U.S. Department of Labor Office of Administrative Law Judges
John W. McCormack Post Office and Courthouse
Boston, Massachusetts 02109
Room 507
(617) 223-9355
(617) 223-4254 (FAX)
Date: October 29, 1998
Case No.: 1998-ERA-30
File no.: 01-0280-98-020 & 805
In the Matter of:
The Estate of Kenneth Ricketts Complainant
v.
Northeast Utilities Corporation
and
Connecticut Yankee Atomic Power Plant Respondents
ORDER DENYING BOTH RESPONDENT NORTHEAST UTILITIES
CORPORATION 'S MOTION FOR SUMMARY DECISION
and
MOTION TO BE DISMISSED AS A PARTY TO THIS ACTION
This case arises under the Energy Reorganization Act of 1974 as amended,
42 U.S.C. § 5851 ("the Act" or "the ERA"), and the implementing
regulations found at 29 C.F.R. part 24. Pursuant to the Act, employees of licensees of or
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applicants for a license from the Nuclear Regulatory Commission (NRC) and their contractors
and subcontractors may file complaints and receive certain redress upon a showing of being
subject to discriminatory action for engaging in a protected activity. Complainant, the Estate of
Kenneth Ricketts, represented by Sharon Ricketts, Administrator, has alleged Respondents
Northeast Utilities Corporation (NU) and Connecticut Yankee Atomic Power Plant (CY)
retaliated against Kenneth Ricketts, during the last few months of his life.
The documents submitted in support of and in opposition to the Motion for
Summary Decision support the following uncontroverted facts.
1. The complaint alleges that Kenneth Ricketts (Decedent) was employed with
Northeast Utilities Systems beginning in 1985, and worked at the Berlin,
Connecticut office until 1990.
2. From 1990-1997, Decedent worked at the Connecticut Yankee Atomic Power
Plant as a Senior Health Physics Technician, and was responsible for measuring
radiation levels for personnel protection and environmental purposes.
3. In this position Decedent was "requested to testify to State and Federal
agencies regarding his knowledge of radiological practices at the Connecticut
Yankee Atomic Power Plant, and further, provided evidence and statements on
behalf of Michael Thomas with regard to his claim of discrimination under the
ERA and other statutes." See Complaint.
4. Complainant alleges that Decedent was retaliated against for his activities. The
complaint alleges that "Mr. Ricketts was subjected to acts of harassment
and intimidation, treated in a derogatory manner, given poor work assignments,
and treated adversely by the management of Northeast Utilities and Connecticut
Yankee." Specifically, between approximately May and July of 1997
Decedent was removed from shift detail which resulted in his losing large pay due
to the premium of evening and weekend shift duty. Further, it is alleged that in
July of 1997, Decedent was eliminated from the pool of employees receiving
overtime assignments.
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5. Respondents argue that the last possible date of any alleged discriminatory and
retaliatory conduct occurred on September 9, 1997, when Decedent noted that he
had been harassed and intimidated over his safety complaints.
6. The complaint states that Decedent "made complaints to appropriate
officials in the Nuclear Regulatory Commission and at Connecticut Yankee with
regard to the harassment and intimidation prior to his death."
7. On September 25, 1997, Kenneth Rickett's suffered a heart attack, and was
pronounced dead at 11:29 p.m.
8. Complainant alleges that she was informed of Decedent's death sometime in the
early hours of September 26, 1997.
9.
Four months following Decedent's death, Complainant alleges that she learned that
counsel for Northeast Utilities and Connecticut Yankee stated that they would see that Decedent
"got his" in retaliation prior to his death. "Subsequent to his death, additional
evidence has been uncovered which establishes a pattern and intent to retaliate against Mr.
Ricketts for his testimony regarding the radiological practices of Northeast Utilities and
Connecticut Yankee. . . . Specifically, counsel for Northeast Utilities and Connecticut Yankee
stated that they would see that Mr. Ricketts got his."
10.
On February 3, 1998, Complainant filed an application with the Connecticut Probate
Court to be appointed Administratrix of Decedent's estate. The letters of Administration were
issued on March 3, 1998, twenty-eight (28) days later.
11.
On March 25, 1998, Complainant filed a complaint with the Department of Labor, 181
days following Kenneth Rickett's death.
12.
On May 20, 1998, the Occupational Safety and Health Administration issued a letter of
determination denying Complainant's complaint.
13.
On May 22, 1998, Counsel for Complainant filed a timely request for a hearing before the
Office of Administrative Law Judges.
STANDARD OF REVIEW
The standard for granting summary decision is set forth at 29 C.F.R.
