USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION III- TIME LIMITS ON FILING

1. Applicability of 29 C.F.R. § 18.4

2. Initiation of filing period

a. Date of notification rather than effect

b. Standard: Final, definitive and unequivocal notice

3. Evidentiary matters

1. Generally; nature of continuous acts

2. Blacklisting

3. Complaint not actionable; continuing discrimination theory does not preserve earlier claims

4. Hostile work environment

III. A. Separate allegation of act occurring after termination

In Eisner v. U.S. Environmental Protection Agency, 1990-SDW-2 (Sec'y Dec. 8, 1992), slip op. at 10, the Secretary affirmed the ALJ's determination that the complainant's complaint was untimely in regard to her termination. Nevertheless, the Secretary found that the complaint sufficiently raised a separate allegation of discriminatory act occurring after the termination -- the respondent purportedly refused to accept a resignation letter (which it earlier had indicated would, if tendered, result in the removal of the termination letter) after the complainant talked to reporters about a disputed sewage plant project.

The Secretary noted that

It is not fatal that Complainant's complaint did not set forth this claim precisely. [ Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987), slip op. at 12 n.3.] Nor is it determinative that Complainant's prior counsel did not press the ALJ to consider the question of timeliness with respect to this separate allegation. I am not bound by the prior legal theories, particularly at this early stage of the proceeding. [ Chase v. Buncombe County, 85-SWD-4 (Sec'y Nov. 3, 1986), slip op. at 5. See also English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988)]."

Id. at 10 n.10.

[Nuclear & Environmental Whistleblower Digest III A]
TIME LIMITATIONS ON FILING IN DISCRIMINATION CLAIMS, GENERALLY

In National Railroad Passenger Corp. v. organ , _ US _, 122 S Ct 2061, 153 L Ed 2d 106 (2002), a Title VII claim, the United States Supreme Court examined the application of time limitations in situations involving the raising of claims of discrete discriminatory or retaliatory acts, and situations involving charges alleging a hostile work environment. The Court held that a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his or her charge within the statutory period, but that claims based on a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. In neither instance is a court barred from applying equitable doctrines that may toll or limit the time period. An employer may raise laches if the plaintiff unreasonably delays filing and as a result harms the defendant.

[Nuclear and Environmental Digest III A]
TIMELINESS, GENERALLY

See generally Foley v. Boston Edison Co. , 1997-ERA-56 (ALJ Dec. 2, 1998), for a recommended decision that provides a thorough discussion of time limitations for filing ERA complaints, the continuing violation theory, whether an oral complaint can be considered properly filed, and equitable tolling.

III. A. Complaint more than 30 days after termination untimely

Where Complainant sent a letter to Senator Simpson on November 17, 1992 alleging that she was terminated on October 10, 1992 by Respondent -- a rural water association -- for her complaints to management about inaccurate records, mismanagement and waste, the case was dismissed because, assuming that a complaint to a Senator could be treated as a complaint, it was not timely under 29 C.F.R. § 24.3(b). Deveraux v. Wyoming Association of Rural Water, 93-ERA-18 (Sec'y Oct. 1, 1993) (apparently found not adequate in part because it had not been filed with the Wage and Hour Division).

[Editor's note: the new 180 day ERA time limitation apparently was not considered.]

III A General statement

The employee protection provision of the ERA, and the regulations implementing the provision, explicitly provide that any complaint shall be filed within thirty days after the occurrence of the alleged violation. 42 U.S.C. § 5851(b)(1); 29 C.F.R. § 24.3(b). This time limit is in the nature of a statute of limitations, and the principle of equitable tolling applies. See School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981); Lastre v. Veterans Administration Lakeside Medical Center, 87-ERA-42 (Sec'y Mar. 31, 1988), slip op. at 2-4. The timeliness of a claim may also be preserved under the "continuing violation" theory, where there is an allegation of a course of related discriminatory conduct and the charge is filed within thirty days of the last discriminatory act. Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987).

Ray v. Tennessee Valley Authority, 88-ERA-14 (Sec'y Jan. 25, 1991).

III A Confusion over nature of complaint and scope of ALJ's jurisdiction

After reviewing the factual and procedural background of the case, the Secretary pointed out the confusion as to the nature of the complaint and the scope of the ALJ's jurisdiction. The Secretary held that the ALJ did not have jurisdiction over the OSHA complaint and then addressed the timeliness of the complaints filed.

The regulation governing time for filing complaints provides that "[f]or the purpose of determining timeliness of filing, a complaint shall be deemed filed as of the date of mailing." 29 C.F.R. § 24.3(b). Thus, it appeared that the two complaints filed with the Wage and Hour Division were timely; however, the record contained insufficient evidence to conclusively find that the complaints were timely filed. The Secretary further noted that the complaint filed with OSHA may satisfy a finding of equitable tolling. The case was remanded for clarification of the record and for further consideration of the timeliness and equitable tolling issues.

Melendez v. Exxon Chemicals Americas, 93-ERA-6 (Sec'y Mar. 21, 1994).

III.A. Retroactive effect of 1992 ERA amendments

In Dysert v. Florida Power Corp., 93-ERA-21 (ALJ June 3, 1994), the ALJ considered whether the 1992 ERA amendments to the ERA, by lengthening the limitations period for filing whistleblower complaints, applied retroactively. At the time the Complainant was notified of his termination, an ERA complainant had 30 days from the date of an adverse employment action to file a complaint with the Secretary of Labor. See former 42 U.S.C. § 5851(b)(1)(1983). The Energy Policy Act of 1992, Pub. L. No. 102-486, amended the whistleblower provisions of the ERA, inter alia , to extend the limitations period for filing a whistleblower complaint to 180 days. The Complainant filed his complaint on December 11, 1992, after the October 24, 1992 effective date of the amendments, within 180 days but after 30 days from the date he was notified of his termination on June 19, 1992.

The ALJ's detailed discussion concluded with a finding that the longer limitations period was the type of collateral procedural rule that, even absent express legislative authorization, may properly be applied to pre-amendment conduct. The ALJ relied on Landgraf v. USI Film Products, 62 U.S.L.W. 4255, No. 92- 757 (April 26, 1994); International U. of Elec. Wkrs. v. Robbins & Myers, 422 U.S. 229 (1976); Alabama Dry Dock and Shipbuilding Corp. v. Sowell, 933 F.2d 1561-65, reh. den. 945 F.2d 415 (11th Cir. 1991); Davis v. Valley Distributing Co., 522 F.2d 827, 831 (9th Cir. 1975) cert. denied 429 U.S. 1090 (1977).

III A 1 Due process

The Secretary is not empowered to ignore the congressionally imposed, albeit short, limitation period for filing a whistleblower complaint, based on due process arguments that are in the nature of vague fairness arguments. After weighing the various interests at stake, Congress determined that these complaints should be made within a very short time after the alleged violation occurred. School District of Allentown v. arshall, 657 F.2d 16, 20 (3d Cir. 1981).

Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), slip op. at 10 n.9.

[N/E Digest III A 1]
TIMELINESS OF COMPLAINT; DOL ERRED IN CHARACTERIZING A LETTER, WHICH WAS NOT IN THE RECORD, AS NOT CONSTITUTING AN ERA COMPLAINT

In Roberts v. U.S. Dept. of Labor , No. 97-3819 (6th Cir. June 23, 1998) (unpublished decision available at 1998 WL 381666) (case below 96-ERA-24), the Sixth Circuit found that the ARB's conclusions about the nature of a letter Complainant had filed with DOL, but which DOL had forwarded to the EEOC, were unsupported by substantial evidence where the letter was not in the current record. The court apparently ruled that although Complainant may have been remiss in not filing the letter in the proceeding before the ALJ and the ARB, since the letter was not in the record, the ARB should not have characterized what it was. Thus, the matter was remanded "so that the nature of the letter can be more precisely determined."

III A 1 Dismissal of complaint for lack of timeliness does not violate due process

The argument that dismissal of a ERA, 42 USC § 5851 complaint for lack of timeliness violates due process because the complainant has a statutorily created property interest in continued employment after having reported a safety violation has no merit. Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).

III A 2 Affirmative defenses

In Hobby v. Georgia Power Co., 90-ERA-30 (ALJ Nov. 8, 1991), the respondent first raised an issue as to the timeliness of the filing of the complaint for the first time in its post-hearing brief. The ALJ consulted Rule 8(c) of the Federal Rules of Civil Procedure to conclude that statutes of limitations are affirmative defenses, and that the respondent's failure to assert that defense in its pleadings is considered a waiver of that defense.

[Nuclear & Environmental Whistleblower Digest III A 2]
TIMELINESS; EFFECT OF NOT RAISING THE ISSUE EXPRESSLY DURING THE ORAL EVIDENTIARY HEARING

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ALJ had considered the case on the merits and recommended dismissal. In regard to an issue relating to the timeliness of the initial complaint, the ALJ questioned whether the issue had been preserved because, although it had been raised initially, it was not raised at the hearing, and given his finding on the merits, found it unnecessary to address the issue. The ARB, however, found that the timeliness issue was not waived, it having been consistently raised by the Respondent, even if it had not been expressly raised during the hearing (presumably through a motion for dismissal or summary decision). The ARB, however, declined to consider the timeliness of subsequent complaints raising new alleged acts of discrimination where the Respondent did not raise that issue in its brief.

[Nuclear & Environmental Digest III A 2]
SUMMARY DECISION; TIMELINESS FAILURE TO RAISE AFFIRMATIVE DEFENSE OR ANSWER MOTION FOR SUMMARY DECISION

Where Complainant sought partial summary decision on the issue of timeliness of his complaint -- arguing that by failing to raise the affirmative defense that the Complaint was untimely, Respondents waived that defense -- and where Respondents did not raise this defense in their answer to Complainant's amended complaint or to the motion for summary decision on this issue, the ALJ granted the Complainant's motion for partial summary decision. Mourfield v. Frederick Plaas & Plaas, Inc. , 1999-CAA-13 (ALJ June 1, 1999)

III A 2 Issue of timeliness of complaint is an affirmative defense that is waived if raised too late

The time frame for filing a complaint under the ERA is not jurisdictional, but is a statute of limitations, which is generally considered an affirmative defense. Where the ALJ ordered the parties to submit a statement of contentions prior to the hearing, and held a pre-hearing conference, but the Respondent first raised the issue of the timeliness of the complaint in its post-hearing brief, the ALJ properly found that the Respondent waived timeliness of the complaint as an issue. See 29 C.F.R. § 18.6(d)(2)(v).

Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug. 4, 1995).

III A 2 Affirmative defenses

In Hobby v. Georgia Power Co., 90-ERA-30 (ALJ Nov. 8, 1991), the respondent first raised an issue as to the timeliness of the filing of the complaint for the first time in its post-hearing brief. The ALJ consulted Rule 8(c) of the Federal Rules of Civil Procedure to conclude that statutes of limitations are affirmative defenses, and that the respondent's failure to assert that defense in its pleadings is considered a waiver of that defense.

III A 2 Raising of limitations period in opening statement timely

In Wagerle v. The Hospital of the University of Pennsylvania, 93-ERA-1 (ALJ Mar. 29, 1993), the ALJ found that, although Fed. R. Civ. P. 8(c) provides that statutes of limitations are affirmative defenses and must be asserted at the earliest possible moment, in an ERA whistleblower matter where neither the regulations nor a prehearing order required the Respondent to file an answer to the complaint prior to the hearing, the raising of the limitations period in the opening statement at the hearing was the Respondent's earliest opportunity to do so, and therefore it was timely asserted.

III A 2 Affirmative defenses

In Smith v. Tennessee Valley Authority, 89-ERA-12 (ALJ Oct. 1, 1991), the respondent first raised the issue of timeliness of the filing of the complaint on the first day of the hearing. The ALJ noted that there was no provision within the ERA or 20 C.F.R. Part 24 that addresses when a party must raise the issue of the 30-day time limitation. Referring to Federal Rule of Civil Procedure 8(c), the ALJ noted that statutes of limitations are affirmative defenses, and that courts have held that affirmative defenses are waived if not pleaded. He also noted that a defendant may amend his pleading to include an affirmative defense by leave of court; that the court has the discretion to permit an amendment when it will promote the presentation of the merits of the action, the adverse party will not be prejudiced by the sudden assertion of the defense, and will have ample opportunity to meet the issue. Fed. R. Civ. P. 15; but that it is not an abuse of discretion to deny a such a motion proffered just before trial.

In the instant case a prehearing order had directed the parties to set forth the issues involved in the proceeding and the remedy requested. The respondent was given 20 days to file its response to the complainant's statement. Although the respondent did not raise the issue of timeliness until noon on the first day of the hearing, it did raise the issue within 20 days of the filing of the complainant's statement. Thus, the ALJ concluded that the issue was timely raised. He also noted that the parties were allowed to fully argue and present evidence relating to the motion during the course of the hearing. Hence, he concluded that the defense was not waived by the respondent.

III A 2 Affirmative defense -- burden on Respondent

Jackson v. Ketchikan Pulp Company, 93-WPC-7, 93-WPC-8 (ALJ Mar. 10, 1994)

Respondent's contention that Complainant failed to file his complaint in a timely fashion is an affirmative defense; thus, Respondent has the burden of proof to show untimeliness.

III A 3 Summary judgment granted

Summary judgment was granted where the complainant failed to show that a genuine issue of material fact exists with respect to the issue of timeliness and equitable tolling. 29 C.F.R. §§ 18.40, 18.41. The complainant failed to show that the respondents had misled him as to his cause of action or prevented him from timely filing under the ERA, or that he timely filed the exact claim in the wrong forum. His assertion that tolling is appropriate because he was not aware of his rights under the ERA was unavailing. Lahoti v. Brown & Root, 90-ERA-3 (Sec'y Oct. 26, 1992).

III A 3 Authority of ALJ to entertain motion for summary decision

While the regulations at Part 24 do not specifically provide for summary decision or dismissal on the issue of timeliness, the ALJ is authorized to entertain and rule on appropriately filed motions pursuant to the regulations at 29 C.F.R. Part 18 (1992). 29 C.F.R. §§ 18.1, 1940, 18.41. See, e.g., Howard v. TVA, 90-ERA-24 (Sec'y July 3, 1991), slip op. at 4. Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992).

III A 4 Effect of Wage & Hour determination that complaint is timely

A finding by Wage & Hour that a complaint is timely is not binding. A respondent's appeal entitles the parties to a de novo consideration of the case and all extant issues. Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992).

[Nuclear and Environmental Whistleblower Digest III A 5]
TIMELINESS OF COMPLAINT; ALLEGED ADMISSION OF WRONGDOING IN LEGAL PLEADING FOUR YEARS AFTER TERMINATION WAS UNTIMELY AND WAS NOT A NEW ACT OF DISCRIMINATION

In Hafer v. United Air Lines, Inc. , ARB No. 06-132, ALJ No. 2006-CAA-6 (ARB Aug. 29, 2008), the Complainant's earlier AIR21 complaint had been found to be discharged in bankruptcy. The Complainant later filed a new CAA whistleblower complaint alleging that in a pleading in his AIR 21 case the Respondent admitted that "it had indeed fired [him] for revealing its violations of the Federal Clean Air Act." In addition to finding that the new claim was enjoined by the bankruptcy discharge, the ARB found that it was not timely, having been filed more than four years after the Complainant had been terminated. The ARB rejected the Complainant's argument that the admission was a new act of discrimination. The ARB also found no grounds for equitable tolling.

III A 5 "New evidence" of discrimination

Where the complainant asserted that he had "discovered" new evidence of a conspiracy to cover up his wrongful termination in 1987, referencing discussions with TVA personnel and the review of TVA personnel files on July 9, 10, and 13, 1990 as the new evidence, but did not show that any specific adverse action was taken against him on those dates or at any time in the thirty days before his complaint, the complaint was tantamount to a submission of new evidence on a time-barred claim of discriminatory discharge. In Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992), the complainant had filed a separate complaint alleging unlawful termination and blacklisting against TVA. This complaint was dismissed as untimely with respect to the unlawful discharge allegation and for failure to allege a prima facie case of blacklisting.

Howard v. Tennessee Valley Authority, 91-ERA-36 (Sec'y Jan. 13, 1993).

TIMELINESS OF COMPLAINT; DISCOVERY OF ALLEGED VIOLATION DURING DISCOVERY
[N/E Digest III A 5]

In Freels v. Lockheed Martin Energy Systems, Inc. , 95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), the Board found that because Complainant did not learn about allegedly improper use of medical information by Respondent until she took depositions, and she filed a complaint within thirty days of the depositions, the complaint was timely as to this allegation.

III A 5 Date of learning of derogatory remarks as date from which timeliness of complaint is calculated

In Flor v. United States Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994), the ALJ had recommended dismissal for lack of a timely filing because he found that the last significant alleged retaliatory action occurred more than five months before Flor filed the complaint. Reading the complaint liberally, however, the Secretary found that a possible violation employee protection provision of the Surface Transportation Act had also been alleged. The complaint was timely under the STAA's 180 day filing time limitation.

The Secretary also found that the Complainant's "learning of a former supervisor's derogatory remarks in August 1992." In a footnote, the Secretary observed that "[t]he allegation that Flor learned of a former supervisor's derogatory remarks on August 25, 1992 was timely under the environmental acts as well. I expressly make no finding that a former supervisor's derogatory remarks constituted adverse action cognizable under the STAA or the environmental acts."

[ Editor's note: Compare Howard v. Tennessee Valley Authority, 91-ERA-36 (Sec'y Jan. 13, 1993) (holding that discovery of evidence of an alleged conspiracy did not cause a complaint to be timely where there was no specific adverse action within the limitations period)]

[Nuclear and Environmental Whistleblower Digest III A 6]
FAILURE OF RESPONDENT TO POST SECTION 24.102(d)(1) NOTICE TOLLS FILING DATE ONLY UP UNTIL COMPLAINANT IS SHOWN TO HAVE OBTAINED KNOWLEDGE OF THE PROVISIONS OF THE NOTICE

In Friedman v. Columbia University , ARB No. 12-089, ALJ No. 2012-ERA-8 (ARB Nov. 25, 2013), the Complainant was notified that his job was to be eliminated on a date certain. When that date arrived, the Complainant's job was in fact eliminated. About 1 � months later, the Complainant's attorney wrote a letter to the Respondent pursuing a severance agreement acknowledging therein that the Complainant's whistleblower rights were subject to a 180-day filing limitation. The Complainant did not file his ERA whistleblower complaint with OSHA until more than a year after both the date of notification of the elimination of the job and the actual elimination date. The Respondent, however, had failed to post the whistleblower provisions of the ERA explaining the provisions of the Act and its implementing regulations, including the filing deadline for filing an ERA whistleblower complaint as required under 29 C.F.R. § 24.102(d)(1). Pursuant to 29 C.F.R. § 24.102(d)(2), if the required notice has not been posted, the deadline for filing an ERA whistleblower complaint within 180 days of an alleged violation will be "inoperative, unless the respondent establishes that the complainant had knowledge of the material provisions of the notice," whereby the 180 days will run from the date "that the complainant later obtained knowledge of the provisions of the notice." In the instant case, the ARB found that (assuming the Complainant was unaware of the ERA limitations period) section 24.102(d)(2) tolled the limitations period for filing an ERA whistleblower complaint only until the date that the Complainant's attorney wrote the letter to the Respondent pursuing the severance agreement acknowledging knowledge of the ERA limitations period. Because the complaint was filed more than 180-days after the Complainant's attorney acknowledged the deadline, the regulatory tolling did not save the timeliness of the claim.

