USDOL/OALJ Law Library: Nuclear and Environmental Whistleblower Digest, DIVISION IV -- EQUITABLE TOLLING OF FILING PERIOD

The Court of Appeals held that the 30 day time limitation for filing a complaint imposed by 15 U.S.C. § 2622(b) of the Toxic Substances Control Act is not jurisdictional in the sense that noncompliance is an absolute bar to administrative action. The court looked at other remedial statutes such as the Age Discrimination in Employment Act and Title VII as examples of statutes that treat filing periods like statutes of limitations. Nevertheless, the court rejected the Secretary's decision overlooking the late filing of the complaint and found in favor of the School District. It found unpersuasive arguments excusing the late filing because (1) the statute is new, (2) no regulations had been adopted, and (3) the EPA was confused as to where to file a complaint. The statute was two years old at the time and very explicit as to filing with the Secretary of Labor.

[Nuclear & Environmental Digest IV A]
TIMELINESS; ALLEGATIONS OF REASONABLE RELIANCE ON PROMISE TO FIND ALTERNATIVE EMPLOYMENT AND ESTOPPEL RAISE TRIABLE ISSUES

In Whitaker v. CTI-Alaska, Inc. , ARB No. 98-036, ALJ No. 1997-CAA-15 (ARB May 28, 1999), the ALJ recommended a grant of summary decision based on lack of timeliness of the complaint. The ALJ based this recommendation on the conclusion that there was no genuine issue of material fact that Complainant knew that he had not been offered his position as General Manager/Quality Control Supervisor after a new inspection company had gotten the inspection services contract, but had not filed his complaint until more than 30 days after that date. The ARB, however, reviewing the grant of summary decision de novo , concluded that, viewing the evidence in the light most favorable to Complainant and in view of Respondent's failure to present plausible rebuttal evidence, there were triable issues of fact concerning two valid theories: (1) reasonable reliance on a promise to find alternative employment and (2) estoppel. Complainant alleged that he was repeatedly assured that he would be placed with the new contractor and that he had nothing to fear in terms of supervisory or financial loss; he had been called for an interview with the new contractor; the interview with the new contractor had focused entirely upon supervisory and managerial issues; both officials of the new contractor who interviewed Complainant told him that the interview had gone extremely well; Complainant was never told that the two positions that were offered him (one not supervisory and one half-time and one level below his current position) were final offers.

[Editor's note: In his recommended decision, the ALJ had concluded that "Complainant knew of facts which would support the discrimination complaint such that a reasonably prudent person would have been placed on notice.... If, as alleged, [the new contractror] discriminated against Complainant by not hiring him on that date, [the new contractor's] hiring of him for a similar position in a different locality would not have negated the earlier, allegedly retaliatory decision not to hire him." The ALJ noted that Complainant had written to an attorney shortly after not being offered the General anager position indicating knowledge of the possibility that he had been discriminated against. Whitaker v. CTI-Alaska, Inc. , ARB No. 98-036, ALJ No. 1997-CAA-15 (ALJ Nov. 17, 1997).]

TIMELINESS; ALTHOUGH TIME-FRAME FOR FILING IS SHORT, IT MUST BE SCRUPULOUSLY OBSERVED
[N/E Digest IV A]

In Prybys v. Seminole Tribe of Florida , 1995-CAA-15 (ARB Nov. 27, 1996), the Board observed that the 30-day statutory limitations period for filing of environmental employee protection complaints is extremely brief, but that the filing period was the mandate of Congress. The equitable tolling doctrine does not permit an agency to disregard a limitations period merely because it bars what may otherwise be a meritorious cause; restrictions on equitable tolling must be scrupulously observed. Citing School Dist. of City of Allentown v. Marshall , 657 F.2d 16, 20 (3d Cir. 1981).

TIMELINESS; DISTINCTION BETWEEN PURPOSES OF EQUITABLE TOLLING AND EQUITABLE ESTOPPEL
[N/E Digest IV A]

The doctrine of equitable tolling focuses on whether a duly diligent complainant was excusably ignorant of his or her rights. Equitable estoppel focuses on whether the employer misled the complainant and thereby caused the delay in filing the complaint. Prybys v. Seminole Tribe of Florida , 1995-CAA-15 (ARB Nov. 27, 1996).

IV A Equitable tolling; actual or constructive notice of filing requirement

The time period for administrative filings of ERA whistleblower complaint filings begins running on the date that the employee is given definite notice of the challenged employment decision.

In Roberts v. Tennessee Valley Authority , 94-ERA-15 (Sec'y Aug. 18, 1995), the Complainant was discharged in March of 1993. In October of 1993, he discovered what he viewed as proof that his position had not been eliminated.

Although the ALJ had thoroughly analyzed the theory of equitable tolling as set out in the Secretary's decision in Hill and Ottney v. TVA, 87-ERA-23, 24 (Sec'y Apr. 21, 1994), on review by the Secretary the Complainant's attorney pointed out that the Sixth Circuit case of Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) was not considered by the ALJ. The Secretary noted Rose v. Dole 's five factor test, but still concluded that equitable tolling was not applicable.

The Complainant maintained that he lacked actual or constructive notice of the filing requirement, which is part of the Rose v. Dole test. The Secretary found that the Complainant could not rely on lack of constructive notice based on his attorney's knowledge where he did not engaged an attorney until after the deadline had passed. Although the Complainant maintained that there was a failure of posting, or at least adequate posting, of the filing requirement at the work site, the Secretary noted that the Complainant had worked in the nuclear industry for about 25 years and therefore knew or should have known about the filing requirements.

In regard to the Complainant's assertion that he did not know he had a claim of wrongful discharge until he found the proof in October 1993, the Secretary noted that the Complainant had testified that he had noted evidence of discrimination shortly after being placed in the employee transition program thereupon not being able to successfully apply for a job within the Respondent's organization although those jobs were well below his capabilities. The Secretary noted that if these rejections were discriminatory, they should have triggered the Complainant to file his complaint within the filing period.

Finally, the Secretary noted that Rose v. Dole had a fifth factor--the reasonableness of the complainant's remaining ignorant of his rights. Again, the extensiveness of the Complainant's experience in the nuclear industry lead the Secretary to conclude that it was unreasonable for the Complainant to be ignorant of his rights under the ERA.

IV A Remand to Wage & Hour where no investigation of merits and equitable tolling applied by ALJ

In Biddle v. Department of the Army, 93-WPC-9 (ALJ July 20, 1993), the Employment Standards Administration (ESA) found that Complainant's complaint was not timely filed, and dismissed the complaint without an investigation of the merits.

The ALJ found that equitable tolling must be applied because Complainant timely filed a complaint that raises issues that would be sufficient to state a cause of action under the WPCA, except that complaint was filed with the Merit Systems Protection Board (MSPB). Respondent did not dispute having knowledge of the SPB complaint. Compare Sawyers v. Baldwin Free School District, 85-TSC-1 (Sec'y Oct. 5, 1988) (complaint filed with EPA).

Because ESA had not conducted an investigation of the merits of the complaint, the ALJ remanded the case for further investigation.

IV A Equitable tolling; 6th Circuit

In Howard v. Tennessee Valley Auth., 90-ERA-24 (Sec'y July 3, 1991), the Secretary indicated that the ALJ should have applied the criteria provided by the court in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988) (Title VII case), to determine whether to apply equitable tolling in an ERA case arising within the Sixth Circuit.

IV.A. Relationship between equitable tolling and continuing violation theory

The principles of equitable tolling operate independently of the continuing violation doctrine. Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 7.

Simmons v. Florida Power Corp., 89-ERA-28 and 29 (ALJ Dec. 13, 1989) (supplemental decision ALJ Apr. 11, 1990), dismissed on review by the Secretary based on settlement agreement in decision consolidated with 88-ERA-28 and 30, Simmons v. Fluor Constructors, Inc., 88-ERA-28 and 30 and 89-ERA-28 and 29 (Sec'y June 28, 1991).

IV A Period for filing a complaint is a non- jurisdictional statute of limitations

The statutory period for filing a complaint under the ERA is a statute of limitations and is not jurisdictional. Lastre v. Veterans Administration Lakeside Medical Center, 87- ERA-42 (Sec'y Mar. 31, 1988) (citing analogous STAA and TSCA cases; this is apparently the first ERA case in which the Secretary made this holding).

IV A Orr in Sixth Circuit

In a case arising in the Sixth Circuit, the Secretary indicated that the criteria provided in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988), should be considered in determining whether to apply equitable tolling of the time for filing an ERA complaint. Andrews was a Title VII case.

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).

To the same effect: Rainey v. Wayne State University, 89-ERA-8 (Sec'y May 9, 1991).

IV B Equitable tolling

Five factors to be considered in determining whether equitable tolling is appropriate in a given case are:

whether the plaintiff lacked actual notice of the filing requirements;
whether the plaintiff lacked constructive notice, i.e., his attorney should have known;
the diligence with which the plaintiff pursued his rights;
whether there would be prejudice to the defendant if the statute were tolled; and
the reasonableness of the plaintiff remaining ignorant of his rights. Ignorance of the law alone is not sufficient to warrant equitable tolling.

Where the complainant waited 54 days after discharge to consult an attorney, purportedly because he was waiting to hear about his unemployment application and because he went on vacation with his son, the delay was not excusable. Where there was no evidence that the complainant was prevented from investigating his rights within the statutory period, by his own admission he suspected that his firing was for whistleblowing activity, and he was not later made aware of any new facts which he was not previously aware of with regard to his firing, absent some evidence that he was somehow deterred from seeking legal advise by his employer, equitable tolling is not warranted. Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).

TIMELINESS; EQUITABLE ESTOPPEL; INDUCING COMPLAINANT TO DELAY FILING
[N/E Digest IV B]

In Prybys v. Seminole Tribe of Florida , 1995-CAA-15 (ARB Nov. 27, 1996), Complainant alleged that a misrepresentation was made to management, prior to the termination decision, indicating Complainant was prepared to resign. This alleged misrepresentation, however, did not invoke equitable estoppel regarding the timeliness of Complainant's complaint to DOL because Complainant did not allege any statements that misled him regarding the fact that his employment was terminated.

Similarly, Complainant alleged that statements by tribal officials lead him to believe that his termination would be reviewed at the next tribal council meeting. Such statements, however, did not invoke equitable estoppel because they do not indicate that tribal officials suggested that the termination decision would be reversed if he refrained from filing a federal complaint.

The Board noted that within the context of employee protection legislation, equitable estoppel "concerns whether the employer 'misrepresented or fraudulently concealed from [complainant] facts necessary to support his complaint(s) or induce[d] him to delay filing' a complaint." Id ., slip op. at 7, quoting In Re Kent , 84-WPC-2, slip op. at 4 (Sec'y Apr. 6, 1987).

IV B Equitable tolling

The time period for filing a complaint under the Toxic Substances Control Act, 15 U.S.C. § 2522(b) may be likened to a statute of limitations rather than a jurisdictional bar. Therefore, equitable tolling may be appropriate, but only when

The defendant has actively mislead the plaintiff respecting the cause of action;
The plaintiff has in some extraordinary way been prevented from asserting his rights; or
The plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.

The filing of a claim in the wrong forum must also be timely before it will toll the appropriate limitations period. Prejudice to the defendant is irrelevant. Ignorance of the law is not enough to invoke equitable tolling.

School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981).

IV B Equitable estoppel

Charging periods in whistleblower cases are subject to equitable modification. For example, employers have been estopped from claiming the defense of untimely filing where they have induced or lulled an employee into not filing promptly. Estoppel also may be appropriate if failure to file timely results from a deliberate design by the employer or from actions that the employer unmistakably should have understood would cause the employee to delay filing. In such circumstances, an employee may be aware of his or her statutory cause of action but fails to file timely due to his or her reasonable reliance on the employer's misleading or confusing representations or conduct. odification of the filing period thus serves as a corrective mechanism. Some circumstances which have precipitated estoppel are:

an employer's "positive signals" regarding
amicable resolution,
false assurances by an employer that it intends
to settle the claim,
an employer's failure to provide agreed upon
information, and
an employer's misrepresentation as to reasons
for its employment action or misinformation as
to employee rights.

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

See also School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981); English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991)(per curiam).

IV B Equitable estoppel to avoid untimely filing

Invocation of equitable estoppel as a means of avoiding the bar of untimely filing under EPS requires a showing that an employee's failure to file in a timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his or her charge. An employee's hope for a continuing employment relationship cannot toll the statute absent some employer conduct likely to mislead an employee sleeping on his or her rights. Absent evidence that the employer acted to deceive the employee as to the existence of its claim or otherwise to mislead or coerce the employee into not filing a claim in a timely fashion, the employer will not be equitably estopped to plead the bar of untimely filing. Even an employer's confirmation of that hope could not estop the employer absent some indication that the promise was a quid-pro-quo for the employee's forbearance in filing a claim. Thus, where an employer repeated assured that permanent placement was being sought elsewhere in the company pending placement on layoff status following a temporary assignment, it was not equitably estopped to plead untimely filing since the employee was not lead to believe that the relocation efforts somehow depended on her forebearance from filing a claim of discrimination against it. English v. Whitfield, 858 F2d 957 (4th Cir. 1988).

IV B Equitable tolling, generally

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:

the defendant has actively mislead the plaintiff respecting the cause of action,
the plaintiff has in some extraordinary way been prevented from asserting his rights, or
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).

[Nuclear & Environmental Whistleblower Digest IV B 1]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; ACTIVELY MISLEADING THE COMPLAINANT; DIFFERING EXPLANATIONS FOR ADVERSE ACTION

In Jay v. Alcon Laboratories, Inc. , ARB No. 08-089, ALJ No. 2007-WPC-2 (ARB Apr. 10, 2009), the Complainant argued that his WPCA whistleblower complaint should be found timely because it was not until the Employer gave differing explanations for why he was fired that the Complainant realized that something was not right and that his protected activity may have caused the termination. Specifically, the Complainant was first told that his employment was being terminated because of a "skill set mismatch." About a month later, he was told that he had been fired because of failing a performance improvement plan. The ARB agreed with the ALJ in rejecting this argument, finding that the Employer had not actively misled the Complainant - the explanations given for the firing being essentially synonymous.

