U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-018
ALJ CASE NO. 97-ERA-58
DATE: May 14, 1998
In the Matter of:
RICHARD WOOD,
COMPLAINANT,
v.
LOCKHEED MARTIN ENERGY SYSTEMS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ORDER OF DISMISSAL
On October 28, 1997, the Administrative Law Judge (ALJ) issued a
Recommended Decision and Order Granting Respondent's Motion for Summary Decision (R. D.
and
O.) in this matter. The ALJ concluded that the complaint was untimely under the employee
protection provision of the Energy Reorganization Act (ERA), 42 U.S.C. §5851 (1994),
and
other environmental statutes. Complainant now has requested voluntary dismissal of his
complaint,
which we grant.
Complainant formerly was employed by Respondent Lockheed Martin
Energy
[Page 2]
Systems at the Department of Energy's (DOE's) Oak Ridge site. He received a notice of
termination
from Respondent on August 26, 1996, to become effective October 25, 1996. The day after
receiving the termination notice (i.e., on August 27, 1996), he filed a complaint with
DOE
under the DOE whistleblower protection regulations. On April 22, 1997, he filed his complaint
with
the Department of Labor. R.D. and O. at 2.
Relying on Chardon v. Fernandez, 454 U.S. 6 (1981), and
Delaware State College v. Ricks, 449 U.S. 250 (1980), the ALJ found that the alleged
"discriminatory act" underlying the complaint was Respondent's issuance of the
notice
of termination, and that the time limitation for filing complaints under the ERA and the
environmental statutes began with the date of the notice (August 26, 1996) and not the actual
termination (October 25, 1996). R.D. and O. at 4. Using this August 26, 1996 date, the ALJ
concluded that the April 22, 1997 complaint to the Labor Department was untimely.
In addition, the ALJ denied Complainant's request that the time limitation
for
filing his complaint to the Labor Department be tolled for equitable considerations, inasmuch as
Complainant earlier had filed a complaint with the DOE. The ALJ offered the following analysis
in denying the request:
Complainant argues that he invoked the wrong forum by filing a complaint
with DOE [Department of Energy] because the concerns expressed by his protected
activity in May, 1995, i.e., "misstorage of nuclear weapons
parts" and the alleged August, 1996 discrimination which followed were fully
protected by the ERA. As further support for his contention, he avers that DOE
mishandled his complaint, failed to mediate his concerns, was dilatory in responding
to congressional inquiries and would not have been impartial as a "trier of
fact." Significantly, Complainant does not contend that he
mistakenly filed his complaint in the wrong forum nor did he offer
evidence in support of such an allegation. Complainant's failure to offer any
evidence in support of this allegation precludes tolling. See 29 C.F.R.
§18.40(c) (a party opposing a motion for summary decision may not rest on
mere allegations).
. . . . It is further patently clear, through Complainant's opposition, deposition and
correspondence with DOE, that he became dissatisfied with DOE's failure to properly
process his complaint and, for that reason, filed a complaint with DOL [Department
of Labor].
Neither party has offered the complaint filed with DOE nor the
precise
statutory claim or remedy sought therefor, however even assuming it would have constituted a
valid
cause of action if timely filed with DOL, I find that Complainant can not avail himself of the
principle of equitable tolling because he did not mistakenly file his initial complaint in
the
wrong forum.
R. D. and O. at 6 (emphasis in original).
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By letter dated April 29, 1998, Complainant has requested voluntary
dismissal
of his complaint pending before this Board, so that he might pursue further the complaint that he
had
filed earlier with DOE (discussed supra) pursuant to 10 C.F.R. Part 708, the DOE
contractor
employee protection program. Complainant's letter states:
Please cancel my complaint against Lockheed Martin; [sic] If you
cancel this; [sic] then the Department of Energy will reinstate my 10CFR708 complaint
in which Lockheed Martin will not be able to claim time limits. Attached is
the note from DOE [April 13, 1998 letter from Sandra L. Schneider, Acting
Deputy Inspector General for Inspections].
Complainant's request is hereby granted, and this case is dismissed without
prejudice. Seetharaman v. Massachusetts Water Resources Authority, ARB Case No.
98-021, ALJ Case No. 97-CAA-17, ARB Ord. of Dism., Nov. 18, 1997; Engel v. National
Radio
Astronomy Observatory, ARB Case No. 97-067, ALJ Case No. 97-TSC-0002, ARB Ord. of
Dism., Mar. 19, 1997; Coleman v. Duquesne Light Co., Case No. 96-ERA-9, ARB Ord.
of
Dism., July 3, 1996.