U. S. DEPARTMENT OF LABOR
Office of Administrative Law Judges
525 Vine Street Suite 900
Cincinnati, OH 45202
DATE: December 2, 1987
CASE NOS: 87-ERA-33
88-ERA-5
In the Matter of
GARY M. HOFFMAN,
Complainant,
v.
FUEL ECONOMY CONTRACTING,
Respondent,
and
OMAHA PUBLIC POWER DISTRICT,
Respondent.
ORDER
On October 30, 1987, Omaha Public Power District [hereinafter
OPPD] filed a motion "pursuant to 29 CFR § 18.6 or in the
alternative to 29 CFR § 18.40 to dismiss the Amended Complaint served
upon it on October 26, 1987" in Case No. 87-ERA-33. In response
to an Order dated November 10, 1987, OPPD filed copies of four
documents to supplement its motion and the complainant, through
counsel, submitted his response to the motion to dismiss together
with seven exhibits. Based on the pleadings filed with respect
to both of these cases and the copies of the documents submitted
by the complainant and OPPD, I make the following findings for
purposes of ruling on the motion to dismiss.
[Page 2]
1. By handwritten letter dated May 26, 1987, Gary M. Hoffman
advised the U.S. Department of Labor that be "was terminated on
May 20, 1987 from Fuel Economy Contracting and the Omaha Public
Power District." He claimed in that letter that he was terminated
because he made his supervisor and the Nuclear Regulatory Commission
"aware of errors that were being perpetuated in the work process."
Attached to that letter is a three page typed statement containing
the complainant's allegations against Fuel Economy Contracting
[hereinafter FEC] and OPPD regarding his termination from
employment at the Ft. Calhoun Nuclear Station. (Complainant's Exhibit 1).
2. James L. Skolaut, Area Director, Employment Standards
Administration, Wage and Hour Division, U.S. Department of Labor,
Omaha, Nebraska, by letter dated June 1, 1987, advised Wayne Gary
Gates, Manager, Fuel Economy Contracting, Ft. Calhoun Station,
Ft. Calhoun, Nebraska, of the complaint filed by Mr. Hoffman
alleging discriminatory employment practices in violation of
Public Law 95-601, Energy Reorganization Act (ERA), Section 210,
42 U.S.C. 5851. That letter further advised that if a mutually
agreeable settlement could not be achieved, that "the law requires
that a fact-finding investigation be conducted as soon as possible."
(Complainant's Exhibit 2).
3. By letter dated June 5, 1987, J. M. Reiter, Assistant
Vice-President of FEC, advised Mr. Skolaut that Mr. Hoffman's
complaint had been brought to his attention but that the notice
of the complaint was sent to Mr. Gates, who is not an employee of
FEC. Mr. Reiter further advised that his company did not consider
the notice to Mr. Gates to be proper and that if the Department
of Labor intended to pursue the matter, a proper notice should be
sent to FEC. (Complainant's Exhibit 3).
4. Mr. Skolaut in response to the above letter of Mr.
Reiter notified FEC, by letter dated June 8, 1987, of the complaint
filed by Mr. Hoffman. That letter is identical to the letter
issued to Mr. Gates on June 1, 1987 except that it was addressed
in accordance with Mr. Reiter's letter of June 5, 1987.
(Complainant's Exhibit 4).
5. By letter dated June 18, 1987, Mr. Skolaut notified the
complainant of the results of his office's "compliance actions"
regarding Mr. Hoffman's complaint that was received on May 27,
1987. That letter is referenced to Gary M. Hoffman vs. Fuel
Economy Contracting. Mr. Hoffman also was advised that the fact
[Page 3]
finding investigation did not verify that discrimination was a
factor in the actions comprising his complaint. Mr. Skolaut went
on to conclude that Mr. Hoffman's allegations could not be
substantiated because "[e]vidence indicates your termination resulted
from the confrontation between you and your supervisor, Gene
Brazeal, on May 20, 1987, and not as a result of your engaging in
a protected activity under the Act." Mr. Skolaut further notified
the complainant that if Mr. Hoffman wished to appeal the findings
he had a right to a formal hearing on the record. The letter
provided that to exercise his appeal rights, Mr. Hoffman needed
to file his request by telegram to a specified address within
five calendar days of the receipt of the letter. Complainant was
further advised that if he requested a hearing, it would be
necessary for him to send a copy of the telegram to FEC and to
Mr. Skolaut's office address. That letter provided other
information to the complainant but it contained no reference to OPPD.