IV B 1 Respondent in passive role; complainant's awareness

Where the Complainant and not the Respondent instigated discussions to permit the Complainant to replace a termination letter with a letter of resignation, the Respondent's willingness to discuss this matter was not a basis for tolling the thirty-day period within which the Complainant was required to file a complaint for unlawful termination. The Respondent's role was passive, and there was nothing to demonstrate affirmative misleading or deceptive conduct by the Respondent. Eisner v. United States Environmental Protection Agency, 90-SDW- 2 (Sec'y Dec. 8, 1992) (Secretary also took into consideration evidence that the Complainant believed that neither termination nor forced resignation were appropriate, but were retaliatory).

[Nuclear & Environmental Whistleblower Digest IV B 1]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; RESPONDENT'S LULLING COMPLAINANT INTO BELIEF THAT HE WAS BEING TRANSFERRED TO AN EQUALLY DESIRABLE AND SECURE JOB

In Tennessee Valley Authority v. U.S. Secretary of Labor , 2003 WL 932433 (6th Cir. Mar. 6, 2003) (unpublished) (case below Overall v. Tennessee Valley Authority , ARB Nos. 98 111, 98 128, ALJ No. 1997 ERA 53), the Sixth Circuit affirmed the DOL's decision to toll the statute of limitations for filing an ERA complaint where "DOL reasonably inferred from the evidence that, by guaranteeing [Complainant] an equally desirable and secure job with [another component] TVA lulled [Complainant] into refraining from filing a [timely] retaliation claim."

[Nuclear & Environmental Digest IV B 1]
TIMELINESS OF COMPLAINT; EQUITABLE MODIFICATION; CONCEALMENT OF OPERATIVE FACT FORMING BASIS OF CAUSE OF ACTION

In Overall v. Tennessee Valley Authority , ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), the ARB applied equitable modification of the ERA limitations period for filing a complaint, finding that Respondent had concealed an operative fact that formed the basis of the cause of action. The ARB made a distinction between equitable estoppel and equitable tolling :

The first doctrine is equitable estoppel , sometimes denominated fraudulent concealment, which operates when a respondent has acted affirmatively to prevent a complainant from suing in time, for example by promising not to plead the limitations defense or by presenting fabricated evidence to negate any basis for a claim. Equitable estoppel "presupposes that the plaintiff has discovered, or, as required by the discovery rule, should have discovered, that the defendant injured him, and denotes efforts by the defendant -- beyond the wrongdoing upon which the claim is grounded -- to prevent the plaintiff from filing a timely complaint." Cada v. Baxter Healthcare Corp ., 920 F.2d at 451. At least one federal circuit has articulated the burden of proof assumed by the party invoking the doctrine as follows: "(1) wrongful concealment of their actions by the defendants; (2) failure of the plaintiff to discover the operative facts that are the basis of the cause of action within the limitations period; and (3) plaintiff's due diligence until discovery of the facts." Hill v. U.S. Dep't of Labor , 65 F.3d at 1335, quoting Dayco Corp. v. Goodyear Tire & Rubber Co. , 523 F.2d 389, 394 (6th Cir. 1975). Application of the doctrine of equitable estoppel subtracts from the limitations period the entire period during which the modifying condition is extant so as to prevent a respondent from benefitting as the result of its concealment. Cada v. Baxter Healthcare Corp. , 920 F.2d at 452.

The second doctrine arguably germane is equitable tolling . It applies where a complainant, despite due diligence, is unable to secure information supporting the existence of a claim. Unlike equitable estoppel it does not assume any effort by a respondent to prevent the complainant from suing. The complainant knows that he has suffered an injury but is unable to ascertain whether that injury is due to wrongdoing or, if cognizant of wrongdoing, whether the respondent perpetrated the wrongdoing. An employer, for example, may discharge an employee who is protected under laws prohibiting age discrimination and replace him several months later with a young and inexperienced employee. The discharged employee knows that he has suffered injury inflicted by his employer but is unaware of possible wrongdoing until he discovers the fact and identity of his replacement which would suggest that age may have motivated the discharge. The doctrine of equitable tolling suspends the running of the statute of limitations only until such time as is reasonably necessary to conduct an inquiry to ascertain the existence of a claim.

Slip op. at 42-43 (footnote omitted). The ARB held that Respondent in the instant case concealed operative facts forming the basis of a cause of action when it offered Complainant what he believed to be a secure position but concealed funding limitations for the new division. The ARB found that equitable estoppel tolled the period from the date Complainant applied for the "permanent" position to avoid an at-risk transfer until he was notified of layoff from the "permanent" position.

[Nuclear & Environmental Digest IV B 1]
EQUITABLE TOLLING; COMPLAINANT CANNOT AVAIL HERSELF OF "MISLEADING" ACTIONS BY RESPONDENT AS GROUNDS FOR TOLLING WHERE SHE HAD ALREADY CHARGED IN WRITING THAT SHE HAD BEEN TERMINATED IN RETALIATION FOR PROTECTED ACTIVITY

In his recommended decision in Pastor v. Veterans Affairs Medical Center , 1999-ERA-11 (ALJ Apr. 28, 1999), the ALJ concluded that the complaint should be dismissed for lack of timeliness. Complainant sought to invoke equitable tolling on the ground that she did not learn of several circumstances surrounding her termination until the time of the discovery deposition of her supervisor in a MSPB proceeding, and therefore was entitled to tolling of her ERA whistleblower complaint based on Respondent's alleged actively misleading her regarding the reason for her dismissal. The ALJ, however, reviewed Third Circuit law, and concluded that because Complainant's letter to the U.S. Office of Special Counsel laying the foundation for her MSPB proceeding explicitly detailed her charge that she was terminated from employment by Respondent in retaliation for her disclosure of violations of NRC rules and regulations, it was inconsistent for Complainant to claim that it was not until the discovery deposition of her supervisor that facts that would support her cause of action became apparent, or should have become apparent to a person with a reasonably prudent regard for her rights.

IV.B.1. Equitable tolling; misleading of complainant

Filing periods are subject to equitable modification. Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393 (1982). Generally, the doctrines of equitable estoppel and equitable tolling are mechanisms for modifying a limitations period. See Clark v. Resistoflex Co., 854 F.2d 762, 768-769 (5th Cir. 1988); Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752 (1st Cir. 1988). Respondents may be equitably estopped from claiming the time bar defense where they have induced or deliberately misled an employee into neglecting to file promptly. Clark at 769 n.4; Felty v. Graves-Humphreys Co., 785 F.2d 516, 519 (4th Cir. 1986); Larry v. The Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991), slip op. at 12-19, aff'd sub nom. The Detroit Edison Co. v. Secretary, United States Dept. of Labor, No. 91-3737 (6th Cir. Apr. 17, 1992) (unpublished) (available at 1992 U.S. App. LEXIS 8280). The doctrine of equitable tolling focuses on the complainant's excusable ignorance as a reason to modify the limitations period. Clark at 769, n.4; Cf. Andrew v. Orr, 851 F.2d 146, 150 (6th Cir. 1988) (doctrine of equitable tolling applies when employee misses filing deadline because of affirmative misleading conduct by employer or ineffective but diligent conduct by employee).

Courts generally have held that unless the employer has acted deliberately to deceive, mislead or coerce the employee into not filing a claim in a timely manner, equitable estoppel will not apply. See English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); Clark v. Resistoflex Co., 854 F.2d at 768-769. oreover, the doctrine of equitable tolling is narrowly applied. See generally Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236-240 (1976); City of Allentown, 657 F.2d at 19-21; Symmes v. Purdue University, 87-TSC-5 (Sec'y Mar. 10, 1992), slip op. at 2-3; Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op. at 7-8; Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990), slip op. at 9-10; Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989), slip op. at 2-6, aff'd, Doyle v. Secretary, U.S. Dept. of Labor, 949 F.2d 1161 (11th Cir. 1991), cert. denied, 113 S. Ct. 225, 121 L. Ed. 2d 162 (1992) (unpublished 11th Cir. decision available at 1991 U.S. App. LEXIS 29326).

In Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992), a summary decision dismissing the complaint as untimely was appropriate where the Complainant failed to raise a genuine issue of material fact concerning his allegation that equitable tolling was warranted because he was misled by the Respondent, even taking the Complainant's evidence in the light most favorable to the Complainant.

In response to the motion for summary decision, the Complainant submitted an affidavit alleging that post-suspension, and the after the union filed a grievance to initiate arbitration, a union representative initiated a discussion with management over the Complainant's situation and that the management representative indicated the Union should not take further action because the matter was being resolved. This evidence did not indicate that the Respondent deliberately sought to mislead or delay the Complainant from filing a CAA claim, but rather that the union approached the Respondent and was involved in negotiation and arbitration on the Complainant's behalf. See Electrical Workers v. Robbins, 429 U.S. at 236-240 (employee's pursuit of internal grievance procedure set up in collective bargaining agreement does not toll filing requirement); Ackison v. Detroit Edison Co., 90-ERA-38, slip op. at 2 (Complainant's use of internal grievance procedures does not toll filing period); In Pfister v. Allied Corp., 539 F. Supp. 224, 227 (S.D.N.Y. 1982) (employer's participation in settlement discussions does not toll statute of limitations for filing action over discharge because no evidence acted in bad faith or deceitfully lured plaintiff to miss appropriate filing date).

Furthermore, the Complainant was represented by counsel during this period and immediately filed a grievance and an identical whistleblower complaint under the OSHA, which further supported a finding that the Complainant cannot invoke equitable tolling under the circumstances. See generally Kent v. Barton Protective Services, 84-WPC-2 (Sec'y Sept. 28, 1990), slip op. at 11-12, aff'd Kent v. United States Dept. of Labor, No. 90-9085 (11th Cir. Oct. 3, 1991); McGarvey v. EG & G Idaho, Inc., 87-ERA-31 (Sec'y Sept. 10, 1990), slip op. at 3- 4; Symmes, 87-TSC-5, at 2-3, and appended ALJ's R.D. & O. at 608.

Hence, the evidence established that the Complainant was given final and unequivocal notice of his immediate suspension and promptly proceeded to pursue his remedies with the assistance of the union and his counsel -- not that the Respondent deliberately mislead the Complainant.

Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992).

IV B 1 Employer's misleading of employee

Under the ERA, employees who believe that they have been discriminated against must file their complaint "within thirty days after such a violation occurs...." 42 U.S.C. § 5851 (b). The ERA 30-day limitations period runs from the date the employee receives final, definitive, and unequivocal notice of the adverse decision. However, charging periods are subject to equitable modification. Respondents may be estopped under certain circumstances from claiming a statute of limitations defense. Some circumstances which have precipitated estoppel are: an employer's "positive signals" regarding amicable resolution, false assurances by an employer that it intends to settle a claim, an employer's failure to provide agreed upon information, and an employer's misrepresentation as to the reasons for its employment action or misinformation as to employee rights.

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

IV B 1 Respondent's actions not important where counsel informed complainant of time limits

Summary judgment was appropriate where it was undisputed that the complainant filed his ERA whistleblower complaint more than thirty days after the effective date of his discharge, and the record did not support his allegations that he was actively mislead by the respondent or of having filed the exact claim in the wrong forum.

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). In its unpublished decision, reported at 1992 U.S. App. LEXIS 6570, the Sixth Circuit noted that although Howard had alleged that TVA misled him as to his remedies, he admitted by affidavit that his counsel had informed him of the ERA time limits.

IV B 1 Agreement to reconsider employment decision does not toll filing period

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.]

IV B 1 Tolling based on misleading conduct by respondent

In Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988), the Sixth Circuit identified five factors to consider in determining whether a filing period should be equitably tolled:

(1) lack of actual notice of the filing requirement;
(2) lack of constructive knowledge of the filing requirement;
(3) diligence in pursuing one's rights;
(4) absence of prejudice to the defendant; and
(5) a plaintiff's reasonableness in remaining ignorant of the notice requirement.

Id . at 151. 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 found that the Secretary's determination that misleading conduct by the Respondent caused the Complainant to delay filing her complaint was supported by substantial evidence. See Larry v. The Detroit Edison Co., 86-ERA-32 (Sec'y June 29, 1991). Specifically, an EEO Specialist whom the Complainant visited in regard to her employment concerns, told the Complainant that she had come to "right place." That Specialist mislead the Complainant by concealing her role as a representative of the Respondent's interests in employment and retaliation cases, by making false promises to keep the Complainant's disclosures in confidence and to purse the matter diligently, and by allowing the Complainant to labor under a confusion as to the proper timing of a complaint.

IV B 1 Equitable estoppel

The Secretary imposed equitable tolling on the ground that the employer's EEO process misled and diverted Complainant in filing her ETA complaint. The circumstances cited by the Secretary included:

The employer maintained a company Equal Employment Opportunity office, and posted noticed advised employees that "whistleblower" discrimination complaints should be directed to the EEO office;
the EEO specialist, upon meeting with complaining employees, explained that she functioned as a mediator between employees and management and did not disclose that she was actually responsible for representing the company and preparing the company's position at any fact findings or resolution conferences;
the EEO specialist assured Complainant that "she was in the right place" if she wished to pursue "a mediation process" but made it clear that the filing of a formal complaint she (the specialist) immediately would cease mediation efforts;
the specialist never contacted a manager regarding conciliation of the matter but instead meet with the employer's legal department to discuss the complaint and then "turned over" Complainant's documentation to the legal department;
the employer's EEO process clearly distracted Complainant in pursuing other recourse (had Complainant not been occupied with the specialist, she could have focused on ERA procedure including verifying the limitations period);
the employer should have understood that its deliberate design to delude Complainant and to divert his attention and energies would cause delay.

The Secretary indicated that the ERA's sharply abbreviated limitations period may militate in favor of equitable tolling. Hicks v. Colonial Motor Freight Lines, 84-STA-20 (Sec'y Dec. 10, 1985). Also considered by the Secretary in imposing equitable estoppel was her finding that the primary objective in imposing an expeditious time frame had been met, i.e., prompt notice to Federal regulators and the employer of safety violations and retaliatory behavior.

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

IV B 1 Respondent not shown to have mislead employee

In Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), 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 to assert the lack of timeliness of the filing of the complaint. The Complainant did not assert that the Respondent's willingness to accept a resignation letter was contingent on the Complainant's agreement not to file a complaint. There was no allegation that the Respondent's subsequent unwillingness to accept a resignation letter was because the thirty-day time period had lapsed.

IV B 1 Requirement that restrictions on equitable tolling be scrupulously observed

The restrictions on equitable tolling must be scrupulously observed. Equitable tolling is not an open-ended invitation to disregard limitations periods merely because they bar what may otherwise be a meritorious cause. Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989) (citing School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981)).

In Doyle , the complainant asserted that he was misled by federal government official about his right to file a complaint.

