Foley did not make these particular arguments prior to the close of the record.
[Page 4]
The Board and its predecessors generally have not considered arguments
that are raised for the first time on appeal. See, e.g., Swanson Group,
Inc., BSCA No. 94-05 (BSCA May 31, 1995) slip op. at 8 (in Service Contract Act
enforcement action, "failure to raise a defense [before an ALJ] in a timely manner
constitutes waiver of that claim," citing Thompson Brothers, Inc., BSCA Case No.
92- 32 (Jan. 29, 1993)). Cf.Immanual v. Wyoming Concrete Industries, Inc.,
ARB No. 96-022, ALJ No. 95-WPC-3 (ARB May 28, 1997) rev'd on other grounds sub
nom. Immanuel v. U.S. Dept. of Labor, 139 F.3d 889 (4th Cir. 1998)(Table) slip op. at 2-3
(although argument raised on appeal to ARB was not briefed to the ALJ, the claim was raised
at trial and therefore preserved). Even if we were to consider these arguments, they are clearly
without merit.
Foley's first argument is nothing more than a bald assertion that he was
incapacitated. Although Foley has submitted letters showing that he was under a doctor's care,
his doctor does not state or even suggest that Foley's illness was so debilitating that it prevented
him from either understanding his legal rights or acting upon them. In support of his second
argument, Foley submitted a copy of H.R. No. 101-474 (VIII), reprinted in 1992 U.S. Code
Cong. & Admin. News 1953 , 2296-2297. The reprint is a section-by-section analysis of a bill
that was introduced in the U.S. House of Representatives and references a proposal to increase
the time limit for filing a complaint from thirty days to one year. This particular proposal did
not become law, so it is not inconsistent with the 180-day time limit finally adopted by Congress
and codified in 42 U.S.C.A. § 5851(b)(1). Furthermore, as Foley filed his complaint
approximately two years after the alleged adverse action, even with a one-year filing requirement
his complaint would still be untimely. Foley's last argument is simply that, if the NRC had acted
sooner, he might have chosen not to sit on his rights. Absent a showing that the NRC's actions
somehow prevented Foley from exercising his right to file a complaint, we see no basis upon
which to conclude that the statute's 180-day time limit should be tolled.
B. The Discovery Process
Foley's remaining challenge to the Recommended Decision concerns what
he believes were inappropriate actions by both BECO and the ALJ during the post-hearing
discovery process. Specifically, Foley notes that, when he attempted to obtain a particular
investigative file through discovery, BECO objected on the grounds that it was irrelevant to
Foley's case. Although the ALJ ultimately ordered BECO to provide Foley with the documents,
he also issued a protective order precluding Foley from disclosing the contents or substance of
the documents to any person or entity and requiring Foley to sign a statement if he agreed to
accept the restriction. Post Hearing Order No. 3. Foley agreed to abide by the protective order.
However, when BECO proffered an agreement adopting the non-disclosure language of the
protective order, Foley refused to sign it and asserted that BECO's proffer of the agreement
constituted a new retaliatory action.
1 The ERA prohibits an employer from
discharging any employee or otherwise discriminating against any employee with respect to compensation,
terms, conditions, or privileges of employment because the employee engaged in protected activity. 29
C.F.R. § 24.2 (2000).
2 Even though he dismissed some
of the allegations of the complaint as untimely and the remainder of the case for failure to prove that the
actions were either adverse or discriminatory, the ALJ nevertheless found that Foley engaged in protected
activity during his altercation with Sullivan in May 1995. We take no position on this finding.
3 Although not crystalized as
arguments, Foley makes a number of other allegations in his filings. None of them, however, has any bearing
on the issue of the timeliness of his complaint and, to the extent that he is attempting to file a new complaint,
it is not properly before us because it has not been previously filed with DOL's office of Occupational Safety
and Health Administration. See 29 C.F.R. § 24.3.
4 Foley also requests that the Board
reopen the record to admit a letter from the NRC to the DOL regarding the ALJ's protective order. The
Board has held that, when considering whether to admit new evidence, it will rely on the same standard
found in the Rules of Practice and Procedure for Administrative Hearings Before the Administrative Law
Judges, 29 C.F.R. § 18.54(c), which provides that, once the record is closed, additional evidence shall
be accepted only upon a showing that it is new and material and was not readily available prior to the closing
of the record. Doyle v. Hydro Nuclear Services, ARB Case No. 98-022, ALJ Case No. 89-ERA-22,
Fin. Dec. & Ord., Sept. 6, 1996, slip op. at 2. We consider evidence material when it is of sufficient weight
to warrant a different outcome. See Wright v. U.S. Postal Service, 183 F.3d 1328 (Fed. Cir. 1999).
The "evidence" Foley seeks to admit has no bearing on whether the ALJ properly determined
that the complaint is untimely with regard to the 1995 acts and that the 1997 acts were neither adverse nor
discriminatory. Consequently the evidence is immaterial.