In Eisner v. U.S. Environmental Protection
Agency, 1990-SDW-2 (Sec'y Dec. 8, 1992), slip op. at 10,
the Secretary affirmed the ALJ's determination that the
complainant's complaint was untimely in regard to her
termination. Nevertheless, the Secretary found that the
complaint sufficiently raised a separate allegation of
discriminatory act occurring after the termination -- the
respondent purportedly refused to accept a resignation letter
(which it earlier had indicated would, if tendered, result in the
removal of the termination letter) after the complainant talked
to reporters about a disputed sewage plant project.
The Secretary noted that
It is not fatal that Complainant's complaint did not set
forth this claim precisely. [Nunn v. Duke Power Co.,
84-ERA-27 (Sec'y July 30, 1987), slip op. at 12 n.3.] Nor
is it determinative that Complainant's prior counsel did not
press the ALJ to consider the question of timeliness with
respect to this separate allegation. I am not bound by the
prior legal theories, particularly at this early stage of
the proceeding. [Chase v. Buncombe County, 85-SWD-4
(Sec'y Nov. 3, 1986), slip op. at 5. See alsoEnglish v. Whitfield, 858 F.2d 957, 963 (4th Cir.
1988)]."
Id. at 10 n.10.
[Nuclear & Environmental Whistleblower Digest III A]
TIME LIMITATIONS ON FILING IN DISCRIMINATION CLAIMS,
GENERALLY
In National Railroad Passenger Corp. v.
Morgan, _ US _, 122 S Ct 2061, 153 L Ed 2d 106 (2002), a Title VII claim,
the United States Supreme Court examined the application of time limitations in situations
involving the raising of claims of discrete discriminatory or retaliatory acts, and situations
involving charges alleging a hostile work environment. The Court held that a Title VII plaintiff
raising claims of discrete discriminatory or retaliatory acts must file his or her charge within the
statutory period, but that claims based on a hostile work environment will not be time barred
if all acts constituting the claim are part of the same unlawful practice and at least one act falls
within the filing period. In neither instance is a court barred from applying equitable doctrines
that may toll or limit the time period. An employer may raise laches if the plaintiff
unreasonably delays filing and as a result harms the defendant.
[Nuclear and Environmental Digest III A]
TIMELINESS, GENERALLY
See generallyFoley v. Boston Edison Co., 1997-ERA-56 (ALJ
Dec. 2, 1998), for a recommended decision that provides a thorough discussion of time
limitations for filing ERA complaints, the continuing violation theory, whether an oral complaint
can be considered properly filed, and equitable tolling.
III. A. Complaint more than 30 days after
termination untimely
Where Complainant sent a letter to Senator Simpson on November
17, 1992 alleging that she was terminated on October 10, 1992 by
Respondent -- a rural water association -- for her complaints to
management about inaccurate records, mismanagement and waste, the
case was dismissed because, assuming that a complaint to a
Senator could be treated as a complaint, it was not timely under
29 C.F.R. § 24.3(b). Deveraux v. Wyoming Association
of Rural Water, 93-ERA-18 (Sec'y Oct. 1, 1993)
(apparently found not adequate in part because it had not been
filed with the Wage and Hour Division).
[Editor's note: the new 180 day ERA time limitation apparently
was not considered.]
III A General statement
The employee protection provision of the ERA, and the regulations
implementing the provision, explicitly provide that any complaint
shall be filed within thirty days after the occurrence of the
alleged violation. 42 U.S.C. § 5851(b)(1); 29 C.F.R. §
24.3(b). This time limit is in the nature of a statute of
limitations, and the principle of equitable tolling applies.
See School District of the City of Allentown v. Marshall,
657 F.2d 16, 19-21 (3d Cir. 1981); Lastre v. Veterans
Administration Lakeside Medical Center, 87-ERA-42 (Sec'y Mar.
31, 1988), slip op. at 2-4. The timeliness of a claim may also
be preserved under the "continuing violation" theory,
where there is an allegation of a course of related
discriminatory conduct and the charge is filed within thirty days
of the last discriminatory act. Egenrieder v. Metropolitan
Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987).
Ray v. Tennessee Valley Authority, 88-ERA-14 (Sec'y
Jan. 25, 1991).
III A Confusion over nature of complaint and
scope of ALJ's jurisdiction
After reviewing the factual and procedural background of the
case, the Secretary pointed out the confusion as to the nature of
the complaint and the scope of the ALJ's jurisdiction. The
Secretary held that the ALJ did not have jurisdiction over the
OSHA complaint and then addressed the timeliness of the
complaints filed.
The regulation governing time for filing complaints provides that
"[f]or the purpose of determining timeliness of filing, a
complaint shall be deemed filed as of the date of mailing."
29 C.F.R. § 24.3(b). Thus, it appeared that the two
complaints filed with the Wage and Hour Division were timely;
however, the record contained insufficient evidence to
conclusively find that the complaints were timely filed. The
Secretary further noted that the complaint filed with OSHA may
satisfy a finding of equitable tolling. The case was remanded
for clarification of the record and for further consideration of
the timeliness and equitable tolling issues.
Melendez v. Exxon Chemicals Americas, 93-ERA-6
(Sec'y Mar. 21, 1994).
III.A. Retroactive effect of 1992 ERA amendments
In Dysert v. Florida Power Corp., 93-ERA-21 (ALJ
June 3, 1994), the ALJ considered whether the 1992 ERA amendments
to the ERA, by lengthening the limitations period for filing
whistleblower complaints, applied retroactively. At the time the
Complainant was notified of his termination, an ERA complainant
had 30 days from the date of an adverse employment action to file
a complaint with the Secretary of Labor. See former 42
U.S.C. § 5851(b)(1)(1983). The Energy Policy Act of 1992,
Pub. L. No. 102-486, amended the whistleblower provisions of the
ERA, inter alia, to extend the limitations period for
filing a whistleblower complaint to 180 days. The Complainant
filed his complaint on December 11, 1992, after the October 24,
1992 effective date of the amendments, within 180 days but after
30 days from the date he was notified of his termination on June
19, 1992.