III B 1 Timeliness of filing of complaint; applicability of Part 18

Rule 18.4(a) of the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, is applicable to the ERA limitations period). Stokes v. Pacific Gas & Elec. Co./Bechtel Power Corp., 84-ERA-6 (Sec'y Feb. 19, 1987), slip op. at 2-3.

[Nuclear & Environmental Whistleblower Digest III B 1]
FILING OF HEARING REQUEST; CALCULATION OF TIME PERIOD

In Gale v. Ocean Imaging , ARB No. 98 143, ALJ No. 1997 ERA 38 (ARB July 31, 2002), the ARB cited with approval the following description by the presiding ALJ of how the time period for requesting a hearing with OALJ under 29 C.F.R. Part 24 is calculated:

Once the Department issues its decision, the complainant has five days to request a hearing, by forwarding either a telegram or facsimile to the Chief Administrative Law Judge. 29 C.F.R. § 24.4(d)(2)(i). Computation of this period requires that the day following the receipt of the decision commences the time period, the fifth day is included in the computation, and intermediate Sundays are excluded since the prescribed period is less than seven days. 29 C.F.R. § 18.4(a).

[Nuclear & Environmental Digest III B 1]
TIMELINESS OF COMPLAINT; NEXT BUSINESS DAY RULE

In Melendez v. Exxon Chemicals Americas , ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), the ARB applied the time computation provision found in the OALJ Rules of Practice and Procedure at 29 C.F.R. §18.4(a), to find that time deadlines under 29 C.F.R. Part 24 that fall on a weekend day or a Federal holiday are automatically extended to the next business day.

[N/E Digest III B 1]
FILING; DATE OF MAILING

An ERA complaint is filed as of the date it is mailed. Webb v. Carolina Power & Light Co. , 93-ERA-42, slip op. at 6 n.3 (ARB Aug. 26, 1997) (citing 29 C.F.R. § 24.3(b)).

III B ERA complaint filed more than 30 days after adverse action, but on or after October 24, 1992 is timely

In Yule v. Burns International Security Service, 93-ERA-12 (Sec'y May 24, 1995), the Complainant filed her complaint on October 31, 1992, 58 days after her discharge. The Comprehensive National Energy Policy Act of 1992 amended the ERA by, inter alia, enlarging the time for filing a complaint from 30 days to 180 days. The amendments were to apply to claims filed on or after the date of enactment of the CNEPA. The Respondent contended that the 180-day filing period did not apply because, absent an explicit provision in the statute, a new or extended statute of limitations will not be applied retroactively to revive an otherwise extinguished claim, and that Complainant's claim extinguished 30 days after her discharge. The Secretary rejected this contention, finding that by its own terms, CNEPA applies its 180 day limitation to any claim filed on or after October 24, 1992, and that application of the new period to this claim was not retroactive.

[Nuclear and Environmental Whistleblower Digest III B 2]
TIMELINESS OF ERA COMPLAINT; LIMITATIONS PERIOD BEGINS TO RUN WHEN NOTICE OF ADVERSE ACTION IS RECEIVED

The limitations period in an ERA whistleblower case begins to run when the employee is notified of the adverse action, not when it actually takes effect. Thus, in Devine v. Blue Star Enterprises, Inc. , ARB No. 04-109, ALJ No. 2004-ERA-10 (ARB Aug. 31, 2006), PDF | HTM the limitations period began to run when the Complainant was notified of his layoff.

[Nuclear and Environmental Whistleblower Digest III B 2]
TIMELINESS OF COMPLAINT; DATE OF DENIAL OF UNESCORTED ACCESS, WHICH WAS REQUIRED FOR THE COMPLAINANT'S POSITION, WAS DATE THAT BEGAN THE LIMITATIONS PERIOD

In Swenk v. Exelon Generation Co. , ARB No. 04-028, ALJ No. 2003-ERA-30 (ARB Apr. 28, 2005), the ARB affirmed the ALJ's conclusion that the claim was not timely. The Complainant, a nuclear power plant employee whose position required an "unescorted access authorization," had been informed that his access had been suspended and that because his job required such access he must either regain his access authorization or locate a new position within the company not requiring unescorted access within 90 days. Later, he was informed that his unescorted access had been denied and he was no longer eligible for security access, and that he had 10 days to appeal this determination. The DOL whistleblower complaint was filed more than 180 days after this notice.

The ARB agreed with the Respondent's position that: (1) the decision to deny the Complainant unescorted access was communicated to him on November 5, 2002, and his claim was filed more than a month outside the limitations period; (2) the Complainant's position as a nuclear oversight assessment team leader required unescorted access; (3) once that access was denied, the Complainant was aware that he had lost his job as team leader permanently; (4) therefore, the November 5, 2002 letter was final, unequivocal notice of an adverse action that triggered the limitations period. The ARB found that there was no tolling based on the possibility that the Complainant might find a job not requiring access or that he could take an appeal of the denial of access.

[Nuclear & Environmental Whistleblower Digest III B 2 a]
TIMELINESS OF COMPLAINT; CLOCK FOR LIMITATIONS PERIOD BEGINS UPON UNEQUIVOCAL NOTICE OF ADVERSE ACTION; LATER DISCOVERY OF MOTIVE FOR TERMINATION DOES NOT EQUITABLY TOLL THE LIMITATIONS PERIOD

In Udofot v. NASA/Goddard Space Center , ARB No. 10-027, ALJ No. 2009-CAA-7 (ARB Dec. 20, 2011), the Complainant made a complaint about the release of chemicals in an electroplating process. The Respondent investigated and found no safety issues. The Complainant, a probationary employee, was later discharged. He then filed complaints with the EEOC, the MSPB, the Office of Special Counsel and the Office of the Inspector General. A few months later he filed his CAA whistleblower complaint with OSHA. Both OSHA and the ALJ found that the CAA complaint was not timely. On appeal, the Complainart argued that the time period for filing the CAA complaint should be equitably tolled because he did not learn the reason for his termination until shortly before filing the complaint with OSHA when he learned of the results of the internal air-sampling test.

The ARB held that the clock for filing a CAA complaint does not begin to tick when the complainant learns of a possible motive for his termination, but rather when the complainant received unequivocal notice of his termination. Accordingly, the running of CAA's 30-day filing period was not equitably tolled because he purportedly did not learn of the motive for his termination until later.

[Nuclear & Environmental Whistleblower Digest III B 2 a]
TIMELINESS OF COMPLAINT; PAY-SETTING DECISION AS DISCRETE ACT THAT BEGINS LIMITATIONS PERIOD; CONTINUING ISSUANCE OF PAYCHECKS AT LOWER RATE

ARB CASELAW IS CONTROLLING RATHER THAN SUPREME COURT'S LEDBETTER DECISION OR THE LILLY LEDBETTER FAIR PAY ACT OF 2009

In Cante v. New York City Dept. of Education , ARB No. 08-012, ALJ No. 2007-CAA-4 (ARB July 31, 2009), the Complainant alleged that he was demoted in violation of the whistleblower provisions of several environmental statutes in retaliation for complaints about asbestos removal. Each of the statutes had a 30 day limitations period. The complaint was filed more than 30 days after the Complainant had notice of the demotion decision and more than 30 days after the actual demotion. The Complainant argued, however, that since he received paychecks within 30 days before he filed his whistleblower complaint with OSHA, and the paychecks were issued with discriminatory animus, they were separate actionable events, and thus his complaint was timely. Citing ARB authority, the ARB found as a matter of law that the lower paychecks received less than 30 days before the filing of the complaint were not separate discrete discriminatory acts that triggered a new limitations period.

While the case was before the ALJ, much of the argument centered on the applicability of Supreme Court decisions in Ledbetter v. Goodyear , 550 U.S. 618 (2007) and Bazemore v. Friday , 478 U.S. 385 (1986). The ALJ concluded that Ledbetter � in which the Court held that

a pay-setting decision is a discrete act which begins the charging period and the receipt of a neutral paycheck is not an unlawful practice which breathes life into prior, uncharged discrimination -- was controlling. The ARB, however, found that Ledbetter was not specifically controling, and stated that "[w]e apply Ledbetter only to the extent that it is consistent with our precedent that the limitations period begins to run when the complainant has final, definitive, and unequivocal knowledge of a discrete adverse act rather than when the adverse consequences are felt, e.g., reduced pay."

Finally, the ARB found that Lilly Ledbetter Fair Pay Act of 2009, in which Congress abrogated the Ledbetter holding, did not affect the disposition of the matter because that Act applies only to claims brought under Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973, and not to the environmental statutes under which the instant complaint was brought.

III B 2 a Trigger of filing period

In Cox v. Radiology Consulting Associates , 86-ERA-17 (ALJ Aug. 22, 1986), the ALJ addressed the issue of whether the complaint was timely filed. Citing the Supreme Court's decision in Deleware State College v. Ricks , 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed. 2d 431 (1980), the ALJ noted that "the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Ricks, 449 U.S. at 258. The ALJ found that the complaint had not been filed within thirty days of either the date the Complainant was notified of the termination or the last day of his employment. Accordingly, the claim was dismissed.

[Editor's note: The ALJ also determined that the circumstances surrounding the timing of his complaint did not warrant equitable tolling of the statute of limitations. See section II.A.3.c. for the discussion on equitable tolling. The Secretary adopted the ALJ's findings. See Cox v. Radiology Consulting Associates, Inc ., 86-ERA-17 (Sec'y Nov. 6, 1986).]

[Nuclear & Environmental Whistleblower Digest III B 2 a]
TIMELINESS OF COMPLAINT; NOTICE OF REDUCTION IN FORCE

Where the alleged adverse action is a reduction in force, the discriminatory act is the employer's communicating notice of the reduction in force to the employee as opposed to the last date of employment. Belt v. United States Enrichment Corp. , ARB No. 02 117, ALJ No. 2001 ERA 19 (ARB Feb. 26, 2004). In Belt , the Complainant signed a memorandum that gave final and unequivocal notice that the Complainant would be discharged under an involuntary reduction in force. The Board held that the fact that the memorandum did not set a date for actual termination did not change the finality of the action.

[Nuclear and Environmental Whistleblower Digest III B 2]
TIMELINESS OF COMPLAINT RUNS FROM DATE OF ADVERSE ACTION

Under the environmental statutes, the time for filing a complaint begins to run from the date of the adverse action, not the date the employee engaged in the protected activity. Erickson v. U.S. Environmental Protection Agency , ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001) (citing 29 C.F.R. § 24.3(b)).

In Erickson , the ALJ had granted summary decision to Respondent on the ground that the complaint -- filed after Complainant had been denied a promotion -- was untimely as more than three years had elapsed since the alleged whistleblowing activity. The ARB reversed the grant of summary decision, holding: "[W]hile the passage of time between protected activity and adverse action plainly mitigates against the likelihood of retaliation, temporal proximity (or lack thereof) does not by itself determine whether an adverse action was retaliatory." Slip op. at 5 (citation omitted).

[Nuclear & Environmental Digest III B 2]
TIMELINESS OF COMPLAINT; CLAIM ACCRUAL AND DISCOVERY RULE

In whistleblower cases, statutes of limitation run from the date an employee receives final, definitive and unequivocal notice of an adverse employment decision. The date that an employer communicates a decision to implement such a decision, rather than the date the consequences of the decision are felt, marks the occurrence of a violation. Claim accrual is the date a statute of limitations begins to run, i.e. , the date a complainant discovers he or she has been injured. Accrual may differ from the date the respondent decides to inflict injury which may pre-date a complainant's discovery of the injury. The ARB applies a discovery rule in whistleblower cases: limitations periods begin to run on the date when facts which would support a discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his or her rights. Overall v. Tennessee Valley Authority , ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001).

[Nuclear & Environmental Digest III B 2]
EXHAUSTION OF ADMINISTRATIVE REMEDIES; ISSUE OF UNDERLYING JURISDICTION; GENERAL REQUIREMENT THAT AGENCY BE GIVEN INITIAL OPPORTUNITY TO DETERMINE WHETHER IT HAS JURISDICTION

In Martin Marietta Energy Systems, Inc. v. Martin , 909 F. Supp. 528 (E.D. Tenn. 1993) (related administrative case 1993-CAA-4), plaintiffs [Respondents in the administrative action] moved in Federal district court for a preliminary injunction against further processing of Complainant's whistleblower complaint based on the theory that exhaustion of administrative remedies was not necessary because there had been a patent violation of DOL's authority, to wit: the complaint is not subject to DOL jurisdiction because Complainant was never an employee of any of the plaintiffs, and Complainant's activities investigating the etiology of certain diseases is not protected activity. The district court rejected this argument, noting authority to the effect that even when the jurisdiction of the agency is at issue, the exhaustion doctrine generally requires that the agency have the opportunity to determine initially whether it has jurisdiction.

[Nuclear and Environmental Digest III B 2]
TIMELINESS OF COMPLAINT; NON-RESPONSE OF EMPLOYER TO COMPLAINANT'S LETTER

In a Recommended Order Granting Motion to Dismiss in Flynn v. OK Industries, Inc. , 1999-WPC-1 (ALJ Jan. 13, 1999), Respondent had sent a letter to Complainant changing his status to medical leave without pay, and informing Complainant that its decision would not be reviewed until Complainant supplied certain medical records. Subsequently, Complainant sent a letter to Respondent requesting accrued vacation pay and certain other information. Respondent did not respond to Complainant's letter. Complainant's complaint with DOL was untimely if the date of the alleged last adverse action was calculated from the date of Respondent's letter, but timely if calculated from the date of Complainant's letter to Respondent. The ALJ concluded that Respondent's non-response could not be construed as a separate act of discrimination, citing Hadden v. Georgia Power Co. , 1989-ERA-21 (Sec'y Feb. 9, 1994). The ALJ wrote:

I am also persuaded by Respondent's argument regarding the dangers of allowing a claimant to simply "reset the clock" on his own initiative. Under Complainant's interpretation of the law, an employee may revive an otherwise time-barred claim at any time by his own act, e.g. , mailing a letter. If this is allowed, the only way an employer in a similar situation could avoid committing a possibly discriminatory act is to give in; if the employer does not, or simply ignores the letter, then that decision would be the subject of a discrimination claim. ( See Respondent's Brief, p.3-4). This can not be the intent of the law.

[Nuclear & Environmental Digest III B 2]
TIMELINESS; TRIGGER DATE MUST OCCUR DURING LIFETIME OF EMPLOYEE

In Ricketts v. Northeast Utilities Corp . , 1998-ERA-30 (ALJ Oct. 29, 1998), the ALJ, in ruling on Respondent's motion for summary judgment and therefore viewing the facts most favorably for the non-moving party, held that the date for starting the limitations period for filing a whistleblower complaint by the estate of a deceased employee was the date of the decedent's death. The ALJ rejected the argument by Complainant that the date the Administratrix learned of some incriminating information -- several months after the employee's death -- should trigger the limits period. The ALJ also rejected Complainant's alternative argument that the trigger date should be the day following the employee's death. In both instances, the ALJ reasoned that the definite notice of a challenged employment decision must take place during the employee's lifetime -- therefore the date the Administratrix learned of the allegedly incriminating information or learned of the employee's death had no bearing on the time period for filing an ERA whistleblower complaint.

The record also contained evidence in the form of personal notes of the employee indicating that he had been harassed on a certain date several weeks before his death. Respondent contended that this date should be the trigger date for the limitations period rather than the date of death. The ALJ, however, held that under the standard for summary judgment, it was possible that the employee suffered harassment up until the day of his death, and therefore rejected Respondent's contention that the trigger date should be earlier.

[N/E Digest III B 2 a]
TIMELINESS; DISCOVERY RULE

In Pantanizopoulos v. Tennessee Valley Authority , 96-ERA-15 (ARB Oct. 20, 1997), Complainant's claim accrued for purposes of calculating the timeliness of his complaint on the date that he discovered he had been wrongly injured. The ALJ had determined that the accrual date was the date Complainant should have known that he did not receive an expected monetary performance award. The ARB, however, found that the accrual date was the date Complainant learned of the reason why he had been denied the performance award -- a lower than expected performance evaluation. The ARB noted that Complainant could reasonably have concluded that any delay in receiving the evaluation and the expected performance award was due to a processing error or oversight, particularly since Complainant had retired prior the time the performance award was anticipated to be paid.

In discussing the issue, the ARB cited the "discovery rule" as described in Cada v. Baxter Healthcare Corp ., 920 F.2d 446, 450 (7th Cir. 1990), cert. denied , 501 U.S. 1261 (1991):

Accrual [of a claim] is the date on which the statute of limitations begins to run. It is not the date on which the wrong that injures the plaintiff occurs, but the date -- often the same, but sometimes later -- on which the plaintiff discovers that he has been injured. The rule that postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured is the "discovery rule" of federal common law, which is read into statutes of limitations in federal-question cases (even when those statutes of limitations are borrowed from state law) in the absence of a contrary directive from Congress. [Citations omitted]

The ARB also noted that the Secretary of Labor had held that the ERA limitations period begins to run "when the facts which would support the discrimination complaint were apparent or should have been apparent to a person with a reasonably prudent regard for his rights [and] similarly situated to Complainant." McGough v. United States Navy , 86-ERA-18, slip op. at 10 (Sec'y June 30, 1988).

[N/E Digest III B 2 a]
FILING; TRIGGER DATE FOR LIMITATIONS PERIOD BEGAN WHEN COMPLAINANT STRONGLY SUSPECTED HE WAS WRONGFULLY BEING EXCLUDED FROM CONSIDERATION FOR EMPLOYMENT

In Webb v. Carolina Power & Light Co. , 93-ERA-42 (ARB Aug. 26, 1997), Complainant was a contract engineer who was laid-off, and filed an ERA complaint alleging that later he was not considered for rehire because of whistleblowing activity.

The ARB found that the limitations period for filing the complaint began on the date that Complainant strongly suspected that Respondent was wrongly excluding him from consideration for employment. Although Complainant's complaint was filed more than 180 days after that date, Complainant had also alleged a continuing violation. Thus, the ARB next considered under the continuing violation theory whether an adverse action had occurred within 180 days of the filing. See casenote at III C 1 for more on continuing violation analysis]

III B 2 a Trigger of filing period

In ERA cases, the thirty day filing periods commences on the date that Complainant was informed of the challenged employment decision rather than the time the effects of the decision were ultimately felt. Where, however, the undisputed effective date of Complainants's discharge falls outside of the statutory filing period, it is unnecessary to discern the actual date when Complainant was notified of Respondent's decision to discharge. Howard v. Tennessee Valley Auth., 90-ERA-24 (Sec'y July 3, 1991).

III B 2 a Notification initiates period

The thirty day filing period for a whistleblower complaint begins running on the date that the employee is informed of the challenged employment decision, rather than at the time the effects of the decision are ultimately felt. See Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987). Rainey v. Wayne State University, 89-ERA-8 (Sec'y May 9, 1991); Ray v. Tennessee Valley Authority, 88-ERA-14 (Sec'y Jan. 25, 1991).

