DOL Home > OALJ > Whistleblower > Merritt v. Mishawaka Municipal Utilities, 93-SDW-3 (ALJ Dec. 9, 1993) |
DATE: DECEMBER 9, 1993 CASE NO.: 93-SDW-3 IN THE MATTER OF NORMAN D. MERRITT Complainant v. MISHAWAKA MUNICIPAL UTILITIES THE CITY OF MISHAWAKA RESPONDENT APPEARANCES: Gregory K. Blanford, Esq. South Bend, Indiana For the Complainant John P. Gourley, Esq. ishawaka, Indiana For the Respondent BEFORE: RUDOLF L. JANSEN Administrative Law Judge RECOMMENDED DECISION AND ORDER This proceeding arises under the Safe Drinking Water Act of 1974, 42 U.S.C. §300 et seq. and the applicable regulations issued thereunder found at 29 C.F.R. Part 24. The statutory provisions offer protection to employees by prohibiting an employer from discharging or otherwise discriminating against an employee engaged in protected activity. The dispute in this case resulted from a determination[1] by the District Director, Wage and Hour Division, U.S. Department of Labor (hereinafter referred to as DOL) that the complaint filed by Norman D. Merritt was untimely. Mr. Merritt appealed that determination on March 9, 1993 and a hearing was subsequently held in South Bend, Indiana on August 24, 1993.
[PAGE 2] The Findings of Fact and Conclusions of Law which follow are based upon my observation of the appearance and demeanor of the witnesses who testified at the hearing and upon my analysis of the entire record,[2] arguments of the parties, and applicable regulations, statutes and case law. Each exhibit received into evidence, although perhaps not specifically mentioned in this decision, has been carefully reviewed. I find the testimony of Norman D. Merritt, Philip R. Miller and Bonnie S. Bailey to have been entirely credible. ISSUE 1. Whether the complaint of Norman Dennis Merritt was filed within thirty days after the occurrence of the alleged violation. FINDINGS OF FACT Norman Dennis Merritt (hereinafter Merritt) began working with the Mishawaka Municipal Utility (hereinafter MMU) on Septem- ber 25, 1973. He was hired as a pumping station operator which means that he had the responsibility of maintaining and running the plant. He subsequently became a general foreman and also carried the title in his last position as plant supervisor. In this latter position as general foreman, he was responsible for all pumping facilities, all plant and maintenance personnel including custodians. He directly supervised approximately ten individuals. Merritt testified that he had experienced employment diffi- culties with MMU and that he was terminated on December 10, 1992. He originally left his employment with MMU on June 2, 1992 for an approximate thirty days based upon authorization of his personal physician due to a blood pressure condition. The physician authorized Merritt to return to work in July of 1992, but he was instructed to remain home by Bonnie S. Bailey, Director Human Resources, until he received further notice. He apparently was advised that he would suffer no loss of wages during this period. MU's request to him that he remain home was a verbal request made in a phone conversation. He held no understanding as to the duration of time that he was to remain away from work. Merritt was advised that MMU would inform him at a later date as to his work status. His regular pay continued during this period. This process continued on and off for about five months.
[PAGE 3] The company sent him to see a psychologist in August of 1992 and he also saw a general practitioner in August or September of 1992. In addition, he also saw a psychiatrist. Merritt had attempted to return to work on more than one occasion but each time he was told that he could not return. In November, 1992, he was advised by Jim Crook, Water Department Manager, that without the consent of a physician, he could not return to work. One of erritt's physicians had indicated that he was manic depressive and it was not safe for him to be in public contact or administer treatment of the drinking water facility. After meeting with Mr. Crook in November, 1992, Merritt left that meeting with the understanding that Crook was to talk to a physician about his current condition and then a decision would be made following that conversation. There really was no verbal contacts after that date in which the subject of his continuing work, resigna- tion or termination was discussed with company personnel. It was the paper trail that followed which is the best evidence of the motives of the parties. Merritt started a new job on November 23, 1992 with a different company. He testified that his respon- sibilities in the new position are twice as great as his respon- sibilities with MMU. The record contains ten pieces of documentary evidence which tend to support either a termination date of November 23, 1992 or December 10, 1992. On November 11, 1992, Bonnie S. Bailey, Director, Human Resources sent a letter to Merritt advising him that he still carried fifteen vacation days at the beginning of November and that the possibility existed that his sick leave could continue after November 23, 1992; but that subsequent to the expiration of the sick leave, that they would have no further basis on which to pay him. The letter suggests that Merritt could "redeem" his comp. time after November 24. The letter directs that he should continue his consultations with a Dr. awhinney "with a goal of being released to return to work." Numerous exhibits point to a termination or resignation date of November 23, 1992. Merritt gave the manager of MMU a signed statement indicating that his resignation was effective November 23, 1992. (JX 2) On January 8, 1993, he also signed a company form indicating a termination date effective November 23, 1992. (JX 3) A company payroll form including Merritt's employment record notes that his actual employment resignation was on November 23, 1992. (JX 8) The company payroll register showing bi-weekly salary payments of MMU indicates that Merritt received no compensation for the pay period extending from November 28, 1992 to December 11, 1992. (JX 9)