The ALJ's detailed discussion concluded with a finding that the
longer limitations period was the type of collateral procedural
rule that, even absent express legislative authorization, may
properly be applied to pre-amendment conduct. The ALJ relied on
Landgraf v. USI Film Products, 62 U.S.L.W. 4255, No. 92-
757 (April 26, 1994); International U. of Elec. Wkrs. v.
Robbins & Myers, 422 U.S. 229 (1976); Alabama Dry Dock
and Shipbuilding Corp. v. Sowell, 933 F.2d 1561-65, reh.
den. 945 F.2d 415 (11th Cir. 1991); Davis v. Valley
Distributing Co., 522 F.2d 827, 831 (9th Cir. 1975) cert.
denied 429 U.S. 1090 (1977).
The Secretary is not empowered to ignore the congressionally
imposed, albeit short, limitation period for filing a
whistleblower complaint, based on due process arguments that are
in the nature of vague fairness arguments. After weighing the
various interests at stake, Congress determined that these
complaints should be made within a very short time after the
alleged violation occurred. School District of Allentown v.
Marshall, 657 F.2d 16, 20 (3d Cir. 1981).
Eisner v. U.S. Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), slip op. at 10
n.9.
[N/E Digest III A 1]
TIMELINESS OF COMPLAINT; DOL ERRED IN CHARACTERIZING A LETTER,
WHICH WAS NOT IN THE RECORD, AS NOT CONSTITUTING AN ERA COMPLAINT
In Roberts v. U.S. Dept. of
Labor, No. 97-3819 (6th Cir. June 23, 1998) (unpublished decision available at
1998 WL 381666) (case below 96-ERA-24), the Sixth Circuit found that the ARB's conclusions
about the nature of a letter Complainant had filed with DOL, but which DOL had forwarded to
the EEOC, were unsupported by substantial evidence where the letter was not in the current
record. The court apparently ruled that although Complainant may have been remiss in not filing
the letter in the proceeding before the ALJ and the ARB, since the letter was not in the record,
the ARB should not have characterized what it was. Thus, the matter was remanded "so
that the nature of the letter can be more precisely determined."
III A 1 Dismissal of complaint for lack of
timeliness does not violate due process
The argument that dismissal of a ERA, 42 USC § 5851
complaint for lack of timeliness violates due process because the
complainant has a statutorily created property interest in
continued employment after having reported a safety violation has
no merit. Rose v. Dole, 945 F.2d 1331 (6th Cir.
1991) (per curiam).
In Hobby v. Georgia Power Co., 90-ERA-30 (ALJ Nov.
8, 1991), the respondent first raised an issue as to the
timeliness of the filing of the complaint for the first time in
its post-hearing brief. The ALJ consulted Rule 8(c) of the
Federal Rules of Civil Procedure to conclude that statutes of
limitations are affirmative defenses, and that the respondent's
failure to assert that defense in its pleadings is considered a
waiver of that defense.
[Nuclear & Environmental Whistleblower Digest III A 2] TIMELINESS; EFFECT OF NOT RAISING THE ISSUE EXPRESSLY DURING THE ORAL EVIDENTIARY HEARING
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), the ALJ had considered the case on the merits and recommended dismissal. In regard to an issue relating to the timeliness of the initial complaint, the ALJ questioned whether the issue had been preserved because, although it had been raised initially, it was not raised at the hearing, and given his finding on the merits, found it unnecessary to address the issue. The ARB, however, found that the timeliness issue was not waived, it having been consistently raised by the Respondent, even if it had not been expressly raised during the hearing (presumably through a motion for dismissal or summary decision). The ARB, however, declined to consider the timeliness of subsequent complaints raising new alleged acts of discrimination where the Respondent did not raise that issue in its brief.
[Nuclear & Environmental Digest III A 2]
SUMMARY DECISION; TIMELINESS FAILURE TO RAISE AFFIRMATIVE DEFENSE
OR ANSWER MOTION FOR SUMMARY DECISION
Where Complainant sought partial summary decision on the issue of timeliness of his complaint --
arguing that by failing to raise the affirmative defense that the Complaint was untimely, Respondents
waived that defense -- and where Respondents did not raise this defense in their answer to
Complainant's amended complaint or to the motion for summary decision on this issue, the ALJ granted
the Complainant's motion for partial summary decision. Mourfield v. Frederick Plaas & Plaas,
Inc., 1999-CAA-13 (ALJ June 1, 1999)
III A 2 Issue of timeliness of complaint is an
affirmative defense that is waived if raised too
late
The time frame for filing a complaint under the ERA is not
jurisdictional, but is a statute of limitations, which is
generally considered an affirmative defense. Where the ALJ
ordered the parties to submit a statement of contentions prior to
the hearing, and held a pre-hearing conference, but the
Respondent first raised the issue of the timeliness of the
complaint in its post-hearing brief, the ALJ properly found that
the Respondent waived timeliness of the complaint as an issue.
See 29 C.F.R. § 18.6(d)(2)(v).
Hobby v. Georgia Power Co., 90-ERA-30 (Sec'y Aug.
4, 1995).
III A 2 Affirmative defenses
In Hobby v. Georgia Power Co., 90-ERA-30 (ALJ Nov.
8, 1991), the respondent first raised an issue as to the
timeliness of the filing of the complaint for the first time in
its post-hearing brief. The ALJ consulted Rule 8(c) of the
Federal Rules of Civil Procedure to conclude that statutes of
limitations are affirmative defenses, and that the respondent's
failure to assert that defense in its pleadings is considered a
waiver of that defense.
III A 2 Raising of limitations period in opening
statement timely
In Wagerle v. The Hospital of the University of
Pennsylvania, 93-ERA-1 (ALJ Mar. 29, 1993), the ALJ found
that, although Fed. R. Civ. P. 8(c) provides that statutes of
limitations are affirmative defenses and must be asserted at the
earliest possible moment, in an ERA whistleblower matter where
neither the regulations nor a prehearing order required the
Respondent to file an answer to the complaint prior to the
hearing, the raising of the limitations period in the opening
statement at the hearing was the Respondent's earliest
opportunity to do so, and therefore it was timely asserted.
