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Smith v. Lyondell-Citgo Refining Company, Ltd., 2000-CAA-8 (ALJ Oct. 13, 2000)


U.S. Department of LaborOffice of Administrative Law Judges
Heritage Plaza Bldg. - Suite 530
111 Veterans Memorial Blvd
Metairie, LA 70005

(504) 589-6201
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DOL Seal

DATE ISSUED: October 13, 2000

CASE NO.: 2000-CAA-00008

In the Matter of:

HERMAN SMITH,
    Complainant

    v.

LYONDELL-CITGO REFINING COMPANY, LTD.,
    Respondent

APPEARANCES:

HERMAN SMITH, PRO SE
    Complainant

JOSEPH G. GALAGAZA, ESQ.
    For the Respondent

RECOMMENDED DECISION AND ORDER OF DISMISSAL

   This case arises under the employee protection provision of the Clean Air Act, 42 U.S.C. §7622 (herein the CAA or Act) and the implementing regulations thereunder at 29 C.F.R. Part 24.

   This claim is brought by Herman Smith, Complainant, against his former employer, Lyondell-Citgo Company, Ltd., Respondent. Complainant was suspended by Respondent on August 3, 1999. He was subsequently discharged on August 16, 1999. Complainant claims that he was discharged due to a telephone call that he made to the Texas Natural Resource Conservation Commission, in which he suggested an inspection of the air quality at his work site. Complainant contacted the Department of Labor by phone to file a complaint under the employee protection (whistleblower) provision of the Clean Air Act, 42 USC §7622(b)(1), against Respondent on October 18, 1999. The Department of Labor investigated the claim and determined that it was untimely. See CX-1, p. 1.


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This matter was referred to the Office of Administrative Law Judges for a formal hearing. A Notice of Hearing and Pre-Hearing Order was issued, scheduling a formal hearing in Houston, Texas on July 3, 2000. Complainant did not appear on that date, and the trial was rescheduled for August 23, 1999. Respondent submitted a motion to limit the trial to the issue of timeliness, which was granted by the Court. On August 23, 1999, both parties were given the opportunity to offer testimony, documentary evidence, and give oral arguments as to the timeliness of the complaint. The following exhibits were received into evidence1 :

   1) Complainant's Exhibits Nos. 1 (pp. 1-9, 21, 23-29), 2 (pp. 1-15, 19-23), 3;

   2) Employer/Respondent's Exhibits Nos. 1, 5

   Upon conclusion of the hearing, the record was kept open until September 29, 1999 for the parties to submit post-hearing briefs on the timeliness issue. After giving full consideration to the entire record, evidence introduced, and arguments presented, this Court makes the following Findings of Fact, Conclusions of Law, and Recommended Order.

ISSUE

   The only issue for consideration is the timeliness of the Complainant's claim under the thirty day limitations period in the Clean Air Act, 42 U.S.C. §7622 (b)(1).

SUMMARY OF THE EVIDENCE

I. TESTIMONY

Herman Smith, Complainant

   Complainant testified that he lives in Missouri City, Texas. He stated that he had spoken with a volunteer lawyers association concerning representation, but received no response. Complainant stated that he wanted to continue with the case Pro Se. TR. 4-5.

   Complainant testified that he began work with Respondent in June of 1980 as a utility person. He added that he worked there for nineteen years, until he was suspended August 3, 1999 and subsequently discharged August 16, 1999. Complainant stated that he learned of his termination by a phone call made to his home. He testified that, in the phone conversation, Mr. Tim Daniels told him that he was being discharged, because he created a hostile work environment. At that time, Complainant testified that Mr. Daniels asked him to retrieve his personal belongings. Complainant responded that he was on his way to run and would not be in that day. Complainant testified that, when he got back from his run, his personal belongings had been cleaned out of his locker and were on his driveway. Complainant stated that he had not been back to Lyondell-Citgo since learning of his termination. TR. 28-29.