In some circumstances, where there is a complicated administrative procedure, and an unrepresented, unsophisticated complaint receives misleading information from the responsible government agency, a time limit may be tolled. See, e.g., Page v. U.S. Industries, Inc., 556 F.2d 346, 351 (5th Cir. 1977); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 754 n.9 (3d Cir. 1983), cert. denied, 464 U.S. 852 (1983); Roberts v. Arizona Board of Regents, 661 F.2d 796, 800 (9th Cir. 1981); White v. Dallas Independent School District, 581 F.2d 556, 562 (5th Cir. 1978). However, in City of Allentown v. Marshall, (the only Court of Appeals decision on equitable tolling at that time under an analogous 29 C.F.R Part 24-type whistleblower provision), the complainant contacted the Environmental Protection Agency, which first offered to advise him about filing a complaint and then delayed doing so. The court held that "[t]he alleged confusion at the EPA is . . . irrelevant." 657 F.2d at 21. The court distinguished situations in which "the defendant has actively misled the plaintiff respecting the cause of action", 657 F.2d at 20, where the tolling may be justified, from cases where a government agency may have given confusing information but the defendant "was in no way responsible for [plaintiff's] failure to file a complaint within the statutory period." 657 F.2d at 20-21.

The Secretary found that the circumstances presented in Doyle were insufficient to invoke equitable tolling. The requirements for filing a complaint and the time limit under the ERA and 29 C.F.R. Part 24 are straightforward. The record indicated that the complainant was aware of the 30 day time period for a number of years, and had, at most, received some incorrect information from Department of Labor officials about its applicability to a blacklisting complaint -- information for which the respondent was not responsible. Several times between 1983 and 1987 the complainant believed he was being blacklisted, but did not file a complaint.

IV B 1 Fraudulent concealment; misrepresentation must have been directed to the complainant

[Editor's note: Hill v. Tennessee Valley Authority, 87-ERA-23 (ALJ July 24, 1991), contains an analysis of the Sixth Circuit's case law on the question of equitable tolling. The facts of the case are complex and the analysis is detailed. The foregoing is a very brief overview of the ALJ's recommended opinion, which is worth reading if you are faced with the same issue.]

In Hill v. Tennessee Valley Authority, 87-ERA-23 (ALJ July 24, 1991), the complainants asserted that the respondent had misled them, through its public pronouncements, to believe that the respondent fired their employer for other than discriminatory reasons. The complainants were employees of a nuclear safety consulting company that had contracted with the respondent. The ALJ, focusing on the case of Dayco Corp. v. Firestone Tire & Rubber Co., 386 F. Supp. 546, 548 (N.D. Ohio 1974), aff'd sub nom., Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389 (6th Cir. 1975), found that the complainants had not brought their case within the equitable tolling doctrine of fraudulent concealment, because this doctrine relates to concealment of conduct, not intent. He also found that the complainants had failed to satisfy the Dayco standard's element of due diligence.

In addition, the complainants were found to have failed to make a convincing case that they were misled by the respondent to delay the filing of their complaints. The ALJ concluded that the case law required that the asserted misrepresentation must have been intended for, and directed to, the party who claims the benefit of equitable estoppel. The complainants argued that the respondent had engaged in aggressive media campaign to convince the complainants, among others, of its reasons for firing their employer; that the respondent's statements to the press and to Congress were false and made in order to conceal its discriminatory motive from the complainants. The ALJ, however, concluded that the record did not support this argument, but that the aim of the respondent's media campaign and representations to Congressmen and NRC was to secure public and official support for its decisions; it was not evident that the respondents were concerned with the complainants.

In addition, the ALJ found that the complainants could not prove detrimental reliance.

[Editor's note: The ALJ recommended dismissal of the complaint in Ottney v. Tennessee Valley Authority, 87-ERA-24 (ALJ July 24, 1991) in large part for the same reasons stated in Hill ]

IV B 1 Misleading of employee by employer

In Scott v. Alyeska Pipeline Service Co. , 92-TSC-2 (ALJ Jan. 29, 1993), Complainant asserted that the doctrine of equitable tolling should be used to find his complaint timely. The ALJ found, however, that there was no evidence that Respondent actively mislead Complainant respecting the cause of action. In regard to whether Respondent actively misled Complainant, the ALJ wrote:

[Complainant] contends that Alyeska's notice of termination did not disclose the discriminatory reason for the termination, stating instead that the termination was for cause. But since employers rarely if ever tell employees they are being subjected to adverse action for reasons which are in violation of the law, holding that there is equitable tolling because an employer informs the employee of a different reason for an adverse action would virtually eliminate the periods of limitation in the various environmental statutes at issue in this case. Congress could not have intended such a result.

* * *

The cases that have applied equitable tolling to a statute of limitations in discrimination cases have been cases in which the employer was found to have misled the employee into believing he or she has no cause of action. For example, in McConnell v. General Telephone Co., 814 F.2d 1311 (9th Cir. 1987), cert. denied sub nom., General Telephone Co. v. Addy, 484 U.S. 1059, 108 S. Ct. 1013 (1988), the employer misled the employee into believing he had been temporarily laid off rather than terminated. Similarly, in Charles A. Kent, 84-WPC-2, 1 O.A.A. 2, at 442 (Remand Decision and Order of Secretary of Labor, april 6, 1987), and Reeb v. Economic Opportunity Atlanta Inc., 516 F.2d 924 (5th Cir. 1975), the employees were misled by the employers into believing they had not been terminated. In all these cases, since the employees were misled into believing that no adverse action had been taken against them, they could not have been aware that a cause of action existed.

* * *

Therefore, Alyeska's failure to inform [Complainant] that he was being terminated for leaking company documents to Hamel [a well-known critic of Alyeska] is not evidence that Alyeska actively misled [Complainant] respecting the cause of action.

Slip op. at 34-36.

The ALJ also addressed Complainant's contention that even if he was not misled, equitable tolling is appropriate until he become aware, or reasonably should have become aware, that he was a victim of discrimination. The ALJ, however, found that the castile indicates that equitable tolling is appropriate only until a complainant becomes aware, or reasonable should have become aware, of the discriminatory act -- not to the knowledge of the employer's illegal motive for the act. See McGough v. United States Navy, ROICC, 86-ERA-18, 19, 20 (Sec'y June 30, 1988).

IV B 1 Equitable estoppel

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 attempted to invoke equitable estoppel to avoid the bar of untimely filing. The court recognized the application of those principles in the appropriate case, but held that this was not such a case. The court cited the rule under the ADEA which was laid down in Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir. 1982). In Price , the court held that the invocation of equitable estoppel required a showing that an "employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Id. at 965. Thus, "[a]bsent evidence that the employer acted to deceive the employee as to the existence of its claim or otherwise to mislead or coerce the employee into not filing a claim in a timely fashion, we will not find the employer equitably estopped to plead the bar of untimely filing." English, at 963. In the instant case, the employee pointed out GE's repeated reassurances that permanent placement was being sought elsewhere in the company, and that a GE executive assured her that GE did not intend to fire her in support of her claim of equitable estoppel. However, the court noted that there was no suggestion that it was a quid pro quo for forbearance from suit, and the quid pro quo is the critical element which gives rise to estoppel under their rule. English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988).

IV B 1 Discussion with Complainant of options not ground for tolling where they would not have mislead the employee

Where the Complainant was given a final and unequivocal notice of termination on November 6, 1991, the termination to be effective on November 29, 1991, the Complainant's December 24, 1991 complaint was not timely. Furthermore, where there was no evidence that the employer somehow deceived, misled or coerced the employee into delaying filing a complaint, the time period for filing a whistleblower complaint was not tolled. Although there had been some further discussion with the Complainant about his options, apparently including possibly resigning rather than being fired, or an extension, the ALJ found that there was not sufficient evidence to conclude that the Complainant "was lead into a false sense of security that would justifiably excuse the requirement of filing a complaint within thirty days. ... There is no evidence that either [of the Complainant's superiors] engaged in false negotiations regarding options to the professed reasons for his termination, or that they acted in such a manner as to ensure his forbearance from filing a timely complaint."

Kang v. Dept. of Veterans Affairs Medical Center, 92-ERA-31 (ALJ Mar. 31, 1993) (ALJ had earlier denied a motion for summary judgment where there was a question of fact of whether the November 6, 1991 notice of termination was final and unequivocal, see Order dated May 29, 1992).

IV B 1 Equitable tolling when respondent's complainant handling process causes confusion

In Holden v. Gulf States Utilities, 92-ERA-44 (Sec'y Apr. 14, 1995), the Complainant alleged that personnel in Respondent's Quality Concerns Program affirmatively lied to him when he asked about possible recourse concerning his discharge and two subsequent instances of alleged blacklisting, and thus the limitations period was equitably tolled.

The Secretary noted that "[i]gnorance of the law is not sufficient to warrant equitable tolling of the limitations period", but that "equitable tolling is justified when an employer's complaint handling process causes confusion that deters a complainant from timely filing a complaint." Slip op. at 14-15 (citations omitted).

The Secretary remanded the complaint for a hearing on equitable tolling, noting that if the complaint department had told the Complainant that the QCP "either was the sole or best means to report safety concerns" equitable tolling may apply because of the confusing nature of the employer's process. If, however, "workers were told that the QCP program was one means to address safety issues in addition to other avenues of redress, it would be difficult to show that [the Respondent] mislead [the Complainant] simply by not informing him of his rights under the ERA."

IV B 1 Fraudulent concealment/actions v. motives

Elements of fraudulent concealment/equitable tolling

The elements that must be shown to prove fraudulent concealment to establish equitable tolling of the ERA time limit for filing a complaint are: (1) wrongful concealment of its action by the respondent, (2) failure of the complainant to discover the operative facts that are the basis of the cause of action within the limitations period, and (3) the complainant's due diligence until discovery of the facts. Hill v. TVA, 87-ERA- 23 and 24 (Sec'y Apr. 21, 1994) ( citing Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975)).

In Hill, the Secretary found that the ALJ properly interpreted and applied the law of equitable tolling through fraudulent concealment, and explicitly adopted parts V, VI and VII of his recommended decision and order. Hill v. Tennessee Valley Authority, 87-ERA-23 (ALJ July 24, 1991). In Hill , 23 employees of a quality insurance contractor brought a whistleblower complaint against Respondent, TVA, after Respondent "fired" the contractor. Complainants' theory was that Respondent had engaged in an aggressive media campaign and in testimony before Congress, to convince Complainants, among others, that its reasons for firing their employer were not related to retaliation for reporting safety violations. The ALJ concluded that the media campaign and the representations to Congressmen was to secure public and official support for its decisions -- not with concern about Complainants' potential whistleblower complaint. The ALJ questioned whether there was concealment, found that Complainants did not exercise due diligence, found that Complainants did not establish that Respondent had misled they to delay the filing of their complaint, and that Complainants did not show that they had reasonably relied on any statements of Respondent. See ALJ slip op. at 15-22.

Although adopting the ALJ's legal analysis and findings of fact, the Secretary commented on his position regarding the equities involved in considering a claim of equitable tolling, and to cite additional authorities to bolster the ALJ's conclusion.

Requirement that time limitations not be applied so strictly as to frustrate the underlying purposes of the whistleblower law

The Secretary noted that equitable modification of filing deadlines had traditionally been recognized only in exceptional circumstances. Nonetheless, in an ERA whistleblower case "this general rule must not be applied in such a way that the underlying purposes of that law are frustrated. Thus, it is exceedingly important that an appropriate balance be struck between fidelity to the statutory directive that complaints be pursed and investigated in a timely manner on the one hand and fairness to whistleblowing complainants on the other." Sec'y's slip op. at 5.

Equitable tolling applies only when a respondent conceals its actions, as opposed to its motives

Complainants urged the Secretary to reject the ALJ's conclusion that equitable tolling applies only when a respondent has concealed its actions which give rise to a cause of action, and not when it conceals its motives. Rather, Complainants argued that equitable tolling applies when the respondent has concealed the motives for its actions, even though the essential elements of a claim are know to a complainant. The Secretary affirmed the ALJ's conclusion, noting that "Complainants' position would require a Respondent either to confess violation of the ERA or be subject to suit for an indefinite period until the Complainant obtains evidence of Respondent's illegal motive." Sec'y's slip op. at 6-7. The Secretary also stated that "[o]nly concealment of the fact that a cause of action exists, not concealment of evidence proving violation of the statute, justifies equitable tolling." Slip op. at 15-16 (citations omitted)

Time period for filing commences when complainant knows enough to justify a charge of discrimination, as opposed to knowing enough to make out a prima facie case

The Secretary then proceeded to detail much of the federal case law concerning what an employee must know to commence a statute of limitations in a discrimination case. In sum, the Secretary adopted the position that the limitations period begins to run when the complainant possesses facts sufficient to make out a charge of discrimination. This is not the same as facts sufficient to make out a prima facie case -- it is only that level of information necessary to initiate a Wage and Hour investigation. The Secretary noted that an attorney who filed such a complaint is not subject to Rule 11 sanctions for failure to make a precomplaint investigation. There is a distinction between a judicial complaint and an administrative complaint. In essence, the Secretary held that there is no duty of precomplaint inquiry in a DOL ERA proceeding. See Sec'y's slip op. at 11-12 and n.6.

IV B 1 Actual reason for termination does not need to be known if the complainant suspects illegal motives

In Sisk v. Transco Products, Inc., 87-ERA-34 (ALJ Nov. 12, 1987), aff'd, (Sec'y May 2, 1990), the administrative law judge concluded that the complainant had failed to establish ground for equitable tolling of the period for filing an ERA whistleblower complaint. Shortly after her termination, the complainant's attorney wrote to the respondent's president expressing concern that the stated reason for her termination (absence without permission) was not the actual reason for her termination. The ALJ held that "the fact that [the complainant] did not know the actual stated reason for her dismissal had no detrimental effect on her ability to file an action within the allotted time, and thus did not in any extraordinary way prevent her from asserting her rights. . . . At the time of her dismissal, Complainant suspected that she was fired illegally."

IV B 1 Unsuccessful settlement negotiations

In Yap v. Bay Area Environmental, Inc., 90-SWD-4 (ALJ Oct. 30, 1990), aff'd (Sec'y Aug. 30, 1991), the ALJ found that the Complainant had not established equitable grounds for tolling of the limitations period based on misleading conduct by the Respondent, where the Complainant had contacted the Respondent for the purpose of opening settlement negotiations, but the Respondent refused to discuss settlement until certain documents were returned, which documents were not in fact returned.