III A 2 Affirmative defenses
In Smith v. Tennessee Valley Authority, 89-ERA-12
(ALJ Oct. 1, 1991), the respondent first raised the issue of
timeliness of the filing of the complaint on the first day of the
hearing. The ALJ noted that there was no provision within the
ERA or 20 C.F.R. Part 24 that addresses when a party must raise
the issue of the 30-day time limitation. Referring to Federal
Rule of Civil Procedure 8(c), the ALJ noted that statutes of
limitations are affirmative defenses, and that courts have held
that affirmative defenses are waived if not pleaded. He also
noted that a defendant may amend his pleading to include an
affirmative defense by leave of court; that the court has the
discretion to permit an amendment when it will promote the
presentation of the merits of the action, the adverse party will
not be prejudiced by the sudden assertion of the defense, and
will have ample opportunity to meet the issue. Fed. R. Civ. P.
15; but that it is not an abuse of discretion to deny a such a
motion proffered just before trial.
In the instant case a prehearing order had directed the parties
to set forth the issues involved in the proceeding and the remedy
requested. The respondent was given 20 days to file its response
to the complainant's statement. Although the respondent did not
raise the issue of timeliness until noon on the first day of the
hearing, it did raise the issue within 20 days of the filing of
the complainant's statement. Thus, the ALJ concluded that the
issue was timely raised. He also noted that the parties were
allowed to fully argue and present evidence relating to the
motion during the course of the hearing. Hence, he concluded
that the defense was not waived by the respondent.
III A 2 Affirmative defense -- burden on
Respondent
Jackson v. Ketchikan Pulp Company, 93-WPC-7,
93-WPC-8 (ALJ Mar. 10, 1994)
Respondent's contention that Complainant failed to file his
complaint in a timely fashion is an affirmative defense; thus,
Respondent has the burden of proof to show untimeliness.
Summary judgment was granted where the complainant failed to show
that a genuine issue of material fact exists with respect to the
issue of timeliness and equitable tolling. 29 C.F.R.
§§ 18.40, 18.41. The complainant failed to show that
the respondents had misled him as to his cause of action or
prevented him from timely filing under the ERA, or that he timely
filed the exact claim in the wrong forum. His assertion that
tolling is appropriate because he was not aware of his rights
under the ERA was unavailing. Lahoti v. Brown &
Root, 90-ERA-3 (Sec'y Oct. 26, 1992).
III A 3 Authority of ALJ to entertain motion for
summary decision
While the regulations at Part 24 do not specifically provide for
summary decision or dismissal on the issue of timeliness, the ALJ
is authorized to entertain and rule on appropriately filed
motions pursuant to the regulations at 29 C.F.R. Part 18 (1992).
29 C.F.R. §§ 18.1, 1940, 18.41. See, e.g., Howard
v. TVA, 90-ERA-24 (Sec'y July 3, 1991), slip op. at 4.
Eisner v. United States Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992).
A finding by Wage & Hour that a complaint is timely is not
binding. A respondent's appeal entitles the parties to a de novo
consideration of the case and all extant issues. Eisner v.
United States Environmental Protection Agency, 90-SDW-2
(Sec'y Dec. 8, 1992).
In Hafer v. United Air Lines, Inc., ARB No. 06-132, ALJ No. 2006-CAA-6 (ARB Aug. 29, 2008), the Complainant's earlier AIR21 complaint had been found to be discharged in bankruptcy. The Complainant later filed a new CAA whistleblower complaint alleging that in a pleading in his AIR 21 case the Respondent admitted that "it had indeed fired [him] for revealing its violations of the Federal Clean Air Act." In addition to finding that the new claim was enjoined by the bankruptcy discharge, the ARB found that it was not timely, having been filed more than four years after the Complainant had been terminated. The ARB rejected the Complainant's argument that the admission was a new act of discrimination. The ARB also found no grounds for equitable tolling.
III A 5 "New evidence" of
discrimination
Where the complainant asserted that he had "discovered"
new evidence of a conspiracy to cover up his wrongful termination
in 1987, referencing discussions with TVA personnel and the
review of TVA personnel files on July 9, 10, and 13, 1990 as the
new evidence, but did not show that any specific adverse action
was taken against him on those dates or at any time in the thirty
days before his complaint, the complaint was tantamount to a
submission of new evidence on a time-barred claim of
discriminatory discharge. In Howard v. Tennessee Valley
Authority, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom.,
Howard v. United States Department of Labor, 959 F.2d 234
(6th Cir. 1992), the complainant had filed a separate complaint
alleging unlawful termination and blacklisting against TVA. This
complaint was dismissed as untimely with respect to the unlawful
discharge allegation and for failure to allege a prima facie case
of blacklisting.
Howard v. Tennessee Valley Authority, 91-ERA-36
(Sec'y Jan. 13, 1993).
TIMELINESS OF COMPLAINT; DISCOVERY OF ALLEGED
VIOLATION DURING DISCOVERY
[N/E Digest III A 5]
In Freels v. Lockheed Martin Energy Systems, Inc.,
95-CAA-2, 94-ERA-6 (ARB Dec. 4, 1996), the Board found that because
Complainant did not learn about allegedly improper use of medical
information by Respondent until she took depositions, and she filed a
complaint within thirty days of the depositions, the complaint was timely as to
this allegation.
III A 5 Date of learning of derogatory remarks as date
from which timeliness of complaint
is calculated
In Flor v. United States Department of Energy,
93-TSC-1 (Sec'y Dec. 9, 1994), the ALJ
had recommended dismissal for lack of a timely filing because he
found that the last significant alleged
retaliatory action occurred more than five months before Flor
filed the complaint. Reading the complaint
liberally, however, the Secretary found that a possible violation
employee protection provision of the
Surface Transportation Act had also been alleged. The complaint
was timely under the STAA's 180 day
filing time limitation.
