DOL Home > OALJ > Whistleblower > Scott v. Yearin Inc., 91-SDW-1 (ALJ May 21, 1991) |
DATE: May 21, 1991
CASE NO.: 9l-SDW-1
IN THE MATTER OF
JACK H. SCOTT,
COMPLAINANT,
v.
YEARIN, INC.
AND
WILLAMETTE INDUSTRIES,
RESPONDENTS.
CASE NO.: 91-SDW-2
IN THE MATTER OF
JACK H. SCOTT
COMPLAINANT,
v.
WAYNE MAULDIN
AND
W.M.I., INC. CRANE SERVICE
RESPONDENTS.
Ostensibly, this matter is before me on Complainant's Motion to Consolidate the above captioned cases.1 Underlying the case at 91-SDW-2 is whether Complainant's charge against Wayne Mauldin
and W.M.I., Inc. Crane Service is timely. See 29 C.F.R. §24.3(b). It this issue falls away for the Complainant, then so does his motion to consolidate. Initially, I believed that an evidentlary hearing would be required to determine whether equity
dictated tolling of the statute of limitations. (See my Order Dated April 19, l99l, p. l at Case No.: 91-SDW-l). However, the matter having been briefed by the parties and various exhibits having been submitted, I am prepared to rule and I find as follows:
1. Assuming for the sake of argument that Complainant was fooled into believing that Wayne Mauldlin was a Willemette employee throughout his employment with Yeargin, Inc. and the U.S. Department of Labor, Wage and Hour Division investigation, both Yeargin and Willamette have presented prima facie evidence that on or about November 14, 1990, James L. Valin, Regional Administrator for Wage and Hour, in response to Complainant's request of October 24, logo, forwarded to him Wayne Mauldin's statement of September 25, 1990. The first line of the statement reads:
(See Williamette's Brief, Exhibit 5 and Yeargin's brief, Exhibit 1 at Case No. 91-SDW-1).
2. I find that the evidence presented concerning Wayne Maulin's statement of September 25, 1990 constitutes prima facie proof of receipt by Complainant. This evidence should prevail if unrebutted. Elmore v. United States, 465 F.2d 1232, 1234 (4th Cir. 1972).
3. Assuming I find January 15, l99l as Complainant's filing date against Wayne Mauldin {albeit in the wrong forum), Complainant is about 26 days late.2
4. I find presumptive evidence that Complainant's charges against Wayne Mauldin et al at 91-SDW-2 are untimely and will be dismissed unless rebutted by Complainant within 10 days from the date of this Order by affidavit' exhibits with date stamps and/or any other evidence Complainant wishes to produce.3
5. If the Complaint at 91-SDW-2 is dismissed, whether I have jurisdiction to hear all issues. on appeal (i.e., both procedural and substantive) is moot; whether the cases at 91-SDW-1 and 91-SDW-2 should be consolidated is also moot.
6. Complainant argues that there is no requirement in the regulations for liable parties to be specifically named as respondents in the complaint since no
particular form of complaint is required.4 If I accept Complainant's argument, that an aggrieved party may name one violator and not another, then I would have to accept the idea that the Administrator could be either intentionally or unintentionally misled as to whom to investigate. Also, by inference, §24.4(a), which states that the Administrator shall notify the person named in the complaint of its filing, a full statement of acts and omissions believed to constitute the violation as stated in §24.3(c), means naming the violators. By naming (charging) only Yeargin and Willamette, Complainant excluded all others. The Administrator's obligation was to investigate the charges in the complaint; he may question persons proceeded against (§24.4(b))5 and thereafter notify the Complainant and respondent6 of his determination. §24.4(d)(l). For these reasons, I find against Complainant on this point. I could understand not naming all the respondents if they are not known (for example, in this case Complainant may have believed Mauldin worked for Willamette). However, once they are known, Complainant has 30 days to file charges.
7. Complainant next argues that the complaint against Mauldin and W.M.I., Inc. is reasonably within the scope of the original complaint and under Fed. R. Civ. P. 15(c) should relate back. I disagree. In Bloomfield Mechanical Contracting Inc. v. Occupation S. & H.R. Com'n, 519 F.26 1257 (3rd Cir. 1975), Bloomfield Mechanical Contracting, Inc. and Blumin & Associates, Inc. formed a joint venture to do plumbing work on the Castleton Park apartments in staten Island, New York. As a result of an OSHA inspection, the Secretary of Labor issued citations and notification of proposed penalties in the name of Bloomfield (not the joint venture who was the plumbing employer on the job). The citations were served on Bloomfield's President, Anthony Deland. The Third Circuit remanded to the occupational Safety and Health Commission for a determination as to whether pursuant to Rule 15(c), the Commission would permit an amendment substituting the joint venture as a party to relate back to the date of the original citation. The court reasoned that there was a strong likelihood that the Commission would find such identity of interest between Bloomfield and the joint venture that notice to tho former would be attributed to the latter. Bloomfield, 519 F.2d at 1262.
Rule 15(c), Fed.R.Civ.P., deals with the relation back of amendments, and provides in part:
The case before me is fundamentally different: Wayne Mauldin wee not a joint venturer with either Willamette or Yeargin. There are no "identity of interests" among Mauldin, Willamette and Yeargin in the sense that Mauldin was a partner on the job, Secondly, the question of whether Mauldin will or will not be prejudiced in maintaining his defense on the merits is purely speculative. Finally, there is no reason to believe that but for mistake in the identity of the proper parties, auldin knew or should have known the action would have been brought against him.
8. Finally, Complainant argues that the Complaint against Mauldin et al is timely under the principles of equitable tolling. As stated above, there now appears prima facie evidence that Complainant knew or should have known on or about November 14, 1990 that Wayne Mauldin was self employed and that a complaint against him should have been filed on or before December 20, 1990. Under these circumstances, equitable tolling seems inappropriate.
The above considered, Complainant shall have ten days from the date of this Order to show cause, consistent with paragraph 4 above, why the case at No: 91-SDW-2 should not be dismissed.
It is so Ordered
MICHAEL P. LESNIAK
Administrative Law Judge
MPL/lkw
1The parties all agree that I do not have Jurisdiction to consider consolidation because I am not the Chief Administrative Law Judge. (See 29 C.F.R. §24.5(b)). For reasons hereinafter explained, whether I have subject matter Jurisdiction to consolidate the two cases is moot.
2I do not know for certain when or if Complainant, through counsel, received Mr. Valin's letter. I am assuming Complainant received it within 3 business days, or on or about November 19, 1990. Thus, Complainant should have filed against Mauldin on or before December 20, 1990.
3Willamette may still be responsible for Wayne Mauldin's alleged discriminatory conduct under the principles of agency.
4Complainant unequivocally charged, Willamette Industries and Yeargin Construction Company, Inc. of Bennetsville, Santa Carolina on June 28, 1990.
5Other indications that Respondents should be named.
6Same as Footnote #5.