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   Complainant testified that he began making complaints when he had problems with fumes inside his control room. He stated that he made several requests to the safety department and the foreman. Complainant added that the only thing management would do about it was change the air conditioner's filter. Complainant said that he had made these air quality claims since 1995. He added that he also called the Texas Railroad Commission several times to complain about boxcars that were in front of his office building and emitting fumes. He testified that he would tell his supervisors and other employees about these complaints. Complainant also stated that the first time he actually went to a federal agency, the Occupational Safety and Health Administration (OSHA), for a complaint was around 1992 or 1993. He stated that Respondent did not have an in- house office to go to regarding safety violations or water and air quality. Complainant added that the standard procedure was to make these complaints to the supervisor. Complainant stated that after the telephone call that he made August 3, 1999 and prior to being terminated, he did not tell anyone that he intended to report Respondent to a government office. TR. 30-32.

   Complainant stated that, after he was terminated August 16, 1999, he corresponded with Respondent's legal counsel, Bernice Halburn, for an explanation of his termination. Complainant added that he sent several letters to the CEO and Vice-President of Respondent, as well as Respondent's human resources manager. TR. 33-34.

   Complainant stated that it was company policy to monitor the phone system. See CX-1, p. 5. He further stated that his initial suspension came approximately three hours after he made a telephone call to the Texas Natural Resources Conservation Commission (TNRCC). TR. 34.

   Complainant stated that he tried filing his retaliatory discharge complaint with the Occupational Safety and Health Administration (OSHA) on August 22, 1999, but there was confusion within the department on who handled whistleblower complaints. He stated that he called OSHA's southeast office and asked to speak to several individuals that he had spoken with on prior occasions about safety complaints. Complainant did not speak with any of these individuals on that date, but stated that he left word with the secretary. He testified that this secretary could not refer him to the appropriate agency. He then testified that he called the Federal Information Center. He added that the Federal Information Center then gave him the number of the Wage and Hour Division as the agency who would handle a whistleblower complaint. He testified that, when he contacted the agency, the Wage and Hour Division informed him that they did not handle that type of situation and could not refer him to the appropriate agency. Complainant stated that he subsequently contacted the Federal Information Center several times, and finally decided to personally research the regulations of the Clean Air Act. He testified that, through the research, he was able to determine that OSHA was the appropriate agency to contact. TR. 34-37.

   Complainant stated that he contacted OSHA in September, but could not remember the exact date. He stated that he eventually got the number of Mr. Charles Clack, the investigator, from another regional OSHA office. Complainant testified that he was told Mr. Clack was very busy, and it would be hard to get in touch with him. Complainant testified that he called Mr. Clack throughout September. He stated that he called and left messages on his machine. He


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stated that Mr. Clack was always busy and sometimes would let the phone ring. Complainant testified that he kept leaving messages until Mr. Clack called him back. He stated that Mr. Clack returned his call on October 18, 1999. At that time, Complainant testified that he made his complaint by telephone. He added that he did not actually file a written complaint, only one over the telephone. Complainant stated that Mr. Clack never told him to submit anything in writing and informed him that he had a longer filing period than thirty days, because his claim fell under the EPA. Complainant testified that he subsequently received a case number for verification. Complainant added that, between August 16 and October 18, 1999, no one from Respondent's office would talk to him about filing a complaint. He also testified that his efforts to contact Respondent centered on trying to get information from them regarding his discharge for creating a hostile working environment. TR. 38-40.

   Complainant stated that his complaint should be considered timely based on equitable principles of law. He testified that he needs to be faced with his accusers in order to get information regarding his termination. Complainant added that he wants OSHA to investigate and get the tape of the phone call that he made on August 3, 1999. Complainant also testified that his complaint falls under a "public policy" provision of the Toxic Substance Control Act, and added that the Act has a ninety-day time limit. He stated that his claim involved public protection and he should be protected under that time limit, because his suspension was given three hours after he made the telephone call. Complainant added that he also took a water sample off the air-conditioning unit. He called the police and asked them to sample some water that he took from his job site, but he stated that the police department refused. TR. 40-44.