The Secretary also found that the Complainant's "learning of
a former supervisor's derogatory
remarks in August 1992." In a footnote, the Secretary
observed that "[t]he allegation that
Flor learned of a former supervisor's derogatory remarks on
August 25, 1992 was timely under the
environmental acts as well. I expressly make no finding that a
former supervisor's derogatory remarks
constituted adverse action cognizable under the STAA or the
environmental acts."
[Editor's note:Compare Howard v. Tennessee
Valley Authority, 91-ERA-36
(Sec'y Jan. 13, 1993) (holding that discovery of evidence of an
alleged conspiracy did not cause a
complaint to be timely where there was no specific adverse action
within the limitations period)]
Rule 18.4(a) of the Rules of Practice and Procedure for
Administrative Hearings Before the Office of Administrative Law
Judges, 29 C.F.R. Part 18, is applicable to the ERA limitations
period). Stokes v. Pacific Gas & Elec. Co./Bechtel
Power Corp., 84-ERA-6 (Sec'y Feb. 19, 1987), slip op. at
2-3.
[Nuclear & Environmental Whistleblower Digest III B 1]
FILING OF HEARING REQUEST; CALCULATION OF TIME PERIOD
In Gale v. Ocean Imaging, ARB No. 98 143,
ALJ No. 1997 ERA 38 (ARB July 31, 2002), the ARB cited with approval the following
description by the presiding ALJ of how the time period for requesting a hearing with OALJ
under 29 C.F.R. Part 24 is calculated:
Once the Department issues its decision, the complainant has five days to
request a hearing, by forwarding either a telegram or facsimile to the Chief
Administrative Law Judge. 29 C.F.R. § 24.4(d)(2)(i). Computation of this
period requires that the day following the receipt of the decision commences the
time period, the fifth day is included in the computation, and intermediate
Sundays are excluded since the prescribed period is less than seven days. 29
C.F.R. § 18.4(a).
[Nuclear & Environmental Digest III B 1]
TIMELINESS OF COMPLAINT; NEXT BUSINESS DAY RULE
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB applied the time computation provision found in the
OALJ Rules of Practice and Procedure at 29 C.F.R. §18.4(a), to find that time deadlines
under 29 C.F.R. Part 24 that fall on a weekend day or a Federal holiday are automatically
extended to the next business day.
[N/E Digest III B 1]
FILING; DATE OF MAILING
An ERA complaint is filed as of the date it is mailed. Webb v. Carolina Power &
Light Co., 93-ERA-42, slip op. at 6 n.3 (ARB Aug. 26, 1997) (citing 29 C.F.R. §
24.3(b)).
III B ERA complaint filed more than 30 days after
adverse action, but on or after October 24, 1992 is timely
In Yule v. Burns International Security Service,
93-ERA-12 (Sec'y May 24, 1995),
the Complainant filed her complaint on October 31, 1992, 58 days
after her discharge. The
Comprehensive National Energy Policy Act of 1992 amended the ERA
by, inter alia, enlarging the time
for filing a complaint from 30 days to 180 days. The amendments
were to apply to claims filed on or
after the date of enactment of the CNEPA. The Respondent
contended that the 180-day filing period
did not apply because, absent an explicit provision in the
statute, a new or extended statute of
limitations will not be applied retroactively to revive an
otherwise extinguished claim, and that
Complainant's claim extinguished 30 days after her discharge.
The Secretary rejected this contention,
finding that by its own terms, CNEPA applies its 180 day
limitation to any claim filed on or after
October 24, 1992, and that application of the new period to this
claim was not retroactive.
[Nuclear and Environmental Whistleblower Digest III B 2]
TIMELINESS OF COMPLAINT; DATE OF DENIAL OF UNESCORTED ACCESS, WHICH WAS REQUIRED FOR THE COMPLAINANT'S POSITION, WAS DATE THAT BEGAN THE LIMITATIONS PERIOD
In Swenk v. Exelon Generation Co., ARB No. 04-028, ALJ No. 2003-ERA-30 (ARB Apr. 28, 2005), the ARB affirmed the ALJ's conclusion that the claim was not timely. The Complainant, a nuclear power plant employee whose position required an "unescorted access authorization," had been informed that his access had been suspended and that because his job required such access he must either regain his access authorization or locate a new position within the company not requiring unescorted access within 90 days. Later, he was informed that his unescorted access had been denied and he was no longer eligible for security access, and that he had 10 days to appeal this determination. The DOL whistleblower complaint was filed more than 180 days after this notice.
The ARB agreed with the Respondent's position that: (1) the decision to deny the Complainant unescorted access was communicated to him on November 5, 2002, and his claim was filed more than a month outside the limitations period; (2) the Complainant's position as a nuclear oversight assessment team leader required unescorted access; (3) once that access was denied, the Complainant was aware that he had lost his job as team leader permanently; (4) therefore, the November 5, 2002 letter was final, unequivocal notice of an adverse action that triggered the limitations period. The ARB found that there was no tolling based on the possibility that the Complainant might find a job not requiring access or that he could take an appeal of the denial of access.
In Cox v. Radiology Consulting Associates, 86-ERA-17 (ALJ
Aug. 22, 1986), the ALJ addressed the issue of whether the
complaint was timely filed. Citing the Supreme Court's decision
in Deleware State College v. Ricks, 449 U.S. 250, 101
S.Ct. 498, 66 L.Ed. 2d 431 (1980), the ALJ noted that "the
proper focus is upon the time of the discriminatory acts, not
upon the time at which the consequences of the acts became most
painful." Ricks, 449 U.S. at 258. The ALJ found that the
complaint had not been filed within thirty days of either the
date the Complainant was notified of the termination or the last
day of his employment. Accordingly, the claim was dismissed.
[Editor's note: The ALJ also determined that the circumstances
surrounding the timing of his complaint did not warrant
equitable tolling of the statute of limitations. See section
II.A.3.c. for the discussion on equitable tolling. The Secretary
adopted the ALJ's findings. See Cox v. Radiology Consulting
Associates, Inc., 86-ERA-17 (Sec'y Nov. 6, 1986).]