III B 2 a Notice, not last day of employment

Where the alleged discriminatory act is a reduction in force, the discriminatory act is the communication of notice of RIF to the plaintiff as opposed to the last date of employment. Riden v. Tennessee Valley Authority, 89-ERA-49 (ALJ Feb. 9, 1990), aff'd, (Sec'y July 18, 1990).

III B 2 a Date of knowledge of adverse action and not retaliatory motive governs initiation of filing period

In Ottney v. Tennessee Valley Authority, 87-ERA-24 (ALJ July 24, 1991), the ALJ rejected the complainant's argument that under McGough v. United States Navy, 86-ERA-18 (Sec'y June 30, 1988), the 30-day filing period begins to run when the facts which would support a discrimination complaint are, or should be, apparent to a person with a reasonably prudent regard for his rights. The complainant argued that the limitations period began to run when she became aware of the respondent's retaliatory motive and not when she was laid off.

The ALJ held that it is knowledge of the employer's actions that establishes the beginning of the filing period. See Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990), aff'd without opinion, 923 F.2d 854 (6th Cir. 1991). He noted that the McGough decision itself states that the proper focus is on the time of the discriminatory act, and cites the implementing regulation at 29 C.F.R. § 24.3(b) which requires a complaint to be filed "within 30 days after the occurrence of the alleged violation." McGough, slip op. at 6.

III B 2 a Trigger date for filing of complaint

Employee filed suit under the employee protection section of the ERA alleging she was unlawfully subjected to employment related discrimination because she registered and pursued safety complaints against her employer, GE, with the NRC. The Secretary dismissed her claim as untimely under section 5851(b)(1). The court upheld the application of the Ricks-Chardon rule in EPS cases: the administrative filing period begins running on the date that the employee is given definite notice of the challenged employment decision, rather than the time that the effects of the decision are ultimately felt. English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988).

III B 2 a Date of initiation of period

The filing period for a whistleblower complainant under the ERA commences on the date that the complainant is informed of the challenged employment decision rather than at the time the effects of the decision were ultimately felt. See Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), slip op. at 2-3, aff'd sub nom., Howard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992). Thus, where the complainant received final and unequivocal written notification of the challenged employment decision, neither his subjective belief that his termination might not become effective nor the possibility of an EEO accommodation altered the triggering date of the filing period. See English v. Whitfield, 858 F.2d 957, 961-962 (4th Cir. 1988); Janikowski v. Bendix Corp., 823 F.2d 945, 947 (6th Cir. 1987).

Ballentine v. Tennessee Valley Authority, 91-ERA-23 (Sec'y Sept. 23, 1992).

III B 2 a Trigger date when complainant knew

In Delcore v. W.J. Barney Corp., 89-ERA-38 (ALJ Apr. 24, 1990), Complainant asserted that Respondent subjected him to discrimination by offering him an improper and overly restrictive proposed settlement agreement to resolve an action pending before a United States district court involving allegation of state laws relating to wrongful termination, tortious inference with employment contract, and defamation.

The ALJ found (1) that he had no jurisdiction over the matter because Complainant was not an employee at the time of the allegedly discriminatory act and because the federal court action did not involve a 42 U.S.C. § 5851 matter; (2) the complaint was untimely where the settlement negotiations began in December 1988, the disputed settlement agreement was forwarded to Complainant in February 1989, Respondent rejected Complainant's proposed revisions to the agreement in April 1989, and Complainant filed his whistleblower complaint in May 1989 (the ALJ finding that the trigger date was February); and (3) the record established that the sole motivating factor for the settlement offer was the parties' mutual desire to settle the federal court action -- and Complainant did not establish that protected activities were a motivating factor.

III B 2 a Trigger of statute of limitations at date of notice, not date of implementation

The Ricks-Chardon rule applies to EPS complaints: the proper focus in assessing time-bar defenses under EPS is the time of the challenged conduct and its notification rather than the time it painful consequences are felt. Delaware State College v. Ricks, 449 US 250, 101 S Ct 498, 66 LEd2d 431 (1980)(Title VII claim); Chardon v. Fernandez, 454 US 6, 102 S Ct 28, 70 LEd2d 6 (1981)( section 1983 claim, Title VII, Civil Rights Act of 1964, 42 USC §2000e et seq.). Ricks-Chardon is premised on an employee's having been given final and unequivocal notice of an employment decision having delayed consequences. Only upon receipt of such notice does the filing period begin to run. Until that time there is the possibility that the discriminatory decision itself will be resolved and the contemplated action not taken, thereby preserving the pre- decision status quo. Where the employer's letter giving notice of its decision on a disciplinary hearing indicated that she would be terminated unless she secured other employment with the employer before the end of a temporary assignment, the decision was not equivocal but in form final and unequivocal. Obtaining of other suitable employment would only permit the employee to avoid the termination -- it would not negate the alleged discriminatory decision itself. Therefore, the notification of the decision rather than the final day of the temporary assignment triggered the statute of limitation with respect to the employee's claim of retaliatory termination of her employment. English v. Whitfield, 858 F2d 957 (4th Cir. 1988).

[Editor's note: note that this is time bar of retaliatory termination -- court later recognized claim of retaliatory harassment (employee alleged she was harassed during temporary assignment)]. [Editor's note: note that court cites Brenner's dissent in Chardon , 454 US at 9, 102 S Ct at 20: result of rule is increase in unripe claims. Court evidently is uncomfortable with the rule].

III B 2 a Effective date of termination

Patton-Davis v. Tennessee Valley Authority ,
90-ERA-61 (Sec'y Feb. 22, 1994)

The Secretary granted the Respondent's motion for summary judgment to dismiss the complaint. The case law and prior decisions of the Secretary support the conclusion that the effective date of termination is merely the date the consequences of the adverse action are ultimately felt and not necessarily the date the alleged violation occurred.

Additionally, there is no evidence to establish equitable tolling of the limitations period, nor is there evidence to support the general statement in the complaint that "other acts of discrimination occurred within thirty days of filing."

III B 2 a Oral notification

Hadden v. Georgia Power Co., 89-ERA-21
(Sec'y Feb. 9, 1994)

The ALJ recommended dismissing the complaint as untimely, and alternatively held that even if it were considered timely, the complainant failed to establish the inference that the adverse actions were motivated by the complainant's protected activity. The Secretary agreed with the ALJ and dismissed the complaint as untimely.

Complainant was fired by one of Respondent's contractors, rehired several months later after settling the complaint, and refired shortly thereafter. Although complainant did not receive written notification that he was permanently barred from employment with the Respondent until over two years from his final discharge, the complainant was informed he was permanently barred within months of his discharge. The Statute of Limitations begins to run when the claimant is first notified of the adverse action, and that notification need not be written.

The Secretary rejected the complainant's argument that repeated denials for re-employment constitute a continuing violation with each denial being a separate discrimination act. Instead, the Secretary found such repeated denials the continuing effect of the initial decision to permanently bar re-employment.

Since the complaint was dismissed as untimely, the Secretary did not address the issue of burden of proof.

III B 2 a Commencement when facts apparent

Where the Complainant waited more than 30 days after both the date of the alleged discriminatory act and the date he allegedly first become aware of evidence of retaliatory intent, his complaint was not timely. See McGough v. United States Navy, ROIC, 86-ERA-18 (Sec'y June 30, 1988) (commencement date of the limitations period is the date when the facts were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the Complainant). Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990).

III B 2 a Notification rather than effect

From: Bonanno v. Northeast Nuclear Energy Co., 92- ERA-40 and 41 (Sec'y Aug. 25, 1993).

The ERA filing period commences on the date that a complainant is informed of the challenged actions rather than at the time the effects of the actions are ultimately felt. See Ballentine v. Tennessee Valley Authority, 91-ERA-23 (Sec'y Sept. 23, 1992); Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom. Howard v. United States Dept. of Labor, 959 F.2d 234 (6th Cir. 1992).

Where Complainant learned of the issuance of a disciplinary letter, a layoff, dunning notices about unpaid medical bills, and a neurologist's "pre-existing condition" report, all more than 30 days prior to the filing of the complaint, his subjective belief that these actions might not be permanent (a correct belief in the case of the disciplinary letter, layoff, and dunning notices) did not alter the triggering of the filing period. [citations omitted]
[Editor's note: Complainant's complaint was based on his treatment following an industrial accident in which he was cited for not wearing a hard hat; the complaint was filed prior to the change from 30 to 180 days for filing]

Cases under the ERA recognize that the 30-day limit is not jurisdictional, and may be subject to equitable tolling. See Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989), aff'd sub nom. Doyle v. Secretary of Labor, No. 89-7863 (11th Cir. 1989); School District of City of Allentown v. arshall, 657 F.2d 16 (3d Cir. 1981). However, restrictions on equitable tolling are to be scrupulously observed. City of Allentown, 657 F.2d at 19. There are three circumstances in which tolling may be appropriate:

1. the defendant has actively mislead the plaintiff respecting the cause of action,

2. the plaintiff has in some extraordinary way been prevented from asserting his rights, or

3. the plaintiff has raised the precise statutory claim in issue but has mistakenly done son in the wrong forum.

Id. at 20. If the equitable ground is filing in the wrong forum, the filing must also be timely before it will toll the appropriate limitations period. Id.

The Secretary found that none of the three grounds for equitable tolling existed in this case, even construing the pro se complaint and supporting documents as liberally as possible.
Neither did Complainant allege a continuing violation, wherein Respondents engaged in a series of related discriminatory acts and the complaint is filed within 30 days of the last discriminatory act. See Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990); Egenrieder v. Metropolitan Edison Co./G.P.U., 85-ERA-23 (Sec'y Apr. 20, 1987). Complainant did not file within 30 days of the last event, and other than an allegation of a broad conspiracy involving Respondents, labor union members, and the insurance carrier, the alleged discriminatory acts were distinct and not of a continuing nature. See Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992); Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480-81 (9th Cir. 1989).

Complainant argued that he is still subjected to the effects of a false or incomplete medical report because, should he need further treatment, workers' compensation insurance will not cover the cost. The Secretary found this speculative because Claimant's testimony was that he no longer has any medical problems related to his injury. Further, "the courts have ruled consistently that plaintiff in discrimination cases may not avoid the consequences of filing limitations by alleging that they are victims of the present effects of past discrimination." United Air Lines v. Evans, 431 U.S. 533 (1977); Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir. 1979), cert. denied, 445 U.S. 929 (1980).

III B 2 a Date Complainant knew he had not been selected rather than date he discovered reason for non-selection governs

The fact that the Complainant may not have know the reason for the Respondent's failure to select him for a position until months after the nonselection was deemed irrelevant in Gillilan v. Tennessee Valley Authority, 92-ERA-46 and 50 (Sec'y Apr. 20, 1995), because the Complainant knew much earlier that he had not been interviewed for the position and that other people had been selected. The Secretary held that this "knowledge was sufficient to have triggered [the Complainant's] awareness of and duty to assert his rights under the ERA." (citation omitted)

III B 2 a Date of notification rather than effect

Kang v. Department of Veterans Affairs Medical Center ,
92-ERA-31 (Sec'y Feb. 14, 1994)

The Secretary issued a final decision and order dismissing the complaint as untimely.

The ERA filing period commences on the date that a complainant is notified of the challenged employment decision rather than at the time the effects are untimely felt. Here, the evidence supported that complainant was well aware of the adverse action at the time it was communicated to him.

The Secretary also failed to find an issue of equitable tolling. Although complainant's counsel may not have been aware of the specific time allowed for filing a complaint under the ERA, ignorance of the law alone is not sufficient to warrant equitable tolling of the limitations period. There is no evidence to support any alternate theory of equitable tolling of the limitations period. There is no evidence to support any alternate theory of equitable tolling in this case, such as if the Respondent deliberately misled the Complainant as to the Existence of the complaint or attempted to coerce the complainant into not filing a complaint.

[Nuclear and Environmental Whistleblower Digest III B 2 b]
TIMELINESS OF COMPLAINT; NOTICE OF TERMINATION, EVEN IF INDEFINITE, SUFFICIENT TO COMMENCE RUNNING OF LIMITATIONS PERIOD

In Belt v. USDOL , Nos. 04-3487, 04-3926 (6th Cir. Jan. 25, 2006) (unpublished) (case below ARB No. 02-117, ALJ No. 2001-ERA-19), the Sixth Circuit affirmed the ARB's determination that the Complainant's ERA complaint was not timely filed based on the date that the Complainant signed an irrevocable memorandum acknowledging his decision to be selected for an involuntary reduction in force. The fact that the effective date of his termination was almost a month later was not relevant. The court held that even if the notice of termination had been indefinite (which the court concluded it was not), under Kessler v. Bd. of Regents , 738 F.3d 751, 755-56 (6th Cir. 1984), the notice would have been sufficient to commence the running of the limitations period.

III B 2 b Unequivocal notice of suspension commences period

The period for filing a whistleblower complaint commences on the date the complainant receives unequivocal notice of his or her suspension. Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992).

[Nuclear & Environmental Whistleblower Digest III B 2 b]
TIMELINESS; RECEIPT OF WAIVER OF RELEASE

In Honardoost v. PECO Energy Co. , ARB No. 01 030, ALJ No. 2000 ERA 36 (ARB Mar. 25, 2003), Complainant's receipt of a "Waiver of Release" (which specified a date of termination of employment) constituted a "final and unequivocal" notice of the alleged adverse action that triggers the limitations period for filing an ERA whistleblower complaint, regardless of whether Complainant signed the release. The limitations period was not extended by the fact that the size of his annuity payment was later recalculated several times.

[Nuclear & Environmental Digest III B 2 b]
TIMELINESS OF COMPLAINT; DISTINCTION BETWEEN NOTICE OF SUSPENSION AND NOTICE OF TERMINATION FROM EMPLOYMENT

In Ross v. Florida Power & Light Co. , 1996-ERA-36 (ARB Mar. 31, 1999), Complainant's complaint was timely if measured from the date of a letter terminating his employment, but not timely if measured from an earlier notice of suspension of access. Relying on English v. General Electric , 1985-ERA-2 (Under Sec'y Jan. 13, 1987), aff'd sub nom English v. Whitfield , 858 F.2d 957 (4th Cir. 1988), the ALJ concluded that Complainant had received final and unequivocal notice that an adverse action was being taken against him on the date of the notice of suspension.

The ARB disagreed, distinguishing English on the ground that in that case the first notice received by the complainant permanently barred her from laboratory in which she worked, and other secure areas of the facility. In the instant case, however, Complainant was only told that his access was suspended, and was given two methods for retaining employment. The ARB found that it was reasonable at that point for Complainant to think that it was still possible for him to regain his access to the secured area, and thus his position therefore, this was not final and unequivocal notice that he was being terminated. Accordingly, the complaint was found to be timely.

III B 2 b Unequivocal and final notice

In The Detroit Edison Co. v. Secretary, United States Dept. of Labor, No. 91-3737, slip op. (6th Cir. Apr. 17, 1992) (per curiam) (unpublished) (available at 1992 U.S. App. LEXIS 8280), the Sixth Circuit reversed the finding of the ALJ and the Secretary of Labor that the Complainant had not received unequivocal and final notice of the adverse employment decision. The complainant had testified that "On 4-9-86 [more than 30 days prior to her complaint] Sam Thompson, my immediate supervisor, informed me I was going back to uniform as [sic] nuclear security officer. He said he wrote a memo trying to prevent this but was unsuccessful." The Circuit court pointed out that neither the Secretary nor the Complainant had identified any evidence to support the conclusion that the notice was equivocal or open to modification.

[Editor's note: The Sixth Circuit, however, upheld the Secretary's alternative finding that the filing period was equitably tolled based on other conduct by the Respondent].

III B 2 b Unequivocal, final notice

In Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), the ALJ made a recommendation of dismissal based on the untimeliness of the complaint. A summary of the circumstances follows:

• The complainant was put on leave-without-pay status on August 2, 1989.

• According to the respondent, the complainant was given an ultimatum of termination or resignation in December 1989.

• The complainant was terminated effective January 18, 1990, by notice dated and admittedly received by the complainant on January 12. The notice stated:

  Upon reviewing your work performance, and as we discussed on December 20, 1989, I have decided to separate you from your position as an EPS Student Trainee, effective January 18, 1990.

• On January 25, 1990, the complainant was mailed a "Notification of Personnel Action" showing her "involuntary termination" effective January 18, and a "Notice of Change in Health Benefits Enrollment".

• On January 31, 1990, one of respondent's personnel indicated to the program attorney that he agreed that the termination letter was "inappropriately issued" (procedurally and semantically) and that he would rescind it if the complainant would instead submit a resignation letter. The complainant had no knowledge of this remark.

• Sometime in February 1990, respondent's program attorney indicated to the complainant that if she would submit a letter of resignation, the termination letter would be rescinded.

• The complainant testified that in light of her December 1989 and February 1990 conversations with respondent's personnel, she did not consider the respondent's decision final until March 7, 1990, when she learned that the respondent was no longer willing to consider a resignation letter or any action other than termination.

• The respondent conceded, for purposes of a summary judgment motion on the timeliness issue, that complainant filed her complaint on March 22, 1990.

The Secretary first considered when the complainant received unequivocal, final notice. She agreed with the ALJ that the termination letter and the government forms clearly indicated a discharge on January 18, and "vividly reflect a final discharge of a permanent nature." [quoting ALJ's Recommended Decision and Order at 2]. The Secretary noted that generally speaking, a cause of action for unlawful termination accrues when the employee receives an unequivocal, final notice of the decision. English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988).

The facts of the case did not demonstrate affirmative misleading or deceptive conduct by the respondent that would justify tolling. See Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60 (2d Cir. 1986); Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992), slip op. at 6-7 and cases cited therein.

Even if an employer agrees to reconsider a termination decision, such reconsideration alone is legally insufficient to toll a limitations period. Delaware State College v. Ricks, 449 U.S. 250, 261 n.15 (1980); Electrical Workers v. Robbins and yers, Inc., 429 U.S. 229 (1976). The respondent's willingness to ameliorate the effects of the complainant's termination by accepting a resignation letter did not constitute grounds for equitable estoppel in the instant case. Dillman, 784 F.2d at 61; see English, 858 F.2d at 963; Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir. 1981). There was no allegation that the respondent's willingness to accept a resignation letter was contingent on the complainant's agreeing not to file a complaint, or that the subsequent unwillingness to accept the complaint was based on lapsing the filing period.

The complainant's admission that after receiving the termination notice in January she contacted the respondent's Program Attorney for help because she believed that the reasons for her termination were pretextual, that her discharge was retaliatory, and that neither termination nor forced resignation were appropriate, also indicated that tolling was not appropriate. See Kale v. Combined Insurance Co. of America, 861 F.2d 746, 753 (1st Cir. 1988); Nation, 649 F.2d at 696.

[Editor's note: The Secretary did, however, remand the case for the ALJ to consider a separate allegation of discrimination based on the refusal to accept the resignation letter.]

III B 2 b Unequivocal, final notice of decision

A cause of action for unlawful termination generally accrues when the employee receives an unequivocal, final notice of the decision. Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992).

III.B.2.b. Employer implied denial of access was not final

In Crosier v. Westinghouse Hanford Co., 92-CAA-3 (Sec'y Jan. 12, 1994), the Secretary found that the Respondent's denial of a badge and of site access was not sufficiently final and unequivocal to trigger the start of the 30-day period for filing a SWDA complaint where the Respondent (a nuclear facility) admittedly did not tell the Complainant why it denied him access, and the Compliant's employer (a supplier of contract labor) told him it would take some time to gain access, which implied that access would be forthcoming.