   Complainant conceded that he received written notice of termination, subsequent to the phone call made on August 16, 1999. He testified that although he made a complaint to a clerical worker at OSHA on August 22, 1999, he could not recall her name. He added that he never attempted to physically go to OSHA's office. Complainant stated that he did not know of the company doing anything to prohibit him from physically going to OSHA's office. He did testify that he believed the company had private investigators following him. He testified that he stayed close to his home, because he was afraid the company's investigators might do something to his house. Complainant testified that the company prevented him from doing research on his claim in this manner, because they effectively forced him to stay at home. He stated that he told his wife of his suspicions. Complainant testified that his wife was not available to testify, although he stated that the attorney could call her. He stated that he never spoke to anyone at work about filing a complaint with a government agency. Complainant conceded that, when he called OSHA, he never asked them for a physical address. Complainant added that he was never prevented from asking OSHA personnel any questions. He also stated that there was nothing to prevent him from writing a letter to OSHA before he talked to Mr. Clack on October 18, 1999, however, he stated that he did not know where to send the letter. TR. 44-50.


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   Complainant testified that, at the arbitration hearing regarding his termination, he heard that Mr. Royce Nichols was the person who decided to terminate him. However, Complainant stated that he did not believe Mr. Nichols's testimony. He stated that he did not know if Mr. Nichols knew about his numerous safety complaints. Complainant added that he thought Mr. Nichols probably did know about the complaints, given that he was the superintendent of Complainant's department during the period when the complaints were being made. Complainant stated that he had talked to many people about safety complaints at meetings and that he wrote down his complaints in shift notes to which the management had access. He could not testify as to whether or not Mr. Nichols read these shift notes. TR. 51-54.

   Complainant testified that October 18, 1999 was the first time he actually talked to Mr. Clack. He further testified that he had telephoned the office several times, and Mr. Clack called him back in response to a message he had left. When asked about Clack's report, indicating that Complainant actually contacted the office on October 18, 1999, he responded that the report was inaccurate. Complainant testified that the inefficiency of the system and its failure to inform citizens of how to file complaints caused his delay in filing the complaint. He added that the delay in filing was also caused by Mr. Clack's workload. TR. 56.

   Complainant testified that he had visited several legal clinics regarding pro bono representation and received no response to his inquiries. TR. 63-64.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

   The following findings of fact and conclusions of law are based upon the Court's observations of the appearance and demeanor of the witnesses at the hearing and upon an analysis of the entire record, applicable regulations, statutes, case law, and arguments of the parties. Frady v. Tennessee Valley Authority, Case No. 92-ERA-19, (Sec'y, Oct. 23, 1995) (Slip Op. at 4). As the trier of fact, this Court may accept or reject all or any part of the evidence and rely on its own judgment to resolve factual disputes or conflicts in the evidence. Indiana Metal Products v. NLRB, 442 F.2d 46, 51 (7th Cir. 1971). To the extent that credibility determinations must be made, this Court has based its credibility findings on a review of the entire testimonial record and exhibits with due regard for the logic of probability and the demeanor of the witnesses.

I. Time Limitations on Filing Under the CAA

   With the exception of the Surface Transportation Assistance Act, there is a thirty-day statute of limitations for filing most federal employee protection "whistleblower" complaints. The Clean Air Act, section 322(a) (1-3), 42 U.S.C. §7622(b)(1), states that an individual has thirty days from the time of the discriminatory action in order to file a complaint. Any complaint not filed within thirty days after this discriminatory action is time-barred. See Greenwald v. City of North Miami Beach, 587 F.2d 779 (5th Cir. 1979), cert. denied, 444 U.S. 826 (1979). It is the Employer's burden to raise the time bar as an affirmative defense. See Hood v. Sears Roebuck & Co., 168 F.3d 231 (5th Cir. 1999).


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   In the present case, this Court finds that Complainant failed to file his complaint within the thirty-day time limit established by the Clean Air Act. Complainant testified that he was suspended on August 3, 1999, three hours after he placed a phone call to TNRCC in order to request an investigation of his work site. He subsequently received notice regarding his ultimate termination by phone on August 16, 1999, which was followed by a letter of termination dated the same. See RX-1. It is his termination of employment that the Complainant alleges is discriminatory. Thus, Complainant had thirty days from August 16, 1999, his termination, in which to file his claim.