(Complainant's Exhibit 5).
6. The complainant, by telegram dated June 19, 1987 to the
Office of Administrative Law Judges, appealed the findings of the
letter dated June 18, 1987 regarding Gary M. Hoffman vs. Fuel
Economy Contracting and requested a formal hearing. The case was
docketed on that date as Case Number 87-ERA-33.
7. By Order dated July 1, 1987, I advised the parties that
Case Number 87-ERA-33 had been assigned to me on June 26, 1987
and that a formal hearing was scheduled to commence on July 28,
1987 at Omaha, Nebraska.
8. The complainant and FEC subsequently advised me that
they had obtained counsel. Pursuant to the parties' waiver of
the time constraints opposed under 42 U.S.C. § 5851(b)(2) and
both parties' request, the scheduled hearing was continued. By
Order dated September 1, 1987, the parties were advised that the
hearing was rescheduled to commence on December 1, 1987. Both
parties subsequently commenced discovery proceedings.
9. By letter dated October 6, 1987 to Mr. Skolaut, complainant's
counsel, Billie Pirner Garde, advised that in reviewing the
file and "the information provided to me under the Freedom of
Information Act it is clear that Mr. Hoffman brought his complaint
against both Fuel Economy & Omaha Public Power District." She
stated that Mr. Skolaut's letter of June 18, 1987 does not include
a specific determination about OPPD. She went on to confirm
[Page 4]
other information from her telephone conversation with Mr. Skolaut
of that same date and requested that he provide "a letter as soon
as possible stating that your initial determination also excused
OPPD, and that the failure to include them in your aforementioned
letter to Mr. Hoffman was an oversight." (Complainant's Exhibit 6).
10. On October 15, 1987, complainant's counsel served an
amended complaint in Case No. 87-ERA-33 to include OPPD in Mr.
Hoffman's complaint of May 26, 1987.
11. Mr. Skolaut, in reply to the letter of complainant's
counsel dated October 6, 1986, advised by letter dated October
16, 1987, that "our subject investigation disclosed that Omaha
Public Power District was not Mr. Hoffman's employer and did not
participate in any action effecting [sic] his status." He went
on to conclude the letter by stating "[c]onsequently, we determined
that Omaha Public Power District did not discharge or otherwise
discriminate against your client in violation of the Engery [sic]
Reorganization Act. (Complainant's Exhibit 7).
12. By telegram dated October 19, 1987, Gary M. Hoffman
appealed "the October 16, 1987 denial of the Wage and Hour Division
into his complaint against Omaha Public Power District for violation
of his rights under 42 USC 5851." Mr. Hoffman requested a hearing
and consolidation with his case against FEC, Case No. 87-ERA-33.
The case was docketed by this office on October 20, 1987 as Case
Number 88-ERA-5.
13. On October 20, 1987, complainant commenced discovery
proceedings against OPPD in Case Number 87-ERA-33.
14. OPPD filed a motion to dismiss in Case Number 87-ERA-33
on October 30, 1987. As previously indicated, the motion was
brought pursuant to 29 C.F.R. § 18.6, or in the alternative, 29
C.F.R. § 18.40. OPPD's principal reason for requesting the
dismissal is that the complainant's appeal dated June 19, 1987 of
the findings set forth in the letter of the Area Director of the
Wage and Hour Division dated June 18, 1987, did not include OPPD
as an employer and therefore the amended complaint is "untimely
and without effect." In support of the motion, OPPD states that
the Area Director's letter dated June 18, 1987 notified the
complainant that the investigation did not verify that discrimination
was a factor in connection with the complainant's termination
from employment by his employer, FEC. OPPD notes that the
[Page 5]
determination was referenced "Hoffman vs. Fuel Economy Contracting"
and counsel alleges that "by implication it was determined that
OPPD was not an employer within the meaning of the Act."
15. Pursuant to my Order dated November 10, 1987, complainant
filed a response to OPPD's motion to dismiss on November 20,
1987. The arguments advanced in that response subsequently will
be discussed but it is important to note that complainant's
counsel stressed in the response that she confirmed in a telephone
conversation that OPPD's "motion does not raise the substantive
issue of whether OPPD is an employer under the Act."
