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Roberts v. Battelle Memorial Institute, 1996-ERA-24 (ALJ Nov. 23, 1999)
U.S. Department of Labor | Office of Administrative Law Judges 800 K Street, NW, Suite 400-N Washington, DC 20001-8002 | ![]() |
In the Matter of:
LINDA ROBERTS
Complainant
v.
BATTELLE MEMORIAL INSTITUTE,
ROBERT W. SMITH, JR.; ROBERT E. LINCOLN;
KATHY OLSON; K.C. BROG; AND V.E. CASTLEBERRY,
Respondents
This matter arises under the employee protection provision of the Energy Reorganization Act ("ERA" or "the Act"), 42 U.S.C. § 5851,1 and the regulations issued thereunder at 29 C.F.R. Part 24. It is currently before the undersigned pursuant to a Remand Order from the Administrative Review Board ("ARB"), dated July 8, 1997.
This complaint was originally dismissed as not being timely filed. On appeal, mention was made of an alleged letter dated January 12, 1995, which would represent a timely filed complaint. This letter was submitted for the first time on appeal to the Sixth Circuit Court of Appeals. Accordingly, the case was remanded to determine the nature of this letter.
Procedural History
This proceeding was commenced based on a January 27, 1995 letter that Linda Roberts ("Complainant") submitted to the U.S. Department of Energy ("DOE"). (CX 2). In this letter, Complainant detailed alleged retaliation for inquiring about possible safety violations, inter alia. After a substantial delay, the letter was forwarded to the U.S. Department of Labor ("DOL"). DOL treated the letter as a complaint filed with DOL as of January 27, 1995. Nonetheless, DOL determined that it was still filed outside the 180-day statutory limitation period. Complainant thereafter filed a request for a hearing before an Administrative Law Judge. The complaint was transferred to this Office for hearing on June 3, 1996.
Once the case was received, it was clear that an issue existed as to whether the claim had been timely filed. Accordingly, on June 3, 1996, the undersigned issued a Notice of Docketing and Pre-Hearing Order Number One. In this Order, I indicated that there was a possible dispositive issue regarding the timeliness of complaint. The parties were expressly informed in this order that "the only documents contained in the appeal file at present are the District Director's May 17, 1996 determination letter and the Complainant's May 24, 1996 telegram requesting a hearing" and that any documentation upon which the parties intended to rely must be resubmitted.
On June 6, 1996, this Office received Complainant's Response to Case No. 96-ERA-24. This response listed "some of the dates of outside contacts made concerning discrimination." It consisted of eleven entries of various items of correspondence, some entries documenting claims filed by Complainant and some documenting correspondence received by Complainant. Of the four entries documenting claims filed by Complainant, every one had been sent to either the Ohio Civil Rights Commission and/or the Equal Employment Opportunity Commission. No reference was made to any letter mailed by Complainant during the month of January, 1995. The response does indicate that Complainant received a letter dated February 6, 1995 from the DOL acknowledging her "complaint filed January 12, 1995." Complainant did not submit a copy of this complaint to substantiate this notation, nor did she include in this list an entry indicating what, if anything, had actually been sent on that date.
A conference call was held in this matter on June 10, 1996. During this conference call it was determined that the matter would be held in abeyance for one month so that Complainant could obtain counsel. According to the undersigned's Pre-Hearing Order Number Two, if she was unable to find counsel, she was to file a statement of intent to proceed without counsel no later than July 12, 1996.
Complainant responded to the second pre-hearing order on July 9, 1996. In this response, she indicated that she was seeking to obtain representation through two law schools' clinical programs. Complainant further indicated that she would submit copies of the documents cited in her previous letter that would be considered timely. However, she inquired as to what documentation would be considered timely. Specifically, she asked "Would timely' material consist of the three charges I filed before July 18, 1994, but after November 1, 1993, plus any contacts I made up through January 14, 1995?" After two extensions of the stay so that she could continue her search for counsel, Complainant notified this Office that she had been unable to secure legal representation by letter dated September 22, 1996. In this letter, Complainant again asked that I provide her with legal assistance regarding how to prosecute her claim, i.e., what issues were to be addressed by our Office.