In addition, assuming arguendo that equitable tolling was invoked, the ALJ reasoned that equitable tolling only lasts as long as the period it would not be equitable to count. The ALJ found that the Complainant waited 63 days after the last day that any conceivably deterring effect of behavior by the Respondent had ended (the date the Complainant filed a State action for wrongful discharge).

IV B 1 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).

IV B 2 Prevention of assertion of rights; attorney disability

In Gillilan v. Tennessee Valley Authority, 91-ERA- 31 and 34 (Sec'y Aug. 28, 1995), the Secretary relied on School Dist. of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981), as "[t]he leading case on the issue of timeliness under the whistleblower provisions at 29 C.F.R. Part 24." Noting that one of the situations in which tolling of the time frame for filing a whistleblower complaint might be appropriate is where the complainant has in some extraordinary way been prevented from asserting his or her rights, the Secretary examined whether the Complainant's assertion that his attorney's mental incapacity was responsible for a missed deadline was sufficient to withstand a motion for summary decision based on lack of timeliness. The Secretary found that a recent Sixth Circuit decision, Cantrell v. Knoxville Community Dev. Corp., Nos. 94-5033 and 94-5379, 1995 U.S. App. LEXIS 17458, *3 (6th Cir. July 19, 1995), was controlling. In Cantrell, a Title VII case, the court held that if a plaintiff pursued his claim diligently, yet was abandoned by his attorney due to his attorney's mental illness, equitable tolling of the limitations period may be appropriate.

Although the ALJ stated that the record contained no evidence of the attorney's mental state at the time the filing was presented, the Secretary concluded that the record raised issues of material fact regarding the attorney's capacity and the Complainant's diligence. In a footnote, the Secretary observed that the Complainant alleged that he raised the complaint with his attorney, and then called a few days later to make sure the complaint had been filed. The Complainant alleged that the attorney was a manic-depressive, causing him to miss the deadline. The Secretary found some support for the attorney's incapacity in that several months later, on the first date set for hearing, the attorney suddenly abandoned the Complainant, and about one week later the attorney was hospitalized for depression. The following month the attorney withdrew from the practice of law.

[Nuclear & Environmental Digest IV B 2]
TIMELINESS; EQUITABLE TOLLING

In Ricketts v. Northeast Utilities Corp. , 1998-ERA-30 (ALJ Oct. 29, 1998), the ALJ found that exceptional circumstances existed to toll the limitations period for filing a whistleblower complaint for the period between when the employee's surviving spouse filed with the state probate court to be appointed administratrix of the employee's estate, and the probate court's order appointing her as such.

[Nuclear & Environmental Digest IV B 2]
TIMELINESS; EQUITABLE TOLLING BASED ON COMPLAINANT'S MENTAL ILLNESS

In Hall v. EG&G Defense Materials, Inc. , 1997-SDW-9 (ARB Sept. 30, 1998), Complainant sought to invoke equitable tolling of the time period for filing his environmental whistleblower complaints based on a claim that prior to and continuing through the filing period he suffered from severe depression. The ARB recognized that arguably this ground fits the "in some extraordinary way prevented from asserting rights" ground for equitable tolling, see School District of City of Allentown v. Marshall , 657 F.2d 16, 19-20 (3rd Cir. 1981), but held that Complainant must make a particularly strong showing -- that the illness in fact prevents the sufferer from managing his affairs, understanding his or her legal rights, and acting on them -- or, under and even more stringent test -- that the sufferer has been adjudged mentally incompetent or was institutionalized during the filing period. Complainant filed a report by a psychiatrist, but the ARB found that nothing in the report indicated that Complainant was not capable of handling his affairs or understanding his legal rights. Complainant's own affidavit likewise failed to assert that he was unable to understand his legal rights. Moreover, other evidence of record indicated that Complainant in fact was capable of understanding and addressing his legal rights during this period of time: signing a settlement agreement in a divorce action, and testifying in a workers' compensation proceedings. The ARB also noted that even if Complainant's mental condition was a basis for equitable tolling, he would still face an additional hurtle in that he was represented by counsel during the relevant period.

TIMELINESS; APPLICATION OF EQUITABLE PRINCIPLES; FRAUDULENT CONCEALMENT
[N/E Digest IV B 2]

In Hill v. United States Dept. of Labor , 65 F.3d 1331 (6th Cir. 1995), the court held that the limitations period in Section 210 of the Energy Reorganization Act (now Section 211), is not jurisdictional, and may be extended when fairness requires. Equitable principles may be applied when a defendant fraudulently conceals its actions, misleading the plaintiff respecting his or her cause of action. To establish a fraudulent concealment to avoid a statute of limitations, the plaintiff must prove (1) wrongful concealment by the defendants of their actions; (2) failure of the plaintiff to discover the operative facts that are the basis of the cause of action within the limitations period; and (3) the plaintiff's due diligence until discovery of the facts. The party relying on equitable tolling through fraudulent concealment has the burden of demonstrating its applicability; such an equitable remedy is narrowly applied because statutes of limitation are vital to society's welfare and are favored in the law.

The court noted that a claim of fraudulent concealment is technically not for equitable tolling but of equitable estoppel.

Concealment of motives versus concealment of actions

In Hill , the Complainants asserted that, as a matter of law, equitable tolling applies where the defendant concealed the motives for its actions, even though the essential elements of a claim are known. The Secretary had concluded otherwise -- that equitable tolling applies only when a respondent concealed its actions giving rise to a cause of action, and not to concealment of motives. The court agreed with the Secretary, holding that "[a] deception regarding motive supports application of equitable tolling only where the deception conceals the very fact of discrimination. . . . Equitable tolling through fraudulent concealment is not warranted where a petitioner is aware of all the essential facts constituting discriminatory treatment but lacks direct knowledge or evidence of the defendant's subjective discriminatory motive." Hill , 65 F.3d at 1337 (citations omitted).

Discovery of operative facts within limitations period.

In Hill , the court found that the Complainants failed to establish that they had failed to discover the operative facts upon which they based their claim within the limitations period. The Complainants were employed by the Respondent (TVA) to investigate and report nuclear safety concerns. Thus, they knew they had been engaged in protected activity, that the Respondent was aware of the protected activity, and that the Respondent had taken adverse action against them in terminating their contract. The court held that this information alone was sufficient to cause a reasonable mind (much less an expert on § 210 which Complainants held themselves out to be), to suspect that the Respondent's adverse actions might be in retaliation for the protected activity. Additional factors, inter alia, were the circumstances surrounding the Respondent's employment of the Complainant's employer as an intermediary between the Respondent and the NRC (which included a concern that the Respondent might retaliate against employees for reporting safety concerns), the economic impact of Complainant's employers's reports of preventing the opening of Respondent's Watts Bar facility, and knowledge that the Respondent had complained about the Complainant's employer's reporting of safety concerns to Congress.

The court repeated an earlier holding that "To hold that a tolling or suspension of the limitation of actions must continue unless or until proof positive existed of a wrong (which might never be established in fact) would abort the policy of the law of repose in statutes of limitations of diligence in the equitable principles permitting suspension of them."" Hill , 65 F.3d at 1338, quoting Pinney Dock & Transp. Co. v. Penn Central Corp. , 838 F.2d 1445, 1478 (6th Cir. 19xx), cert. denied , 488 U.S. 880 (1988).

Due diligence

The court found that the Complainants failed to demonstrate due diligence, there being evidence that the Complainants were in fact, or should have been, suspicious of retaliatory motive. The court wrote that [i]n order for a fraudulent concealment claim to prevail, a plaintiff must prove that the defendant's attempts to mislead the plaintiff actually succeeded. Hill , 65 F.3d at 1338 (citation omitted).

The Complainants argued that just because they disagreed with the Respondent's reasons for terminating their employer's contract does not mean they were aware that the reasons were pretextual. The court found that this argument missed the point: they had sufficient facts at the time to evaluate the propriety of the reasons, and had a legal duty to investigate whether the Respondent acted on illegal motivations.

[Nuclear & Environmental Whistleblower Digest IV B 3]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; MERE FACT THAT COMPLAINTS FILED IN OTHER FORUMS INVOLVED ACTIVITY THAT MAY BE RELEVANT TO CAA WHISTLEBLOWER CLAIM IS INSUFFICIENT TO ESTABLISH FILING OF PRECISE STATUTORY CLAIM IN THE WRONG FORUM

In Udofot v. NASA/Goddard Space Center , ARB No. 10-027, ALJ No. 2009-CAA-7 (ARB Dec. 20, 2011), although the Complainant filed work-safety complaints with other entities involving activity that may be relevant to a CAA whistleblower claim, his claims filed with the EEOC and MSPB were clearly intended to address other statutes, and thus the filing of those claims did not constitute the filing of the precise statutory claim filed in the wrong forum that would warrant equitable modification of the CAA timeliness requirement. In addition, the Complainant's alternative argument that the CAA claim should be equitably tolled because he was not aware of his right to file a CAA whistleblower claim until after the limitations period had expired undercut any argument that he filed his CAA claim timely but erroneously in the wrong forum.

[Nuclear and Environmental Whistleblower Digest IV B 3]

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM; COMPLAINT IN WRONG FORUM MUST BE TIMELY AND RAISE PRECISE STATUTORY CLAIM; IGNORANCE OF THE LAW DOES NOT WARRANT TOLLING; RESPONDENT DOES NOT HAVE A LEGAL OBLIGATION TO NOTIFY COMPLAINANT OF WHISTLEBLOWER RIGHTS

In Schafermeyer v. Blue Grass Army Depot , ARB No. 07-082, ALJ No. 2007-CAA-1 (ARB Sept. 30, 2008), the Complainant filed a complaint with the MSPB 36 days after he was notified that he would be discharged. The MSPB ALJ informed the Complainant that his MSPB complaint would be dismissed because he was a probationary employee, and that he should have filed his complaint under OSHA's whistleblower protection program. Thereafter, the Complainant voluntarily dismissed his MSPB complaint and filed a whistleblower complaint with OSHA under the SWDA and the CAA. By that time, 105 days had passed since he had been discharged.

The ARB held that the Complainant was not entitled to equitable tolling under the "wrong forum" tolling element of School Dist. of Allentown 657 F.2d 16, 20 (3d Cir. 1981), because that tolling provision required that the filing in the wrong forum itself be timely. In the instant case, the complaint was filed with the MSPB 36 days after the discharge. The limitations period for the SWDA and the CAA was only 30 days.

oreover, even if the complaint had been timely filed at the MSPB, the ARB found that it did not raise the precise statutory claim in the wrong forum. The Complainant did not know that he had a potential cause of action under the environmental statutes until the MSPB ALJ so informed him, so this was not a case in which the Complainant intended to file an environmental whistleblower complaint but merely did so in the wrong forum. The ARB was not persuaded by the Complainant's argument that even though he did not intentionally file a CAA or SWDA complaint, the MSPB complaint nonetheless raised such a precise claim. The ARB found nothing in the MSPB complaint presenting a simple statement that he was entitled to relief because of protected activity under the environmental whistleblower statutes, that the Respondent knew of those activities, and consequently terminated his employment. The ARB held that the MSPB complaint was insufficient to put the Respondent on notice that the Complainant was asserting a claim of whistleblower discrimination against it under the environmental protection acts.

The ARB rejected the Complainant's claim that equitable tolling should be applied because he was diligent in the absence of actual or constructive knowledge of the limitations period, and because the Respondent had only notified him of the right to file a MSPB complaint. The ARB found that ignorance of the law is not sufficient, standing alone, to warrant equitable tolling; that there was no argument that the Respondent actively misled the Complainant from seeking legal advice; and that the Respondent was under no legal obligation to inform the Complainant of any environmental whistleblower rights.

[Nuclear and Environmental Whistleblower Digest IV B 3]
EQUITABLE TOLLING; PRECISE CLAIM IN WRONG FORUM; LENGTH OF TIME TO FILE IN CORRECT FORUM AFTER DISMISSAL IN WRONG FORUM

In Immanuel v. The Railway Market , ARB No. 04-062. 2002-CAA-20 (ARB Dec. 30, 2005), it was assumed, for purposes of disposing of the case, that the Complainant's state agency filing raised the precise statutory claim in issue, but was mistakenly filed in the wrong forum - therefore tolling the 30-day limitations period of the environmental whistleblower acts. The issue decided on appeal was how much time a complainant has to file in the correct forum once a complaint that has been filed in the wrong forum is dismissed. Citing Burnett v. New York Cent. R.R. Co. , 380 U.S. 424 (1965) and Crown Cork & Seal Co., Inc. v. Parker , 462 U.S. 345 (1983), the Board held that the Complainant had no more than 30 days within which to file his environmental whistleblower complaint with OSHA after the state agency dismissed his claim. Since the Complainant did not do so for 73 days, the OSHA complaint was untimely.

IV B 3 No documentation of timely filing with other agency

In Gabbrielli v. Enertech, 92-ERA-51 (Sec'y July 13, 1993), Complainant contended that because of his personal problems and Respondent's misleading behavior, he did not realize until October 1991 that Respondent had a retaliatory motive for his "layoff."

According to Complainant, when he was terminated in January 1989, Complainant believed that it was because of the lack of work; he contacted Respondent several times each year about new contract opportunities and was cordially told that he would be welcome to any work that became available; in October 1991, however, he was told that Respondent's president would not rehire Complainant. Only then did he realize that protected activity was the actual reason for his termination.

The Secretary held that it was clear that Complainant's divorce and personal problems could not justify his delay in filing, but that it was less clear whether assurances of new work when available would modify the limitations period (noting that this was not a quid-pro-quo forbearance or deliberate misleading situation). The Secretary found that by August 1990 Complainant knew or should have discovered the falsity of the misstatements or the concealment that he alleges caused him to delay. In August 1990, Complainant learned that his vacant job had been filed almost immediately. This fact, together with "the assertive letter Complainant wrote to Respondent prior to his termination," convinced the Secretary that Complainant, perhaps distracted by his personal problems, "did not act diligently to evaluate the propriety of the reason for his termination upon obtaining sufficient information to question it."

[Editor's note: This finding was contrary to the ALJ's finding that Respondent lulled Complainant with false assurances until October 10, 1991].