   In his testimony, Complainant stated that he did attempt to file a complaint by phone August 22, 1999 with OSHA. Complainant testified that, on this date, he attempted to ascertain the filing requirements for a whistleblower claim. Complainant testified also that he was unsuccessful in finding the appropriate person to contact. He stated that he spoke with a secretary at OSHA and made several repeat calls to other federal agencies regarding filing a complaint. However, he made no record of the dates of these calls and could not recall exactly whom he talked to on any of the occasions. He also testified that when he did contact Mr. Clack's office, he was unable to personally speak to him for several weeks. However, even though Complainant testified that he was frustrated with the inability to resolve his claim by phone, he never attempted to contact Mr. Clack or any other department in writing before October 18, 1999. He was similarly unable to produce any verification of his phone calls or proof of any other written communication from him to the other agencies. In fact Mr. Clack's report on the investigation states that none of Complainant's calls and inquiries regarding a whistleblower complaint could be verified. See RX-5, p. 4.

   Therefore, this Court finds that the Complainant's testimony, without any additional corroboration, is insufficient to establish the filing of a complaint prior to October 18, 1999. Conversely, Employer/Respondent presented affirmative proof of the date of filing as October 18, 1999 in the report filed by Mr. Clack. See RX-5, p.4. This report contradicts Complainant's testimony, as it states that none of Complainant's calls to various agents could be verified. After weighing this evidence, the Court finds that Mr. Clack's report, verifying that the Complainant contacted his office on October 18, 1999, establishes the filing date of the complaint for purposes of commencement of the limitation period. The filing date, October 18, 1999, occurred more than thirty days after the date of the discriminatory action alleged in the complaint. Therefore, this Court finds that, absent a basis for equitable tolling, Complainant's claim is barred by the limitations period.


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II. Equitable Tolling of the Limitation Period

   The limitations periods provided by the environmental acts and analogous employee protection legislation are subject to equitable modification. Tracy v. Consolidated Edison Co. of New York, Case No. 89-CAA-1, (Sec'y, July 8, 1992) (Slip Op. at 3-8); Doyle v. Alabama Power Co., Case No. 87-ERA-43, (Sec'y, Sept. 29, 1989), aff'd sub nom, Doyle v. Sec'y of Labor, 949 F.2d 1161 (11th Cir. 1991). This doctrine focuses on the complainant's excusable ignorance of his or her statutory rights as a reason to modify the limitations period. Andrews v. Orr, 851 F.2d 146, 150-151 (6th Cir. 1988); School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981); Tracy, Case No. 89-CAA-1, (Sec'y, July 8, 1992)(Slip Op. at 5-8). Generally, this doctrine is applied only in very limited circumstances. City of Allentown, 657 F.2d at 19.

   The restrictions on equitable tolling are scrupulously observed and fall into three types of situations. See Prybys v. Seminole Tribe of Florida, Case No. 95- CAA-15, (ARB, Nov. 27, 1996). The first is where the employee was prevented from filing by the Employer. See McConnell v. General Telephone Co., 814 F.2d 1311 (9th Cir. 1987), cert. denied sub nom, General Telephone Co. v. Addy, 484 U.S. 1059, 108 S. Ct. 1013 (1988). The second situation is where the employee was prevented from asserting his rights by excusable ignorance. City of Allentown, 657 F.2d at 19. The third situation allows equitable tolling when the employee actually asserted his rights timely, but did so in the wrong forum. Id. at 20.

   Although it is the Employer's burden to raise the defense that the Complainant's complaint is barred by the statute of limitations, it is the Complainant's burden to invoke equitable tolling. Hood v. Sears Roebuck and Co., 168 F.3d 231, 232 (5th Cir. 1999).

A. Employee Misled by Employer

   In order to toll a limitations period on this basis, an employer has to actively mislead the employee into believing that he or she has no cause of action. For example, in McConnell v. General Telephone Co., 814 F.2d 1311 (9th Cir. 1987), cert. denied sub nom., General Telephone Co. v. Addy, 484 U.S. 1059, 108 S. Ct. 1013 (1988), the employer misled the employee into believing that he had been temporarily laid off rather than terminated. Similarly, in Charles A. Kent, Case No. 84-WPC-2, (Remand Dec.& Order of Sec'y, April 6, 1987) and Reeb v. Economic Opportunity Atlanta Inc., 516 F.2d 924 (5th Cir. 1975), the employees were misled by the employers into believing they had not been terminated. In all of these cases, since the employees were misled into believing that no adverse action had been taken against them, they were not aware that a cause of action existed.


