Rose v. Dole

• Citation: 945 F.2d 1331
• Decision Date: 28 May 1991
• Docket Number: No. 90-3651,90-3651
• Parties: Nuclear Reg. Rep. P 20,543 Carl ROSE, Petitioner, v. Elizabeth DOLE, Secretary of Labor, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1331

945 F.2d 1331

Nuclear Reg. Rep. P 20,543

Carl ROSE, Petitioner, v. Elizabeth DOLE, Secretary of Labor, Respondent.

No. 90-3651.

United States Court of Appeals Sixth Circuit.

Argued March 28, 1991.

Decided May 28, 1991.

Anthony B. Lee (briefed), Johnson City, Tenn., Robert G. Leger (argued), Jonesborough, Tenn., for petitioner.

William J. Stone, Barbara E. Racine (argued and briefed), U.S. Dept. of Labor, Office of the Sol., Washington, D.C., Elizabeth H. Dole, Secretary of Labor, U.S. Dept. of Labor, Washington, D.C., for respondent.

Before JONES and SUHRHEINRICH, Circuit Judges, and FEIKENS, Senior District Judge. ^*

PER CURIAM.

Petitioner Carl Rose appeals the final decision of the respondent Secretary of Labor denying his request to toll the time for filing his complaint for unlawful termination under the Energy Reorganization Act ("ERA"). For the reasons set forth below, we affirm.

I.

This proceeding began on December 31, 1981, when Rose filed an administrative complaint with the Department of Labor ("DOL") under Section 210 of the ERA and its implementing regulations. 42 U.S.C. § 5851 (1988); 29 C.F.R. Part 24. Rose's complaint alleged that he had been wrongfully discharged, in violation of Section 210, when his former employer, Nuclear Fuel Services, Inc. ("NFS"), fired him in retaliation for providing information of a safety violation to the Nuclear Regulatory Commission ("NRC") during an investigation of NFS. Section 210 prohibits discrimination against an employee who engages in a protected activity and charges the DOL with investigating and resolving any complaints of discrimination.

Rose had been employed as a foreman at NFS since October of 1980. In October of 1981, NFS's equipment malfunctioned and a small quantity of radioactive material escaped. The incident was reported to the NRC by NFS, and during the subsequent investigation, Rose informed the NRC investigator that an alarm did not sound at the time of the incident because it had been improperly installed. ¹ The NRC ultimately imposed a monetary penalty on NFS as a result of the information Rose provided. Rose was fired the day after NFS received notice of the penalty.

Rose was discharged on November 5, 1981, and his complaint was filed on December 31, 1981. Section 210(b)(1) of the ERA allows complainants to file a complaint with the Secretary of Labor ("Secretary") within thirty days of the discriminatory incident. 42 U.S.C. § 5851(b)(1) (1988). Thus, Rose's complaint was filed twenty-six days late. However, he included a request for an equitable tolling of the limitations period because he alleged that he had not become aware of his rights until he consulted an attorney on December 29, 1981.

On September 2, 1982, William Otter, former Administrator of DOL's Wage and Hour Division, responded to Rose's complaint by letter stating that the complaint was not timely filed and that Rose did not allege any valid reason for tolling the limitations period. Thus, the DOL refused to investigate Rose's complaint.

Rose petitioned this court for review. In Rose v. Secretary of the Dept. of Labor, 800 F.2d 563, 565 (6th Cir.1986), this court remanded the case to the Secretary because the Secretary had failed to inform Rose in its decision that he was entitled to further administrative appeals of his adverse decision. On remand, Paula V. Smith, then Administrator for Wage and Hour, informed Rose that she intended to abide by the Administrator's earlier determination not to investigate Rose's complaint. Rose followed this determination with a timely request for a hearing.

A hearing was held on July 14, 1987. Rose testified on his own behalf and argued that the thirty-day limitations period is not mandatory under the statute, and that it should be equitably tolled because he filed his complaint in the wrong forum. ² Post-hearing briefs were also filed by both sides. In his brief, Rose reiterated his prior claims and also argued that he was entitled to equitable tolling of the statute of limitations because he had not become aware of his rights until he had consulted an attorney.

On January 25, 1988, the ALJ issued a summary decision again dismissing the complaint as untimely filed. In his determination, the ALJ weighed Rose's testimony regarding why he had waited until December 29, 1981, to consult an attorney. In this regard, the ALJ noted that Rose had testified that he wanted to see what became of his unemployment application, and that he went on a one-week vacation to visit his son over the holidays. The ALJ concluded that these excuses were not a proper basis for equitable tolling because Rose presented no evidence that he intended his unemployment application to be a complaint against his dismissal under the ERA. Further, the ALJ noted that Rose did not contend that his employer had actively misled him as to his cause of action or prevented him from asserting his rights.