On October 3, 1996, the undersigned issued a Proposed Decision and Order. This proposed decision and order specified that the only issue being dealt with at that time was the issue regarding the timeliness of filing. Specifically, this order indicated that the January 27, 1995 complaint filed with the DOE was more than 180 days from the date of discrimination. The parties were thus ordered to show cause why the matter should not be dismissed as untimely filed. In response to Complainant's requests that I provide her with guidance as to the handling of her claim, I attached copies of 29 C.F.R. Parts 18 and 24, as well as a copy of 42 U.S.C. § 5851. I further directed her to our Office's website as a research resource.
Complainant's Justification of Timeliness was received on October 17, 1996. Complainant stated in this response that "at least one complaint, by pure luck, was filed within the 180 day limit." However, Complainant did not indicate which complaint, nor did she include a copy of any such complaint. Complainant further alleged that "it is not common knowledge that the U.S. Department of Labor handles safety and health related complaints. Had I known, all complaints would have been to the Labor Department first." Complainant further indicated her confusion as to why the date being referred to as the filing of the complaint was when she mailed her complaint to the DOE. Finally, she again included the two page list as to communications sent and received regarding this case which she described as constituting "some of the paper trail and verbal discussions as a historical background[.]" This time, the list expanded to 16 items. In this submission, six of the entries listed complaints filed by Complainant. However, the submission again omitted any reference to any letter or complaint filed with DOL in January, 1995. The complaints listed were filed with the Ohio Civil Rights Commission, the Equal Employment Opportunity Commission, the Internal Revenue Service, and the Environmental Protection Agency. She again listed a letter dated February 6, 1995, "from U.S. Department of Labor to Linda Roberts" and included a better description of the letter, "Re: acknowledge complaint dated January 12, 1995. Forward to Equal Employment Opportunity Commission." Again, Complainant did not submit a copy of this complaint to substantiate this notation, nor did she include in this list an entry indicating what, if anything, had actually been sent on that date. The only information submitted indicated that all complaints had been ultimately submitted with the Ohio Civil Rights Commission and/or the Equal Employment Opportunity Commission.
On November 25, 1996, after having received responses from both parties, I ordered Complainant to submit all charges filed with the Ohio Civil Rights Commission and the Equal Employment Opportunity Commission so that I could fully assess the circumstances surrounding the timeliness issue. Complainant submitted those complaints on December 5, 1996. This order was issued as all documentation submitted by Complainant indicated that all prior complaints had dealt with civil rights related charges. Accordingly, these filings and submissions were needed to determine if Complainant had ever brought up any issues regarding retaliation under the ERA.
Having provided ample opportunity to Complainant to submit the actual documentation regarding when she filed her complaint, I issued a Recommended Order Dismissing Complaint on December 18, 1996. First, it was determined that Complainant had failed to establish that she had filed any correspondence which could be interpreted as a complaint under the ERA prior to the January 27, 1995 letter, which was filed more than 180 days from the adverse action. Although her prior sex discrimination complaints did indicate "retaliation," there was nothing in the record to attribute this to anything other than the sexual discrimination claims. Second, it was determined that Complainant had failed to establish sufficient justification for applying the doctrine of equitable tolling to remedy her untimely filing. Accordingly, it was recommended that the claim be dismissed.
On January 2, 1997, Complainant submitted a Request for Reconsideration of Recommendation for Dismissal. The request highlighted her prior letters which indicated a complaint dated January 12, 1995. However, Complainant did not submit this complaint, nor was such a complaint contained in the files. As she had failed to submit additional facts or legal argument, her motion for reconsideration was denied on January 6, 1997.
Complainant filed her Second Request for Reconsideration of Recommendation for Dismissal on January 10, 1997. Complainant correctly noted that the previous order denying reconsideration had confused the date on which the letter had been filed with the DOE. However, as the mistake was not contained in the Recommended Order Dismissing Complaint, it was irrelevant. Complainant went on to clarify what her January 12, 1995, submission to the DOL contained. Specifically, she indicated that the acknowledgment letter she received expressly stated that the January 12, 1995, complaint was "filed under the provisions of Executive Order 11246, as amended."2 I again denied reconsideration on January 15, 1997, and advised Complainant that the proper course of action would be to file an appeal with the Administrative Review Board ("ARB").
Complainant thus filed an appeal with the ARB on January 29, 1997. On appeal, Complainant submitted the February 6, 1995, acknowledgment letter for the first time. This letter expressly indicates that the January 12, 1995 submission was a complaint filed under the authority of Executive Order 11246, as amended, and that the complaint would thus be forwarded to the EEOC for proper handling. Nothing in this letter indicates the receipt of any other letter or complaint dated January 12, 1995.