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   This Court finds that Respondent did not actively mislead Complainant in any way regarding his claim under the Clean Air Act. In the present case, Complainant testified that he was notified of his termination by phone on August 16, 1999. Additionally, he received a letter of termination. See RX-1. Complainant testified that, subsequent to his termination, he was scared to leave his home, because Respondent had hired private investigators to watch his house. He testified that he was prevented from researching his claim and physically visiting OSHA, because he was being watched. However, this Court finds that this assertion carries little weight as he stated also that, during this same period, he did research on both the Texas state whistleblower statute and the Clean Air Act in order to ascertain whether or not he had a claim.

    This Court finds that Complainant did not present any evidence to show that Respondent took any action to mislead him as to his rights under the Clean Air Act. Therefore, this Court finds that equitable tolling of the limitations period is not appropriate on this basis.

   In some circumstances, equitable tolling may also be appropriate where the agency in charge of handling these claims misleads the Complainant, thereby preventing him from asserting his rights timely. Extending the limitations period is particularly warranted where there is a complicated administrative procedure, and an unrepresented, unsophisticated complaint receives misleading information from the responsible government agency. Page v. U.S. Industries, Inc., 556 F.2d 346, 351 (5th Cir. 1977). However, the agency error must consist of an affirmative action that misleads the complainant into believing that the complaint was timely filed. See Chappell v. Emco Machine Works Co., 601 F.2d 1295 (5th Cir. 1979); School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981).

   This Court finds that Complainant has not shown affirmative actions on the part of the Department of Labor or OSHA that misled him regarding filing deadlines. The requirements for filing a complaint and the time limit under the CAA and 29 C.F.R. Part 24 are straightforward. Additionally, the Complainant testified that he personally had researched the Clean Air Act in order to ascertain the appropriate agency and filing procedure. Therefore the Complainant's testimony indicates that he did know of the filing deadline.

   In regard to his interactions with any federal agency, his conversations by phone with OSHA and the Federal Information Center cannot be verified. Even assuming that these calls were made, however, the Complainant's actions mentioned previously show that he was aware of the thirty-day limitation period. At most, he received vague information from the Federal Information Center and OSHA regarding whom to contact regarding his claim. In fact, when the Complainant contacted Mr. Clack at the Department of Labor, he was advised that his claim was untimely from the outset a fact noted in the investigation report. See RX-5, p. 3. The Court finds Complainant's allegations that Mr. Clack told him that he had a longer filing deadline to be irrelevant in this situation. Even if these allegations were true, Complainant was not induced to delaying the filing of his complaint by this information, because by the time he contacted Mr. Clack, the thirty- day deadline had already passed. This Court finds that the evidence in the record is insufficient to establish affirmative actions by the Department of Labor or OSHA that would mislead the Complainant about his filing deadline. Therefore, the Complainant was not prevented from timely asserting his rights by a federal agency and is therefore not entitled to equitable tolling of the limitations period.


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B. Wrong Forum

   Equitable tolling may also be appropriate when the Complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. The filing date in the wrong forum must also be timely before it will toll the appropriate limitations period. See Doyle v. Alabama Power Co., Case No. 87-ERA-43, (Sec'y, Sept. 29, 1989), aff'd sub nom, Doyle v. Secretary of Labor, Case No. 89-7863 (11th Cir. 1989). An employee's pursuit of internal grievance procedures set up in a collective bargaining agreement, however, does not toll filing requirements. See Electrical, Radio, & Mach. Workers, AFL-CIO, Local 790 v. Robbins & Meyers, Inc., 429 U.S. 229, 236-240, 975 S.Ct. 441, 446-448, 50 L.Ed. 2d 427 (1976); Ackison v. Detroit Edison Co., Case No. 90-ERA-38, (Sec'y Final Dec. & Order, Aug. 2, 1990) (Slip Op. at 2).