16. On November 20, 1987, OPPD filed its answer to the
amended complaint without waiving its motion to dismiss. The
answer included both Case Numbers 87-ERA-33 and 88-ERA-5.
17. The hearing scheduled for December 1, 1987 was continued
generally by Order dated November 25, 1987 based upon complainant's
unopposed motion.
CONCLUSIONS
In view of the contents of OPPD's motion and the above-mentioned
statement in complainant's response to that motion, it should
initially be noted that the following conclusions relate solely
to the question of whether the motion to dismiss should be granted
on the grounds the complainant's appeal is untimely. Secondly,
it is assumed that the motion also is intended to apply to Case
No. 88-ERA-5, although it is directed to the amended complaint in
Case No. 87-ERA-33.
I initially choose to dispose of what I perceive to be the
easier of the questions surrounding OPPD's motion to dismiss,
that being whether the motion should be granted with respect to
Case Number 88-ERA-5. I consider this to be easily resolved
because there should be no doubt in anyone's mind that Mr. Skolaut's
letter to complainant's counsel dated October 16, 1987 is not and
was not intended to be a "notice of determination" of the
Administrator as provided in 29 C.F.R. § 24.4(d). Rather, it represents
nothing more than a reply to the letter of complainant's counsel
dated October 6, 1987 explaining that the investigation of Mr.
Hoffman's complaint disclosed that Omaha Public Power District
was not Mr. Hoffman's employer and did not participate in any
action affecting his status. Since I find the letter of Mr.
[Page 6]
Skolaut dated October 16, 1987 does not constitute a "notice of
determination" of the Administrator under 29 C.F.R. § 24.4(d),
the document affords the complainant no appeal rights under the
Act and regulations. Therefore, I find OPPD's motion to dismiss
with respect to Case Number 88-ERA-5 should be granted. For both
procedural and appeal purposes, however, this will be resolved
through a separate recommended decision pertaining specifically
to that case.
OPPD contends the amended complaint filed in Case Number
87-ERA-33 should be dismissed as untimely because the complainant's
October 19, 1987 telegram appeal was well over five days subsequent
to the June 18, 1987 notice of determination. 29 C.F.R. § 24.4
(d)(2)(i). I reiterate that it is OPPD's position that although
the notice was referenced "Hoffman vs. Fuel Economy Contracting,"
it implied that the Area Director of the Wage and Hour Division
had determined that OPPD was not an employer of the complainant
within the meaning of the Act.
In arguing that his appeal is timely, complainant stresses
the fact that the letter of the Area Director dated June 18, 1987
contains no reference to OPPD. He therefore contends that he
neither had knowledge or should have known "that the absence of
reference to OPPD was a 'red flag', communicating that a clear
decision had been made about OPPD." Mr. Hoffman argues that
until the October 16, 1987 letter of Mr. Skolaut, he was not
aware that the notice of determination was intended to apply to
OPPD. He goes on to argue at some length that the five day
statute of limitations which is applicable to the filing of an
appeal from the notice of determination, is an equitable statute
and should be tolled essentially because he was "misled" and
prevented from appealing because of "extraordinary circumstances."
It is noted by his attorney that at the time Mr. Hoffman filed
his original appeal, he was unrepresented by counsel, yet "did
not sleep on his rights." His final contention is that OPPD
would not be subject to prejudice by including that company in
his action because it had notice of Mr. Hoffman's complaint "from
the outset, and participated in the investigation."
The courts, as well as the Secretary of Labor, have considered
the applicability of the doctrine of equitable tolling of the
statute of limitations to various cases involving the untimely
filing of a complaint under a federal statute. See Coke v.
General Adjustment Bureau, Inc., 640 F.2d 584 (5th Cir. 1981);
[Page 7]
School District of City of Allentown v. Marshall, 657 F.2d 16
(3rd Cir. 1981); Wright v. State of Tennessee, 628 F.2d 949 (6th
Cir. 1980); Cooper v. Bell, 628 F.2d 1208 (9th Cir. 1980); Nielsen
v. Western Electric Co., 603 F.2d 741 (8th Cir. 1979); Kephart v.