[Nuclear & Environmental Whistleblower Digest III B 2 a]
TIMELINESS OF COMPLAINT; NOTICE OF REDUCTION IN FORCE
Where the alleged adverse action is a reduction in force, the discriminatory act is the employer's communicating notice of the reduction in force to the employee as opposed to the last date of employment. Belt v. United States Enrichment Corp., ARB No. 02 117, ALJ No. 2001 ERA 19 (ARB Feb. 26, 2004). In Belt, the Complainant signed a memorandum that gave final and unequivocal notice that the Complainant would be discharged under an involuntary reduction in force. The Board held that the fact that the memorandum did not set a date for actual termination did not change the finality of the action.
[Nuclear and Environmental Whistleblower Digest III B 2]
TIMELINESS OF COMPLAINT RUNS FROM DATE OF ADVERSE ACTION
Under the environmental statutes, the time for filing a complaint begins to run from the date of the adverse action, not the date the employee engaged in the protected activity. Erickson v. U.S. Environmental Protection Agency, ARB No. 99-095, ALJ No. 1999-CAA-2 (ARB July 31, 2001) (citing 29 C.F.R. § 24.3(b)).
In Erickson, the ALJ had granted summary decision to Respondent on the ground that the complaint -- filed after Complainant had been denied a promotion -- was untimely as more than three years had elapsed since the alleged whistleblowing activity. The ARB reversed the grant of summary decision, holding: "[W]hile the passage of time between protected activity and adverse action plainly mitigates against the likelihood of retaliation, temporal proximity (or lack thereof) does not by itself determine whether an adverse action was retaliatory." Slip op. at 5 (citation omitted).
[Nuclear & Environmental Digest III B 2]
TIMELINESS OF COMPLAINT; CLAIM ACCRUAL AND DISCOVERY RULE
In whistleblower cases, statutes of limitation run from the date an employee receives final, definitive and unequivocal notice of an adverse employment decision. The date that an employer communicates a decision to implement such a decision, rather than the date the consequences of the decision are felt, marks the occurrence of a violation. Claim accrual is the date a statute of limitations begins to run, i.e., the date a complainant discovers he or she has been injured. Accrual may differ from the date the respondent decides to inflict injury which may pre-date a complainant's discovery of the injury. The ARB applies a discovery rule in whistleblower cases: limitations periods begin to run on the date when facts which would support a discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his or her rights. Overall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001).
[Nuclear & Environmental Digest III B 2]
EXHAUSTION OF ADMINISTRATIVE REMEDIES; ISSUE OF UNDERLYING
JURISDICTION; GENERAL REQUIREMENT THAT AGENCY BE GIVEN INITIAL
OPPORTUNITY TO DETERMINE WHETHER IT HAS JURISDICTION
In Martin Marietta Energy Systems, Inc. v. Martin, 909 F. Supp. 528
(E.D. Tenn. 1993) (related administrative case 1993-CAA-4), plaintiffs [Respondents in the
administrative action] moved in Federal district court for a preliminary injunction against further
processing of Complainant's whistleblower complaint based on the theory that exhaustion of
administrative remedies was not necessary because there had been a patent violation of DOL's
authority, to wit: the complaint is not subject to DOL jurisdiction because Complainant was never an
employee of any of the plaintiffs, and Complainant's activities investigating the etiology of certain
diseases is not protected activity. The district court rejected this argument, noting authority to the
effect that even when the jurisdiction of the agency is at issue, the exhaustion doctrine generally requires
that the agency have the opportunity to determine initially whether it has jurisdiction.
[Nuclear and Environmental Digest III B 2]
TIMELINESS OF COMPLAINT; NON-RESPONSE OF EMPLOYER TO
COMPLAINANT'S LETTER
In a Recommended Order Granting Motion to Dismiss in Flynn v. OK Industries,
Inc., 1999-WPC-1 (ALJ Jan. 13, 1999), Respondent had sent a letter to Complainant
changing his status to medical leave without pay, and informing Complainant that its decision
would not be reviewed until Complainant supplied certain medical records. Subsequently,
Complainant sent a letter to Respondent requesting accrued vacation pay and certain other
information. Respondent did not respond to Complainant's letter. Complainant's complaint
with DOL was untimely if the date of the alleged last adverse action was calculated from the date
of Respondent's letter, but timely if calculated from the date of Complainant's letter to
Respondent. The ALJ concluded that Respondent's non-response could not be construed as a
separate act of discrimination, citing Hadden v. Georgia Power Co., 1989-ERA-21
(Sec'y Feb. 9, 1994). The ALJ wrote:
I am also persuaded by Respondent's argument regarding the dangers of
allowing a claimant to simply "reset the clock" on his own initiative. Under
Complainant's interpretation of the law, an employee may revive an otherwise
time-barred claim at any time by his own act, e.g., mailing a letter. If this is
allowed, the only way an employer in a similar situation could avoid committing a
possibly discriminatory act is to give in; if the employer does not, or simply ignores the
letter, then that decision would be the subject of a discrimination claim. (See
Respondent's Brief, p.3-4). This can not be the intent of the law.
[Nuclear & Environmental Digest III B 2]
TIMELINESS; TRIGGER DATE MUST OCCUR DURING LIFETIME OF EMPLOYEE
In Ricketts v. Northeast Utilities
Corp., 1998-ERA-30 (ALJ Oct. 29,
1998), the ALJ, in ruling on Respondent's motion for summary judgment and therefore viewing
the facts most favorably for the non-moving party, held that the date for starting the limitations
period for filing a whistleblower complaint by the estate of a deceased employee was the date of
the decedent's death. The ALJ rejected the argument by Complainant that the date the
Administratrix learned of some incriminating information -- several months after the employee's
death -- should trigger the limits period. The ALJ also rejected Complainant's alternative
argument that the trigger date should be the day following the employee's death. In both
instances, the ALJ reasoned that the definite notice of a challenged employment decision must
take place during the employee's lifetime -- therefore the date the Administratrix learned of the
allegedly incriminating information or learned of the employee's death had no bearing on the
time period for filing an ERA whistleblower complaint.