III B 2 b Oral notice sufficient

In McGarvey v. EG & G Idaho, Inc., 87-ERA-31 (Sec'y Sept. 10, 1990), the ALJ ruled that the thirty day period for the filing of the complainant's ERA complaint commences on the date the complainant was first orally notified by the respondent of the decision to terminate him. On review by the Secretary, the complainant argued that because his employment contract with the respondent provided for "written notice" of termination the filing period should not commence until the date of written notice. In the alternative, the complainant argued that equitable tolling was warranted because reliance on the employment contract terms provided by the respondent was reasonable and worked to his detriment.

The Secretary rejected both of these arguments. The written notification merely confirmed what the complainant already knew. Further, the record did not support the complainant's contention that he did not believe he was finally and unequivocally terminated until receiving the written notice because the complainant had submitted to the respondent a claim for damages for breach of employment contract prior to that date.

III B 2 b Definitions of final, definitive and unequivocal notice of adverse job action

The ERA 30 day limitations period runs from the date the employee receives final, definitive, and unequivocal notice of the adverse job action. "Final" and "definitive" notice denotes communication that is decisive or conclusive, i.e., leaving no further chance for action, discussion, or change. "Unequivocal" notice denotes communication that is not ambiguous, i.e., free of misleading possibilities.

In Larry, the Secretary found that a notice from complainant's supervisor of a proposed transfer, accompanied by a memorandum describing his serious challenge to the proposal "appeared ambiguous and inconclusive." The Secretary distinguished English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988), on the ground that in that case the notice was unequivocal and absent any intimation that the decision was subject to further appeal or reexamination.

Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).

III B 2 b Pressure to rescind a complaint lacks degree of permanence to trigger awareness of duty to assert rights

Courts recognize an equitable exception to statutory limitations periods for continuing violations where, rather than manifesting itself as series of discrete acts, the unlawful employment practice manifests itself over time. In order to invoke the exception, a plaintiff must show that an ongoing violation, and not just the effects of a previous violation, extended into the statutory period. Nathaniel v. Westinghouse Hanford Co., 91-SWD-2 (Sec'y Feb. 1, 1995), citing, inter alia, Berry v. Bd. of Supervisors of LSU, 715 F.2d 971 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986) (court should consider whether the acts involved the same type of discrimination, were recurring, and lacked permanent adverse effect).

In Nathaniel , the Complainant was pressured on October 24, 1990 to rescind an electronic mail message in which she had raised health and safety issues, she endured increasing pressure to rotate out of her assigned work group during November and early December; at some unknown point the Respondent decided to transfer her; and on December 4 she decided to quit rather than rotate. She filed her complaint of unlawful discrimination on December 10. Because of the uncertainty associated with the timing of the Respondent's transfer decision, the Secretary wrote that he was inclined to find that that violation occurred on December 4 when the pressure to rotate finally caused the Complainant to resign. The December 10 complaint of unlawful discrimination therefore was timely as to that violation. Furthermore, the October 24 violation met the standards for extension into the statutory period.

The Secretary noted that, unlike a poor performance appraisal or demotion, being pressured to rescind a complaint lacks the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate.

III B 2 b Unequivocal notice of termination triggers limitations period

In Wagerle v. The Hospital of the Univ. of Pennsylvania, Depts of Physiology and Pediatrics, 93-ERA-1 (Sec'y Mar. 17, 1995), there was uncontroverted evidence that the Complainant's position as research associate professor at the University depended on his obtaining outside funds to support his research. Although Complainant was not terminated from employment until July 31, 1992, the Respondent had provided clear notice in March 1992 that the University did not intend to continue Complainant's employment beyond the duration of his current outside grant and that the likelihood of his timely obtaining additional outside funds was very remote. The notice did not intimate that termination was subject to further review or appeal. Thus, the March 1992 notice, being final and unequivocal, triggered the limitations period under the ERA whistleblower provision. See English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).

III B 2 b Final and unequivocal notice

In McDonald v. University of Missouri, 90-ERA-59 (Sec'y Mar. 21, 1995), the Complainant was a Postdoctoral Associate for a lab at the University of Missouri. On April 11, 1990 the Complainant was told to wrap up her work in the next couple of months, and on April 16, 1990, she was informed that she would no longer be able to work in the lab. At that time the locks were changed to prevent her from entering the lab, and she was informed that her current contract would not be renewed and that she was being discharged effective April 30, 1990. The professor heading the lab, however, changed his mind and renewed the Complainant's contract through June. Further, although the Complainant no longer worked in the lab, her salary was increased from 3/4 time to full time. The personnel office was not notified of nonrenewal until June 1990. On June 28, 1990, the professor heading the lab informed the Complainant that she would be finally discharged as of June 30, 1990. The Complainant did not file a complaint with the DOL until July 27, 1990.

The Secretary concluded that the complaint was timely because the final and unequivocal notice did not come until June 28, 1990. The Secretary held that if notice had been given in April that June 30 was the effective date of discharge, the filing period would have begun then -- but that the lab head in fact equivocated about the final termination decision until June 28, 1990.

III B 3 Where 31st day falls on a Monday

29 C.F.R. § 24.3(b) provides that "[f]or the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of the mailing." Where the complaint is filed on the 31st day after the alleged violation, and that day is a Monday, the complaint is timely pursuant to 29 C.F.R. § 18.4(a).

Stokes v. Pacific Gas & Electric Co., 84-ERA-6 (Sec'y Feb. 19, 1987) (order of remand).

[Nuclear & Environmental Digest III B 3]
TIMELINESS OF FILING OF COMPLAINT; LACK OF EVIDENCE OF MAILING TO ANY GOVERNMENT AGENCY

In Roberts v. Battelle Memorial Institute , ARB No. 00-015, ALJ No. 1996-ERA-24 (ARB Apr. 30, 2001), Wage and Hour, the presiding ALJ, and the ARB all found that Complainant (who was proceeding pro se ) had not made a timely filing of her ERA complaint. During the ARB appeal, however, Complainant asserted that she made a timely filing with OFCCP that raised cognizable claims under the ERA. She did not produce the purported filing, however. Thus, the ARB affirmed the ALJ. On review before the Sixth Circuit, Complainant produced a document that she alleged was the purported filing; the Sixth Circuit remanded for further fact finding. On remand, the ALJ contacted both OFCCP and the EEOC (to which the OFCCP had forwarded the filing), and each office forwarded copies of the material they had on file relating to the Complainant's filings at the relevant time. The ALJ also conducted a hearing at which Complainant testified and presented a copy of the complaint she alleged she filed and which allegedly contained cognizable ERA complaints. The complaint Complainant presented did not match the documentation found in the OFCCP and EEOC files, which only presented a sex discrimination complaint. Reciting the history of the case, including the repeated attempts during the first proceeding to get Complainant to present anything that would have shown the filing of a timely complaint, and reasoning that the evidence indicating that no government office appeared to have received a timely complaint letter raising ERA issues indicated that no such letter was ever mailed, the ALJ found that Complainant's testimony about the mailing was not credible and recommended dismissal of the complaint. The ARB adopted the ALJ's decision.

[Nuclear & Environmental Digest III B 3]
TIMELINESS OF FILING OF COMPLAINT; RELEVANT ACT IS MAILING, NOT RECEIPT

Pursuant to 29 C.F.R. § 24.3(b) the relevant question on timely filing of a complaint is whether the complaint was actually mailed, rather than actually received. Roberts v. Battelle Memorial Institute , ARB No. 00-015, ALJ No. 1996-ERA-24 (ARB Apr. 30, 2001) (ALJ erred in analogizing to Federal Tort Claims Act that there must be actual receipt of a complaint).

[Nuclear & Environmental Digest III B 3]
REQUEST FOR HEARING; TIMELY BUT NOT VIA MEANS SPECIFIED IN REGULATIONS

In Lazur v. U.S. Steel-Gary Works , 1999-ERA-3 (ALJ May 18, 2000), the ALJ concluded that a Complainant's request for hearing, if timely received by the Office of Administrative Law Judges, would not be dismissed merely because the Complainant served the request on the OALJ and the other parties by regular mail rather than one of the methods specified in 29 C.F.R. 24.4 (fax, hand delivery or next-day delivery service). The ALJ concluded that as long as the request actually was timely received, it did not matter that regular mail was used.

[Nuclear & Environmental Digest III B 3]
TIMELINESS; TESTIMONY OF ATTORNEY THAT COMPLAINT LETTER HAD BEEN SENT BY REGULAR MAIL

In Melendez v. Exxon Chemicals Americas , ARB No. 96-051, ALJ No. 1993-ERA-6 (ARB July 14, 2000), the ARB adopted the ALJ's finding that the testimony of Complainant's attorney that the complaint letter to ESA had been sent by regular mail on the Friday before the Monday the complaint was due to be filed, together with documentary evidence showing receipt by ESA on the next Tuesday, established that the complaint was timely filed. The ARB declined to accept Respondent's contention that the attorney's testimony could not be relied upon because the letter had not been sent by certified mail, with return receipt service.

[Nuclear and Environmental Digest IV.B.3.]
EQUITABLE TOLLING; WRONG FORUM; BURDEN ON COMPLAINANT

In Rockefeller v. Carlsbad Area Office, U.S. Dept. of Energy , ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998- CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), Complainant asserted that he filed a complaint with the EPA that qualified for the equitable tolling principle under the CAA whistleblower provision of raising the precise statutory claim in issue but in the wrong forum. The ARB found that equitable tolling could not be applied where Complainant failed to adduce supporting evidence. The Board held that "[w]hen a complainant invokes equitable tolling of a statute of limitations, it is the complainant's burden to demonstrate existence of circumstances that would support tolling. Cf. Ross v. Buckeye Cellulose Corp. , 980 F.2d 648, 661 (11th Cir. 1993) (plaintiff in Title VII action has burden of proving equitable reasons for failure to comply with limitations period)." Slip op. at 9.

Similarly, the ARB found that equitable tolling could not be applied to Complainant's filing of a MSPB appeal of his discharge by the Department of Energy. The ARB reviewed Complainant's letter of appeal, a memorandum to the MSPB examiner, and the MSPB's ALJ decision, and concluded that Complainant's MSPB whistleblower complaint related only to his assertion that DOE did not follow internal procedural regulations. The ARB wrote that "[w]here the gravamen of a complaint filed in the 'wrong forum' sounds under another, independent remedy and not under the provision under which relief is sought before us, there is no basis for invoking equitable tolling." Slip op. at 10-11.

III B 3 Last day on a Sunday

Where the thirty-first day after the alleged whistleblower violation is a Monday, and the complaint was postmarked on that day, the complaint is timely filed. See 29 C.F.R. §§ 18.4(a) and 24.3(b).

Monteer v. Casey's General Stores, Inc., 88-SWD-1 (Sec'y Feb. 27, 1991).

III B 3 Complaint filed as of date of mailing

For the purpose of determining the timeliness of filing a CAA whistleblower complaint, a complaint filed by mail shall be deemed filed as of the date of the mailing. 29 C.F.R. § 24.3(b). Where there is no evidence of the date of mailing, but the date on the complaint itself if beyond the time period allowed for filing, the complaint is not timely. Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992).

III B 3 Mailing is date of filing

A complaint in an ERA whistleblower action is deemed filed as of the date of mailing rather than receipt. See 29 C.F.R. § 24.3(b); Stokes v. Pacific Gas & Electric Co., 84-ERA-6 (Sec'y Feb. 19, 1987). Rainey v. Wayne State University, 89-ERA-8 (Sec'y May 9, 1991).

III B 3 Evidence of date of mailing

Where the complainant's credibility was questionable, the ALJ relied on the documentary evidence of record to conclude that the complaint had not been timely filed. The complainant testified that he mailed the complaint on January 26, 1988, but the receipt date stamped on the complaint by the Department of Labor was arch 3, 1988. Day v. Georgia Power Co., 88-ERA-42 (ALJ June 23, 1989), aff'd, (Sec'y Mar. 23, 1990).

III B 3 Delay in postmark

The complaint in Rex v. Ebasco Services, Inc., 87- ERA-6 (Sec'y Apr. 13, 1987), was found to be timely despite having a postmark dated the 31st day following the commencement of the filing period. The Secretary adopted the ALJ's finding that the complaint was in fact mailed on the 30th day based upon complainant's counsel's affidavit that she had placed the complaint in a mail box in front of a post office between 6:00 and 6:30 p.m. on the 30th day. The mail box indicated that the last pick up was at 7:00 p.m. Later, upon learning that Wage & Hour had found the complaint not to be timely, she made inquiries to the post office, and learned that mail from this box and other cities is taken to a central processing station in another city for all mail in the area. She was informed that although mail picked up in the 7:00 p.m. pickup was generally postmarked on the day it was mailed, any one or a combination of factors could have occurred delaying the postmark.

III B 3 Filing period runs from date Complainant wrote resignation letter rather than date he actually delivered it

In a "constructive partial discharge" case, the date from which the limitations period for filing an ERA complaint began running was the date the Complainant wrote the letter of resignation rather than the date he allegedly actually delivered the letter to the Respondent. Gomez v. University of Puerto Rico Medical Science Campus, 89-ERA-43 (Sec'y Apr. 20, 1995) (Secretary did not rule on whether a "constructive partial discharge" was a cognizable ground on which to base an ERA whistleblower complaint).

III B 3 Proof of date of filing of complaint

In Mansour v. Oncology Services Corp., 94-ERA-41 (ALJ Nov. 23, 1994)(order continuing hearing and confirming rulings), the Department of Labor was unable to find the envelope disclosing the postmark of Complainant's letter of complaint to the DOL, or any other proof of the date the letter was sent. The ALJ suggested that the Counsel for the DOL bring this egregious circumstance to the attention of appropriate officials at DOL so that it never recurs. The ALJ wrote:

The deadlines for whistleblower case complaints are important, and the retention in DOL's case file of the envelope with the postmark proof of mailing would have solved the problem in this case. Regrettably, there is no requirement in the regulation (29 C.F.R. § 24.3) that a complaint filed by mail be sent by certified mail. Such a requirement would be a useful amendment.

[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION DOCTRINE NO LONGER VIABLE

In Lewis v. U.S. Environmental Protection Agency , ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the ALJ erred in applying the "continuing violation" doctrine to find that the Complainant had made a timely complaint alleging that the EPA had engaged in adverse employment action when it failed to follow its internal peer review process for granting permission to its scientists to publish research papers. Rather, the ARB found applicable the "discrete action" standard from Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 110, 114-15 (2002). Thus, because the Complainant knew more than two months prior to filing of his environmental whistleblower complaint that a scientist well-known to advocate a position different from that of the Complainant in regard to the subject of the paper (whether sludge fertilization presents public health risks) had inappropriately participated in the peer review, and the applicable limitations period was only 30 days, the complaint was untimely.

[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; DISTINCTION BETWEEN CONTINUING EFFECTS OF A DISCRETE ADVERSE ACTION AND A CONTINUING VIOLATION

In Erickson v. U.S. Environmental Protection Agency , ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant did not timely file an environmental whistleblower complaint upon being transferred to a new position. The ARB found that she appeared to be arguing on appeal that her whistleblower complaint was timely because, upon transfer to a new position, she had been shunned by co-workers, "put on display" by being stationed in the library, was underutilized, and was required to supervise computer specialists even though she lacked necessary skills. The ARB, however, found that the Complainant was actually complaining about the consequences � i.e., the "continuing effects" -- of her transfer. The Board distinguished between the continuing effects of a prior adverse action and continuing violations. The Board noted that "to allow a continuing effects theory to revive expired or stale claims would render the filing time periods in the whistleblower provisions a nullity." USDOL/OALJ Reporter at 22 (footnote omitted).

III C 1 Continuing discrimination

[NOTE: The following discussion is from McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991).]

Courts generally recognize an equitable exception to statutory limitations periods for continuing violations "'[w]here the unlawful employment practice manifests itself over time, rather than as series of discrete acts.'"[1]
_________
Footnote [1]

The court in Malhotra v. Cotter & Co., 885 F.2d 1305, 1310, explained:

What justifies treating a series of separate violations as a single continuing violation? Only that it would have been unreasonable to require the plaintiff to sue separately on each one. In a setting of alleged discrimination, ordinarily this will be because the plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory mistreatment.

Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989), quoting Abrams v. Baylor College of Medicine, 805 F.2d 528, 532 (5th Cir. 1986). In order to invoke the exception, a plaintiff must show that an ongoing violation, and not just the effects of a previous violation, extended into the statutory period. Bruno v. Western Elec. Co., 829 F.2d 957, 960 (10th Cir. 1987). See English v. Whitfield, 858 F.2d 957, 962-963 (discrete, consummated, immediate violation is not "continuing" merely because its effects carry forward); compare Held v. Gulf Oil Co., 684 F.2d 427, 430-432 (6th Cir. 1982) (where, throughout employment, plaintiff's disproportionately heavy workload never lightened, sex-based innuendos continued, and plaintiff absolutely was excluded from using the supply terminal, sex discrimination continued through date of constructive discharge). The court in Berry v. Bd. of Supervisors of LSU, 715 F.2d 971 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986), identified the following three factors as bearing on this determination:

(1) Subject matter. Do the acts "involve the same type of discrimination, tending to connect them in a continuing violation?" Berry at 981. See Graham v. Adams, 640 F. Supp. 535, 538-539 (D.D.C. 1986) (continuing violation allegations must connect remote claims to incidents addressed by claims timely filed). (2) Frequency. Are the acts "recurring . . . or more in the nature of an isolated work assignment or employment decision?" Berry at 981. Under this factor, a complainant can establish a continuing violation either through a series of discriminatory acts against an individual or a respondent's policy of discrimination against a group of individuals. Green v. Los Angeles Cty. Superintendent of Sch., 883 F.2d 1472, 1480-1481 (9th Cir. 1989). The distinction is between "'sporadic outbreaks of discrimination and a dogged pattern.'" Bruno v. Western Elec. Co., 829 F.2d at 961, quoting Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711, 725 n.73 (D.C. Cir. 1978) (In Bruno , the court focused on the defendant's intent "to take any action necessary to get rid of plaintiff" in affirming the district court's finding of a continuing violation).

(3) Degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate? Berry at 981.

In considering this factor, the court in Waltman v. Int'l Paper Co., reasoned: Acts of harassment that create an offensive or hostile environment generally do not have the same degree of permanence as, for example, the loss of a promotion. If the person harassing a plaintiff leaves his job, the harassment ends; the harassment is dependent on a continuing intent to harass. In contrast, when a person who denies a plaintiff a promotion leaves, the plaintiff is still without a promotion even though there is no longer any intent to discriminate. In this latter example, there is an element of permanence to the discriminatory action, which should, in most cases, alert a plaintiff that her rights have been violated. 875 F.2d at 476.