On June 4, 1997, the ARB adopted my December 18, 1996, Recommended Order Dismissing Complaint and agreed that there is no basis for the equitable tolling of the limitation period with respect to a January 27, 1995, letter originally sent to DOE.3 The ARB accordingly dismissed Complainant's complaint as untimely.4 As for the alleged January 12, 1995 complaint, the ARB found that
[t]he fact that the complaint was forwarded to the EEOC for processing also suggests that it was filed pursuant to the Executive Order. Although it is possible that the complaint included statements that would constitute a cognizable claim under the ERA, since a copy of the complaint has not been produced for review, there is no basis from which the Board can conclude that it did. Therefore, we find that the January 12, 1995 letter did not constitute an ERA complaint.
Roberts v. Battelle Memorial Institute, et al., ARB Case No. 97-038 (Final Dec. and Ord., June 4, 1997).
Complainant subsequently petitioned for review of the ARB's Final Decision before United States Court of Appeals for the Sixth Circuit. For the first time in these proceedings, Complainant proffered a letter dated January 12, 1995, that she alleges was filed with the DOL. The Sixth Circuit declined to receive the letter into the record and instead remanded the matter to the ARB holding, inter alia, that its decision was not supported by substantial evidence, as the ARB had not had access to this letter.5 On July 8, 1998, the ARB vacated its June 4, 1997 Final Decision and Order and remanded the case to this office for further proceedings consistent with the decision of the Sixth Circuit.
The case was re-docketed with this Office on July 16, 1998. On July 24, 1998, Complainant was ordered to submit to this office a copy of her January 12, 1995 letter addressed to the Department of Labor so that "the nature of the letter can be more precisely determined," in accordance with the ruling of the Sixth Circuit.6 On August 7, 1998, Complainant submitted a statement of position and a copy of a letter which she alleges to be the "complaint dated January 12, 1995." The letter she submitted has an original signature.7
In an attempt to authenticate the January 12, 1995 letter, on September 15, 1998, the undersigned sent a written request to each of the following for a copy of said January 12th letter: the Equal Employment Opportunity Commission in Cleveland, Ohio; the Division of Fair Labor Standards U.S. DOL, Washington, D.C.; and the Office of Federal Contract Compliance Programs.
On September 18, 1998, Mr. Halcolm Holliman, the Regional Director of the Office of Federal Contract Compliance Programs, forwarded to this Office a copy of a complaint and a letter filed by Ms. Roberts. The OFCCP file indicates that these documents were received on January 19, 1995. According to Mr. Holliman and OFCCP records, the only materials submitted consisted of the OFCCP complaint form CC-4 (four pages) and a two page letter. The CC-4 form is blank except for identifying information and was dated January 12, 1995.8 On September 23, 1998, EEOC sent this Office an identical copy (to the submission made by OFCCP) of the January 12th complaint and the two-page attached letter (dated January 16, 1995), as originally submitted by Linda Roberts according to their records. The letter dated January 16, 1995, is a two page narrative describing the allegations of sex discrimination as alleged in the claim form filled out on January 12, 1995. This letter makes no reference to any discrimination or retaliation as a result of any "whistleblowing" activities, and is not a cognizable claim under the ERA.
The complaint and letter submitted by OFCCP and EEOC, which constitute Ms. Roberts' "complaint dated January 12, 1995" as described in the February, 1995 acknowledgment letter, is not the same letter/complaint as submitted by Ms. Roberts to this office on August 7, 1998. Pursuant to the undersigned's Order dated July 24, 1998, whereupon it was ordered that Ms. Roberts submit "a copy of her January 12, 1995 letter addressed to the Department of Labor so that the nature of the letter can be more precisely determined . . .'", Ms. Roberts submitted a five page letter addressed to the Regional Director of OFCCP. Aside from having an original signature, the letter is an entirely different submission (which she alleges to be the "complaint dated January 12, 1995") than the submissions made by OFCCP and EEOC. The claim form provided by OFCCP and EEOC do not contain an allegation covered by the ERA. The January 12, 1995 letter submitted by Ms. Roberts, however, would present a cognizable whistleblower complaint if she in fact timely filed such a letter.
A hearing was held before the undersigned on November 19, 1998 in Columbus, Ohio. One day was allocated for the hearing and the arguments were limited to the issue of the authenticity of the "January 12, 1995" five-page letter submitted to this Office by Complainant on August 7, 1998.
