U.S. Department of Labor Office of Administrative Law Judges
2600 Mt. Ephraim Avenue
Camden, New Jersey 08104
Telephone (609) 757-5312
FAX (609) 757-5403
DATE: April 28, 1999
CASE NO: 1999-ERA-00011
In the Matter of:
JOAN PASTOR, Complainant
v.
VETERANS AFFAIRS MEDICAL CENTER, Respondent
Appearances:
Gloria M. Gilman, Esq.
For the Complainant
Christopher J. Perillo, Esq.
For the Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
RECOMMENDED DECISION AND ORDER DISMISSING
COMPLAINT
This is a proceeding brought under the employee protection provisions
of the Energy Reorganization Act of 1974, 42 U.S.C. 5851 (hereinafter "the Act").
1 Complainant produced two of her
three witnesses on her case in chief. Continuation of the trial, tentatively scheduled for the end
of May, has been aborted due to the within disposition of this matter. The evidentiary hearing of
this case included all issues, including Respondent's defense of statute of limitations (see Adm.
Law Judge Exhibit - ALJ 10).
2 Respondent's motion to dismiss
includes other grounds, unnecessary to address.
3 References are: Tr. - for trial
transcript, CX - for Complainant's exhibits, and GX - for Respondent's exhibits.
4 Held in the context of a
proceeding brought by Complainant before the Merit Systems Protection Board (MSPB).
5 The actual interpretation of this
testimony is in dispute. For purposes of the within ruling, however, Complainant's
interpretation, as here noted, is accepted as correct.
6 Mr. Gebhart had been
terminated, effective May 15, 1998 at the same time as Complainant (Tr.106).
7 These alleged facts are to be,
and are herein, taken to be true, or "...as alleged...", Oshivar, infra., at
1388.
8 This letter to the U.S. Office of
Special Counsel lays the foundation for a proceeding before the MSPB .
9 Which charge forms the basis of
her complaint here for violation of the Act.
10 At which time, even had
Complainant then filed her complaint, such filing would not have been timely under the Act. 42
U.S.C. 5851(b)(1).
12 Counsel argues that this
statement would be excludable under the hearsay rule. I suggest it is admissible as an exception
thereto - admission against interest.
13 I find the decision reached in
Meyer v. Riegel Products Corp., 720 F.2d 303 (3rd Cir. 1983), to be distinguishable for
the same reason.
14 Trial has been held, and a
final decision is awaited by the parties.