Institute of Gas Technology, 581 F.2d 1287 (7th Cir. 1978); Dartt
v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff'd, 434 U.S.
99 (1977); and, Egenrieder v. Metropolitan Edison Co., 85-ERA-23
(1987); French v. Tennessee Valley Authority, 86-ERA-14 (1986);
Norman v. Niagara Mohawk Power Corp., 85-ERA-35 (1985); Stokes v.
Pacific Gas & Electric Co., 84-ERA-6 (1984); Hick v. Western
Concrete Structures, 82-ERA-11 (1983). In Smith v. American
President Lines, Ltd., 571 F.2d 102 (2d Cir. 1981), the court
interpreted the Supreme Court's decisions that the theory of
equitable tolling "may be appropriate only when": (1) the
plaintiff has been actively misled by the defendant respecting the
cause of action; (2) the plaintiff in some extraordinary way has
been prevented from asserting his rights; or, (3) the precise
statutory claim has been mistakenly raised by the plaintiff in
the wrong forum. School District of the City of Allentown v.
Marshall, 657 F.2d 16 (3rd Cir. 1981).
While there is no allegation that Mr. Hoffman did not timely
file his complaint against FEC and OPPD, it would appear
reasonable to apply the doctrine of equitable tolling to this case
assuming I found that he untimely appealed the notice of
determination dated June 18, 1987. I agree with Mr. Hoffman's
allegations that he did not sleep on his rights although he was not
initially represented by counsel. Moreover, I find that it could
be successfully argued, if necessary, that he was "misled" because
of "extraordinary circumstances" in that the notice of determination
contains no explicit reference to OPPD. However, I find it
unnecessary to apply the doctrine of equitable tolling to this
case.
There is no question that Gary Hoffman's timely complaint
was against both FEC and OPPD. (Complainant's Exhibit 1).
Moreover, it is uncontroverted that the investigation under the
Act also included Mr. Hoffman's allegation of discrimination by
OPPD. I find that unfortunately the notice of determination
issued on June 18, 1987 does not clarify that the investigation
by the Wage and Hour Division led that agency to conclude that
OPPD was not an employer within the meaning of the Act. Indeed,
that notice fails to include OPPD in the caption or indicate to
the complainant that he needed to send a copy of his request for
[Page 8]
hearing to OPPD if he chose to contest the determination. Further,
there is no evidence indicating a copy of the notice of
determination was served on OPPD.
I agree with the complainant that there was no way he knew
or should have known that the notice of determination was intended
to apply to OPPD. Although unrepresented, Mr. Hoffman strictly
complied with all of the instructions given to him by the
Department of Labor regarding the filing of an appeal. I find it
reasonable to assume that if the notice had indicated that the
determination also pertained to OPPD, then Mr. Hoffman would have
properly included that party in his appeal. In fact, it is
conceivable that OPPD may never have been included in this action
but for the complainant's retention of counsel and her diligence
in developing evidence. Such omission, I find, has been averted
through the issuance of Mr. Skolaut's letter of explanation dated
October 16, 1987.
I reiterate that OPPD argues that it was included in the
notice of determination by implication. If so, it is logical to
conclude that it also was implicitly included in Mr. Hoffman's
timely appeal of that determination. I therefore find that
complainant's strict adherence to the appeal procedures as outlined
to him in the notice of determination is sufficient to perfect
his appeal against OPPD. Although Mr. Hoffman attempted to bring
OPPD into this litigation by the filing of what he captioned an
amended complaint to his complaint of May 26, 1987, I find such
action was unnecessary because OPPD was initially made a party to
that complaint. Regardless of the style, I accept that document
as an amended pleading relating back to Mr. Hoffman's original
pleading and that it was served with the purpose of adding OPPD
as a party to Case No. 87-ERA-33. I find that the request to
include Omaha Public Power District as a respondent in Case No.
87-ERA-33 should be granted. The relief requested by the complainant
shall be granted by a separate Order pertaining specifically
to that case.
I finally note that I find OPPD has not been prejudiced by
this action. It timely was advised of the complaint by Mr.
Hoffman. It essentially received as much notice regarding the
substance of the notice of determination as did the other parties.
OPPD can now maintain its defense of this litigation on an equal
basis with FEC and pursue discovery, as deemed appropriate.