A compelling case might be made for the presence of a continuing violation, however, where a respondent engages in a systematic practice of denying promotion opportunities and other benefits. See Tyson v. Sun Refining & Marketing Co., 599 F. Supp. 136, 138-140 (E.D. Pa. 1984), and cases discussed therein. Evidence of discriminatory actions antedating the filing period but found not to be "continuing" violations nevertheless may constitute relevant background evidence, i.e., "[e]vidence of past practices may illuminate . . . present patterns of behavior." Malhotra v. Cotter & Co., 885 F.2d at 1310. Accordingly, earlier violations properly bear on questions of Respondent's later motivation, even if the associated claims are untimely.

[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY WAIVED ON APPEAL IF NOT RAISED BEFORE THE ALJ

Even though ARB review of a ALJ decision under the environmental whistleblower laws is de novo , where the Complainant did not raise a contention that all of the alleged adverse actions occurring before the 30 day limitations period should be considered timely based on a continuing violation theory until review before the ARB, the Board found that the issue had been waived on appeal. Schlagel v. Dow Corning Corp. , ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004).

[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION DOCTRINE; DISCRETE EVENTS

The continuing violation doctrine is not available for discrete acts. Schlagel v. Dow Corning Corp. , ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), citing National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 113-15 (2002).

See also Jones v. United States Enrichment Corp. , ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21 (ARB Apr. 30, 2004) (ALJ erred in making findings that three discrete events occurring before the limitations period violated the ERA; even if they were adverse to the Complainant, they were not actionable).

But also see Schlagel, supra , holding that although not actionable, the ALJ properly admitted evidence of otherwise time-barred alleged adverse actions and fully considered them as relevant evidence probative of the Respondent's decision making process regarding the actionable adverse actions occurring within the limitations period.

[Nuclear & Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION DOCTRINE

In Belt v. United States Enrichment Corp. , ARB No. 02 117, ALJ No. 2001 ERA 19 (ARB Feb. 26, 2004), the Complainant had received final and unequivocal notice that he would be discharged under an involuntary reduction in force, and had not filed his ERA whistleblower complaint within 180 days of that event. The Complainant argued that the continuing violation doctrine applied to equitably toll the filing period. The ARB found that only two discrete acts occurred within 180 days before the complaint was filed the signing of retirement papers by the Complainant and the benefits plan manager at Respondent's resource center and the signing of an exit questionnaire by the Respondent's employment manager during the course of the Complainant's exit interview. Neither document demonstrated discriminatory or retaliatory motive on the part of the Respondent. The Board held that: "Rather, both documents resulted from the alleged adverse action ... when [the Respondent] notified [the Complainant] that his request to be riffed had been accepted." These discrete acts "were not adverse actions but rather the logical effects of [the Respondent] notifying [the Complainant] of the involuntary RIF...." The Board held that "[b]ecause the date on which the mere effects of a discrete act occurred is not relevant to the issue of timeliness, and no discriminatory act occurred within 180 days prior to the date [the Complainant] filed his complaint..., we hold that [the Complainant's] reliance on the so called continuing violation theory fails." Slip op. at 14 15 (citations omitted).

[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS; ENVIRONMENTAL COMPLAINT FILED OUTSIDE 30-DAY LIMIT IS TIME BARRED UNLESS EQUITABLE TOLLING APPLIES OR RESPONDENT'S ACTIONS ONLY BECAME APPARENT WITH PASSAGE OF TIME

In Ilgenfritz v. U.S. Coast Guard Academy , ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001), Complainant alleged that a series of actions taken by Respondent over a 2 year period constituted hostile acts of a continuing nature so as to provide an equitable exception to the 30-day time limit for filing a complaint under the whistleblower provisions of the CERCLA and the SWDA.

The ARB concurred with the ALJ's statement that claims alleging illegal conduct that occurred more than 30 days prior to the filing of a complaint are time-barred unless either (a) equitable tolling is appropriate or (b) the Respondent's actions constitute a continuing pattern of retaliatory conduct that is apparent only with the passage of time. The Board agreed with the ALJ that none of the grounds for equitable tolling applied to the instance case. The ARB found that Complainant's complaint faired no better under the continuing violation doctrine where there was no prolonged employer decision-making process that made it difficult for Complainant to determine the actual dates of the allegedly discriminatory acts, and there was no evidence of an underlying policy or pattern of discrimination. Rather, the Board found that the acts of which Complainant complained were discrete and varied in kind, were implemented by several different supervisors, and were mostly distant in time from the complaint filed following his termination.

[Nuclear & Environmental Digest III C 1]
TIMELINESS OF FILING; CONTINUING VIOLATION

In Overall v. Tennessee Valley Authority , ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), the ARB applied continuing violation theory to find that a timely filing, where Respondent had engaged in an unlawful coverup of a safety problem, which, insofar as it related to Complainant particularly, resulted in a series of retaliatory actions taken by Respondent in furtherance of the coverup. Complainant made a timely filing in regard to his eventual layoff, and therefore, under continuing violation theory, a timely filing was deemed to have been made as to all retaliatory actions by Respondent.

[Nuclear & Environmental Digest III C 1]
TIMELINESS OF FILING; CONTINUING VIOLATION; POST-HEARING DISCOVERY

In Foley v. Boston Edison Co. , ARB No. 99-022, ALJ No. 1997-ERA-56 (ARB Jan. 31, 2001), Complainant argued that his complaint should be considered timely under the continuing violation theory because when during post-hearing discovery Complainant attempted to obtain an investigative file, Respondent objected on relevancy grounds; the ALJ issued a protective order to which Complainant agreed to abide; Respondent subsequently proffered an agreement adopting the non-disclosure language of the protective order. Complainant alleged that the proffer of the agreement constituted the last in a series of retaliatory actions that would render his complaint timely. The ARB agreed with the ALJ that the proffer of the agreement was an unrelated discrete act, and could not be viewed as part of a continuing violation.

[Nuclear & Environmental Digest III C 1]
CONTINUING VIOLATION; IF TIMELY FILED COMPLAINT IS NOT PROVEN AS RETALIATORY DISCRIMINATION, THRESHOLD TEST FOR CONTINUING VIOLATION THEORY IS NOT MET

In Holtzclaw v. Secretary of Labor , No. 97-3347 (6th Cir. Jan. 15, 1999) (unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit applied the requirements for establishing a continuing violation stated in Bell v. Chesapeake & Ohio Ry. Co. , 929 F.2d 220, 22 (6th Cir. 1991) to Complainant's environmental whistleblower complaints. The court noted that the Bell test requires a demonstration of a policy of discrimination, a continuing course of conduct, and present effects of past discrimination. A threshold requirement, however, is that the plaintiff must show a present violation. Thus, in Holtzclaw , the court considered first whether the only complaint that was filed within the 30-day filing period was supported by substantial evidence. Since the court affirmed the ARB's determination that it was not, the continuing violation test was not met.

[N/E Digest III C 1]
CONTINUING VIOLATION DOCTRINE

Citing Connecticut Light & Power Co. v. Secretary of United States Dep't of Labor , 85 F.3d 89, 96 (2d Cir. 1996), for a description of the continuing violation standard exception to the strict application of the limitations period for filing a whistleblower complaint, the Sixth Circuit in Varnadore v. Secretary of Labor , Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below 92-CAA-2 et al.), summarized the continuing violation theory as follows:

In other words, under the continuing-violation doctrine, a single non time-barred act can save other acts that are time-barred but the mere fact that retaliation or discrimination continued over a long period does not mean one can simply ignore statutes of limitations altogether.

[N/E Digest III C 1]
CONTINUING VIOLATION STANDARD; STANDARD OF REVIEW; SECRETARY'S INFERENCES

In Varnadore v. Secretary of Labor , Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below 92-CAA-2 et al.), Complainant asserted on appeal to the Sixth Circuit that the Secretary had wrongly disregarded the factual findings of the ALJ relating to application of the continuing violation standard exception to the strict application of the limitations period for filing a whistleblower complaint. Essentially, the question related to whether Complainant was "threatened" with an unfavorable office assignment during the period in which his complaint would not have been time barred. If there was no threat, as the Secretary found, the Secretary correctly found that the complaint was time barred because no violative act occurred within the relevant time period.

The court noted that its standard of review is that it "may overturn the Secretary's decision only if we find that the decision 'is unsupported by substantial evidence' or if it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Id . (citations omitted) The court added that "[t]his highly deferential standard of review is not altered merely because the Secretary disagrees with the ALJ" and that it defers to the inferences that the Secretary derives from the evidence, not the ALJ's. Id . (citations omitted).

The court found that the ALJ's recommended decision did not contradict the Secretary on this point. Moreover, the court found that even if the ALJ had reached the opposite conclusion (that discussion of an office reassignment was retaliation), the Secretary was not prohibited from disagreeing, and the Secretary's decision was supported by substantial evidence.

[N/E Digest III C 1]
CONTINUING VIOLATION THEORY; NEGATIVE REFERENCE MADE WITHIN THE FILING LIMITATIONS PERIOD -- EVEN THOUGH NOT ITSELF AN INDEPENDENT ERA VIOLATION BECAUSE IT DID NOT RESULT IN TANGIBLE JOB DETRIMENT -- PERMITS EXAMINATION OF ALL ALLEGED INCIDENTS ON THE MERITS

In Webb v. Carolina Power & Light Co. , 93-ERA-42 (ARB Aug. 26, 1997), Complainant was a contract engineer who was laid-off, and filed an ERA complaint alleging that later he was not considered for rehire because of whistleblowing activity.

The ARB found that the limitations period for filing the complaint began on the date that Complainant strongly suspected that Respondent was wrongly excluding him from consideration for employment. Although Complainant's complaint was filed more than 180 days after that date, Complainant had also alleged a continuing violation. Thus, the ARB next considered under the continuing violation theory whether an adverse action had occurred within 180 days of the filing. Focusing on the "same subject matter" element of the three-part-test found in Thomas v. Arizona Public Serv. Co. , 88-ERA-212 (Sec'y Sept. 25, 1993), the ARB found that the continuing violation theory applied. The ARB wrote:

Systematically excluding an individual from consideration for employment, by its very nature, is a continuing course of conduct and may constitute a continuing violation if it is based upon an employee's protected activity. Egenrieder v. Metropolitan Edison Co./G.P.U. , Case No. 85-ERA-23, Order of Remand, Apr. 20, 1987, slip op. at 4. In this case, [Complainant's former supervisor's] negative reference [about Complainant's performance, which the ARB found to be motivated by discriminatory animus, and which was made within 180 days of the filing of the complaint], to the extent that it is accepted as evidence of an ongoing decision to exclude [Complainant] from consideration for employment, is sufficiently similar in nature to [Complainant's] other allegations as to constitute a continuing violation. Accordingly, the merits of all of the alleged claims will be considered.

Slip op. at 7.

In a footnote, the ARB indicated that the former supervisor's remark that was within the 180 days prior to the filing of the complaint, was not itself an independent ERA violatin because there was no evidence of a tangible job detriment resulting from the remark. Slip op. at 6 n.4. Nonetheless, the ARB found that the former supervisor's "discriminatory animus could have manifested itself earlier in other actions that Carolina Power took in failing to rehire [Complainant]. We therefore examine the merits of all of the alleged incidents to determine if they were tainted by the same animus. If so, [Complainant] would have the opportunity to show that the [former supervisor's] remarks were evidence of a practice of exclusion that wrongfully prevented [Complainant] from being considered for jobs for which he was qualified." Id.

In reviewing the evidence, however, the ARB concluded that Complainant had not established that the former supervisor's comments were part of an ongoing practice of exclusion which explained the earlier adverse actions.

[N/E Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY

Where each of the alleged acts creating a hostile working environment did not involve the same type of discrimination and was an isolated employment decision lacking a common subject matter, the Board in Holtzclaw v. Commonwealth of Kentucky Natural Resources and Environmental Protection Cabinet , 95-CAA-7 (ARB Feb. 13, 1997), held that Complainant failed to establish a continuing course of harassment to render complaints filed more than 30 days after the allegedly harassing incidents timely.

TIMELINESS OF COMPLAINT; CONTINUING VIOLATION APPLIES TO DISCRIMINATION, NOT UNDERLYING SAFETY VIOLATION
[N/E Digest III C 1]

In Bachmeier v. Tombstone Pizza , 96-STA-33 (ALJ Nov. 25, 1996), the ALJ had issued an order to show cause why the matter should not be dismissed for lack of a timely filing by the Complainant. In response, Complainant, who had been discharged more than 180 days prior to the filing of the complaint, asserted that the safety violation underlying his complaint had continued to occur until recently. The ALJ noted that the timeliness of a complaint may be preserved under the theory of a continuing violation where there is an allegation of a course of related discriminatory conduct and where the charge is filed within the requisite time period after the last alleged discriminatory act. The ALJ found, however, that "[a] continuing violation for the purposes of timeliness requires continuous discrimination, not a continuation of the asserted safety violation. The discriminatory acts must be sufficiently related to constitute a course of discriminatory conduct." Slip op. at 2. Finding no evidence of a continuing violation, or other extenuating circumstances, the ALJ recommended dismissal of the complaint.

TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY; SETTLEMENT OFFER
[N/E Digest III C 1]

In The Connecticut Light & Power Co. v. Secretary of the United States Dept. of Labor , No. 95-4094 (2d Cir. May 31, 1996) (available at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), the Respondent asserted that the Complainant's complaint, which was based on the proffer of a settlement agreement containing an illegal gag provision, should be time-barred because it was filed more than thirty days after the settlement agreement was received. The Secretary of Labor had held that the complaint was not time-barred by focusing on the letter breaking off negotiations.

The Second Circuit noted that the ERA limitations period generally begins to run from the date that a complainant learns of the employer's final decision, but concluded that application of this rule was inappropriate given the nature of the violation: the adverse action in question is not a discrete decision taken by an employer, but rather a negotiation tactic, employed over a period of months, by which the Respondents attempted to coerce Complainant into agreeing to a gag provision. Rather, the court determined that it would apply the continuing violation standard.

The court held that the continuing violation rule applies where the plaintiff proves i) an underlying discriminatory policy or practice, and ii) an action taken pursuant to that policy during the statutory period preceding the filing of the complaint. The court found that the two prongs applied to the facts of the instant case. The court rejected the Respondent's focus on the date the Complainant received the settlement proposal, both on the basis of contract law, and because the court viewed "the violation to encompass the negotiations process as a whole, and not just one particular product of the negotiations." 1996 U.S. App. LEXIS at *23. The court stated that

[t]he discussion of offer and rejection, while preclusive with respect to [the Respondent's] argument, misses the appropriate timing focus--the negotiation tactic employed by [the Respondent] throughout the process. Therefore, we hold that the Secretary properly ruled that the complaint was timely because the last act pursuant to an ongoing, discriminatory policy occurred within the statutory period when [the Respondent] revoked its outstanding settlement offer . . . .

1996 U.S. App. LEXIS at *23.

III C 1 Timeliness of complaint; continuous nature of Respondent's actions renders entire complaint timely

In Carter v. Electrical District No. 2 of Pinal County, 92-TSC-11 (Sec'y July 26, 1995), the Complainant was demoted, then given added duties, then received a substantial pay decrease, and was finally discharged. Only the pay decrease and the discharge occurred within the filing period for a TSCA complaint. Nonetheless, the Secretary found that the continuous nature of the Respondent's actions rendered the entire complaint timely.

III C 1 Discriminatory act of continuing nature

In Eisner v. U.S. Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), the ALJ made a recommendation of dismissal based on the untimeliness of the complaint. A summary of the circumstances follows:

• The complainant was put on leave-without-pay status on August 2, 1989.

• According to the respondent, the complainant was given an ultimatum of termination or resignation in December 1989.

• The complainant was terminated effective January 18, 1990, by notice dated and admittedly received by the complainant on January 12. The notice stated:

  Upon reviewing your work performance, and as we discussed on December 20, 1989, I have decided to separate you from your position as an EPS Student Trainee, effective January 18, 1990.

• On January 25, 1990, the complainant was mailed a "Notification of Personnel Action" showing her "involuntary termination" effective January 18, and a "Notice of Change in Health Benefits Enrollment".

• On January 31, 1990, one of respondent's personnel indicated to the program attorney that he agreed that the termination letter was "inappropriately issued" (procedurally and semantically) and that he would rescind it if the complainant would instead submit a resignation letter. The complainant had no knowledge of this remark.

• Sometime in February 1990, respondent's program attorney indicated to the complainant that if she would submit a letter of resignation, the termination letter would be rescinded.

• The complainant testified that in light of her December 1989 and February 1990 conversations with respondent's personnel, she did not consider the respondent's decision final until March 7, 1990, when she learned that the respondent was no longer willing to consider a resignation letter or any action other than termination.

• The respondent conceded, for purposes of a summary judgment motion on the timeliness issue, that complainant filed her complaint on March 22, 1990.

After first considering when the complainant received unequivocal, final notice, and finding that it occurred on January 12, the Secretary considered whether the circumstance fit under a continuing violation theory. The Secretary found that all of the incidents recited by the complainant were clearly separate and distinct and not acts of a continuing nature. See Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480-81 (9th Cir. 1989); London v. Coopers & Lybrand, 644 F.2d 811, 816 (9th Cir. 1981); Helmstetter v. Pacific Gas & Electric Co., 86-SWD-2 (Sec'y June 15, 1989), slip op. at 8. Rather, the acts were sufficiently permanent to trigger the complainant's awareness of the respondent's alleged discrimination. Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir. 1983). Consequently, the continuing violation theory did not preserve the timeliness of the complainant's claim.

[Editor's note: The Secretary did, however, remand the case for the ALJ to consider a separate allegation of discrimination based on the refusal to accept the resignation letter.]

III C 11 Continuing violation

From: Bonanno v. Northeast Nuclear Energy Co., 92- ERA-40 and 41 (Sec'y Aug. 25, 1993).

The ERA filing period commences on the date that a complainant is informed of the challenged actions rather than at the time the effects of the actions are ultimately felt. See Ballentine v. Tennessee Valley Authority, 91-ERA-23 (Sec'y Sept. 23, 1992); Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom. Howard v. United States Dept. of Labor, 959 F.2d 234 (6th Cir. 1992).

Where Complainant learned of the issuance of a disciplinary letter, a layoff, dunning notices about unpaid medical bills, and a neurologist's "pre-existing condition" report, all more than 30 days prior to the filing of the complaint, his subjective belief that these actions might not be permanent (a correct belief in the case of the disciplinary letter, layoff, and dunning notices) did not alter the triggering of the filing period. [citations omitted]

[Editor's note: Complainant's complaint was based on his treatment following an industrial accident in which he was cited for not wearing a hard hat; the complaint was filed prior to the change from 30 to 180 days for filing]

Cases under the ERA recognize that the 30-day limit is not jurisdictional, and may be subject to equitable tolling. See Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989), aff'd sub nom. Doyle v. Secretary of Labor, No. 89-7863 (11th Cir. 1989); School District of City of Allentown v. arshall, 657 F.2d 16 (3d Cir. 1981). However, restrictions on equitable tolling are to be scrupulously observed. City of Allentown, 657 F.2d at 19. There are three circumstances in which tolling may be appropriate:

1. the defendant has actively mislead the plaintiff respecting the cause of action,

2. the plaintiff has in some extraordinary way been prevented from asserting his rights, or

3. the plaintiff has raised the precise statutory claim in issue but has mistakenly done son in the wrong forum.

Id. at 20. If the equitable ground is filing in the wrong forum, the filing must also be timely before it will toll the appropriate limitations period. Id.