At the hearing, I ordered the Complainant to submit to this Office a disk copy and/or hard-copy of the file list of the computer directory in which the alleged "January 12, 1995" letter was saved. Ordinarily, the file list shows when a file was last modified and when the file was created. On November 30, 1998, Complainant complied with such order, submitting both a computer disk copy and a paper copy of the "file list." However, the file list submitted by Ms. Roberts indicated that the "January 12, 1995" document had been modified and created on November 20, 1998 one day after the hearing. In her letter attached to the file list, Ms. Roberts asserts that "the three files from January 1995 were inadvertently permanently updated from Wordperfect to Microsoft Word when [she] was transferring them via FAX. The dates of origination no longer show on the directory."
Complainant has the burden of proving that she timely filed her claim. The only documentation submitted by Complainant indicating that a complaint alleging a claim cognizable under the whistleblower provisions of the ERA was timely filed was a copy of a letter that she alleges was sent on January 12, 1995, along with a pre-printed form, to the U.S. Department of Labor. While no case involving the ERA has ever reached this issue, in cases where the filing of a claim is required to be established such as under the Federal Torts Claim Act ("FTCA")9 , "mailing alone is not enough" to establish that a claim has been filed; "there must be evidence of actual receipt." Rhodes v. United States, 995 F.2d 1063 (4th Cir. 1993). While this is necessary because proof of filing is a jurisdictional requirement under the FTCA, it is just as important where, as here, the date of the filing of a claim could be dispositive. As the following discussion shows, it is difficult, if not impossible, to believe Complainant's allegation that the purported letter of January 12, 1995 was ever sent to any government agency.
Attempts were made by this Office to determine what exactly was submitted by Complainant on January 12, 1995. First, the local office of OFCCP to which Complainant alleges she submitted the letter, sent a copy of the correspondence that it had on record regarding the January 12, 1995 submission. This correspondence consisted of the claim form and a follow up letter from Complainant further detailing her sex discrimination complaint, and only that complaint, dated January 16, 1995. OFCCP stated that it copied this correspondence and sent it to the EEOC for proper handling. The EEOC was thus contacted to determine what it received from OFCCP. The EEOC's file contained the exact same correspondence in its file, substantiating the assertions of OFCCP. Claimant asserts that some records and letters from these departments refer to the "complaint" received dated January 12, 1995. Having received the responses from these agencies regarding this matter, it is apparent that the only "complaint" being referred to
as having been received is the claim form which Complainant mailed on January 12, 1995. The evidence indicating that no government office appears to have ever received this letter supports the proposition that the letter was never mailed. This is supported by the fact that OFCCP's February 5, 1995, acknowledgment of the January 12, 1995, claim form as a complaint filed under Executive Order 11246 lends credence to the suggestion that the January 12, 1995 submission did not include the alleged letter. (RX 3). Such a conclusion is supported by OFFCP's response to the undersigned's inquiries that Complainant's claim "was determined to be an individual allegation of gender discrimination" and was thus forwarded to the EEOC.
Despite the absence of evidence of actual receipt of the alleged letter by either OFCCP or EEOC, at the hearing, I ordered Complainant to submit either a printout of the Windows file manager which would show the last time the file was modified or to submit the diskette upon which she saved the letter in order to establish the date when the file was created or modified last. This order was made to give Complainant an opportunity to submit evidence tending to prove the submission of the January 12, 1995 letter. Complainant was specifically instructed not to fax this information, but to send it by mail. (Tr. 51). However, Complainant chose to submit this information by facsimile anyway. Further, the disk directory shows that these files were all updated on November 20, 1998, the day after the hearing where she was ordered to produce this information. Complainant alleges in her complaint that she "inadvertently updated the files requested . . . when she attempted to FAX them locally on November 20, 1998." She does not state to whom she was faxing these documents or why she failed to print out the disk directory prior to this attempt. If Complainant had managed to check the disk directory when she was printing out the copies faxed on November 19, 1998, Complainant may have been able to preserve the best evidence of when this alleged letter was created. Her excuses for her failure to do so simply stretch the bounds of credibility. Of course, the changed date does not prove that the letter was not submitted. However, the alteration of the creation date, accidental or not, destroyed evidence that may have tended to substantiate the authenticity of the letter purportedly mailed on January 12, 1995.