The record also contained evidence in the form of personal notes of the employee
indicating that he had been harassed on a certain date several weeks before his death.
Respondent contended that this date should be the trigger date for the limitations period rather
than the date of death. The ALJ, however, held that under the standard for summary judgment, it
was possible that the employee suffered harassment up until the day of his death, and therefore
rejected Respondent's contention that the trigger date should be earlier.
[N/E Digest III B 2 a]
TIMELINESS; DISCOVERY RULE
In Pantanizopoulos v. Tennessee Valley Authority, 96-ERA-15 (ARB Oct.
20, 1997), Complainant's claim accrued for purposes of calculating the timeliness of his
complaint on the date that he discovered he had been wrongly injured. The ALJ had determined
that the accrual date was the date Complainant should have known that he did not receive an
expected monetary performance award. The ARB, however, found that the accrual date was the
date Complainant learned of the reason why he had been denied the performance award -- a
lower than expected performance evaluation. The ARB noted that Complainant could
reasonably have concluded that any delay in receiving the evaluation and the expected
performance award was due to a processing error or oversight, particularly since Complainant
had retired prior the time the performance award was anticipated to be paid.
In discussing the issue, the ARB cited the "discovery rule" as described in Cada
v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990), cert. denied, 501
U.S. 1261 (1991):
Accrual [of a claim] is the date on which the statute of limitations begins to
run. It is not the date on which the wrong that injures the plaintiff occurs, but the date --
often the same, but sometimes later -- on which the plaintiff discovers that he has been
injured. The rule that postpones the beginning of the limitations period from the date
when the plaintiff is wronged to the date when he discovers he has been injured is the
"discovery rule" of federal common law, which is read into statutes of
limitations in federal-question cases (even when those statutes of limitations are
borrowed from state law) in the absence of a contrary directive from Congress. [Citations
omitted]
The ARB also noted that the Secretary of Labor had held that the ERA limitations period
begins to run "when the facts which would support the discrimination complaint were
apparent or should have been apparent to a person with a reasonably prudent regard for his rights
[and] similarly situated to Complainant." McGough v. United States Navy,
86-ERA-18, slip op. at 10 (Sec'y June 30, 1988).
[N/E Digest III B 2 a]
FILING; TRIGGER DATE FOR LIMITATIONS PERIOD BEGAN WHEN COMPLAINANT
STRONGLY SUSPECTED HE WAS WRONGFULLY BEING EXCLUDED FROM
CONSIDERATION FOR EMPLOYMENT
In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26,
1997), Complainant was a contract engineer who was laid-off, and filed an ERA complaint
alleging that later he was not considered for rehire because of whistleblowing activity.
The ARB found that the limitations period for filing the complaint began on the date that
Complainant strongly suspected that Respondent was wrongly excluding him from consideration
for employment. Although Complainant's complaint was filed more than 180 days after that
date, Complainant had also alleged a continuing violation. Thus, the ARB next considered under
the continuing violation theory whether an adverse action had occurred within 180 days of the
filing. See casenote at III C 1 for more on continuing violation analysis]
III B 2 a Trigger of filing period
In ERA cases, the thirty day filing periods commences on the date
that Complainant was informed of the challenged employment
decision rather than the time the effects of the decision were
ultimately felt. Where, however, the undisputed effective date
of Complainants's discharge falls outside of the statutory filing
period, it is unnecessary to discern the actual date when
Complainant was notified of Respondent's decision to discharge.
Howard v. Tennessee Valley Auth., 90-ERA-24 (Sec'y
July 3, 1991).
III B 2 a Notification initiates period
The thirty day filing period for a whistleblower complaint begins
running on the date that the employee is informed of the
challenged employment decision, rather than at the time the
effects of the decision are ultimately felt. See Nunn v. Duke
Power Co., 84-ERA-27 (Sec'y July 30, 1987). Rainey v.
Wayne State University, 89-ERA-8 (Sec'y May 9, 1991);
Ray v. Tennessee Valley Authority, 88-ERA-14 (Sec'y
Jan. 25, 1991).
III B 2 a Notice, not last day of employment
Where the alleged discriminatory act is a reduction in force, the
discriminatory act is the communication of notice of RIF to the
plaintiff as opposed to the last date of employment. Riden
v. Tennessee Valley Authority, 89-ERA-49 (ALJ Feb. 9,
1990), aff'd, (Sec'y July 18, 1990).
III B 2 a Date of knowledge of adverse action and not
retaliatory motive governs initiation of filing
period
In Ottney v. Tennessee Valley Authority, 87-ERA-24
(ALJ July 24, 1991), the ALJ rejected the complainant's argument
that under McGough v. United States Navy, 86-ERA-18 (Sec'y
June 30, 1988), the 30-day filing period begins to run when the
facts which would support a discrimination complaint are, or
should be, apparent to a person with a reasonably prudent regard
for his rights. The complainant argued that the limitations
period began to run when she became aware of the respondent's
retaliatory motive and not when she was laid off.
The ALJ held that it is knowledge of the employer's actions that
establishes the beginning of the filing period. See Billings
v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28,
1990), aff'd without opinion, 923 F.2d 854 (6th Cir.
1991). He noted that the McGough decision itself states
that the proper focus is on the time of the discriminatory act,
and cites the implementing regulation at 29 C.F.R. § 24.3(b)
which requires a complaint to be filed "within 30 days after
the occurrence of the alleged violation." McGough,
slip op. at 6.
III B 2 a Trigger date for filing of complaint
Employee filed suit under the employee protection section of the
ERA alleging she was unlawfully subjected to employment related
discrimination because she registered and pursued safety
complaints against her employer, GE, with the NRC. The Secretary
dismissed her claim as untimely under section 5851(b)(1). The
court upheld the application of the Ricks-Chardon rule in
EPS cases: the administrative filing period begins running on the
date that the employee is given definite notice of the challenged
employment decision, rather than the time that the effects of the
decision are ultimately felt. English v.