The Secretary found that none of the three grounds for equitable tolling existed in this case, even construing the pro se complaint and supporting documents as liberally as possible.
Neither did Complainant allege a continuing violation, wherein Respondents engaged in a series of related discriminatory acts and the complaint is filed within 30 days of the last discriminatory act. See Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990); Egenrieder v. Metropolitan Edison Co./G.P.U., 85-ERA-23 (Sec'y Apr. 20, 1987). Complainant did not file within 30 days of the last event, and other than an allegation of a broad conspiracy involving Respondents, labor union members, and the insurance carrier, the alleged discriminatory acts were distinct and not of a continuing nature. See Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992); Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480-81 (9th Cir. 1989).

Complainant argued that he is still subjected to the effects of a false or incomplete medical report because, should he need further treatment, workers' compensation insurance will not cover the cost. The Secretary found this speculative because Claimant's testimony was that he no longer has any medical problems related to his injury. Further, "the courts have ruled consistently that plaintiff in discrimination cases may not avoid the consequences of filing limitations by alleging that they are victims of the present effects of past discrimination." United Air Lines v. Evans, 431 U.S. 533 (1977); Goldman v. Sears, Roebuck & Co., 607 F.2d 1014 (1st Cir. 1979), cert. denied, 445 U.S. 929 (1980).

III C 1 Mere continuity of employment is insufficient to prolong life of a cause of action

Where Complainant alleged "harassment" since 1981, but the only action specifically and timely raised was a 1985 performance evaluation (which was found to be nondiscriminatory), the Secretary quoted Delaware State College v. Ricks, 449 U.S. 250, 257 (1980): "Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Bassett v. Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 28, 1993).

III C 1 Continuing discrimination

Employee filed suit under Employee Protection section of ERA alleging she was unlawfully subjected to employment related discrimination because she registered and pursued safety complaints against her employer, GE, with the NRC. The Secretary dismissed her claim as untimely under section 5851(b)(1). Employee contended that the "continuing violation" principle discussed in Bruno v. Western Elec. Co., 829 F.2d 957 (10th Cir. 1987), should apply here and that a "continuing violation" extending into the charge period occurred. Thus, she may challenge the earlier termination decision, a letter dated May 15, 1984, as an element of the "continuing violation." The court disagreed and distinguished the continued efforts of the employer in Bruno to force the employee to retire from the communicated decision to the employee here which was a discrete violation of her right not to suffer retaliatory discharge. Therefore, the court held that a consummated, immediate violation may not be treated as merely an episode in a "continuing violation" because its effects necessarily carry over on a "continuing" basis. English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988).

III C 1 Demotion

In English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988), the Fourth Circuit affirmed the Deputy Secretary's finding that the Complainant's claim of discriminatory discharge was untimely. The court remanded the case, however, for consideration of the complainant's claim of retaliatory harassment as a continuing violation separate from and independent of her barred discharge claim.

On remand, the Secretary found that the Fourth Circuit's rationale in finding that the discriminatory discharge claim was time barred foreclosed a claim that the nature of work to which the complainant had been transferred pending her ultimate layoff, which was of a lower order of skill and prestige, itself constituted continuing harassment which can revive her discharge claim. Once the complainant had notice of the adverse action "in form final an unequivocal" 858 F.2d at 962, the time for challenging the discharge began to run. The nature of the work in the transfer position was simply the "natural effect" of the earlier notice of the decision to take adverse action against the employee. English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992).

III C 1 Present disadvantage because of prior discrimination

In Bassett v. Niagara Mohawk Power Co., 86-ERA-2 (Sec'y Sept. 28, 1993), Complainant was demoted from a supervisory position in 1981. The Secretary agreed with the ALJ that to the extent Complainant was attempting to challenge or recover damages for that incident, the claim was untimely and could not be resurrected under a continuing violation theory. The Secretary stated that the demotion was a consummated, immediate act which may not be treated as an episode in a continuing violation because its natural effects necessarily carry over on a continuing basis. See English v. Whitfield, 858 F.2d 957, 962-63 (4th Cir. 1988). Complainant's theory that were it not for his alleged discriminatory demotion in 1981, he would be higher in the 1985 organizational chart, did not, in itself, charge a present violation of the ERA, but only charges a present disadvantage because of prior discrimination. See Cates v. Trans World Airlines, Inc., 561 F.2d 1064, 1072 (2d Cir. 1977); English v. General Electric Co. , 85-ERA-2 (Sec'y Feb. 13, 1992).

III. C. 1 Timely filing of discriminatory acts of continuing nature; nature of continuous acts

The fact that one alleged discriminatory act occurred during the 30 days prior to the filing of the complaint does not in itself determine whether, under a continuing violation theory, the complaint was timely as to all of the alleged discriminatory acts. A complainant must file the complaint within 30 days of an alleged discriminatory act if the employer's notice concerning that act was sufficiently "final and unequivocal" in form.

In the instant proceeding, the Complainant's supervisor denied a promotion to the Complainant on the ground of lack of diversified experience, lack of initiative, lack of willingness to work overtime, and lack of a needed cross-certification. The supervisor later reassigned the Complainant in part to give her the needed cross-certification, and because "it dovetailed very nicely with [the Complainant's] desire for promotion." The Secretary found that the denial of the requested promotion was not final and unequivocal because the supervisor implied that additional cross-training could make up for the Complainant's purported lack of diversified experience and ultimately qualify her for the position. The cross-training, according to the Secretary, meant that the denial of promotion was not so final that it triggered the period for filing an ERA complaint.

[The complainant, did not file a complaint until about one year after the reassignment, when she was informed that she would have to be recertified on a number of procedures.]

The Secretary continued, noting that the timeliness of a claim may be preserved under the continuing violation theory where there is an allegation of a course of related discriminatory conduct and the charge is filed within 30 days of the last discriminatory act. Guidance is found in Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986), which lists three factors for determining whether the acts are sufficiently related:

1. Whether the alleged acts involve the same subject matter;

2. whether the alleged acts are recurring or more in the nature of isolated decisions, and

3. the degree of permanence.

The Secretary found that in the instant proceeding the denial of promotion, the reassignment, and the suspension of test certifications involved a common subjection matter -- cross training.

[A fourth alleged discriminatory act, assignment to PC training, was dissimilar, nonrecurring and permanent, and therefore not part of a continuing violation (the Secretary noted, however, that evidence of discriminatory acts antedating the filing period, but found not to be continuing violations, may still constitute relevant background evidence.]

The Secretary found that the "denial of promotion was a recurring act in that it was reflected in regular pay checks that did not include the additional pay of a senior technician." In addition, the Secretary found that the denial of promotion did not have such a degree of permanence as to make the Complainant aware that she still would not be promoted, absent continuing discrimination. The Secretary relied on the fact that the promotion could occur whenever the supervisor deemed the Complainant qualified and higher management approved, and that if her current supervisor left, the Complainant might be promoted by his replacement. The Secretary noted that the Ninth Circuit recognizes that a finite event such as the failure to promote may constitute a continuing violation when the discriminatory policy against promotion continues until the filing of the complaint. Williams v. Owens-Illinois, Inc. , 665 F.2d 918, 924 (9th Cir. 19 xx), cert. denied , 459 U.S. 971 (1982).

In contrast, the Secretary found that Complainant's assignment to a different section was sufficiently permanent to trigger the filing period, because the Notice of reassignment not only indicated as the reason giving the Complainant broader experience, but also to provide additional coverage in the other section; nor was the Notice of temporary, informal cross-training previously used by the engineering department.

Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993).

III C 1 Continuing violation

In Bruno v. Western Elec., Co., 829 F.2d 957 (10th Cir. 1987), the employee did not claim a constructive or actual discharge, but challenged employer's continued efforts to force his retirement -- efforts which had failed. A consummated, immediate violation may not be treated as merely an episode in a "continuing violation" because its effects necessarily carry over on a "continuing" basis. English v. Whitfield, 858 F2d 957 (4th Cir. 1988).

III C 1 Separate and permanent incidents

Where incidents are clearly separate and sufficiently permanent to trigger the complainant's awareness of the respondent's alleged discrimination, the continuing violation theory does not preserve the timeliness of the complainant's claim. Eisner v. United States Environmental Protection Agency, 90-SDW- 2 (Sec'y Dec. 8, 1992).

III C 1 Continuing violation theory applies to ERA cases

In Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987), the Secretary concluded that a claim of continuing violation should be considered when determining the timeliness of an ERA employee protection complaint.

Since blacklisting, by its very nature, is a continuing course of conduct, it may constitute a continuing violation if it is based upon an employee's protected activity under the ERA. Blacklisting being both insidious and invidious, cannot be easily be discerned. There may be a considerable lapse of time before a blacklisted employee has any basis for believing he is the subject of discrimination.

The Secretary remanded the case to the ALJ for a full hearing on the merits . The Secretary found that without a full evidentiary hearing, it is not possible to determine if Respondent's conduct was in violation of the ERA. (The ALJ's first hearing was confined to the issue of timeliness)

III C 1 General allegations not sufficient

To support a continuing violation theory, the complainant must allege a separate discriminatory act occurring within the limitations period. See Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 3-8. General allegations of continuing discrimination are not sufficient to establish a continuing violation and preserve the timeliness of a complaint.

Howard v. Tennessee Valley Authority, 91-ERA-36 (Sec'y Jan. 13, 1993).

III C 1 Factors; discrete act not a continuing violation

From English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992):

When an employee is demoted, involuntarily transferred, or ineed fired on the spot, the effect is not limited to the loss of the previous job. Any employee who has been demoted or involuntarily transferred to an undesirable job is required to perform work of lower skill and prestige and suffers the humiliation associated with that adverse action. The notice of adverse action is "a consumated, immediate violation [and] may not be treated as merely an episode in a 'continuing violation' because its effects necessarily carry over on a 'continuing' basis." 858 F.2d at 962-63.

The Fourth Circuit and many other courts have reached similar conclusions with respect to demotions and other discrete acts of discrimination, or have distinguished situations where a demotion or discharge was the result of a policy or practice of discrimination against a class of employees. Thus, the Fourth Circuit has held that discriminatory acts may be considered 'lawful' when no charge is filed within the applicable time period after the act.'" Woodward v. Lehman, 717 F.2d 909, 915 (4th Cir. 1983) ( quoting Carty, The Continuing Violation Theory After United Airlines, Inc. v. Evans, 31 Hastings L.J. 929, 950 (1980)). Similarly, the Ninth Circuit rejected the continuing violation theory where an employee was discharged and alleged continuing harassment by the giving of adverse references and describing the employee as a troublemaker, explaining that "a single act by an employer adverse to an employee's interests, such as a discharge, layoff, or failure to transfer or promote, begins the running of the statute of limitations and the natural effects of the alleged discriminatory act are not regarded as 'continuing.'" London v. Coopers & Lybrand, 644 F.2d 811, 816 (9th Cir. 1981).

The Secretary has also held that a discrete act, such as a poor performance evaluation, cannot be considered part of a continuing violation where it has the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate.

McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991).

III C 1 Mere fact that various acts affected working conditions does not establish link necessary to invoke continuing violation rule

In Gillilan v. Tennessee Valley Authority, 92-ERA-46 and 50 (Sec'y Apr. 20, 1995), the Complainant attempted to invoke the continuing violation theory by alleging that his nonselection for a position, the Respondent's failure to call him for overtime on one date, and its failure to assign him to another plant, involved "'the same course of events, that is, management's determination to deny [him] opportunities to earn additional pay through overtime or promotion to higher paying positions.'" Slip op. at 5, quoting Complainant's position.

The Secretary characterized the Complainant's theory as that the various actions were related because they all allegedly affected his working conditions. The Secretary held that this theory was "not sufficient to establish the link that is necessary in order to fit within the continuing violation rubric. A set of isolated, permanent decisions involving disparate facts does not amount to a continuing violation." Slip op. at 5 (citations omitted).

In addition, because the later actions were found not to be retaliatory by the ALJ (a finding that the Secretary adopted), there was no timely discriminatory action upon which the Complainant could hang his untimely complaint under the continuing violation theory.

The Secretary noted that a full discussion of the appropriate use of the continuing violation theory is found in OFCCP v. CSX Transportation, Inc., 1988-OFC-24 (Sec'y Oct. 13, 1994), slip op. at 22-26.

III C 1 Summary decision; discovery must be permitted to allow Complainant to establish link for purposes of continuing violation theory

In Flor v. United States Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994), the ALJ had recommended dismissal based on his finding that the complaint was not timely filed. The Secretary, however, found that the Complainant had asserted a timely, related STAA complaint. In addition, the Complainant had asserted a continuing violation theory as to certain acts occurring outside the STAA filing period. The Complainant had filed discovery regarding those acts, to which the Respondent had not responded prior to the issuance of the ALJ's recommended order. Because the discovery may have provided a link between those acts and the act timely complained of, the Secretary remanded the case to the ALJ to permit the Complainant to obtain discovery. The Secretary noted that under Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986), the trial judge should make a fact specific inquiry in cases where the plaintiff alleges a continuing violation.

In addition, the Secretary directed the ALJ to consider on remand whether, under the continuing violation theory, the complaint was timely under other alleged environmental whistleblower provisions as to the other acts that occurred more than 30 days prior to filing the complaint. This was important because the Complainant had alleged a TSCA violation, that provides an additional remedy of exemplary damages not provided by the STAA.

III C 1 Continuing violation allegation must be supported by facts

A claim of continuing violation cannot be considered where the Complainant has not provided any factual evidence, through affidavits or otherwise, which would indicate a factual issue precluding dismissal on the basis of the Respondent's summary judgment motion. Under the continuing violation doctrine, "[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Delaware State College v. Ricks, 449 U.S. 250, 257 (1980).

Thus, where a Complainant offers nothing besides the conclusory phrase "continuing violation" to justify a tolling of the statute, and pertinent factual information of a discriminatory act or acts during the limitations period had not been submitted to buttress this theory, the ALJ correctly dismissed the Complainant's action on the basis of summary judgment. Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990).

III C 1 Must be an allegation of discriminatory conduct within limitations period to invoke continuing violation theory

Under the continuing violation theory, the timeliness of an ERA whistleblower complaint may preserved only where there is an allegation of a course of related discriminatory conduct and the charge is filed within 30 days (180 days for complaints covered by the 1992 amendments to the ERA) of the last discriminatory act. Wagerle v. The Hospital of the Univ. of Pennsylvania, Depts of Physiology and Pediatrics, 93-ERA-1 (Sec'y Mar. 17, 1995).

III C 1 Continuing violation theory; what acts are sufficiently related

In Flor v. United States Department of Energy, 93-TSC-1 (Sec'y Dec. 9, 1994),the Secretary found that the Complainant had filed a timely STAA complaint, and that one of the alleged adverse acts that occurred outside the STAA time limit for filing was nonetheless timely under the continuing violation theory.

The Secretary noted that in analogous ERA cases, the timeliness of a claim may be preserved under the continuing violation theory "where there is an allegation of a course of related discriminatory conduct and the charge is filed within thirty days of the last discriminatory act." For guidance concerning whether alleged discriminatory acts are sufficiently "related" to constitute a course of discriminatory conduct, the Secretary has turned to a case under Title VII of the Civil Rights Act of 1964, Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). The Berry court listed three factors: (1) whether the alleged acts involve the same subject matter, (2) whether the alleged acts are recurring or more in the nature of isolated decisions, and (3) the degree of permanence. 715 F.2d at 981. Concerning the degree of permanence, in English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988), the Court of Appeals held that an ERA complainant must file the complaint within the prescribed 30 days after an alleged discriminatory act if the employer's notice concerning that act was sufficiently "final and unequivocal" in form.

In the instant case, an initial interview concerning an investigation into the Complainant's security clearance occurred more than 180 days prior to the filing of the complaint. The Secretary, found, however, that the initial interview was not a permanent, final action, and that final action did not occur until six months later when the Respondent suspended the Complainant's security clearance. Applying Berry and English, the Secretary found that the interview and the investigation into the Complainant's security clearance involved the same subject matter and were closely connected to suspension of the clearance, an action about which the Complainant timely complained under the STAA.

[ Editor's note: The ALJ had considered the complaint to be primarily a TSCA complaint, and did not discuss the timeliness of a STAA complaint. See Flor v. United States Dept. of Energy, 93-TSC-1 (ALJ Mar. 26, 1993), slip op. at n.1. The Secretary found the existence of a STAA complaint through a liberal interpretation of the complaint.]

III C 1 Last occurrence initiates filing period

Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op. at 9-11.

Where the complainant alleged that up until and during the thirty day period prior to filing of his complaint, the respondent, in retaliation for the complainant's protected activity, maintained his name on a "denied access" list which prevented his future employment at the plant from which he had been formerly employed, the complainant has alleged an independent violation of blacklisting within the meaning of 29 C.F.R. § 24.2(b).

Since the complainant alleged a continuing course of unlawful retaliatory blacklisting, he alleged a continuing violation. See Egenrieder v. Metropolitan Edison Co., 85-ERA- 23 (Sec'y Apr. 20, 1987), slip op. at 6. Where there is a continuing violation, a complainant is not required to file suit when initially discriminated against; rather, timeliness is measured from the last the occurrence of discrimination. See Roberts v. North American Rockwell Corp., 650 F.2d 823 (6th Cir. 1981); Shehadeh v. Chesapeake & Potomac Telephone Co., 595 F.2d 711, 724 (D.C. Cir. 1978); Egenreider, slip op. at 4. Accordingly, the Secretary declined to accept the respondent's argument that the initial act of placing the complainant's name on the denied access list triggered the thirty-day filing period.

The Secretary also concluded that the complainant's allegation of an inquiry and response concerning his status was a sufficiently specific allegation that the respondent committed an act of discrimination within thirty days prior to the filing of the complaint. The Secretary noted that in Roberts, "the court of appeals held that where a continuing discriminatory policy exists, an applicant who would automatically be rejected because of that policy need not formalistically continuously apply, only to be rejected; oral inquiries about a previous application are sufficient proof that she/he is, in effect, continually applying and being continually unlawfully rejected." Slip op. at 11.

III C 1 Consummated immediate violations; advancement opportunities denied

Where Complainant alleged that he was bypassed and/or denied advancement opportunities in retaliation for bringing safety and quality concerns to Respondent and/or the NRC, all of his com- plaints for retaliation that allegedly occurred prior to thirty days before the filing of his complaint were time barred since each instance was a consummated immediate violation rather than a continuing violation. The ALJ noted, however, that past non- selection or withdrawals from management training programs is relevant evidence to show past behavior of both the company and Complainant. Kettl v. Gulf States Utilities Co., 92-ERA-16 (ALJ Dec. 30, 1992).

III C 1 Generally

From: Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990):

The employee protection provision of the ERA, and the regulations implementing the provision, provide that any complaint shall be filed within thirty days after the occurrence of the alleged violation. 42 U.S.C. § 5851(b)(1); 29 C.F.R. § 24.3(b). The time limits, however, are in the nature of a statute of limitations and are subject to equitable tolling. Lastre v. Veterans Administration Lakeside Medical Center, 87-ERA-42 (Sec'y Mar. 31, 1988), slip op. at 3; see School District of the City of Allentown v. Marshall, 657 F.2d 16, 19 (3d Cir. 1981). The timeliness of a claim also may be preserved under the "continuing violation" theory where there is an allegation of a course of related discriminatory conduct and the charge is filed within thirty days of the last discriminatory act. Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987). The continuing violation theory, however, cannot resurrect claims about discrimination concluded in the past, even though the effects of the discrimination persist. Delaware State College v. Ricks, 449 U.S. 250 (1980); United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977); English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); Janikowski v. Bendix Corp., 823 F.2d 945 (6th Cir. 1987); Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). The Supreme Court emphasized that the critical question is whether any present violation exists. Ricks, 449 U.S. at 258; Evans, 431 U.S. at 558.