Without the above evidence to clearly substantiate when the letter was created, I must turn to the remaining evidence in the record, and the inferences that may be drawn there to determine if this letter was actually submitted on January 12, 1995. In viewing this evidence, several reasons remain to doubt that this letter was timely submitted even if it was created at the time Mrs. Roberts alleges.
In the prior proceedings before this Office there was no mention or copy of any letter dated January 12, 1995 alleging ERA whistleblower type retaliation in the record. No such mention was made despite the fact that the timeliness of the filing was clearly at issue, and only now, on remand, is the alleged letter submitted. In fact, in the original proceeding, Complainant merely submitted a list of correspondence with minimal description, thus placing the administrative law judge in the role of investigator, and left it to the undersigned to determine, without benefit of the actual letters, if she had, at any time, submitted anything that might possibly be considered a complaint under the ERA. Even in doing this, Complainant failed to list the January 12, 1995 letter that she now alleges was such a complaint. The only references made to such a January 12, 1995 submission involved the acknowledgment of receipt of the pre-printed claim form filed under Executive Order 11246, which deals with sex discrimination. No reference is made to any other letter allegedly mailed on that date.
I also find significant that the January 27, 1995 complaint that initiated this proceeding filed with the U.S. Department of Energy refers to "filling out" a complaint on January 12, 1995 with DOL. (CX 2). This language by Complainant tends to prove that she is referring to the claim form and not the letter. She also does not indicate any other complaints in her January 16, 1995 follow up letter; this letter merely discusses Complainant's sex discrimination complaints. Finally, two federal agencies confirmed that the only submissions received were the claim form and the January 16, 1995 follow up letter.
In reviewing all of the above, it is apparent that no credible evidence exists that would substantiate Complainant's allegation that she included the letter in question as an attachment to the claim form. As she is unable to prove that the alleged letter was actually sent to the OFCCP as claimed, I must rely on the records that the agencies have been able to produce. According to these records, the alleged letter was never received, and Complainant thus failed to timely file her complaint in this matter. Accordingly,
I hereby RECOMMEND that this case be DISMISSED.
SO ORDERED.
JOHN M. VITTONE
Chief Administrative Law Judge
JMV/jcg
1The Energy Reorganization Act provides that "[a]ny employee who believes that he has been discharged or otherwise discriminated against by any person in violation of [the anti-discrimination provision of the statute] may, within 180 days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor . . . alleging such discharge or discrimination." 42 U.S.C. § 5851(b)(1).
2Executive Order 11246 deals solely with equal employment opportunity in Federal employment and under Federal contracts.
3See Roberts v. Battelle Memorial Institute, et al., ARB Case No. 97-038 (Final Dec. and Ord., June 4, 1997).
4For a detailed discussion on the issue of timeliness of the January 27, 1995, letter to the Department of Energy, see Roberts v. Battelle Memorial Institute, et al., 1996-ERA-24 (Recommended Order Dismissing Complaint, Dec. 18, 1996).
5Roberts v. United States Department of Labor, No. 97-3819 (6th Cir. June 23, 1998).
6Specifically, the Sixth Circuit found that "the Administrative Review Board's conclusions about [Complainant's] January 12, 1995, letter are unsupported by substantial evidence. The letter was not before the Board either, and its characterization of the letter as not constituting a complaint under the Energy Reorganization Act is unsupported in the record." Id.
7Much confusion has arisen regarding the terminology used to describe the "complaint dated January 12, 1995." Accordingly, some clarification is necessary. The letter which Complainant alleges was a complaint sent to the U.S. Department of Labor on January 12, 1995 will be referred to as "the January 12, 1995, letter" or just simply "the letter." The form that was allegedly sent along with the letter will be referred to as "the claim form." Finally, the complaint lodged with the U.S. Department of Energy dated January 27, 1995, will be referred to as "the originating complaint."
8The form was actually dated January 12, 1994. However, it is clear that Ms. Roberts mistakenly dated it "1/12/94". In addition to the form showing a date stamp of January 19, 1995 by OFCCP, Ms. Roberts makes references in the complaint to discriminatory actions in July of 1994.
9The Federal Tort Claims Act requires that a claim be filed with the appropriate agency prior to filing any claims against the United States in federal court. Keene Corp. v. United States, 700 F.2d 836, 840 (2d Cir.), cert. denied, 464 U.S. 864 (1983).