§ 18.40(d). This section, which is derived from Fed. R. Civ. P. 56, permits an
Administrative Law Judge 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
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motion for summary judgment. Gillilian v. Tennessee Valley Authority, 91-ERA-31
(Sec'y Aug. 28, 1995) (citing Anderson 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 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., 88-OFC-24 (Asst. Sec'y Oct. 13, 1994)).
This Judge, acknowledging that summary decision is rarely granted, has
applied this standard to the case at hand and concludes that Respondent NU's Motion must be
DENIED. I find and conclude that under the doctrine of equitable tolling,
Complainant has filed a timely complaint, and that a genuine issue of fact exists over whether or
not Respondent NU is potentially liable as an employer under the present circumstances.
DISCUSSION
Respondent NU's motion presents three main issues for consideration.
First, whether or not an estate has standing under the Act to bring a so-called whistleblowing
complaint. Second, if so, whether or not Complainant has filed a timely complaint in this matter;
and finally, whether or not Respondent NU should be dismissed as a party to this proceeding. I
shall address each issue independently.
I. Standing of Estate to Bring an ERA Action
Initially, I must briefly address Respondent NU's argument that
Complainant does not have standing to file an whistleblower complaint under the Act. NU
argues that there is no legal authority by which an estate may bring an action under the ERA.
The proper party who may file a complaint is determined by looking to the language of the
proper regulations and rules of practice. 29 C.F.R. § 24.3(a) provides: "Who may
file. An employee who believes that he or she has been discriminated against by an employer in
violation of any of the statutes listed in § 24.1(a) may file, or have another person file on
his or her behalf, complaint alleging such discrimination."
The OALJ Rules of Procedure do not specifically address the issues of
whether or not "an employee" includes representatives of a decedent's estate.
Nevertheless, in such circumstances it is appropriate for an administrative law judge to look
towards the Federal Rules of Civil Procedure for guidance. See 29 C.F.R. 18
§18.1(a). For example, the Administrative Review Board has held that a representative of
a deceased complainant may be substituted as a party in an ERA claim which had already been
filed, pursuant to Fed. R. Civ. P. 25(a). Billings v. Tennessee Valley Auth., 91-ERA-12 (ARB June 26, 1996) at n.2. Similarly, I find it appropriate to look towards the Federal Rules
definition of a "party" to resolve the present issue. Fed. R. Civ. P. 17(a) provides
that a proper party may be an executor or administrator of a real party in interest's estate.
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Accordingly, this Administrative Law Judge, resolving all doubts in Complainant's favor for
purposes of this motion, finds and concludes that Complainant, as the Administratrix of
Decedent's estate, has standing to bring this present claim.
II. Filing of Complainant with DOL
An employee who believes that he or she has been discharged or otherwise
discriminated against in violation of 42 U.S.C. §5851(a) must file a complaint with the
Secretary of Labor within 180 days after such discriminatory act. 42 U.S.C. §
5851(b)(1). The time period for administrative filings begins running on the date that the
employee is given definite notice of the challenged employment decision. Bonanno v.
Northeast Nuclear Energy Co., 92-ERA-40/41 (Sec'y Aug. 25, 1993). The time limits,
however, are in the nature of a statute of limitations and are subject to equitable tolling.
For the purpose of this Motion for Summary Decision, this Judge finds and
concludes that the 180 day period within which the complaint must have been filed began to run
on Thursday, September 25, 1997, the date Mr. Ricketts's died. In choosing this date, I reject
several argument of the parties, and also note some general ambiguity of this factual record.
First, I reject Complainant's two proposed dates for starting the filing
period. First, Complainant argues that the period should begin four months following Decedent's
death when Administratrix learned of some allegedly incriminating information. Second,
Complainant argues that the time period should commence on September 26, 1997, the day
following Decedent's death and when Administratrix Sharon Ricketts actually learned of her
husband's death.
The law is clear that the time period begins when the employee received
definite notice of a challenged employment decision. Thus, I conclude that such definite notice
must occur during the employee's lifetime. The Complainant's estate only possesses those rights
held by Decedent, and thus any substantive action taken prior to Decedent's death is irrelevant in
regards to when the statutory period begins to run. Accordingly, I find that the time Sharon
Ricketts allegedly learned of incriminating information has no bearing on the time period in this
matter. Further, the time when she learned of her husband's death in no way affects the fact that
the Respondents could not have taken a challengeable employment action after he had died.
Further, I reject Respondents' argument that the period should begin, at the
latest, on September 9, 1998. Initially, I must note that the record, as developed to date, is
unclear as to the precise timing of the alleged conduct. While it is argued that some alleged
discriminatory action occurred between May and July of 1997 when Decedent assignments were
changes, complaints of harassment are more open-ended. Respondent NU has presented part of
Decedent's personal notes, indicating harassment and discriminatory action on September 9,
1997, however, this record only contains this one page. I note that it is possible, when analyzing
the facts and circumstances in the light most favorable to the Complainant, that Decedent
continued to suffer harassment up until the day he died, which was a weekday.