Regardless of whether the filing period was tolled until October 1991, the complaint was time barred. Although Complainant claimed that he contacted the resident inspector of the NRC within a week of realizing Respondent's motive, and thought he had initiated the process, the Secretary held that this did not fall with the narrow category of cases that permit tolling because the employee raised the precise statutory claim in issue mistakenly in the wrong forum." The Secretary distinguished the case of Sawyers v. Baldwin Union Free School District, 85-TSC-1 (Sec'y Oct. 5, 1988), on the ground that in Sawyers the filing period was tolled because the record showed that a timely complaint, sufficient under the whistleblower statute and regulations at 29 C.F.R. § 24.3 had been filed with the wrong agency, while there was no such documentation in evidence in the instant proceeding. In addition, the Secretary noted that Respondent received timely notice of the specific statutory claim that was subsequently asserted by Complainant. Thus, Respondent was denied the protection which the expeditious time frame was intended to provide.

[Nuclear & Environmental Whistleblower Digest IV B 3]
TIMELINESS OF COMPLAINT; WRONG FORUM GROUND FOR EQUITABLE TOLLING; ABSENCE OF WRITTEN COMPLAINT

In Stapleton v. Harris Teeter, Inc. , 2004 CAA 3 (ALJ Mar. 3, 2004), the ALJ recommended against invocation of equitable tolling where the only timely contact the Complainant made was a telephone call to either the North Carolina Department of Labor or the EPA, with no filing of any form of written complaint. The only evidence of a written complaint was a filing with OSHA 14 days beyond the limitations period.

[Nuclear & Environmental Digest IV B 3]
TIMELINESS; WRONG FORUM

In Amato v. Assured Transportation & Delivery, Inc. , 1998-TSC-6 (ALJ Sept. 16, 1998), the ALJ recommended a finding that, although Complainant's complaint was not filed with OSHA within 30 days after his termination from employment by Respondent, it was filed within 30 days with the State of California Department of Industrial Relations, and therefore must be considered as sufficient to equitably toll the 30-day time limitations of the TSCA as a complaint filed within 30 days but in the wrong forum.

[Nuclear & Environmental Digest IV B 3]
TIMELINESS; FILING WITH MSPB INSTEAD OF DOL DOES NOT FIT WITHIN WRONG FORUM EQUITABLE TOLLING EXCEPTION

Where Complainant filed an appeal with the Merit Systems Protection Board (MSPB) of a notice of proposed removal, the ALJ, in a recommended decision on Respondent's motion for summary decision, rejected Complainant's contention that the "wrong forum" equitable tolling exception was invoked to toll the CAA limitations period for filing a whistleblower complaint. The ALJ found that "[t]he MSPB is not a 'wrong forum' but merely a different remedial forum." Slip op. at 4. Rockefeller v. U.S. Dept. of Energy ,1998-CAA-10 and 11 (ALJ Sept. 28, 1998).

[N/E Digest IV B 3]
EQUITABLE TOLLING; COMPLAINANT DID NOT "MISTAKENLY" FILE IN THE WRONG FORUM

In Wood v. Lockheed Martin Energy Systems , 97-ERA-58 (ARB May 14, 1998), the ALJ had concluded that the complaint filed with DOL was untimely, and then considered whether equitable tolling applied because Complainant had filed a timely complaint with DOE. Since there was no evidence that Complainant filed with DOE by mistake, he concluded that equitable tolling was not applicable. Rather, it appeared that Complainant had become dissatisfied with the DOE process and therefore decided to file with DOL. The ARB quoted this portion of the ALJ's recommended decision; however, Complainant had petitioned for voluntary dismissal of the DOL complaint before the ARB so that he could pursue his DOE complaint. Thus, the ARB granted Complainant's motion for voluntary dismissal and did not rule expressly on the ALJ's holding on the timeliness issue.

[N/E Digest IV B 3]
TIMELINESS; TOLLING BASED ON PRECISE STATUTORY CLAIM IN ISSUE IN WRONG FORUM

In Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3 (ARB May 28, 1997), Complainant had distributed leaflets at a company picnic containing various grievances and seeking to unionize. Following his discharge, he sent a letter to a state agency as follows:

    I am enclosing a copy of the letter I distributed on 7-25-93 (Sunday), later that week 7-30-93 (Friday) I was terminated from job.
    #1 listed in the letter pertains to certain environmental problems relating to the Blades Plant.

    But a major one at all plants would be of drum cleanout after cement delivery.

       Any Question Please Call

       Thanks

    Henry Immanuel

The ALJ found that this did not "raise the precise statutory claim that section 507 of the WPCA had been violated, even though a lawyer may see in them the basis for filing a complaint." The ALJ interpreted the letter as merely having "the appearance of a citizen's report of a possible law violation."

The Board disagreed, finding that the letter sufficiently connected Complainant's termination of employment with whistleblowing activity. The Board held that the letter was "not rendered defective as a complaint because it does not allege a violation of the employee protection provisions of any statute, state or federal, and does not seek any relief.'" Slip op. at 5, quoting ALJ's recommended decision at 5. The Board concluded that complainants who file without assistance of legal counsel should be afforded broad latitude in framing the contents of their complaints.

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM
[N/E Digest IV B 3]

In Lawrence v. City of Andalusia Waste Water Treatment Facility , 95-WPC-6 (ARB Sept. 23, 1996), Complainants, prior to filing a FWPCA complaint with the Wage and Hour Division of the USDOL, pursued an internal Pre-Determination hearing and appeal regarding Respondent's intention to terminate their employment. The Wage and Hour filing was outside the 30-day limitations period of the FWPCA, but Complainants asserted that equitable tolling should be applied pursuant to School Dist. of Allentown v. Marshall , 657 F.2d 16 (3d Cir. 1981). The Board held that summary decision was properly granted against Complainants where they offered no proof that they pursued their FWPCA claims before the City Commission, and they did not allege that they thought they were in the correct forum to make a claim for discrimination under the FWPCA.

The Board also noted that Complainants had been represented by counsel in the Pre-Determination hearing, and that where a plaintiff is represented by counsel, equitable tolling is generally not applied. The Board found "no reason to stray from the general rule in this matter." Slip op. at 2.

TIMELINESS OF COMPLAINT; INTERPRETATION OF "PRECISE STATUTORY CLAIM" FOR EQUITABLE TOLLING
[N/E Digest IV B 3]

Where the Complainant contacted a state environmental agency and a local OSHA office rather than the Wage and Hour Division within the statutory period for filing of a whistleblower complaint and gave them an account of what was going on, the ALJ concluded that these contacts did not constitute a ground for equitable tolling because the accounts did not raise the precise statutory claim, even though a lawyer might have seen in them the basis for filing a FWPCA complaint. Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3 (ALJ Oct. 24, 1995).

To the same effect > Lawrence v. City of Andalusia Waste Water Treatment Facility , 95-WPC-6 (ALJ Dec. 13, 1995)(mere raising of factual circumstances is not the same as raising the precise statutory claim).

IV B 3 Filing in wrong forum; MSPB

IV B 3 Wrong forum; complaint must relate to alleged discriminatory retaliation

In Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), the ALJ allowed the complainant to amend his complaint to substantiate whether he had filed the exact statutory claim in issue, albeit in the wrong forum (the NRC). Slip op. at 4. In the amended complaint, the complainant attached the full report of the NRC and stated that he recalled telling the inspector of each "Concern" listed, except Concern No. 12. The Secretary on review held that since the remaining concerns listed in the report focus on technical violations by the respondent and did not in any way address the alleged discriminatory acts at issue in the case before DOL, the complainant had failed to establish that he had raised the precise statutory claim. Slip op. at 7-8.

IV B 3 Precise statutory claim in wrong forum

Where the complainant stated in an affidavit that "[t]he reason I complained to the U.S. Nuclear Regulatory Commission was because of my duty as a professional nuclear engineer. . . .I did not raise concerns with the NRC to obtain protection for my employment," he failed to establish that he filed the precise statutory claim in the wrong forum for purposes of equitable tolling of the ERA period for filing a whistleblower complaint. The complaint filed with the NRC was also outside of the ERA filing period. See Rose v. Nuclear Fuel Services, Inc., 87-ERA-19 (Sec'y June 29, 1990), slip op. at 2-3, aff'd sub nom. Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991); Lastre v. Veterans Administration Lakeside Medical Center, 87-ERA-42 (Sec'y Mar. 31, 1988), slip op. at 4.

Harrison v. Stone & Webster Engineering Corp., 91-ERA-21 (Sec'y Oct. 6, 1992).

IV B 3 Relief through alternative measures

In Cox v. Radiology Consulting Associates , 86-ERA-17 (ALJ Aug. 22, 1986), the ALJ found that the complaint had not been timely filed. The Complainant argued that the statute of limitations should be tolled for equitable considerations because he first sought redress by requesting a hearing with the executive staff of the Respondent. The ALJ found, however, that the Complainant did not allege that he mistakenly went to the wrong forum for relief. Rather, the ALJ held that the fact that relief was sought through alternative measures did not justify the application of equitable tolling. The Secretary adopted the ALJ's findings. See Cox v. Radiology Consulting Associates, Inc. , 86-ERA-17 (Sec'y Nov. 6, 1986).

IV B 3 Filing in wrong forum does not toll where the filing was untimely in any case

The timely filing of a complaint raising the precise statutory claim in the wrong forum, i.e., with the wrong government agency, may toll the ERA limitations period for filing a complaint. See Hicks v. Colonial Motor Freight Lines, 84-STA-20 (Sec'y Dec. 10, 1985), slip op. at 8; Dartey v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 6 n.1.

In Lastre v. Veterans Administration Lakeside Medical Center, 87-ERA-42 (Sec'y Mar. 31, 1988), the complainant filed a standard form entitled "Complaint of Discrimination in the Federal Government" with the respondent's Equal Employment Opportunity complaint processing system, which included a narrative that included the complainant's claim of retaliation for reporting misuse of radioactive materials -- a description which would be sufficient as a complaint under the ERA. The wrong forum tolling exception, however, was not applicable because the record indicated that the complainant's narrative was filed eight days after the end of the ERA filing period. Thus, the complaint was simply untimely, even if filing a legally sufficient complaint with the wrong agency would toll the statute: the time for filing had already expired.

IV B 3 Wrong forum

In Dartey v. Zack Co. of Chicago, 82-ERA-2 (ALJ Jan. 29, 1982), (prehearing order denying motion to dismiss), adopted (Sec'y Apr. 25, 1983), the ALJ in denying a motion to dismiss concluded that the purpose of the employee protection provision of the ERA's very short time limitations was primarily "not to prevent the prosecution of stale claims, but rather to provide a quick and efficacious remedy for an employee who may have been wrongfully thrown out of a job." Hence, the ALJ found that Complainant's filing with OSHA rather than Wage & Hour was a timely filing and that OSHA's memorandum of the complaint satisfied the "in writing" requirement. oreover, the ALJ noted that the OSHA whistleblower section Complainant did file under is, for all practical purposes, much the same as section 5851, and that Respondent was fully apprised of that filing within 30 days of Complainant's suspension.

In addition, although the DOL did not comply with the 90-day provision for disposition of the claim, he ruled that "[t]he expedited procedure is designed to minimize the hardship that might result to the employee, not to provide a technical "out" for the employer." The ALJ dismissed Respondent's contention that it was prejudiced by the resignation of a material witness because no showing had been made that he was no longer available.

The Secretary, in approving and adopting this ruling, added that in addition to the ALJ's conclusion that filing in the wrong office of the right agency is not fatal, the filing with the wrong agency by a layman who has not slept on his rights can also toll a statute of limitations. Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at n.1.

IV B 3 Wrong forum; complainant must have been raising retaliation complaint

In Hannel v. Midwest Industries, Inc., 85-TSC-3 (ALJ Sept. 27, 1985), Complainant's wife contacted the Iowa Department of Water, Air and Waste Management (IDWAWM) on November 30, 1984 regarding fears of contamination of drinking water by Complainant's employer, the Respondent. IDWAWM investigated, and on December 11, 1984, Respondent admitted that it had been dumping acetone in the county landfill for two years. On January 11, 1985, Complainant was laid off, allegedly for lack of work. Complainant filed his complaint on March 29, 1985. Complainant's wife had contacted IDWAWM by telephone concerning the lay off on January 1, 1985.

Complainant maintained that he raised the precise issue in the wrong forum and was entitled to equitable tolling of the TSCA employee protection filing period. The ALJ ruled, however, that since Complainant testified that he was not aware of legal protection for retaliatory actions taken against employees who report violations of the TSCA by their employers, Complainant could not have raised the precise issue in the wrong forum. Hence, the complaint was time barred.

IV B 3 Equitable tolling based on contact with NRC within 30 days of adverse action

Where the complainants contacted NRC within 30 days of the adverse action, but filed no written complaints, the principle that permits equitable tolling where an employee files the precise claim in the wrong forum was not applicable. See generally, Kelly v. Flav-O_Rich, Inc., 90-STA-14 (Sec'y May 22, 1991), slip op. at 2; 29 C.F.R. § 24.3.(c). The Secretary noted that the complainants did not allege that they were mislead by the respondent or the DOL. She agreed with the ALJ's finding that the NRC investigator did not actively mislead or lull the complainants into inaction. McNally v. Georgia Power Co., 85-ERA-27, 29-32 (Sec'y Sept. 8, 1992).

IV B 3 Wrong forum

In Sawyers v. Baldwin Union Free School District, 88-TSC-1 (Sec'y Oct. 5, 1988), the Secretary held that a Complainant who had filed his whistleblower complaint with the EPA was entitled to the doctrine of equitable tolling as specifically applied in School District of the City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981).

IV B 3 Inappropriate to invoke equitable tolling where letter to wrong forum did not invoke a safety concern

Where the Complainant mailed a copy of his resignation letter to the NRC alleging racial discrimination, and the NRC had responded informing the Complainant that he had 30 days from the date of the alleged discriminatory act to file a written complaint under the ERA with the DOL, the Secretary of Labor found that equitable tolling based on mistakenly filing the precise statutory claim in the wrong forum was not appropriate because quality concerns were not raised in the resignation letter. Grover v. Houston Lighting & Power, 93-ERA-4 (Sec'y Mar. 16, 1995).

4 c 1
IV C 1 Awareness of discrimination

    [Complainant] contends that Alyeska's notice of termination did not disclose the discriminatory reason for the termination, stating instead that the termination was for cause. But since employers rarely if ever tell employees they are being subjected to adverse action for reasons which are in violation of the law, holding that there is equitable tolling because an employer informs the employee of a different reason for an adverse action would virtually eliminate the periods of limitation in the various environmental statutes at issue in this case. Congress could not have intended such a result.

