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Madison v. United States Department of Labor, Administrative Review Board

United States Court of Appeals, Seventh Circuit

May 24, 2019

Mary Madison, Petitioner,
v.
United States Department of Labor, Administrative Review Board, Respondent.

          Argued November 28, 2018

          Petition tor Review or an Order of the United States Department of Labor No. 2016-FDA-004

          Before ROVNER, HAMILTON, and BRENNAN, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         Following her discharge from Kenco Logistics ("Kenco"), Mary Madison filed a complaint with the Occupational Safety and Health Administration ("OSHA") charging that she was terminated in retaliation for engaging in protected activity. OSHA dismissed her complaint, and in a subsequent de novo proceeding conducted at Madison's request, an administrative law judge ("ALJ") entered a summary decision against her. Madison asked the Department of Labor's Administrative Review Board ("ARB" or the "Board") to review the ALJ's decision, but the Board dismissed her appeal as untimely. Madison now seeks review in this court. Finding no error in the Board's decision as to the timeliness of Madison's appeal to the Board, we deny the petition for review.

         I.

         Kenco employed Madison as a quality engineer from May 13, 2013 until August 9, 2013, when it discharged her. Kenco provided warehousing services to Mars, Inc., a global manufacturer of candy and other food products. Madison alleges that her discharge was the culmination of a series of adverse employment actions the company took against her in retaliation for the food safety concerns she had raised with her superiors.

         Shortly after her termination, Madison filed a complaint with OSHA under section 402 of the FDA Food Safety Modernization Act ("FSMA"), which in relevant part gives whistle-blower protection to employees of firms "engaged in the manufacture, processing, packing, transporting, distribution, reception, holding, or importation of food." 21 U.S.C. § 399d(a); see also id. § 399d(b)(1) (authorizing employee subject to retaliation for lawful whistleblowing to file complaint with Secretary of Labor); Secretary of Labor Order No. 1-2012 (Jan. 18, 2012), 77 Fed. Reg. 3912-01, 2012 WL 194561 (Jan. 25, 2012) (delegating authority to receive and investigate such complaints to Assistant Secretary of Labor for Occupational Safety and Health); 29 C.F.R. § 1987.105(a) (providing that after investigation, Assistant Secretary of Labor will enter written findings as to whether there is reasonable cause to believe retaliation has occurred and, if so, will issue preliminary order granting relief to complainant). In February 2016, an OSHA investigator dismissed Madison's complaint.

         As was her right, Madison requested a de novo hearing before an ALJ. See 29 C.F.R. § 1987.106(a). Kenco filed a motion asking the ALJ to enter a summary decision resolving the case in its favor. After initially denying the motion, the ALJ granted Kenco's motion to reconsider and entered a detailed summary decision in Kenco's favor. Sep. App. 50-76.[1] In view of the facts as to which there was no dispute, the ALJ agreed that Kenco had legitimate, non-discriminatory reasons for firing Madison and indeed would have discharged her regardless of whether she had engaged in activity protect by the FSMA. The ALJ issued that order on November 22, 2017. Sep. App. 65-74.

         Madison had 14 days from the date of the ALJ's decision to petition for discretionary review by the ARB of the ALJ's decision against her. 29 C.F.R. § 1987.110(a). A notice of appeal rights set forth on the final pages of the ALJ's decision expressly admonished Madison and her counsel of the deadline for such a petition. Sep. App. 74. Filing such a petition is a precondition to seeking judicial review of the Secretary's action. See id. §§ 1987.109(e), 1987.110(b). Thus, if a timely petition for review is not filed with the Board, the ALJ's decision becomes the final decision of the Secretary on the merits of the case and is not subject to judicial review. 29 C.F.R. §§ 1987.109(e), 1987.110(b).

         A paralegal specialist at the Department of Labor's Office of Administrative Law Judges mailed a copy of the ALJ's November 22nd decision to Madison's counsel, Jordan T. Hoffman, but to Hoffman's former rather than current address. As of that date, Hoffman had not yet filed a formal change of address notice with the ALJ's office-he would subsequently do so in January 2018-but there is no dispute that the ALJ's paralegal nonetheless was in possession of his current address. The mis-addressed envelope was returned to the ALJ's office as undeliverable, as was a copy of the decision that had been mailed to Kenco itself. On return of the copy sent to attorney Hoffman, the paralegal re-mailed another copy of the decision to his correct address on December 1, 2017. She also sent an email that same day to Kenco's counsel, Julia P. Argentieri, noting the return of the copy mailed to Kenco and soliciting the company's correct address:

I know the parties already have an electronic decision on the above matter, but we received the hard copy back for Kenco Logistics.
Could you please provide me with their new address?
I also received the hard copy back addressed to Mr. Hoffman (his old address) so I sent another hard copy ...

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