Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105
(415) 744-6577 (415) 744-6569 (FAX)
Issue Date: 24 September 2003
CASE NO: 2003-WPC-00008
In the Matter of:
BOBBY MODINA,
Complainant
v.
AMERICAN LINEN CORPORATION,
Respondent
RECOMMENDED ORDER OF DISMISSAL
Background
This proceeding arises under Section 507(a) of the Federal Water and Pollution Control Act ("WPCA"), 33 U.S.C. 1367, Section 7001 of the Solid Waste Disposal Act of 1976, 42 U.S.C. 6971 and the implementing regulations found at 29 C.F.R. §24.3. These Federal employee protection provisions were the result of congressional concern for the protection of "whistle blower" employees from discriminatory actions by their employees. Pulliam v. Worthington Service Corporation, 81-WPC-1 (ALJ May 15, 1981).
On December 18, 2002, Complainant, Bobby Modina, filed a complaint with the Department of Labor alleging retaliatory termination by his employer American Linen Corporation. Complainant was terminated by Respondent on October 30, 2002 and contends the termination resulted from earlier complaints to Respondent regarding the company's practice of disposing untreated wastewater in violation of health and safety standards.
On April 30, 2003, an Occupational Safety and Health Administration ("OSHA") investigation dismissed the complaint for lack of merit. OSHA determined Complainant did not meet threshold requirements for a field investigation because he failed to file the complaint within 30 days of the alleged violation. The determination letter advised that a Request for Hearing must be filed within 5 days of the receipt of such letter.
On August 5, 2003, Complainant mailed his Request for Hearing by International Express Mail. The matter was docketed in the Office of Administrative Law Judges and assigned to the undersigned who scheduled a hearing date of September 15, 2003.