administrative Law Judge on February 21, 1996, but was not accompanied by any documentation to support the request for a hearing. (Ex. 1.)

    By letter dated February 26, 1996, the Administrative Law Judge received copies of correspondence provided to Complainant by the District Director for the Wage and Hour Division, Employment Standards Administration in Omaha, Nebraska. (Ex. 2.)

    By letter dated February 29, 1996, Respondent Wackenhut Corporation sought guidance on how to proceed, given this history of Ms. Fred's complaints and prior administrative and judicial determinations. (Ex. 3.)

    The Administrative Law Judge entered the First Pre-Hearing Order dated March 19, 1996 ordering Complainant to provide a statement that would, at a minimum, provide the Administrative Law Judge with a factual basis underlying the request for a hearing and also to respond to the contention that the request was untimely. (Ex. 4.)

    In response to the First Pre-Hearing Order, Complainant filed a statement that was received by the Office of Administrative Law on April 30, 1996 (Ex 5). Thereafter, on May 22, 1996, Respondent filed its Answer with attachment. (Ex. 6a-6e.)¹

    Exhibit 7 is a letter dated November 20, 1992, from the Wage and Hour District Director in Omaha to Complainant informing her that her complaint was untimely and that there is no action Wage and Hour can take on her behalf.

    Exhibit 8 is a memorandum dated August 22, 1995, from Mr. Volok, the District Director, to Walter K. Steinmar confirming that Wage and Hour never had any complaint from Ms. Fred, either orally or in writing in 1989.

    Exhibit 9 is a letter dated March 1, 1996, from counsel for Wakenhut Corporation to Mr. Volok setting forth the history of Ms. Fred's complaints and previous litigation, and invoking the equitable maxim: Enough is Enough.

    The telegram from Complainant dated February 21, 1996, requested a hearing before an Administrative Law Judge. This request was based upon the letter from the Wage and Hour District Director in Omaha, Nebraska to Complainant dated February 13, 1996. This letter references a prior letter dated November 20, 1992 from Wage and Hour to Complainant stating, in pertinent part, that she had not filed a timely written complaint (within 30 days) of the alleged violation in 1989 and, because her filing was untimely, there was nothing Wage and Hour could do for her.

    The February 13, 1996 letter then goes on to state, gratuitously, that if Complainant "overlooked" the regulations concerning the time limit for appealing the Wage and Hour Division's findings in 1992, she may now, in 1996, have a hearing before and Administrative Law Judge. Not surprisingly, the Director does not cite any authority for his attempt to revive Complainant's cause of action.

    By letter dated February 29, 1996, Respondent Wackenhut Corporation, by counsel, wrote to the Chief Administrative Law Judge, outlining the history of Ms. Fred's complaints including, the various commissions and courts that have heard her case.

    The First Pre-Hearing Order dated March 19, 1996 required Complainant to, inter alia, set forth facts that would support a finding that the request for a hearing was timely.

    Complainant states that she called the "Omaha office of the Department of Labor" in April,1989 but the office refused to take her complaint. They refused, she contends, because the power facility was not operated by the Department of Energy, and therefore, she was not a federal employee. Wage and Hour's position is that she first contacted them in 1992 and again in 1995. The record evidence supports the Wage and Hour and Respondent's position that a complaint was not filed in 1989.

    The statement of Complainant sets forth events that occurred 1989. Exhibits 7 and 8, which I credit, support my finding that Ms. Fred never contacted the Department of Labor until 1992, and not again until 1995.

    There is no evidence of a written complaint within 30 days of the alleged violation which occurred in 1989.² The arguments advanced for an equitable tolling of the statute of limitations are unsupported and without merit. There is no evidence presented that would support a finding that this complaint and request for a hearing is timely.

    It is Recommended that the Board of Administrative Appeals Dismiss the complaint of Donna Fred in its entirely, on the grounds that it is untimely filed.

ROBERT G. MAHONY

Administrative Law Judge

¹Exhibit 6a is the Answer of Respondent; Exhibit 6b is the District Court opinion; Exhibit 6c is the opinion and judgement of the U.S. Court of Appeals; Exhibit 6d is Respondent's brief to the Court of Appeals; and Exhibit 6e is the Order of the Supreme Court denying certiorari.

²The statute, 42 U.S.C. 5851 et. seq., was amended in 1994 to provide a 180 day filing period, but that amendment does not apply to this case.