* * *

    The cases that have applied equitable tolling to a statute of limitations in discrimination cases have been cases in which the employer was found to have misled the employee into believing he or she has no cause of action. For example, in McConnell v. General Telephone Co., 814 F.2d 1311 (9th Cir. 1987), cert. denied sub nom., General Telephone Co. v. Addy, 484 U.S. 1059, 108 S. Ct. 1013 (1988), the employer misled the employee into believing he had been temporarily laid off rather than terminated. Similarly, in Charles A. Kent, 84-WPC-2, 1 O.A.A. 2, at 442 (Remand Decision and Order of Secretary of Labor, april 6, 1987), and Reeb v. Economic Opportunity Atlanta Inc., 516 F.2d 924 (5th Cir. 1975), the employees were misled by the employers into believing they had not been terminated. In all these cases, since the employees were misled into believing that no adverse action had been taken against them, they could not have been aware that a cause of action existed.

* * *

    Therefore, Alyeska's failure to inform [Complainant] that he was being terminated for leaking company documents to Hamel [a well-known critic of Alyeska] is not evidence that Alyeska actively misled [Complainant] respecting the cause of action.

Slip op. at 34-36.
The ALJ also addressed Complainant's contention that even if he was not misled, equitable tolling is appropriate until he become aware, or reasonably should have become aware, that he was a victim of discrimination. The ALJ, however, found that the castile indicates that equitable tolling is appropriate only until a complainant becomes aware, or reasonable should have become aware, of the discriminatory act -- not to the knowledge of the employer's illegal motive for the act. See McGough v. United States Navy, ROICC, 86-ERA-18, 19, 20 (Sec'y June 30, 1988).

4 c 1
IV C 1 Interest of justice

Where the Complainant argued for a waiver of the ERA's statute of limitations "in the interest of justice", the Secretary stated that such waiver or equitable tolling is an extraordinary remedy and is not a method to preserve a claim "out of a vague sympathy for particular litigants." Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990), quoting Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984), and also citing Barnes v. Hillhaven Rehabilitation & Convalescent Center, 686 F. Supp. 311, 314 (N.D. Ga. 1988).

IV C 1 Ends of justice

Justice does not require the tolling of limitations period based on the policy of not discouraging reporting of safety violations In response to a complainant's argument that justice requires the tolling of the limitations period because he was fired for engaging in protected activity, and not allowing him his day in court will function to discourage others from reporting safety violations to the NRC, the court expressed sympathy, but found that the Secretary did not err in relying upon School District of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981). In that case the court stated:

The choice of the appropriate time [for filing actions] is not entrusted to the administrative agency or to the courts. It is the result of legislative determinations made after weighing the various interests at stake. Obviously, Congress intended that complaints be made and resolved within a very short time after the alleged violation occurred. It is not for us or the Secretary to casually ignore the statutory limitation.

School District at 20.

Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).

[Nuclear & Environmental Whistleblower Digest IV C 2]
TIMELINESS OF ERA WHISTLEBLOWER COMPLAINT; ERA REGULATIONS REQUIRE A POSTING CONCERNING THE LAW, AND PROVIDE THAT FAILURE TO POST CAN AFFECT THE LIMITATIONS PERIOD FOR FILING AN ERA COMPLAINT

In McGowan v. Bechtel National, Inc. , ARB No. 12-094, ALJ No. 2012-ERA-9 (ARB Feb. 28, 2014), the Complainant filed an ERA whistleblower complaint. Before the ALJ, the Respondent filed a motion to dismiss based on the complaint not having been timely filed. After issuing an order to show cause, the ALJ granted the motion to dismiss. On appeal, the ARB found that the ALJ erred because he failed to address the Complainant's argument that the Respondent failed to post the ERA whistleblower law as required by 29 C.F.R. § 24.102(d)(1) and (2). Section 24.102(d)(1) requires that companies that fall within the scope of the Act post a notice that explains the whistleblower Act and regulations. Section 24.102(d)(2) provides that failure to comply with the posting requirement can affect the limitations period for filing a complaint with OSHA. That section provides:

Where the notice required by paragraph (d)(1) of this section has not been posted, the requirement in 24.103(d)(2) that a complaint be filed with the Assistant Secretary 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. If it is established that the notice was posted at the employee's place of employment after the alleged retaliatory action occurred or that the complainant later obtained knowledge of the provisions of the notice, the 180-days will ordinarily run from whichever of those dates is relevant.

The ARB thus remanded the case to the ALJ to determine whether the Respondent complied with the posting requirement, and if not, "whether this noncompliance rendered the 180-day requirement for McGowan to file his ERA complaint with OSHA inoperative, or whether McGowan's OSHA complaint is timely based on his 'later obtained knowledge of the provisions of the notice.'" USDOL/OALJ Reporter at 4.

[Nuclear & Environmental Whistleblower Digest IV C 2]
TIMELINESS OF COMPLAINT; FAILURE OF RESPONDENT TO NOTIFY COMPLAINANT OF THE EMPLOYEE PROTECTION PROVISION OF THE CAA AT THE TIME OF TERMINATION OF EMPLOYMENT IS NOT GROUNDS FOR EQUITABLE ESTOPPEL

In Udofot v. NASA/Goddard Space Center , ARB No. 10-027, ALJ No. 2009-CAA-7 (ARB Dec. 20, 2011), the Respondent gave the Complainant notice of his appeal rights with the Merit Systems Protection Board and the Equal Opportunity Office when it terminated the Complainant's employment. The Complainant argued that equitable estoppel should be applied to his untimely CAA whistleblower claim because the Respondent failed to inform him of the CAA when it terminated him. The ARB, however, found that a respondent is not obligated to inform a complainant of all his potential causes of action, citing its decision in Daryanani v. Royal & Sun Alliance , ARB No. 08-106, ALJ No. 2007-SOX-79, slip op. at 6 (ARB May 27, 2010).

IV C 2 Failure of complainant to read notice

The doctrine of equitable tolling is narrowly applied and focuses on the complainant's excusable ignorance of his or her statutory rights as a reason to modify the limitations period. See Kale v. Combined Insurance Company of America, 861 F.2d 746, 752 (1st Cir. 1988); Andrews v. Orr, 851 F.2d 146, 150-151 (6th Cir. 1988); School District of the City of Allentown v. arshall, 657 F.2d 16, 19-20 (3d Cir. 1981); Tracy v. Consolidated Edison Co., 89-CAA-1 (Sec'y July 8, 1992), slip op. at 5-8. Ignorance of the filing requirements under the ERA and failure to read the notice posted by the employer, are not sufficient to toll the filing period and excuse the untimely filing of a complaint. See Kale at 753-754; School District of Allentown at 19-20.

Harrison v. Stone & Webster Engineering Corp., 91- ERA-21 (Sec'y Oct. 6, 1992).

IV C 2 Relevance of amendment of posting of notice regulations to Employer's prior behavior

In 1982, 10 CFR Part 19 and NRC Form 3, were amended to add information about an employee's right to protection against certain forms of discrimination and telephone numbers for employees to call in order to contact the DOL. Where a complainant argued that the addition of the notice requirement in 1982 was an "implicit admission" that the prior notice required under the regulations was inadequate, the very fact that no such notice was required cannot result in an indictment of the employer's behavior. The fact that the regulations now provide for more effective notice to employees through posting the revised regulations does not have any legal bearing on whether prior notice was inadequate. Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).

IV C 2 Equitable tolling based on respondent's failure to post notice of ERA whistleblower rights

In McNally v. Georgia Power Co., 85-ERA-27, 29-32 (Sec'y Sept. 8, 1992), the complainants cited Charlier v. S.C. Johnson and Son, Inc., 556 F.2d 761 (5th Cir. 1977), reh'g denied, 559 F.2d 1217 (5th Cir. 1911), and other cases arising under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, in support of their argument that their late filings should be tolled until they first learned of their rights under the ERA, because the respondent allegedly failed to post adequate notice of employees' rights under section 210 of the ERA. The Secretary rejected the argument, and found the complaints not to be timely. She held:

The ADEA cases cited were based on a posting obligation imposed by the statute itself; an obligation not imposed by the ERA. Even assuming failure to post in compliance with NRC regulations is a basis for equitable tolling, the complainants failed to show that the respondents failed to comply with those regulations.

In addition, several of the complainants had general knowledge of the right not to be discriminated against, which under ADEA case law prevents the tolling of the filing period even where the employer failed to post the requisite notice. See Kale v. Combined Insurance Co. of America, 861 F.2d 746, 753 (1st Cir. 1988); McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1486-87 (11th Cir. 1984).

IV C 2 At best, lack of posting tolls only until actual or constructive knowledge of rights

In Gabbrielli v. Enertech, 92-ERA-51 (Sec'y July 13, 1993), Complainant contended that he was entitled to equitable tolling because Respondent never posted an NRC Form 3 notice of his whistleblower rights.

Declining to rule on whether there was a legal duty to post the form, the Secretary held that under the circumstances the failure to post could not provide a basis for equitable modification considering the Secretary's position on posting issues that is based on cases arising under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982). See Harrison v. Stone & Webster Engineering Corp., 91-ERA-21 (Sec'y Oct. 6, 1992); McNally v. Georgia Power Co., 85- ERA-27 (Sec'y Sept. 8, 1992). Under the ADEA, the courts have held that an employer's failure to comply with posting requirements tolls the limitations period only unless or until the employee acquires actual or constructive knowledge of his ADEA rights, e.g., until the employee acquires general knowledge of his right not to be discriminated against on account of age, or until he has the means of obtaining that knowledge, such as by viewing the informational poster somewhere outside the place of employment. [citations omitted].

IV C 3. Ignorance of filing requirement

Harrison v. Stone & Webster Engineering Corp., 91- ERA-21 (Sec'y Oct. 6, 1992).

EQUITABLE TOLLING; DUE DILIGENCE REQUIREMENT; REASONABLE PERSON TEST
[N/E Digest IV C 3]

The ERA limitations period is not jurisdictional and is subject to modification, for example by equitable tolling which "permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim." Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir. 1990), cert. denied, 501 U.S. 1261 (1991) (Age Discrimination in Employment Act of 1967). Where the Complainant was injured in July 1990 to the extent that he had not been offered a job, but he did not necessarily know that the injury was due to wrongdoing on the part of the Respondent until he, with due diligence, proceeded to obtain information suggesting that he had not received impartial consideration, equitable tolling was applied. The Secretary applied a reasonable person test in regard to whether a person in the complainant's position would have known that the injury was related to retaliation, noted that equitable tolling can suspend the running of the statute of limitations for such time as was reasonable necessary to conduct an inquiry, and observed that a complainant only need be aware of a possible violation. Bausemer v. TU Electric, 91-ERA-20 (Sec'y Oct. 31, 1995).

IV C 3 Ignorance of the law not an excuse

Ignorance of legal rights, or failure to seek legal advice, does not toll a statute of limitations. [Citations omitted] Regardless of actual knowledge, "everyone is charged with knowledge of the United States Statutes . . . ." Federal Crop Issuance Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990).

IV C 3 Ignorance of filing period

It is well settled that ignorance of the ERA filing period alone is not sufficient to warrant equitable tolling. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); School District of the City of Allentown v. Marshall, 657 F.2d 16, 21 (6th Cir. 1981). Hancock v. Nuclear Assurance Corp., 91-ERA-33 (Sec'y Nov. 2, 1992), slip op. at n3.

IV C 3 Ignorance of the law

Kang v. Department of Veterans Affairs Medical Center , 1992-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.

IV C 3 Ignorance of limitations period

Ignorance of the ERA time limits for filing a whistleblower complaint does not toll the limitations period. Gabbrielli v. Enertech, 92-ERA-51 (Sec'y July 13, 1993).

IV C 3 Equitable tolling

School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981).

The Secretary of Labor relied upon the theory of equitable tolling to excuse the late filing which the court recognized may be appropriate when the defendant has actively misled the plaintiff or the plaintiff has been prevented from asserting his rights or the plaintiff has raised the precise statutory claim but has done so in the wrong forum. Since the "naked reason" for the late filing was a lack of knowledge about the remedy, equitable tolling cannot be invoked. The court held that making the lack of prejudice to the School District determinative in permitting the late filing, as the Secretary did, was error because the choice of time limits is a legislative determination which agency's are not empowered to change.

IV C 3 Ignorance of the law

Ignorance of the law and administrative delay by the NRC are not grounds for equitable tolling the ERA limitations period for filing a complaint. Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op. at 8.

IV C 4 Wage and Hour misinformation

In Mitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y July 22, 1993), Complainant asserted that equitable estoppel should be employed to extend or waive the filing period for his ERA complaint in view of misinformation he received from various Wage and Hour offices during the filing period.

The Secretary found that Complainant's testimony about purported telephone conversations with various unknown agency employees was not "admissible" because such it can neither be verified nor disputed. [Citations omitted]

Even assuming arguendo that such testimony was admissible, it reflected a lack of diligence on the part of Complainant. The evidence failed to indicate that his telephone call were sufficiently clear and understandable so as to elicit a correct and proper response for the processing of his complaint. The Secretary explained:

These short, obscure calls were probably answered in the normal course of business by secretaries, clerks, receptionists or other clerical employees . . . who cannot be faulted for not understanding the meaning of "quality concerns" in the context of this case and their relationship to discrimination and whistleblowing under the ERA in general.

In addition, Complainant made no efforts to reach agency staff professionals or others with greater knowledge, authority, or expertise who would understand or decipher what he was talking about. . . . At no time did he visit a Wage and Hour Division office to seek out someone in authority to present his problem and request assistance in preparing and filing a written complaint. * * *

Further, even assuming arguendo that Wage and Hour's conduct was negligent or substandard, estoppel generally cannot be applied against the Government except in cases of affirmative misconduct -- not mere negligence. [citations omitted] Complainant did not demonstrate affirmative misconduct.

[Nuclear & Environmental Digest IV C 4]
TIMELINESS OF FILING; ARGUMENT THAT NRC FAILED TO INVESTIGATE PROMPTLY AND INFORM COMPLAINANT OF DOL COMPLAINT PROCEDURE

In Foley v. Boston Edison Co. , ARB No. 99-022, ALJ No. 1997-ERA-56 (ARB Jan. 31, 2001), Complainant argued that he had informed the NRC of his safety concerns in 1995 and, that if the NRC had conducted a prompt investigation, it might have assisted him in filing a timely complaint with DOL. The ARB held that absent a showing that the NRC's actions somehow prevented Complainant from exercising his right to file a complaint, it would not equitably toll the limitations period.

[Nuclear & Environmental Digest IV C 4]
TIMELINESS; ORAL COMMENT IN MEETING WITH EPA EMPLOYEE

In Rockefeller v. U.S. Dept. of Energy , 1998-CAA-10 and 11 (ALJ Sept. 28, 1998), Complainant asserted that he was entitled to equitable tolling of the limitations period because he had made a comment at a public meeting being conducted by an EPA agent, and the EPA should have told him to file a complaint with DOL. The ALJ found this contention to be without merit.