Alleged retaliatory acts of discharge and blackballing are separate and discrete acts which cannot be considered together as constituting one continuing violation. Generally, the doctrine of continuous discrimination does not apply to acts such as discharge, which is a consummated, immediate violation. See, e.g, English, 858 F.2d at 962; Berry, 715 F.2d at 980. In fact, with respect to the analogous situation of discharge followed by discriminatory referencing, the Court in Berry specifically stated:

[W]here an employee is discharged without the actionable period but is injured by his former employer's discriminatory references within this period, . . . the latter acts are not a continuation of the initial discharge.

Shehadeh v. Chesapeake & Potomac Telephone Co., 595 F.2d 711, 720 (D.C. Cir. 1978); Tarvesian v. Carr Division of TRW, Inc., 407 F. Supp. 336, 340 (D. Mass. 1976). But see EEOC v. United States Fidelity & Guaranty Co., 414 F. Supp. 227, 233 (D. Md. 1976).

Id. This is true even though the acts may have been prompted by the same discriminatory state of mind. Shehadeh, 595 F.2d at 720.

[Nuclear & Environmental Whistleblower Digest III C 2]
BLACKLISTING COMPLAINT WAS UNTIMELY WHERE IT WAS FILED SEVEN YEARS AFTER COMPLAINANT REALIZED HE ALLEGEDLY HAD BEEN BLACKLISTED

In Hasan v. USDOL , No. 13-3998 (3rd Cir. June 13, 2014) (per curiam) (unpublished) (case below ARB No. 12-063, ALJ No. 2012-ERA-3), the Petitioner filed an ERA complaint alleging that he had not been hired as an engineer by Intervenor, Enercon, based on his past whistleblowing activities. An ALJ determined that the complaint was not timely because the time for filing ran from the date that the Petitioner had concluded, in 2004, that he had been blacklisted, and not from the date of any of Enercon's subsequent refusals to hire the Petitioner. The ARB agreed, noting that the Petitioner had stopped applying for positions with Enercon in 2004 and did not file the instant complaint until seven years later in 2011. The ARB found no grounds for equitable tolling. The Third Circuit denied the petition for review, agreeing with the ARB that the blacklisting complaint - filed seven years after the Petitioner realized that he had allegedly had been blacklisted - was untimely. The court stated that "[a]ny failure to hire Hasan after he was blacklisted would simply be the delayed consequence of that earlier adverse action."

[Nuclear & Environmental Whistleblower Digest III C 2]
TIMELINESS OF BLACKLISTING COMPLAINT; FILING OF COMPLAINT SEVEN YEARS AFTER COMPLAINANT STOPPED FILING APPLICATIONS UNTIMELY AS A MATTER OF LAW

In Hasan v. Enercon Services, Inc. , ARB No. 12-063, ALJ No. 2012-ERA-3 (ARB Aug. 20, 2013), the Complainant applied for jobs with the Respondent several times between 2002 and 2004. Three related ERA whistleblower complaints were ultimately dismissed. In 2011, the Complainant filed his fourth complaint alleging that the Respondent discriminated against him when it failed to hire him. The Complainant contended that he stopped submitting applications for employment in October 2004 because the Respondent blacklisted him and further applications would have been futile. The Respondent had informed the Complainant on several occasions that his resume would be kept on file and/or reviewed against company needs. The ALJ dismissed the complaint on the grounds that it was untimely and duplicative. On appeal, the Complainant argued that because the Respondent never informed him that it was blacklisting him, the limitations period was never triggered. The ARB rejected this argument, finding that even viewing the facts in the light most favorable to the Complainant, filing the action seven years after the Complainant stopped applying for jobs was untimely as a matter of law.

TIMELINESS OF CERCLA COMPLAINT; COMPLAINT WAS UNTIMELY EVEN UNDER A LIBERAL CONSTRUCTION THAT BLACKLISTING HAD OCCURRED THROUGHOUT MOST RECENT EMPLOYMENT ENGAGEMENT

In Droog v. Ingersoll-Rand Hussman , ARB No. 11-075, ALJ No. 2011-CER-1 (ARB Sept. 13, 2012), the Complainant was discharged in 2005 by the Respondent. On March 2, 2011, the Complainant filed a CERCLA whistleblower complaint with OSHA alleging blacklisting. The ARB, liberally construing the Complainant's brief to argue that the Complainant had a valid blacklisting claim that took place on a continuing basis up through and including his last employment engagement, found that the last employment terminated on December 31, 2010, and that under the CERCLA 30 day limitations period the last date the CERCLA claim could have been timely filed was January 31, 2011. Since the Complainant failed to do so, and because the record was devoid of evidence that would justify invoking equitable tolling, the ARB affirmed the ALJ's dismissal of the complaint as untimely.

III C 2 Blacklisting

Where the Complainant was discharged by the Respondent in 1986, and then worked in partnership until that partnership was dissolved in the fall of 1988, his complaint under the employee protection provision of the CAA was not timely where he filed his complaint on May 16, 1989. The Complainant alleged that the Respondent caused the breakup of his partnership due to blacklisting. The only evidence of an alleged blacklisting, however, were two letters concerning the breakup of the partnership, one in November 1988, and the other dated March 16, 1989.

Both the discharge and the termination of the partnership fell outside the 30 day filing period, and the Complainant did not submit anything indicating that tolling was appropriate. The arch 16, 1989 letter was also beyond the 30 day filing period. In addition, the Complainant did not raise "a sufficiently specific allegation that [Respondent] committed an act of discrimination within thirty days prior to his filing the complaint," Garn v. Benchmark Technologies, 88-ERA- 21 (Sec'y Sept. 25, 1990), slip op. at 11, to render timely his generalized claim of blacklisting. See Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989), aff'd without opinion, Doyle v. Secretary, United States Dept. of Labor, 949 F.2d 1161 (11th Cir. 1991), cert. denied, 113 S.Ct. 225, 121 L.Ed. 162 (1992) (unpublished 11th Cir. decision available at 1991 U.S. App. LEXIS 29326).

Rodolico v. Venturi, Rauch and Scott Brown, 89-CAA- 4 (Sec'y Feb. 21, 1992).

[Nuclear & Environmental Whistleblower Digest III C 2]
TIMELINESS; EVIDENCE THAT COMPLAINANT SHOULD REASONABLY HAVE SUSPECTED BLACKLISTING

"The ARB has held generally that the thirty day statutes of limitation in environmental whistleblower cases begin to run on the date when facts which would support a discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his rights." Pickett v. Tennessee Valley Authority , ARB No. 00 076, ALJ No. 2000 CAA 9 (ARB Apr. 23, 2003).

In Pickett , Complainant had worked for TVA, and during his tenure had raised several safety complaints. Thereafter, he received an injury while at work and filed for, and received those benefits. TVA later investigated and challenged Complainant's eligibility for FECA benefits. OWCP determined that benefits should be terminated, but ECAB reversed that determination.

In regard to his environmental whistleblower complaint, Complainant alleged that he did not learn of blacklisting by Respondent until after he received materials responding to FOIA and Privacy Act requests and that his filing of a whistleblower complaint was timely because it was made within thirty days of his receipt of the FOIA and Privacy Act materials. The ARB, however, found that, assuming arguendo that Respondent had engaged in blacklisting, the circumstances were such that Complainant should reasonably have suspected any such alleged blacklisting before June 1999 specifically that he had been given a series of allegedly unsuitable job offers, that he had been made aware of Respondent's OIG investigation, his termination from employment, and Respondent's refusal to reinstate him because of alleged downsizing. The ARB noted that Complainant had suspected "stonewalling" by Respondent as evidenced by his communications with his Senator. Thus, the ARB concluded that an adverse course of conduct undertaken by Respondent against Complainant was apparent long before Complainant filed his complaint.

III C 2 TIMELINESS; CONTINUING VIOLATION THEORY AND BLACKLISTING

The timeliness of an ERA complaint may be preserved under the continuing violation theory "where there is an allegation of a course of related discriminatory conduct and the charge is filed within [one hundred and eighty] days of the last discriminatory act." Thomas v. Arizona Public Service Co. , 89-ERA-19, slip op. at 13 (Sec'y Sept. 17, 1993); Garn v. Benchmark Technologies, 88-ERA-21, slip op. at 6 (Sec'y Sept. 25, 1990) The continuing violation theory particularly applies to complaints of blacklisting because "there may be considerable lapse of time before a blacklisted employee has any basis for believing he is the subject of discrimination." Egenrieder v. Metropolitan Edison Co. , 85-ERA-23, slip op. at 8 (Sec'y Apr. 20, 1987).

In Webb v. Carolina Power & Light Co., 93-ERA-42 (Sec'y July 14, 1995), the ALJ improperly granted summary decision on the issue of timeliness where there were disputed issues of fact concerning an alleged instance of blacklisting within the 180 day limitations period, and when the Complainant knew, or should have known, that he was not selected for a position.

III C 2 Blacklisting

The timeliness of a blacklisting allegation is measured from the last occurrence of discrimination. See Roberts v. North American Rockwell Corp., 650 F.2d 823, 828 (6th Cir. 1981). In cases under the ERA, the determination is whether there was an alleged discriminatory act within 30 days of the filing of the complaint. See Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990) and Egenreider v. Metropolitan Edison Co./G.P.U., 85-ERA-21 (Sec'y Apr. 20, 1987) (both remanding to ALJ for hearing on whether complainant timely alleged continuing violation through blacklisting). Thus, where the respondents presented materials in a motion for summary judgment establishing that the complainant was aware of the decision not to rehire him more than 30 days prior to the filing of the complaint, and the complainant did not submit any materials to substantiate the allegation that his application was rejected "a few weeks" prior to filing of the complaint and that he later received a letter outlining why he was not rehired, there was no genuine issue of material fact, and the respondents were entitled to summary judgment as a matter of law. Gore v. CDI Corporation, 91-ERA-14 (Sec'y July 8, 1992).

III C 2 Affirmative defenses

In Smith v. Tennessee Valley Authority, 89-ERA-12 (ALJ Oct. 1, 1991), the respondent first raised the issue of timeliness of the filing of the complaint on the first day of the hearing. The ALJ noted that there was no provision within the ERA or 20 C.F.R. Part 24 that addresses when a party must raise the issue of the 30-day time limitation. Referring to Federal Rule of Civil Procedure 8(c), the ALJ noted that statutes of limitations are affirmative defenses, and that courts have held that affirmative defenses are waived if not pleaded. He also noted that a defendant may amend his pleading to include an affirmative defense by leave of court; that the court has the discretion to permit an amendment when it will promote the presentation of the merits of the action, the adverse party will not be prejudiced by the sudden assertion of the defense, and will have ample opportunity to meet the issue. Fed. R. Civ. P. 15; but that it is not an abuse of discretion to deny a such a motion proffered just before trial.

In the instant case a prehearing order had directed the parties to set forth the issues involved in the proceeding and the remedy requested. The respondent was given 20 days to file its response to the complainant's statement. Although the respondent did not raise the issue of timeliness until noon on the first day of the hearing, it did raise the issue within 20 days of the filing of the complainant's statement. Thus, the ALJ concluded that the issue was timely raised. He also noted that the parties were allowed to fully argue and present evidence relating to the motion during the course of the hearing. Hence, he concluded that the defense was not waived by the respondent.

III C 2 Blacklisting treated separately from discharge

A blacklisting claim cannot resurrect the failure of a complainant to file timely a complaint regarding an allegedly retaliatory discharge. The issue of the timeliness of the discharge is treated separately from the issue of timeliness of blacklisting allegations. See Garn v. Benchmark Technologies, 88-ERA-91 (Sec'y Sept. 25, 1990). Holden v. Gulf States Utilities, 92-ERA-44 (ALJ Apr. 22, 1993).

III C 2 Blacklisting, initiation of filing period upon knowing or suspecting first instance; conflict of ALJ decisions

In Holden v. Gulf States Utilities, 92-ERA-44 (ALJ Apr. 22, 1993), the ALJ held that an aggrieved blacklisted employee must file his DOL complaint within 30 days of known or suspected discrimination. Thus, where there was an instance of alleged blacklisting within 30 days prior to the filing of the complaint, but the Complainant had knowledge of earlier instances of blacklisting, the ALJ found that the complaint was not timely.

But, in Simmons v. Arizona Public Service Co., 93- ERA-5 (ALJ Apr. 15, 1993), the ALJ concluded that although seven allegations were untimely because the Complainant devoutly believed he had been a victim of discrimination prior to the culmination of the events, the most recent complaint was timely.

III C 2 Timely blacklisting complaint exposes respondent to liability for each prior instance committed in same course of conduct

In Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), the Secretary held that under the continuing violation theory, when a respondent commits an alleged act of blacklisting and a complaint is timely filed, the respondent is exposed to liability for each prior alleged act of blacklisting committed in the same course of discriminatory conduct.

In Holden, the ALJ had concluded that a blacklisting complaint was untimely because the Complainant had been tipped off to the possibility of blacklisting a year before he filed a complaint.

[STAA Whistleblower Digest XIII B]
EMPLOYER'S SUIT SEEKING ORDER REQUIRING DOL TO DECLARE ITS ATTENDANCE POLICY NOT TO VIOLATE DOT REGULATIONS OR THE STAA DISMISSED WHERE DOL HAD NOT YET RENDERED A FINAL, REVIEWABLE DECISION; EXHAUSTION OF ADMINISTRATIVE REMEDIES REQUIRED; OSHA'S FAILURE TO ISSUE FINDING OR AN ORDER WITHIN 60 DAYS DOES NOT CREATE DISTRICT COURT JURISDICTION

In Oak Harbor Freight Lines, Inc. v. Harris , No. 13-cv-1100 (D.Or. Dec. 13, 2013), the Plaintiff, a service carrier, sought a declaration from the Acting Secretary of Labor that its attendance policy was not in violation of the DOT regulation at 49 C.F.R. § 392.3 or the STAA whistleblower provision at 49 U.S.C. § 31105. Three drivers had filed complaints under the STAA with OSHA stating that they had been retaliated against by the Plaintiff for refusing to drive when too sick to drive. An OSHA investigator proposed settlements, and according to the Plaintiff threatened that if the Plaintiff did not settle, she would recommend to her supervisor that there was sufficient evidence to show a violation of the STAA. At one point, the investigator proposed a settlement that included $10,000 in punitive damages, and warned that if the settlement was not promptly made, OSHA would increase the punitive damages, which could reach up to $250,000. In its federal district court complaint, the Plaintiff argued that its attendance policy did not retaliate against drivers for not driving on days that they are too fatigued or sick to drive, but rather provide drivers an opportunity to perform non-driving tasks and earn a regular wage on those days. Drivers who merely call in sick and do not report to work, however, are subject to progressive disciplinary action. The Plaintiff argued that such an attendance policy does not violate 49 C.F.R. § 392.3 or the STAA whistleblower provision at 49 U.S.C. § 31105.

The Defendant, the Acting Secretary of Labor, argued that the Plaintiff's complaint must be dismissed because (1) Section 31105 requires the Plaintiff to channel its challenges to the Secretary's actions through the administrative review process and to a court of appeals, and not a district court; (2) the Plaintiffs claims are not reviewable under the APA; and (3) the Plaintiff's claims are not ripe.

The Plaintiff argued that OSHA blocked review under the STAA by not timely issuing a preliminary order. The court noted the STAA's detailed procedures for how whistleblower complaints are processed, and found that the facts of the case simply show that the Secretary had not yet made any findings or orders subject to administrative or judicial review under the STAA. The court stated: "By prematurely seeking a declaration by this Court stating that Plaintiff's attendance policy is lawful and that Plaintiff did not unlawfully retaliate against employees, Plaintiff attempts to evade the carefully crafted grievance process articulated by the STAA. Plaintiff's pre-enforcement action, based solely on the Secretary's settlement offers, Plaintiff's anticipation of adverse findings or orders by the Secretary, and the Secretary's decision to not issue any findings or orders at this time, simply do not establish that Plaintiff's avenue for administrative or judicial redress has been 'blocked.'" Slip op. at 11.

The court rejected the Plaintiff's argument that the district court could review its claims because they are "collateral" to the STAA and lie outside OSHA's expertise. The court stated that "Contrary to Plaintiff's bald assertions, whether Plaintiff's attendance policy is lawful and whether the disciplinary actions Plaintiff took against [the three drivers] violated § 392.3 and § 31105 are the type of disputes that fall squarely within OSHA's expertise and the STAA's provisions." Slip op. at 12 (citations omitted). The court found that the STAA's silence about pre-enforcement challenges such as those brought by the Plaintiff only supported the conclusion that Congress did not intend the district court to have jurisdiction over the Plaintiff's claims. The court further found that the Plaintiff had not adequately explained why its claims cannot be meaningfully addressed in administrative proceedings or by a court of appeals. The court found nothing in the STAA or the legislative history indicating that Congress intended to provide district court jurisdiction if the Secretary failed to issue findings or a preliminary order within 60 days after the filing of the complaint.

The Plaintiff responded to the Defendant's failure-to-exhaust-administrative-remedies motion by arguing that failure to exhaust should be excused because it has suffered irreparable harm and because OSHA made it impossible to exhaust its administrative remedies by not issuing a preliminary order. The court rejected the Plaintiff's response, again finding no evidence that OSHA had blocked the Plaintiff from pursuing administrative or judicial review under the STAA, and finding that simply alleging irreparable harm was not supported by any authority as a ground for circumventing the specific review process laid out in the STAA. The Plaintiff asserted that its claims are reviewable under the APA because OSHA's actions amounted to de facto unpublished interpretations of the DOT and STAA regulations, and the STAA. The court found the Plaintiff's assertion without merit; no final agency action had occurred. The court moreover found no allegation by the Plaintiff showing that its claims were ripe for review.