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In light of this uncertainty, and under the proper standard for summary
judgment, I conclude the time period began on September 25, 1997. Therefore, Complainant
should have filed a complaint on or before March 25, 1998. Complainant, however, filed this
claim on March 26, 1998, 181 days later, and as such the claim is untimely and shall be
dismissed, unless grounds for equitable tolling exist. In the present case, however, the
Complainant has presented persuasive evidence as to why this claim should be tolled due to the
extraordinary circumstance of this case. Accordingly, for the following reasons, I conclude that
this complaint is timely.
Generally, the doctrine of equitable tolling is narrowly applied and focuses
on a complainant's excusable ignorance of his or her statutory rights as a reason to modify the
limitations period. Harrison v. Stone & Webster Engineering Corp., 91-ERA-21, at
2 (Sec'y Oct. 6, 1992). The Secretary of Labor has uniformly held that equitable tolling of the
statutorily imposed time period for filing an ERA complaint is possible only if: (1) the
complainant was misled by the employer, (2) the complainant was prevented in some
extraordinary way from asserting his rights, or (3) the complainant timely filed the precise
statutory claim in the wrong forum. See, e.g.,Bonanno v. Northeast Nuclear
Energy Co., 92-ERA-40/41 (Sec'y Aug. 25, 1993); Hall v. EG&G Defense
Materials, Inc., 97-SDW-9 (ARB Sept. 30, 1998); Prybys v. Seminole Tribe of
Florida, 95-CAA-15, at 4 (ARB Nov. 27, 1996);see also Smith v.
American President Lines, Ltd., 751 F.2d 102, 109 (2d Cir. 1978). This Administrative
Law Judge, in considering the application of the doctrine of equitable tolling, is guided by the
Administrative Review Board's decisions which recognize the restrictions on equitable tolling
must be "scrupulously observed" and that the doctrine does not permit
"disregard [of the] limitations periods simply because they bar what may be an otherwise
meritorious cause." See Prybys, 95-CAA-15, at 8 (citing School Dist. of
City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981)). Further, tolling is not
appropriate "out of vague sympathy for particular litigants." Billings v.
TVA, 86-ERA-38 (Sec'y June 28, 1990) (citations omitted). On the other hand, the
Secretary has held that while tolling is only permitted in exceptional circumstances, "this
general rule must not be applied in such a way that the underlying purposes of that law are
frustrated. Thus, it is exceedingly important that an appropriate balance be struck between
fidelity to the statutory directive that complaints be pursued and investigated in a timely manner
on the one hand and fairness to whistleblowing complaints on the other." Hill and
Ottney v. TVA, 87-ERA-23/24, at 3 (Sec'y April 21, 1994), aff'd, 65 F.3d 1331
(6th Cir. 1995).
The first grounds for equitably tolling the filing period is where an
employer actively misleads the Complainant. There is, however, no companion grounds for
where the Complainant relies on incorrect information from third parties. See English v.
Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); Clark v. Resistoflex Co., 854 F.2d
762, 768-69 (5th Cir. 1988); Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept.
29, 1989). In the present case, there is neither evidence nor allegations of such conduct by the
Respondents, and therefore, this ground for tolling is inapplicable.
1 NU has also filed a reply
brief to Complainant's Brief in Opposition.
2 I note that this summary of
evidence provides the main procedural history of this case. Issues, facts and allegations
concerning the corporate structure and activities of Respondent NU shall be discussed later in
this Order. Only those facts pertinent to the issue of the timeliness issue and status of NU are
germane to the pending motion and therefore, this Judge shall not delve into the details of the
underlying alleged retaliatory conduct at this time.
3 The ARB quoted this
portion of the ALJ's recommended decision; however, Complainant had petitioned for voluntary
dismissal of the DOL complaint before the ARB so that he could pursue his Department of
Energy complaint. Thus, the ARB granted Complainant's motion for voluntary dismissal and did
not rule expressly on the ALJ's holding on the timeliness issue.
4 Complainant also cites
Connecticut General Statutes §52-594, which provides: "If the time limit for the
commencement of any personal action, which by law survives to the representatives of a
deceased person, has not elapsed at the time of person's death, one year from the date of death
shall be allowed to his executor or administrator to institute an action therefor. In computing the
times limited in this chapter, one year shall be excluded from the computation in actions covered
by the provisions of this section." Conn. Gen. Stat. §52-594 (1997).
5 I also note that based upon
my finding that a twenty-eight day tolling period is appropriate, I conclude that even if the filing
period commenced on September 9, 1997, as Respondents argue, this complaint would still be
timely.