IV C 4 TVA's late notification of lack of jurisdiction

In Mitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y July 22, 1993), TVA's late notification after the filing period had elapsed that it lacked jurisdiction of his termination allegations and therefore it would be in Complainant's best interests to contact Wage and Hour for potential relief did not justify equitable tolling of the filing period because negligence cannot establish a basis for estoppel against the Government. Further, the record indicated that Complainant had earlier suspected that the Department of Labor was the proper forum for asserting his claim; thus, he was not misled or lulled into inaction by TVA.

IV C 4 Negligence of representative

In a footnote in Wilkinson v. Texas Utilities, 92- ERA-16 (ALJ Oct. 1992), the ALJ found, in considering whether equitable grounds existed for tolling the limitations period for filing an ERA complaint, that whether Complainant's non-attorney representative "was negligent in not filing Complainant's complaint in a timely fashion is beyond the scope of this proceeding." The Secretary adopted the ALJ's recommended decision, finding that Complainant had "not alleged or established any basis to claim that the statutory filing limit should be equitably tolled in this case." Wilkinson v. Texas Utilities, 92-ERA-16 (Sec'y July 13, 1993)

IV C 4 Consultation with attorney precludes application of equitable tolling

In Kent v. Barton Protective Service, 84-WPC-1 (Sec'y Sept. 28, 1990) the Complainant was dismissed from his employment following his filing of an "oil spill" report with the EPA. Complainant's first complaint was dismissed by the Wage and Hour Division for failure to file within 30 days of the alleged violation. He filed a second complaint urging reconsideration based upon equitable tolling arguments. According to Complainant, he had met with Barton and was told that his termination was not final and that he might be placed in another position. Complainant also stated that he contacted the EEOC about the violation within thirty days of its occurence. Complainant was represented by counsel at that time.

Citing Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978) the Secretary held that once a complainant consults an attorney he has access to a means of acquiring knowlege of his rights and responsibilities, precluding application of equitable tolling considerations.

Affirmed by Eleventh Circuit Court of Appeals without comment. 946 F.2d 904 (11th Cir. 1991).

IV C 4 Misinformation provided by government official

In Doyle , the complainant asserted that he was misled by federal government official about his right to file a complaint.

IV C 4 Administrative delay by NRC

Ignorance of the law and administrative delay by the NRC are not grounds for equitable tolling the ERA limitations period for filing a complaint. Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op. at 8.

IV C 5 Attorney's ignorance of time limitation for filing

In Mitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y July 22, 1993), the Secretary held that an attorney's ignorance of ERA complaint filing requirements precluded equitable tolling, quoting Hay v. Wells Cargo, Inc., 596 F. Supp. 635, 640 (D. Nev. 1984), aff'd , 796 F.2d 478 (9th Cir. 1986) ("Equitable tolling is inappropriate when plaintiff has consulted counsel during the statutory period. Counsel are presumptively aware of whatever legal recourse may be available to their client, and this constructive knowledge of the law's requirements is imputed to [plaintiff]."), and citing numerous other cases. [citations omitted]

Although Complainant never actually employed the attorney, the Secretary found that because of an office visit and a subsequent series of telephone conversations, an attorney-client relationship existed during the filing period.

[Editor's note: the Secretary cites additional cases in the last paragraph of the decision]

[Nuclear and Environmental Whistleblower Digest IV C 5]
TIMELINESS OF APPEAL TO ARB; EQUITABLE TOLLING; USE OF FEDERAL EXPRESS RATHER THAN FAX WHEN FILING ON THE LAST DAY OF THE LIMITATIONS PERIOD IS NOT DUE DILIGENCE

In Cook v. U.S. Environmental Protection Agency , ARB No. 06-036, ALJ No. 2005-CER-1 (ARB Feb. 22, 2006), the Complainant had hesitated to take an appeal of the ALJ's recommended decision based on the expense of litigation, and had not decided until the afternoon of the last day of the period in which to file an appeal to go forward. Her attorney located the ARB's fax number on its website, but unsure of whether it was the correct number and unable to verify the number by telephone, he sent the appeal by Federal Express, thereby guaranteeing that appeal would be one day late.

The fax number on the website had been correct, and the ARB found the attorney's decision not to use it "inexplicable" especially given that he and the Complainant knew that the time for filing was short. The ARB found lack of diligence and lack of grounds justifying equitable tolling.

[Nuclear and Environmental Whistleblower Digest IV C 5]
TIMELINESS OF COMPLAINT; INEFFECTIVE ASSISTANCE OF COUNSEL IS NOT AN EXTRAORDINARY FACTOR SUPPORTING EQUITABLE TOLLING

In Higgins v. Glen Raven Mills, Inc. , ARB No. 05-143, ALJ No. 2005-SDW-7 (ARB Sept. 29, 2006), PDF | HTM the Complainant argued on appeal that he should be entitled to equitable tolling based on his original counsel's "severely ineffective assistance." The ARB, however, noted that it had consistently held that attorney error does not constitute an extraordinary factor for tolling purposes because "[u]ltimately, clients are accountable for the acts and omissions of their attorneys." Because the Complainant had neither addressed the Board's precedent, nor cited to any case law in support of his argument, it held that he was not entitled to equitable tolling of the limitations period.

[Nuclear and Environmental Whistleblower Digest IV C 5]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING IS NOT AVAILABLE BASED ON ATTORNEY ERROR

In Howell v. PPL Services, Inc. , ARB No. 05-094, ALJ No. 2005-ERA-14 (ARB Feb. 28, 2007), PDF | HTM the Complainant argued that he was entitled to equitable tolling of the limitations period for filing and ERA whistleblower complaint based on his first attorney's "inadequate representation." The ARB, however, affirmed the ALJ finding that equitable tolling did not apply: "We have consistently held � that attorney error does not constitute an extraordinary factor because "[u]ltimately, clients are accountable for the acts and omissions of their attorneys." Slip op. at 5 (footnote omitted).

[Nuclear and Environmental Digest IV C 5]
TIMELINESS OF REQUEST FOR HEARING; EQUITABLE TOLLING NOT AVAILABLE WHERE LACK OF DUE DILIGENCE

In Howlett v. Northeast Utilities , 1999-ERA-1 (ALJ Dec. 28, 1998), Complainant and his attorney were both sent copies of a Letter of Determination by OSHA via certified mail, and both received the letter shortly thereafter. Neither Complainant nor his attorney timely exercised the right to appeal. Complainant's explanation was that he that understood his attorney would respond appropriately to any correspondence. Complainant's attorney, however, did not appeal because one of his employees misfiled the certified letter. The ALJ held in his recommended decision that "[w]hile this is regretful, it is not sufficient grounds to invoke the rarely exercised concept of equitable tolling. As the Second Circuit has opined, lack of due diligence on the part of a complainant or the complainant's attorney is insufficient to justify application of equitable tolling. South v. Saab Cars USA, Inc. , 28 F.3d 9 (2d Cir. 1994) (dismissing the complaint where plaintiff's counsel mistakenly relied on state procedure for filing of a federal complaint)."

TIMELINESS; EQUITABLE TOLLING; CONSULTATION WITH ATTORNEY
[N/E Digest IV C 5]

Although not reaching the issue in the case sub judice squarely, the Board in Prybys v. Seminole Tribe of Florida , 95-CAA-15 (ARB Nov. 27, 1996), noted a distinction in the caselaw between merely consulting with an attorney and with retaining an attorney for purposes of imputing counsel's presumptive knowledge of a statute of limitations to the prospective client for purposes of equitable tolling analysis. The Board concluded that the cases of Mitchell v. EG & G (Idaho) , 87-ERA-22 (Sec'y July 22, 1993) and Kent v. Barton Protective Services , 84-WPC-2 (Sec'y Sept. 28, 1990), aff'd 946 F.2d 904 (11th Cir. 1991), cert. denied , 112 S.Ct. 1284 (1992), involved more than preliminary contact with an attorney, and therefore were "consistent with the principle that 'not all contacts with an attorney are sufficient to impute constructive knowledge.' Bass v. Burleigh and Associates , 727 F.Supp. 1030, 1032 and n.5 (M.D. La. 1989)(imputation of constructive knowledge appropriate 'only when the attorney-client relationship is of some significant duration.' [citing Jacobson v. Pitman-Moore, Inc. , 573 F.Supp. 565, 569 (D. Minn. 1983)])." Slip op. at 8 n.5.

IV C 6 Pursuit of remedy in different forum - Effect on time limitations

In Carl W. Rady, WPC-3 (Sec'y Aug. 26, 1977), the Complainant was discharged from his employment with the Division of Highways, Department of Transportation of the State of Wisconsin on June 25, 1973. He appealed his discharge to the Wisconsin Personnel Board which found that he was discharged for just cause on June 29, 1974. Thereafter, the Complainant requested review by the Department of Labor on July 25, 1974. The Secretary found that the ALJ had properly determined that the limitation period had not been tolled by the Complainant's pursuit of a remedy before the Wisconsin Personnel Board. In making his finding, the ALJ correctly relied upon International U. of Elec. Workers v. Robbins & Myer, ___ U.S.___ (1976), in which the Court held that the statute of limitations contained in Title VII of the Civil Rights Act of 1964 was not tolled by earlier greivance proceedings.

[N/E Digest IV C 6]
TIMELINESS OF COMPLAINT; TOLLING CANNOT BE BASED ON SETTLEMENT NEGOTIATIONS OR USE OF INTERNAL GRIEVANCE PROCEDURE

Neither employer participation in settlement discussions nor use of an internal grievance procedure tolls the statute of limitations in a whistleblower case. Beckmann v. Alyeska Pipeline Service Co. , 95-TSC-16 (ARB Sept. 16, 1997), citing Tracy v. Consolidated Edison Co. of New York, Inc. , 89-CAA-1, slip op. at 8 (Sec'y July 8, 1992).

TIMELINESS; INTERNAL GRIEVANCE PROCEDURE OR OTHER COLLATERAL REVIEW DOES NOT TOLL FILING PERIOD
[N/E Digest IV C 6]

Pursuit of a remedy within an employer's organization or by means of some other collateral review does not toll the filing periods provided for by employee protection provisions. See Prybys v. Seminole Tribe of Florida , 95-CAA-15 (ARB Nov. 27, 1996), citing International Union of Electrical, Radio & Machine Workers v. Robbins & yers, Inc. , 429 U.S. 229 (1976) and Greenwald v. The City of North Miami Beach , 587 F.2d 779 (5th Cir. 1979).

IV C 6 Internal grievance procedure

The ERA thirty-day filing period is not tolled by the complainant's utilization of internal grievance procedures. See Delaware State College v. Ricks, 449 U.S. 250, 258-261 (1980); Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236-240 (1976); School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981); English v. General Electric Co., 85-ERA-2 (Sec'y Jan. 13, 1987), slip op. at 4-11, aff'd sub nom. English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).

Ackison v. Detroit Edison Co., 90-ERA-38 (Sec'y Aug. 2, 1990).

IV C 6 Grievance procedure

The 30 day time limitation for filing a complaint under the employee protection provision of the Safe Drinking Water Act is not tolled by the pursuit of a grievance procedure.

Ray v. Harrington, 79-SDW-2 (Sec'y July 13, 1979) (adopting decision of ALJ).

IV C 6 Filing of complaint; Timeliness

Employee filed complaint with the Secretary of Labor alleging he was discharged in violation of the SDWA. He was discharged on August 26, 1977, but did not file a complaint with the Secretary until 115 days later. The complaint was only 20 days after the local Civil Service board upheld the action of the City Manager in terminating his employment. However, the Act does not require the exhaustion of state or local remedies prior to the filing of a complaint with the Secretary. Moreover, the remedy provided by the Act is entirely independent of any local remedies. Thus, the fact that employee sought local Civil Service Board review of his discharge did not toll the 30 day time limitation for filing a claim under the Act. Greenwald v. North Miami Beach, 587 F.2d 779, 781 (5th Cir. 1979), cert. denied, 444 U.S. 826, 62 L.Ed.2d 33, 100 S. Ct. 49 (1979).

IV C 7 Pending unemployment application

Where the only reasons the complainant proffered for waiting to file his ERA whistleblower complaint until after the 30-day filing period were that he wanted to wait for a determination on his eligibility for unemployment compensation and that he took a one week vacation during the holidays to visit his son, equitable tolling of the filing period was not invoked and the case was summarily dismissed. Rose v. Nuclear Fuel Services, Inc., 87-ERA-19 (ALJ Jan. 25, 1988), aff'd, (Sec'y June 29, 1990), aff'd sub nom., Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).

IV C 8 Reopening of prior complaint

In Gundersen v. Nuclear Energy Services, Inc., 92- ERA-48 (Sec'y Jan. 19, 1993), the Complainant filed a second complaint with the Wage and Hour Division alleging that previously unavailable information had been uncovered that showed that the respondent had been violating NRC rules at the time that the complainant was terminated. The Wage and Hour Division had found that the complainant's first complaint failed to establish that the complainant had been terminated because of protected activity. Rather than requesting a hearing before an administrative law judge, the complainant filed a Petition for Review in the United States Court of Appeals for the Second Circuit. The Second Circuit dismissed the petition because of the complainant's failure to comply with the court's briefing schedule. A few days later, the respondent and the complainant entered into a settlement agreement, which included provisions in which the complainant waived his right to bring or pursue actions respecting the subject matter of the complaint. The second complaint was dismissed because:

the complainant failed to exhaust his administrative remedies with regard to his original complaint;

See 42 U.S.C. § 5851(b)(2)(A), (C)(1) (1988); 29 C.F.R. § 24.6, 24.7. These statutory and regulatory requirements arise out of the longstanding doctrine of American jurisprudence that parties must first exhaust their administrative remedies before resorting to the federal courts. See, e.g., Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 and n.9 (1938) (discussing cases as far back as 1898). Exhaustion is required because it promotes two significant purposes: protecting administrative agency authority and promoting judicial efficiency. McCarthy v. Madigan, __ U.S. __, 112 S. Ct. 1081 (1992). No exception to this doctrine was proffered in the instant case.
the Wage and Hour Division's first determination therefore became the final an unappealable order of the Secretary;
the complainant's request to reopen his original complaint must be considered a second complaint, which was filed out of time; and

The Secretary reached this conclusion on two grounds: (a) that the ERA and the regulations do not authorize the reopening of a final Secretary decision almost two years after the fact, even if there was new evidence to support reopening, and (b) that the alleged new evidence was irrelevant to a determination whether the complainant was illegally discharged: the discovery of new evidence that the respondent actually violated the law is not critical to the whistleblower complaint.
the doctrine of equitable tolling does not excuse the late filing of the second complaint.