Whitfield, 858 F.2d 957, 961 (4th Cir. 1988).
III B 2 a Date of initiation of period
The filing period for a whistleblower complainant under the ERA
commences on the date that the complainant is informed of the
challenged employment decision rather than at the time the
effects of the decision were ultimately felt. See Howard v.
Tennessee Valley Authority, 90-ERA-24 (Sec'y July 3, 1991),
slip op. at 2-3, aff'd sub nom., Howard v. United States
Department of Labor, 959 F.2d 234 (6th Cir. 1992). Thus,
where the complainant received final and unequivocal written
notification of the challenged employment decision, neither his
subjective belief that his termination might not become effective
nor the possibility of an EEO accommodation altered the
triggering date of the filing period. See English v.
Whitfield, 858 F.2d 957, 961-962 (4th Cir. 1988);
Janikowski v. Bendix Corp., 823 F.2d 945, 947 (6th Cir.
1987).
Ballentine v. Tennessee Valley Authority, 91-ERA-23
(Sec'y Sept. 23, 1992).
III B 2 a Trigger date when complainant knew
In Delcore v. W.J. Barney Corp., 89-ERA-38 (ALJ
Apr. 24, 1990), Complainant asserted that Respondent subjected
him to discrimination by offering him an improper and overly
restrictive proposed settlement agreement to resolve an action
pending before a United States district court involving
allegation of state laws relating to wrongful termination,
tortious inference with employment contract, and defamation.
The ALJ found (1) that he had no jurisdiction over the matter
because Complainant was not an employee at the time of the
allegedly discriminatory act and because the federal court action
did not involve a 42 U.S.C. § 5851 matter; (2) the complaint
was untimely where the settlement negotiations began in December
1988, the disputed settlement agreement was forwarded to
Complainant in February 1989, Respondent rejected Complainant's
proposed revisions to the agreement in April 1989, and
Complainant filed his whistleblower complaint in May 1989 (the
ALJ finding that the trigger date was February); and (3) the
record established that the sole motivating factor for the
settlement offer was the parties' mutual desire to settle the
federal court action -- and Complainant did not establish that
protected activities were a motivating factor.
III B 2 a Trigger of statute of limitations at date of
notice, not date of implementation
The Ricks-Chardon rule applies to EPS complaints: the
proper focus in assessing time-bar defenses under EPS is the time
of the challenged conduct and its notification rather than the
time it painful consequences are felt. Delaware State College
v. Ricks, 449 US 250, 101 S Ct 498, 66 LEd2d 431 (1980)(Title
VII claim); Chardon v. Fernandez, 454 US 6, 102 S Ct 28,
70 LEd2d 6 (1981)( section 1983 claim, Title VII, Civil Rights
Act of 1964, 42 USC §2000e et seq.). Ricks-Chardon
is premised on an employee's having been given final and
unequivocal notice of an employment decision having delayed
consequences. Only upon receipt of such notice does the filing
period begin to run. Until that time there is the possibility
that the discriminatory decision itself will be resolved and the
contemplated action not taken, thereby preserving the pre-
decision status quo. Where the employer's letter giving notice
of its decision on a disciplinary hearing indicated that she
would be terminated unless she secured other employment with the
employer before the end of a temporary assignment, the decision
was not equivocal but in form final and unequivocal. Obtaining
of other suitable employment would only permit the employee to
avoid the termination -- it would not negate the alleged
discriminatory decision itself. Therefore, the notification of
the decision rather than the final day of the temporary
assignment triggered the statute of limitation with respect to
the employee's claim of retaliatory termination of her
employment. English v. Whitfield, 858 F2d 957 (4th
Cir. 1988).
[Editor's note: note that this is time bar of retaliatory
termination -- court later recognized claim of retaliatory
harassment (employee alleged she was harassed during temporary
assignment)]. [Editor's note: note that court cites Brenner's
dissent in Chardon, 454 US at 9, 102 S Ct at 20: result
of rule is increase in unripe claims. Court evidently is
uncomfortable with the rule].
III B 2 a Effective date of termination
Patton-Davis v. Tennessee Valley
Authority,
90-ERA-61 (Sec'y Feb. 22, 1994)
The Secretary granted the Respondent's motion for summary
judgment to dismiss the complaint. The case law and prior
decisions of the Secretary support the conclusion that the
effective date of termination is merely the date the consequences
of the adverse action are ultimately felt and not necessarily the
date the alleged violation occurred.
Additionally, there is no evidence to establish equitable
tolling of the limitations period, nor is there evidence to
support the general statement in the complaint that "other
acts of discrimination occurred within thirty days of
filing."
III B 2 a Oral notification
Hadden v. Georgia Power Co., 89-ERA-21
(Sec'y Feb. 9, 1994)
The ALJ recommended dismissing the complaint as untimely,
and alternatively held that even if it were considered timely,
the complainant failed to establish the inference that the
adverse actions were motivated by the complainant's protected
activity. The Secretary agreed with the ALJ and dismissed the
complaint as untimely.
Complainant was fired by one of Respondent's contractors,
rehired several months later after settling the complaint, and
refired shortly thereafter. Although complainant did not receive
written notification that he was permanently barred from
employment with the Respondent until over two years from his
final discharge, the complainant was informed he was permanently
barred within months of his discharge. The Statute of
Limitations begins to run when the claimant is first notified of
the adverse action, and that notification need not be written.
The Secretary rejected the complainant's argument that
repeated denials for re-employment constitute a continuing
violation with each denial being a separate discrimination act.
Instead, the Secretary found such repeated denials the continuing
effect of the initial decision to permanently bar re-employment.
Since the complaint was dismissed as untimely, the Secretary
did not address the issue of burden of proof.
III B 2 a Commencement when facts apparent
Where the Complainant waited more than 30 days after both the
date of the alleged discriminatory act and the date he allegedly
first become aware of evidence of retaliatory intent, his
complaint was not timely. See McGough v. United States Navy,
ROIC, 86-ERA-18 (Sec'y June 30, 1988) (commencement date of
the limitations period is the date when the facts were apparent
or should have been apparent to a person with a reasonably
prudent regard for his rights similarly situated to the
Complainant). Billings v. Tennessee Valley
Authority, 86-ERA-38 (Sec'y June 28, 1990).