Upon receiving the ALJ's decision, the Secretary issued a briefing schedule and allowed the parties to make further argument on the timeliness issue. On June 29, 1990, the Secretary adopted the ALJ's findings on timeliness and equitable tolling, noting that the ALJ's decision was consistent with School Dist. of the City of Allentown v. Marshall, 657 F.2d 16 (3rd Cir.1981) (which reversed the Secretary for allowing equitable tolling of the thirty-day limit under the Toxic Substances Control Act), and the Secretary's own precedent. This timely appeal followed.

II.

The standard of review for cases under the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, "shall conform to Chapter 7 of Title 5" of the United States Code. 5 U.S.C. § 706 allows the reviewing court to decide all relevant questions of law. This case involves the application of the doctrine of equitable tolling and is a question of law. Therefore, the appropriate standard of review in this case is de novo. See NLRB v. Fullerton Transfer and Storage Ltd. 910 F.2d 331, 343 (6th Cir.1990) (Engel, J., concurring) (ALJ's finding as to a question of law beyond his or her expertise in a particular regulatory scheme is not entitled special deference on appeal).

Rose first argues that he did not have notice of his rights and the thirty-day limitations period because NFS failed to follow the posting requirements under 10 C.F.R. § 19.1 et seq. (1989). 10 C.F.R. § 19.11(a) requires that each licensee, in this case NFS, post a copy of NRC Form 3 as well as copies of 10 C.F.R. § 19.1 et seq. The Secretary asserts that we should not consider this argument because it was not raised below. However, it appears the ALJ did hear testimony on the requirement of posting notice, and whether the required documents were in fact posted. Thus, even though this argument was not forcefully raised below, we think it was sufficiently raised to preserve it for review.

Nevertheless, we find Rose's argument to be without merit. With this argument, Rose seeks to imply that he was not informed of his rights to sue or to the thirty-day limitations period due to some dereliction on the part of his employer NFS. This contention is misleading for two reasons. First, as Rose vehemently points out, 10 C.F.R. § 19.1 et seq. and the version of NRC Form 3 (1-80) which were in force at the time of Rose's dismissal, did not make any reference to an employee's rights against discrimination for engaging in protected activity, nor do they make any reference to the thirty-day limitations period. Thus, even if the Form 3 and the regulations had been properly posted, Rose would not have been informed about his rights, and any alleged error in posting could not have prejudiced Rose in relation to this action.

Second, the testimony of NRC Inspector Puckett suggests that NRC fulfilled all of its posting requirement under the regulations. During the July 14 hearing before the ALJ, the following exchange took place between Inspector Puckett and counsel for NFS:

Q. Did you inspect the plant at Nuclear Fuel Services to determine whether or not 10 C.F.R. Part 19 was posted at the plant?

A. I have done so and yes, it was.

Q. Was it posted during the year 1981 to your knowledge?

A. I can answer that best by saying that it was a routine as part of my responsibilities as a Radiation Specialist to assure that that posting was there. I know that a violation was not issued because of its not being posted.

J.App. at 140. Rose did not offer any evidence to rebut this testimony. Thus, it would appear that NFS in all likelihood complied with the posting requirements under the regulations. ³ Thus, while Rose may have remained ignorant of his rights until after the expiration of the limitations period, it was not due to any alleged failure on the part of NFS to comply with the relevant regulations.

Rose also contends that he was affirmatively misled by his employer into believing that he did not have any rights not to be terminated because he was an employee-at-will. Once again the Secretary asserts that this argument cannot be raised now because it was waived below. We agree. In the ALJ's decision, he explicitly states: "[T]he Complainant does not contend that he was actively mislead [sic] by the Respondent [NFS] as to his cause of action or that Respondent prevented him from asserting his rights in some way." J.App. at 3. In addition, though the Secretary provided the parties with an additional opportunity to brief the timeliness issue after the ALJ's decision, Rose chose not to include his allegation of misconduct on the part of NFS. Further, in his briefs before this court, Rose does not present any evidence, other than pure allegation, that NFS acted in any way to obstruct or dissuade him from pursuing his complaint with the DOL. Thus, we will not consider this argument by Rose, as it was not raised below.

In another portion of his brief, Rose changes his tack somewhat and suggests that despite no misconduct on the part of his employer, he should...