UNPUBLISHED

Onysko v. Administrative Review Board, USDOL, No. 13-9529 (10th Cir. Dec. 4, 2013) (case below ARB No. 11-023, ALJ No. 2009-SDW-4)

[Nuclear & Environmental Whistleblower Digest III C 3]
CAUSATION; REFERENCE IN A PERFORMANCE REVIEW TO EARLIER DEMOTION, CONCERNING WHICH A SDWA COMPLAINT HAD NOT BEEN TIMELY FILED, DOES NOT WARRANT TREATING THE DEMOTION AND PERFORMANCE REVIEW AS A SINGLE EMPLOYMENT ACTION

In Onysko v. Administrative Review Board, USDOL , No. 13-9529 (10th Cir. Dec. 4, 2013) (unpublished) (case below ARB No. 11-023, ALJ No. 2009-SDW-4), the Complainant was an environmental engineer with a state environmental agency who had been conditionally promoted to a managerial position. More than 200 days after a demotion, the Complainant filed a SDWA whistleblower complaint with OSHA. Later, the Complainant filed a second SDWA complaint based on a negative rating on one of seven categories on a performance evaluation. That category related to the reviewer's concern that the Complainant viewed the agency's operating principles as an impediment to enforcing the SDWA and rules. The state agency's view was that compliance with the rules could be achieved by implementing the operating principles. Following a four day hearing, the ALJ dismissed the complaints for several reasons, including the failure to prove causation. The ARB affirmed the ALJ on the causation finding in a spilt 2-1 decision. The Tenth Circuit affirmed the ARB's decision. The court declined to address issues other than the narrow ground of causation. The Complainant urged the court to adopt the rationale of the ARB dissenting member, to wit: although the complaint about the demotion was untimely, the performance evaluation effectively reached back to the demotion for its substance and cause, and thus the ALJ erred in failing to address causation in connection with the demotion itself; and alternatively, the state agency arguably tolled the limitations period when it addressed the demotion in the performance evaluation. The court found this rationale unsupported. Because the limitations period concerning the demotion had already run by the time of the performance evaluation there was nothing to toll. Moreover, the argument that the demotion and the performance review were effectively a single action was contrary to law. Slip op. at 10, citing See Nat'l R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 113 (2002) ("[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges."); see also Almond v. Unified Sch. Dist. No. 501 , 665 F.3d 1174, 1178 (10th Cir. 2011) (holding that discrete acts such as demotion, "trigger the statute of limitations when announced to the claimant, and do so whether or not all of their adverse effects or consequences are immediately felt"). The court also rejected a series of other arguments made by the Complainant.

III C 3 Reapplication to same job

In Greenwald v. The City of North Miami Beach, 78-SDW-1 (Sec'y Apr. 3, 1978), aff'd, Greenwald v. North Miami Beach, 587 F.2d 779 (5th Cir. 1979), cert. denied, 44 U.S. 826 (1979), the Complainant's complaint under the employee protection provision of the SDWA was found to be time barred.

Subsequently, the Complainant reapplied for employment, and upon being told that there was no vacancy, filed a complaint alleging continuing discrimination. The Secretary adopted the following language from the ALJ's recommended decision:

A review of the statutory language, history, and cases provides no basis for a complaint by an applicant for a position, unlike Title VII of the Civil Rights Act, nor is there any basis for complaint by a former employee whose previous employment relationship has already been subjected to an opportunity for hearing and is now closed off by a final order. To find jurisdiction here it would be necessary to go behind the earlier case, Case No. 78-SDWA-1, to find the employment relationship requisite to this proceeding, and to reopen issues involved there. The doctrine of res judicata bars reopening such matters which have become final.

Therefore, absent the existence of an employer-employee relationship, there is no subject matter jurisdiction and the complaint must be dismissed.

Greenwald v. The City of North Miami Beach, 80-SDW- 2 (Sec'y Apr. 14, 1980).

[Nuclear & Environmental Whistleblower Digest III C 3]
CONTINUING VIOLATION; NO REHIRE DECISION MUST BE TIMELY COMPLAINED OF; LATER REJECTION UNDER NO REHIRE DECISION DOES NOT CREATE A CONTINUING VIOLATION CAUSE OF ACTION

In Johnsen v. Houston Nana, Inc. , ARB No. 00 064, ALJ No. 1999 TSC 4 (ARB Jan. 27, 2003), Complainant alleged that Respondent's refusal to rehire him constituted a continuing violation subject to a new limitations period. Earlier, Complainant had been designated illegible for rehire, and had not taken a timely appeal of that designation. The ARB affirmed the ALJ's grant of summary judgment against the Complainant, holding that the refusal to rehire months later did not constitute a separate discriminatory act. Rather, Complainant had 30 days from the date that he had definitive, final and unequivocal notice of the "no rehire" decision to initiate any complaint that regard.

III C 3 Under the continuing violation theory, the act occurring within the limitations period need not be "legally sufficient" itself, but it must be an instance of discrimination

Where the Complainant was treated like all other electricians in having to retake a Nuclear Accreditation Bonus examination (which makes an electrician eligible for a monthly bonus), and he passed the examination and receives the bonus, the Secretary found that requiring the Complainant to retake the examination was not an adverse action. Although the Complainant complained that he was disadvantaged because a mechanical instructor administered his exam, whereas an electrical instructor administered the exam to his coworkers -- which allegedly put him at a disadvantage if he needed an explanation of a test question -- the Secretary noted that the Complainant was on sick leave the day the other workers took the exam.

The Complainant had alleged a continuing violation. Only the reexamination occurred within the limitation period for filing an ERA complaint, and the ALJ found that because there was no adverse action within that period, the complaint was untimely as to all other earlier acts of alleged discrimination.

The Secretary noted that in Title VII cases, the discriminatory act occurring within the limitations period need not be a "legally sufficient" claim itself to invoke the continuing violation theory, but it must be an act of discrimination. In the case before the Department, there was no adverse action, and thus no incident of discrimination within the limitations period. Thus, the continuing violation theory did not apply to make the incidents outside the limitations period cognizable ERA complaints. Moody v. Tennessee Valley Authority, 91-ERA-40 and 92-ERA-49 (Sec'y Apr. 26, 1995).

III C 3 Continuing violation theory; pattern of discrimination; even if last claim is timely but not actionable, evidence of all of Respondent's actions may be considered in regard to the matters occurring within the limitations period

Where Respondent's adverse employment actions were not isolated employment decisions as much as recurring restrictions imposed on the Complainant's terms of employment which adversely affected his ability to advance, there was such a pattern of discrimination that the last incident about which a complaint was logged within the statutory limitations period made the entire set of events a timely complaint under the continuing violation theory. The Secretary noted that even if the last claim were held timely but not actionable, evidence of all of the Respondent's actions properly could be considered in regard to the true character of the matters occurring within the limitations period. Simmons v. Arizona Public Service Co., 93-ERA-5 (Sec'y May 9, 1995).

III C 3 Continuing violation theory does not preserve the timeliness of acts prior to 30 days prior to the filing of the complaint where that complaint is not actionable

Where the alleged discriminatory act precipitating the complaint is found not to be actionable, the continuing violation theory may not be applied to preserve the timeliness of additional allegations of discriminatory acts which occurred outside the 30 day filing period immediately preceding the complaint. See generally Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1528 (7th Cir. 1990); Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 3-8; Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op. at 10.

III C 3 Continuing effect of earlier discrimination

Hadden v. Georgia Power Co., 89-ERA-21
(Sec'y Feb. 9, 1994)

The ALJ recommended dismissing the complaint as untimely, and alternatively held that even if it were considered timely, the complainant failed to establish the inference that the adverse actions were motivated by the complainant's protected activity. The Secretary agreed with the ALJ and dismissed the complaint as untimely.

Complainant was fired by one of Respondent's contractors, rehired several months later after settling the complaint, and refired shortly thereafter. Although complainant did not receive written notification that he was permanently barred from employment with the Respondent until over two years from his final discharge, the complainant was informed he was permanently barred within months of his discharge. The Statute of Limitations begins to run when the claimant is first notified of the adverse action, and that notification need not be written.

The Secretary rejected the complainant's argument that repeated denials for re-employment constitute a continuing violation with each denial being a separate discrimination act. Instead, the Secretary found such repeated denials the continuing effect of the initial decision to permanently bar re-employment.

Since the complaint was dismissed as untimely, the Secretary did not address the issue of burden of proof.

TIMELINESS; CONTINUING VIOLATION DOCTRINE; REQUIREMENT OF DISCRIMINATORY ACT WITHIN LIMITATIONS PERIOD; RELATIONSHIP TO HOSTILE WORK ENVIRONMENT
[N/E Digest III C 4]

In Varnadore v. Oak Ridge National Laboratory , 92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the Secretary noted that there are two elements to the continuing violation theory: (1) the complainant must show a course of related discriminatory conduct, and (2) the charge must be filed within 30 days of the last discrimination. The Complainant attempted to show that the alleged discrimination continued to within 30 days of the filing of the complaint based on the fact that he continued to feel the effect of an assignment of office space that was isolated from fellow employees and involved exposure to mercury vapor at the time he filed his complaint. The Secretary rejected this reasoning, noting that the fact that a complainant continues to suffer the effects of a retaliatory act outside the limitations period does not render a claim timely. The Secretary held that the act of assigning the Complainant to that office space occurred only once, and that this act was similar to other types of discrete personnel actions such demotions, transfers, and negative performance rating, all of which have lingering effects but for which relief from the limitations period is not granted. Slip op. at 70-77.

The Secretary found that although the ALJ was correct in noting a connection between a hostile work environment and the continuing violation theory, he erred in finding that a showing of hostile work environment is sufficient itself to conclude that the continuing violation doctrine applies. Rather, the second part of the continuing violation doctrine - an instance of discrimination within the limitations period - must be present for the a complaint to be considered timely filed pursuant to that doctrine. Slip op. at 78-80.

III C 3 Requirement that there have been an act of discrimination within 30 days prior to filing of complaint

A complaint filed under a continuing violation theory of blacklisting or discriminatory referencing is untimely if the complainant does not allege that the respondent committed an act of discrimination within 30 days prior to the filing of the complaint. See Shehadeh v. Chesapeake and Potomac Telephone Co., 595 F.2d 711 (D.C. Cir. 1979). Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989).

[Nuclear and Environmental Whistleblower Digest III C 4]
HOSTILE WORK ENVIRONMENT; STANDARD IS "SUFFICIENTLY SEVERE OR PERVASIVE" RATHER THAN "EXTREMELY SERIOUS OR SERIOUS AND PERVASIVE"

In Belt v. USDOL , Nos. 04-3487, 04-3926 (6th Cir. Jan. 25, 2006) (unpublished) (case below ARB No. 02-117, ALJ No. 2001-ERA-19), the Sixth Circuit indicated that the ARB misstated, in a potentially material way, the legal standard for assessing the applicability of the hostile work environment exception to the running of the ERA statute of limitations, when it stated: "To prevail on a hostile work environment claim, the complainant must establish that the objectionable conduct was extremely serious or serious and pervasive ." Slip op. at 11, quoting ARB slip op. at 8 (emphasis as added the court). The court, however, found that later in the opinion the ARB correctly stated the standard as only requiring that the Complainant demonstrate that the alleged discrimination was " sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Id . (emphasis as added by the court). The court held that, on balance, it was clear that the ARB applied the correct standard despite its initial misstatement.

[Editor's note: The ARB accepted this distinction in Brune v. Horizon Air Industries, Inc. , ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31, 2006).]

III C 4 Hostile work environment

In Varnadore v. Oak Ridge National Laboratory, 92- CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ found that the Complainant's complaint was not untimely based on the doctrine "continuing violations" -- discriminatory acts occurring in such a way that it is difficult to define with precision when they take place. "They unfold rather than occur." Slip op. at 78 (citing Bell v. Chesapeake and Ohio Railway Co., 929 F.2d 220, 223 (6th Cir. 1991)). The ALJ found that the doctrine was applicable because:

• the Respondent had fostered a hostile work environment from at least February 1990 extending into the post-hearing period of the proceeding

• the Complainant evidently did not realize in February 1990 that his transfer was a first step in separating him and leading to an indefinite period of incompatible jobs

• he was assigned to inappropriate office space used as waste depositories and to isolate him from fellow workers

• he was given a number of adverse performance appraisals influenced by hostility arising from his protected activity

• the hostile work environment culminated in an August 1992 posting of a memo attacking and ridiculing the Complainant for pursuit of a remedy in the instant proceeding.

The ALJ explained that a hostile work environment arising out of a related series of incidents is not a discrete, consummated, immediate violation.

[Nuclear and Environmental Whistleblower Digest III C 4]
TIMELINESS OF COMPLAINT; HOSTILE WORK ENVIRONMENT; ELEMENTS

In Schlagel v. Dow Corning Corp. , ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), citing National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 113-15 (2002), the ARB reviewed the elements of a claim that a hostile work environment rendered all adverse employment actions, including those occurring prior to the 30 day limitations period, actionable.

The Board summarized the Supreme Court ruling in Morgan , stating that "[i]n contrast to discrete adverse actions, a hostile work environment occurs over a series of days, or perhaps years, and a single act of harassment may not be actionable on its own. Hostile work environment claims are based on the cumulative effect of individual acts. ... A complaint alleging hostile work environment is not time-barred if all the acts comprising the claim are part of the same practice and at least one act comes within the thirty-day filing period." Schlagel , USDOL/OALJ Reporter at 10 (citations omitted). Thus, if the Complainant "were able to show that at least one act comprising the hostile work environment occurred within thirty days prior to filing his complaint, his entire hostile work environment cause of action would be deemed timely and he could proceed to litigate the merits." To establish a hostile work environment, a complainant has to prove that:

1) he engaged in protected activity;

2) he suffered intentional harassment related to that activity;

3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment; and

4) the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant.

USDOL/OALJ Reporter at 10-11 (citations omitted).

In the case sub judice , the Board rejected the Complainant's hostile work environment claim for rendering pre-limitations period actions timely because he had not addressed or shown that the Respondent's allegedly adverse employment actions were in violation of elements 3 and 4.

Although not actionable, however, the ALJ properly admitted evidence of otherwise time-barred alleged adverse actions and fully considered them as relevant evidence probative of the Respondent's decision making process regarding the actionable adverse actions occurring within the limitations period.

[Nuclear and Environmental Whistleblower Digest III C 4]
TIMELINESS OF COMPLAINT; ALLEGATION OF HOSTILE WORK ENVIRONMENT; DENIAL OF REQUEST FOR RELIEF FROM DISCRIMINATION DOES NOT TOLL THE LIMITATIONS PERIOD

In Sasse v. USDOL , No. 04-3245 (6th Cir. May 31, 2005) (case below ARB No. 02-077, ALJ No. 1998-CAA-7), the Sixth Circuit found that the "hostile work environment" analysis of National R.R. Passenger Corp. v. Morgan , 536 U.S. 101, 117 (2002), as relevant to the question of whether a complaint had been timely filed, was applicable to whistleblower cases arising under the CAA, SWDA and FWPCA. The court agreed with the ARB that none of the employment actions that the Complainant had listed in his complaint had occurred within the applicable 30-day statute of limitations.

The court rejected the Complainant's argument that the time period was tolled by the Respondent's refusal to transfer a secretary away from him (the Complainant having alleged that he had been assigned a "drunken" secretary in an effort to harass him). The court wrote that "[w]e have held that 'the denial of a request for relief from discrimination does not itself constitute a discriminatory act that tolls the statute of limitations.'" (citations omitted).

[Nuclear & Environmental Whistleblower Digest III C 4]
TIMELINESS OF COMPLAINT; HOSTILE WORK ENVIRONMENT; TIMELY EVENT MUST BE "COMPONENT" OF THE ALLEGED HOSTILE WORK ENVIRONMENT TO EXTEND FILING PERIOD

In Belt v. United States Enrichment Corp. , ARB No. 02 117, ALJ No. 2001 ERA 19 (ARB Feb. 26, 2004), the ALJ had accepted the Complainant's argument that, although he did not timely file a complaint with 180 days of the notice of his RIF, under National R.R. Passenger Corp. v. Morgan , 536 U.S. 101 (2002), the existence of a hostile work environment meant that his claim would be timely if the claim was part of the same unlawful practice and at least one act fell within the filing period (in the case sub judice , the date the Complainant was actually terminated). The ARB held that the ALJ misapplied Morgan .

First, the Board made findings indicating the absence of a hostile work environment. Although the Complainant presented an NRC letter raising generalized concerns about a "chilled environment" at the facility at which the Complainant worked, the NRC letter did not refer specifically to the Complainant or the department in which he worked, nor did it mention harassment or hostility or indicate an abusive atmosphere. The ARB found evidence that the Complainant actually worked in a supportive rather than a hostile environment; and that although Complainant had a less than ideal working relationship with a supervisor, he himself admitted that the relationship was professional.

Finally, the Board observed that, even if the record had demonstrated a hostile work environment, at least one of the acts comprising such an environment must have occurred less than 180 days before the date the complaint was filed. The Board held that the dates of the actual discharge and exit interview (as opposed to the date that notification of the RIF) were not "components" of the alleged hostile work environment.

[Nuclear & Environmental Whistleblower Digest III C 4]
TIMELINESS; HOSTILE WORK ENVIRONMENT AS EXTENSION OF FILING PERIOD

In Jenkins v. United States Environmental Protection Agency , ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), Complainant argued that the existence of a hostile work environment should cause the 30 day filing period for an environmental whistleblower complaint to be extended. The ARB, referring to its finding after reviewing the entire record that a hostile work environment did not exist, found that the limitations period could not be extended on this basis.

[Editor's note: The ARB noted that if the Complainant had been able to prove the existence of a hostile work environment within 30 days of the date of her complaint, her cause of action would relate back to otherwise stale claims. From a practice note perspective, this means that it is necessary to fully adjudicate a hostile work environment issue before an equitable tolling based on that hostile work environment issue can be decided.]

[Nuclear & Environmental Whistleblower Digest III C 4]
HOSTILE WORK ENVIRONMENTAL; TIMELINESS; DIFFERENCE BETWEEN DISCRETE ACTS AND THOSE THAT MAKE UP A HOSTILE WORK ENVIRONMENT

In Gorman v. The Consolidated Edison Corp. , 2001 ERA 42 (ALJ Nov. 21, 2002), the ALJ agreed with the Complainant's argument that the recent Supreme Court decision in National Railroad Passenger Corporation v. Morgan , ___U.S.___, 122 S.Ct. 2061 (2002) (a Title VII case), was applicable to Complainant's ERA whistleblower complaint. The ALJ concluded:

   I glean from Morgan several differences between "discrete" acts and acts that make up a hostile work environment. First, where an employer's conduct against an employee is actionable in and of itself B i.e., it directly affects his wages, hours or other terms or conditions employment B it constitutes a discrete act for which the statute of limitations begins to run immediately. In such a circumstance, even if subsequent employer discriminatory conduct is related to the earlier conduct the later conduct does not re start the statute of limitations for the earlier conduct. However, where the discriminatory conduct is less severe B for example, a "mere offensive utterance," such as racial jokes, racial epithets, and race based negative comments B it is a not a discrete act that would support a cause of action, but it could constitute a portion of the fabric making up a hostile work environment.

Slip op. at 3 4 (footnotes omitted). Applying this distinction, the ALJ analyzed the acts Complainant contended were not time barred because they constituted a hostile work environment that continued into the statutory time period, and found that those acts that were actionable insofar as they directly affected Complainant's conditions of employment were time barred. The ALJ, however, observed that such acts may be admissible in evidence as background evidence.

[Nuclear & Environmental Whistleblower Digest III C 4]
TIME LIMITATIONS ON FILING IN DISCRIMINATION CLAIMS, GENERALLY

In National Railroad Passenger Corp. v. organ , _ US _, 122 S Ct 2061, 153 L Ed 2d 106 (2002), a Title VII claim, the United States Supreme Court examined the application of time limitations in situations involving the raising of claims of discrete discriminatory or retaliatory acts, and situations involving charges alleging a hostile work environment. The Court held that a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his or her charge within the statutory period, but that claims based on a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. In neither instance is a court barred from applying equitable doctrines that may toll or limit the time period. An employer may raise laches if the plaintiff unreasonably delays filing and as a result harms the defendant.