Equitable tolling has been applied in whistleblower cases where the complainant "has in some extraordinary way been prevented from asserting his rights, or . . . raised the precise statutory claim in issue but has mistakenly done so in the wrong forum." School District of City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981), quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978). In the instant case, however, there was no evidence that the complainant was not aware of the thirty day limitation, that he was prevented from filing in a timely manner, or that did filed in the wrong forum.

IV C 9 Bad reference given after filing of complaint

In Harrison v. Stone & Webster Engineering Corp., 91-ERA-21 (Sec'y Oct. 6, 1992), the assertion that the respondent recently gave the complainant a bad reference failed to establish an act of discrimination within thirty days prior to the filing of the complaint. Thus, the assertion did not support invocation of equitable tolling of the ERA period for filing a whistleblower complaint.

[Nuclear & Environmental Whistleblower Digest IV C 9]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; COMPLAINANT'S MENTAL CONDITION; COMPLAINANT REPRESENTED BY COUNSEL

In Day v. Oak Ridge Operations , ARB No. 02 032, ALJ No. 1999 CAA 23 (ARB July 25, 2003), the ARB affirmed and adopted the ALJ's recommendation that the complaint be dismissed as untimely. Complainant had proffered a number of reasons for equitable tolling, none of which were found to be valid by the ALJ. One of the grounds proffered was that Complainant's mental condition at the time prevented him from managing his affairs. The ALJ, however, noted caselaw to the effect that tolling for mental incapacity is permitted only for exceptional circumstances such as adjudication of incompetency or institutionalization B neither of which were relevant to the instant case. Moreover, the ALJ observed that Complainant had consulted with an attorney and had discussed a whistleblower law suit. The ALJ noted that the Secretary had previously held that equitable tolling is generally inapplicable where a plaintiff if represented by counsel. The ALJ noted that the question of the (former) attorney's mental state was also raised during the hearing, and that while applicable caselaw may have permitted equitable tolling in such a circumstance, there was insufficient evidence of record to show that Complainant's former attorney was so impaired. Day v. Oak Ridge Operations , 1999 CAA 23 (ALJ Dec. 31, 2001).

On review, the ARB observed in a footnote:

For additional authority that equitable tolling is generally inapplicable when a plaintiff is represented by counsel, see, e.g., Hall v. E G & G Defense Materials, Inc ., ARB No. 98 076, ALJ No. 97 SDW 9, slip op. at n.5 (ARB Sept. 30, 1998); Lawrence v. City of Andalusia Waste Water Treatment Facility , ARB No. 96 059, ALJ No. 95 WPC 6 (ARB Sept. 23, 1996); Tracy v. Consol. Edison Co. of New York, Inc ., 89 CAA 1 (Sec'y July 8, 1992). The federal circuit courts support the general principle that "once a claimant retains counsel, tolling ceases because she has >gained the >means of knowledge' of her rights and can be charged with constructive knowledge of the law's requirements.' " Leorna v. United States Dep't of State , 105 F.3d 548, 551 (9th Cir. 1997), citing Stallcop v. Kaiser Found. Hosps ., 820 F.2d 1044, 1050 (9th Cir. 1987); Mercado Garcia v. Ponce Fed. Bank , 979 F.2d 890, 896 (1st Cir. 1992); Daugherity v. Traylor Bros., Inc ., 970 F.2d 348, 353 n.8 (7th Cir. 1992); Beshears v. Asbill , 930 F.2d 1348, 1351 (8th Cir. 1991); McClinton v. Alabama By Products Corp ., 743 F.2d 1483, 1486 n.4 (11th Cir. 1984); Vance v. Whirlpool Corp. , 716 F.2d 1010, 1012 13 (4th Cir. 1983); Kocian v. Getty Refining & Mktg. Co. , 707 F.2d 748, 755 (3d Cir. 1983); Keyse v. California Texas Oil Corp. , 590 F.2d 45, 47 (2d Cir. 1978); Edwards v. Kaiser Aluminum & Chemical Sales, Inc. , 515 F.2d 1195, 1200 n.8 (5th Cir. 1975).

Slip op. at n.2.

[Nuclear & Environmental Whistleblower Digest IV C 9]
TIMELINESS OF COMPLAINT; GRIEVANCE PROCEDURES

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 filing and resolution of a grievance she filed concerning her performance rating should cause the 30 day filing period for an environmental whistleblower complaint to be extended. The ARB held that it was well established that the filing of a grievance does not operate to toll the limitations period for filing a whistleblower complaint. Likewise, the resolution of the grievance could not provide an extension of the filing period, even if the Complainant was dissatisfied with the outcome. Complainant essentially argued that the grievance procedure had not provided the full extent of the relief she had requested ("a unilateral imposition of inadequate remedies"). The ARB found an absence of authority, however, that would render the grievance resolution decision a separate adverse action.

[Nuclear & Environmental Digest IV C 9]
TIMELINESS OF FILING; INCAPACITY

Where Complainant made a bald assertion that a medical condition prevented him from making a timely filing of his whistleblower complaint, the ARB declined to equitably toll the limitations period. The ARB noted that although Complainant submitted letters showing that he was under a doctor's care, his doctor does not state or even suggest the illness was so debilitating that it prevented Complainant from either understanding his legal rights or acting upon them. Foley v. Boston Edison Co. , ARB No. 99-022, ALJ No. 1997-ERA-56 (ARB Jan. 31, 2001).

[Nuclear & Environmental Digest IV C 9]
EQUITABLE TOLLING FOR MENTAL INCAPACITY

In Hall v. USDOL , No. 98-9547 (10th Cir. Oct. 13, 1999) (unpublished) (case below 1997-SDW-9), Complainant asserted that the ARB erred as a matter of law in granting summary against his claim that equitable tolling should be applied to his untimely filing of environmental whistleblower complaints based on his mental illness during the statutory time period. The court, reviewing the matter de novo , held that its decision in Biester v. Midwest Health Servs., Inc. , 77 F.3d 1264 (10th Cir. 1996), was dispositive of the issue, i.e ., that mental incapacity, if a ground for equitable tolling, will be allowed only in "exceptional circumstances" such as adjudication of incompetency or institutionalization. Since Complainant was neither adjudicated incompetent nor institutionalized during the time period at issue, and the evidence showed instead that he handled, with counsel's assistance, other legal matters which required action during or soon after the thirty-day statute of limitations period, Complainant did not justify equitable tolling.

[N/E Digest IV C 9]
TIMELINESS; TOLLING DESPITE RESPONDENT'S LACK OF RECEIVE EARLY NOTICE OF THE COMPLAINT

In Immanuel v. Wyoming Concrete Industries, Inc. , 95-WPC-3 (ARB May 28, 1997), Complainant submitted a letter to a state agency that was sufficient to raise a cognizable complaint under the employee protection provision of the FWPCA. The ALJ, however, concluded that equitable tolling was not appropriate because Respondent had not received notice of this filing within the appropriate limitations period. The Board disagreed, noting that neither the statute nor the regulations specified when a Respondent must be notified of the complaint.

EQUITABLE TOLLING; COMPLAINT FILED WITH GOVERNMENT AGENCY ASSERTING A SAFETY CONCERN WITHIN FILING PERIOD FOR FILING AN ERA § 211 COMPLAINT DOES NOT EQUITABLY TOLL PERIOD FOR ACTUALLY FILING A § 211 COMPLAINT
[N/E Digest IV C 9]

In Roberts v. Battelle Memorial Institute , 96-ERA-24 (ALJ Dec. 18, 1996), Complainant had filed a series of sex discrimination and equal pay charges with the EEOC and a state agency alleging retaliation in connection with her charge of sex discrimination. In one such complaint, filed with the state agency, Complainant also stated that she was "forced to report directly to a Sub-Contractor rather than Respondent, and this has created a hostile and unsafe environment." The ALJ found that this statement was the first instance in which complaint raised an issue of health or safety, i.e. , this was the protected activity under the ERA. After the filing of this complaint, Complainant was suspended without pay and subsequently terminated from employment. Complainant, however, did not raise the issue of retaliation or discrimination related to her ERA protected activity to DOE until under after 180 days from the date of the adverse action. The ALJ found that the filing of the safety complaint with the state agency did not equitably toll the filing period.

UNDERLYING VIOLATION; FAILURE TO REINSTATE
[N/E Digest IV C 9]

In Lawrence v. City of Andalusia Waste Water Treatment Facility , 95-WPC-6 (ARB Sept. 23, 1996), Complainants failed to file a timely FWPCA complaint about a notice of a Pre-Determination hearing concerning Respondent's intention to terminate their employment. Complainants were later terminated, and lost a appeal to the City Commission. Complainants contended that Respondent's failure to reinstate them after their administrative appeals constituted a separate act of discrimination under the FWPCA.

[Editor's note: The "failure to reinstate" occurred within the FWPCA time limit]

The Board held that since Respondent had no obligation to reinstate Complainants unless they proved that Respondent violated the FWPCA, and Complainants' action on the original termination notice was not timely filed, they lost the chance to prove such a violation.

IV C 9 Uncertainty about whether adverse action was motivated by whistleblowing activity

In McKinney v. Tennessee Valley Authority, 92-ERA- 22 (Sec'y Nov. 16, 1993), the Secretary found the complaint to be untimely where the complainant was discharged on July 15, 1991 and he did not file his ERA complaint until December 16, 1991. Complainant argued that his suspected that his termination was associated with whistleblowing, but did not fully realize it -- or was not able to substantiate it -- until December 10, 1992.

The Secretary found that the triggering date was July 15, 1991, and that the general allegations made by Complainant were insufficient to justify equitable tolling.

[Editor's note: The Complainant had filed a Merit Systems Protection Board complaint within 30 days of the discharge with the help of legal counsel, but apparently had decided not to include (or dropped) a whistleblowing issue. The Secretary noted that this was not a case of filing the exact claim in the wrong forum, and referred to cases indicating that where a complainant had legal counsel during the period in question the justification for equitable tolling is weakened.]

IV C 9 Dismissal without prejudice does not toll time limits for filing whistleblower complaint

In Howe v. Affrex, Ltd., 94-ERA-8 (Sec'y Dec. 12, 1994), Complainant filed a written request to withdraw his ERA complaint, indicating that he intended to "seek a different [sic] case against [one of the two Respondents] only at a later date." The Respondent the Complainant intended to sue later did not resist dismissal. The other Respondent raised no objection to voluntary dismissal without prejudice but requested the ALJ to note, as a condition pursuant to Fed. R. Civ. P. 41(a)(2), that a grant of Complainant's motion effectively precludes any future legal remedy against it under the ERA.

The Secretary took the view, however, that the parties' statements amount to a stipulation of dismissal without prejudice as provided in Rule 41(a)(1)(ii). Nonetheless, in a footnote the Secretary observed "that the 'condition' requested by Martin Marietta occurs by operation of law when a case is dismissed without prejudice. A dismissal without prejudice does not toll a statute of limitations -- expiration of the limitations period will bar a complainant from filing another ERA complaint based on the same facts." Slip op. at n.1 (citations omitted).

IV C 9 Miscellaneous

In Cox v. Radiology Consulting Associates , 86-ERA-17 (ALJ Aug. 22, 1986), the ALJ found that the complaint had not been timely filed. The Complainant argued that the statute of limitations should be tolled for equitable considerations. The Complainant first argued that the statute should be tolled because he should have the time to gather evidence in support of his claim. The ALJ rejected this argument and held that the claim should be filed when the employee obtains information that gives him "reasonable suspicion" that he had been the victim of discrimination. The ALJ noted that the ERA empowers the authorizing agency to investigate a claim and gather evidence. He added that to allow the Complainant to wait until he has gathered all of his evidence to file his complaint would render the statute of limitations meaningless; the period could remain open indefinitely.

Additionally, the Complainant argued that the statute should be tolled based on principles of fairness. The ALJ rejected this argument, citing to the City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981) that prejudice to the Respondent, or a lack thereof, is irrelevant. He added that the staleness or newness of a claim is irrelevant as well. He concluded that the limitation was set by Congress and neither he nor the courts have the authority to change it. The Secretary adopted his findings. See Cox v. Radiology Consulting Associates, Inc. , 86-ERA- 17 (Sec'y Nov. 6, 1986).

IV D Computations of length of equitable tolling

TIMELINESS OF COMPLAINT; EQUITABLE TOLLING ENDS ONCE COMPLAINANT LEARNS OF LIMITATIONS PERIOD; FAILURE TO ALLEGE SUBSEQUENT TIMELY FILING IS FATAL TO THE CLAIM

In Higgins v. Glen Raven Mills, Inc. , ARB No. 05-143, ALJ No. 2005-SDW-7 (ARB Sept. 29, 2006), PDF | HTM the Board had held that the Complainant was not entitled to equitable tolling of the limitations period for ineffective assistance of counsel, but noted that even if it had found equitable tolling to be applicable, the Complainant would only have been entitled to tolling until he was informed by an OSHA employee about the 30-day limitations period. Because the Complainant did not allege that he filed a timely complaint once the clock resumed running, the Board held that he failed to allege an essential element of his case.

IV D Tolling only until reasonably diligent person would have realized violation

[Editor's note: This finding was contrary to the ALJ's finding that Respondent lulled Complainant with false assurances until October 10, 1991].

Regardless of whether the filing period was tolled until October 1991, the complaint was time barred. Although Complainant claimed that he contacted the resident inspector of the NRC within a week of realizing Respondent's motive, and thought he had initiated the process, the Secretary held that this did not fall with the narrow category of cases that permit tolling because the employee raised the precise statutory claim in issue mistakenly in the wrong forum." The Secretary distinguished the case of Sawyers v. Baldwin Union Free School District, 1985-TSC-1 (Sec'y Oct. 5, 1988), on the ground that in Sawyers the filing period was tolled because the record showed that a timely complaint, sufficient under the whistleblower statute and regulations at 29 C.F.R. § 24.3 had been filed with the wrong agency, while there was no such documentation in evidence in the instant proceeding. In addition, the Secretary noted that Respondent received timely notice of the specific statutory claim that was subsequently asserted by Complainant. Thus, Respondent was denied the protection which the expeditious time frame was intended to provide.