   In this case, Complainant testified that there was an arbitration proceeding between the parties. However, Complainant introduced no evidence to show that he specifically raised his grievance under the Clean Air Act. Nor has he shown any evidence that the filing date for this arbitration procedure was timely under the Clean Air Act. Additionally, this Court finds that there is no evidence in the record showing that the arbitration proceeding had any jurisdiction over Complainant's Clean Air Act claim. Therefore, this Court finds that Complainant has not shown any evidence to justify equitable tolling of the limitations period on the basis that he timely filed in the wrong forum.

C. Employee's Excusable Ignorance

   Equitable tolling can also be applied when the complainant's excusable ignorance of his or her statutory right prevents filing within the limitations period. Kale v. Combined Insurance Company of America, 861 F.2d 746, 752 (1st Cir. 1988). For example, in Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991), a case involving the Energy Reorganization Act of 1974, the Sixth Circuit delineated five factors to be considered in determining whether equitable tolling of a limitations period was appropriate due to "excusable ignorance." Those factors are: 1) whether the plaintiff lacked actual notice of the filing requirements; 2) whether the plaintiff lacked constructive notice, i.e., his attorney should have known; 3) the diligence with which the plaintiff pursued his rights; 4) whether there would be prejudice to the respondent if the statute were tolled, and; 5) the reasonableness of the plaintiff remaining ignorant of his rights. 945 F.2d at 1335 (citing Wright v. State of Tenn., 628 F.2d 949, 953 (6th Cir. 1980)(en banc)). This principal is only to be applied when an employee is unable to assert his rights due to extraordinary circumstances. Mere ignorance of the law, by itself, is insufficient to establish an extraordinary circumstance. Holden v. Gulf States Utilities, Case No. 92-ERA-44 (Sec'y Apr. 14, 1995) Slip op. at 14-15 (citations omitted).


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   After an examination of all these factors, this Court finds that the evidence in this case is insufficient to warrant equitable tolling on an "excusable ignorance" basis. Complainant testified that he did not know how to file a whistleblower claim. However, Complainant also testified that he was subsequently able to ascertain the filing requirements through researching the Clean Air Act. Complainant also claims that the governmental agencies contributed to his late filing date by giving him confusing information. He added that the numerous federal agencies he contacted by phone were not able to help him until the thirty-day period had passed. Even assuming that Complainant made these calls to the agencies throughout August and September, there were other methods of contacting the agencies available to him. Complainant never attempted to ascertain a mailing address for the OSHA office nearest to him. Additionally, he presented no evidence that he attempted to contact OSHA or the Department of Labor either in person or by written correspondence. When he did contact the Department of Labor, he did so by phone, and testified that he left messages for the investigator and merely waited for a return call.

   Therefore, even considering the Complainant's lack of legal counsel, this Court finds that the Complainant's claimed "ignorance" of the filing deadlines and the appropriate agency to file with is unreasonable in light of his actions subsequent to his termination. Therefore, the Complainant is not entitled to equitable tolling of the limitations period on the basis of excusable ignorance.

CONCLUSION

   After an examination of the entire record and evidence presented by both parties, this Court finds that the Respondent has presented sufficient evidence showing that the filing date of the claim under the employee protection provision of the Clean Air Act, 42 U.S.C. §7622, was October 18, 1999. Since Complainant was terminated on August 16, 1999, his filing date falls outside the thirty-day statute of limitations period. Additionally, this Court finds that Complainant presented insufficient evidence to warrant equitable tolling of the limitations period.

   Therefore, this Court recommends that Complainant's claim be DISMISSED as untimely.

   Entered this 13th day of October, 2000, at Metairie, Louisiana.

       JAMES W. KERR, JR.
       Administrative Law Judge

JWK/sls

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998)

[ENDNOTES]

1 The following abbreviations will be used in citations to the record: CTX - Court's Exhibit, CX - Complainant's Exhibit, RX-Respondent's Exhibit, and TR - Transcript of the Proceedings.