[PAGE 4] On the other hand, there also is evidence in the file that his termination date was not effective until December 10, 1992. The final letter from MMU indicating that his situation was being treated as a "resignation" notes that it was effective as of the date of the letter. That date was December 10, 1992. Merritt took that letter and made some personal notations and redirected it back to the company. His notations indicate that he was treating the company statement as a firing. (JX 1) Merritt also wrote a letter to the company dated November 23, 1992 in which he mentions his current unknown employment status with MMU. (JX 4) The company Change of Status Form which was executed by the Water Department Manager and Bonnie S. Bailey in the Department of Human Resources indicates an effective date of December 10, 1992 for Merritt's resignation. (JX 6) Also, the Payroll Data General Information Form containing Merritt's employment record also includes a notation that his resignation for insurance purposes occurred on December 10, 1992. Ms. Bailey testified that an employee could not have insurance coverage if the indi- vidual was not an employee of MMU. CONCLUSION OF LAW All of the federal whistleblower protection laws have thirty day statutes of limitation. The Safe Drinking Water Act provides for an appeal period as follows: Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of paragraph (1) may, within thirty 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. §300(j-9)(i)(2)(A). The other federal protection statutes are either identical to this provision or are drafted in a very similar fashion. The regulations provide that any complaint under this section shall be filed within thirty days after the occurrence of the alleged violation. 29 C.F.R. §24.3(b). These statutes commence running on the day that the employee becomes aware, or reasonably should have been aware, that he was the victim of a discriminatory act, Pulliam v. Worthington Service Corp., 81-WPCA-1, slip op. of ALJ at 2 (May 15, 1981), or the day that the employee becomes aware that a decision was made to terminate him or otherwise discriminate against him and not when the employee is warned that a decision might be made. Conley v. cClellan Air Force Base, 84-WPCA-1, slip op. of ALJ at 4 (September 12, 1984). The thirty-
[PAGE 5] day Statute of Limitations period has been strictly enforced by the courts and by other Administrative Law Judges. School District of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981); Stokes v. Pacific Gas and Electric Co., 84 ERA-6, slip op. of ALJ (July 27, 1984); Symmes v. Purdue University, 87-TSC-5, slip. op. of ALJ (February 17, 1988). Based upon these considerations, I must now decide initially at what point in time the alleged unlawful employment practice occurred and secondly, whether the Complainant filed his charge within thirty days after the alleged violation occurred. As was noted above, MMU contends that the separation occurred on Novem- ber 23, 1992 whereas Merritt contends that he became aware of the discriminatory act only on December 10, 1992. What is important in any consideration of the facts associ- ated with this case is that it is necessary that we make a determination as to the point in time that Merritt became aware or reasonably should have been aware that he was the victim of a discriminatory act. Although the record does contain company records seeming to indicate that Merritt's separation was final- ized on November 23, 1992, I do not believe that either Merritt or the company believed that the separation was permanent as of that date. Admittedly, Merritt signed statements indicating that his resignation date was November 23, 1992, but those papers were signed in order for him to obtain his lump sum distribution of benefits following separation. Merritt's letter dated November 23, 1992 to Barbara A. Botka clearly indicates that Merritt was uncertain of his employment status as of that date. The entries made on company forms noting a resignation date or termination date of November 23, 1992, were all made after the fact. In fact, Bonnie S. Bailey made her notation of a separation date of November 23, 1992 on the company Payroll Data Form only in July, 1993 which was only one month prior to the hearing date. The company records tend to indicate that it was the under- standing of the parties that Merritt was separated as of December 10, 1992. The Change of Status Form which was signed by all of his superiors notes that his resignation was effective as of December 10, 1992. The letter from Bonnie Bailey advising erritt that his condition was being treated as a resignation was also dated December 10, 1992. Merritt responded to that corre- spondence by indicating that he was treating it as a firing. Ms. Bailey testified that non-employees could not be retained on an employee health benefit plan for insurance coverage purposes unless they were employed by the city. His insurance participa- tion was not terminated until December 10, 1992. Also, Ms.
[PAGE 6] Bailey's letter of November 11, 1992 to Merritt clearly indicates that he had comp. time remaining which could potentially be claimed for periods subsequent to November 24, 1992. Finally, after Merritt met with Jim Crook, his superior, in November, 1992 for dinner to discuss his employment status, it was Merritt's testimony that he still had some hope of returning to MMU and that no final decision had been made as of that time. In weighing both the documentary evidence and the testimony included in this record, it is my conclusion that Merritt did not become aware nor should he reasonably have been aware that he had been formally terminated until he received the letter from Bonnie S. Bailey, Director, Human Resources dated December 10, 1992. (JX 1) He clearly noted that it was his interpretation of that letter that he had been fired. The record shows that he had submitted a letter on January 4, 1993 to DOL regarding his past employment with MMU and in which he filed a complaint under this whistleblower statute. Assuming notification on December 10, 1993, Merritt filed his complaint on the twenty-fifth day following his termination on December 10, 1993. Therefore, the complaint was filed within the thirty-day period provided by the statute and is timely. I note that this Decision and Order is merely a recommended decision and is not final. However, considering the way in which the law contemplates the expeditious handling of these proceed- ings, I would urge the District Director, Wage and Hour Division to immediately commence an investigation of the merits of the complaint filed by Merritt on January 4, 1993. This investiga- tion could be carried out while the Office of the Secretary is reviewing this Recommended Decision in preparation for the issuance of a final decision. ORDER For all of the reasons indicated, IT IS RECOMMENDED that the Secretary conclude that the complaint filed by Norman D. Merritt be determined to have been filed in a timely fashion. ________________________ Rudolf L. Jansen Administrative Law Judge
[PAGE 7] NOTICE: This Recommended Decision and Order and the administra- tive file in this matter will be forwarded for review by the Secretary of Labor to the Office of Administrative Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., NW, Washington, DC 20210. The Office of Administrative Appeals has the responsibility to advise and assist the Secretary in the preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990) [ENDNOTES] [1] The determination letter has been marked as Administrative Law Judge Exhibit No. 4 and is hereby received into evidence. [2] In this decision, "JX" refers to the Joint Exhibits, "ALJX" refers to the Administrative Law Judge Exhibits and "Tr." to the Transcript of the Hearing.