III B 2 a Notification rather than effect
From: Bonanno v. Northeast Nuclear Energy Co., 92-
ERA-40 and 41 (Sec'y Aug. 25, 1993).
The ERA filing period commences on the date that a complainant is
informed of the challenged actions rather than at the time the
effects of the actions are ultimately felt. See Ballentine v.
Tennessee Valley Authority, 91-ERA-23 (Sec'y Sept. 23, 1992);
Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y
July 3, 1991), aff'd sub nom. Howard v. United States Dept. of
Labor, 959 F.2d 234 (6th Cir. 1992).
Where Complainant learned of the issuance of a disciplinary
letter, a layoff, dunning notices about unpaid medical bills, and
a neurologist's "pre-existing condition" report, all
more than 30 days prior to the filing of the complaint, his
subjective belief that these actions might not be permanent (a
correct belief in the case of the disciplinary letter, layoff,
and dunning notices) did not alter the triggering of the filing
period. [citations omitted]
[Editor's note: Complainant's complaint was based on his
treatment following an industrial accident in which he was cited
for not wearing a hard hat; the complaint was filed prior to the
change from 30 to 180 days for filing]
Cases under the ERA recognize that the 30-day limit is not
jurisdictional, and may be subject to equitable tolling. See
Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989),
aff'd sub nom. Doyle v. Secretary of Labor, No. 89-7863
(11th Cir. 1989); School District of City of Allentown v.
Marshall, 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).
III B 2 a Date Complainant knew he had not been selected
rather than date he
discovered reason for non-selection governs
The fact that the Complainant may not have know the reason for
the Respondent's failure to select him
for a position until months after the nonselection was deemed
irrelevant in Gillilan v. Tennessee
Valley Authority, 92-ERA-46 and 50 (Sec'y Apr. 20,
1995), because the Complainant knew
much earlier that he had not been interviewed for the position
and that other people had been selected.
The Secretary held that this "knowledge was sufficient to
have triggered [the Complainant's]
awareness of and duty to assert his rights under the ERA."
(citation omitted)
III B 2 a Date of notification rather than effect
Kang v. Department of Veterans Affairs Medical
Center,
92-ERA-31 (Sec'y Feb. 14, 1994)
The Secretary issued a final decision and order dismissing
the complaint as untimely.
The ERA filing period commences on the date that a
complainant is notified of the challenged employment decision
rather than at the time the effects are untimely felt. Here, the
evidence supported that complainant was well aware of the adverse
action at the time it was communicated to him.
The Secretary also failed to find an issue of equitable
tolling. Although complainant's counsel may not have been aware
of the specific time allowed for filing a complaint under the
ERA, ignorance of the law alone is not sufficient to warrant
equitable tolling of the limitations period. There is no
evidence to support any alternate theory of equitable tolling of
the limitations period. There is no evidence to support any
alternate theory of equitable tolling in this case, such as if
the Respondent deliberately misled the Complainant as to the
Existence of the complaint or attempted to coerce the complainant
into not filing a complaint.
In Belt v. USDOL, Nos. 04-3487, 04-3926 (6th Cir. Jan. 25, 2006) (unpublished) (case below ARB No. 02-117, ALJ No. 2001-ERA-19), the Sixth Circuit affirmed the ARB's determination that the Complainant's ERA complaint was not timely filed based on the date that the Complainant signed an irrevocable memorandum acknowledging his decision to be selected for an involuntary reduction in force. The fact that the effective date of his termination was almost a month later was not relevant. The court held that even if the notice of termination had been indefinite (which the court concluded it was not), under Kessler v. Bd. of Regents, 738 F.3d 751, 755-56 (6th Cir. 1984), the notice would have been sufficient to commence the running of the limitations period.
III B 2 b Unequivocal notice of suspension
commences period
The period for filing a whistleblower complaint commences on the
date the complainant receives unequivocal notice of his or her
suspension. Tracy v. Consolidated Edison Co. of New York,
Inc., 89-CAA-1 (Sec'y July 8, 1992).
[Nuclear & Environmental Whistleblower Digest III B 2 b] TIMELINESS; RECEIPT OF WAIVER OF RELEASE
In Honardoost v. PECO Energy Co., ARB No. 01 030, ALJ No. 2000 ERA 36 (ARB Mar. 25, 2003), Complainant's receipt of a "Waiver of Release" (which specified a date of termination of employment) constituted a "final and unequivocal" notice of the alleged adverse action that triggers the limitations period for filing an ERA whistleblower complaint, regardless of whether Complainant signed the release. The limitations period was not extended by the fact that the size of his annuity payment was later recalculated several times.
[Nuclear & Environmental Digest III B 2 b]
TIMELINESS OF COMPLAINT; DISTINCTION BETWEEN NOTICE OF
SUSPENSION AND NOTICE OF TERMINATION FROM EMPLOYMENT
In Ross v. Florida Power & Light
Co., 1996-ERA-36 (ARB Mar. 31, 1999), Complainant's complaint was timely if
measured from the date of a letter terminating his employment, but not timely if measured from
an earlier notice of suspension of access. Relying on English v. General Electric,
1985-ERA-2 (Under Sec'y Jan. 13, 1987), aff'd sub nom English v. Whitfield, 858 F.2d
957 (4th Cir. 1988), the ALJ concluded that Complainant had received final and unequivocal
notice that an adverse action was being taken against him on the date of the notice of suspension.
The ARB disagreed, distinguishing English on the ground that in that case the first
notice received by the complainant permanently barred her from laboratory in which she worked,
and other secure areas of the facility. In the instant case, however, Complainant was only told
that his access was suspended, and was given two methods for retaining employment. The ARB
found that it was reasonable at that point for Complainant to think that it was still possible for
him to regain his access to the secured area, and thus his position therefore, this was not final
and unequivocal notice that he was being terminated. Accordingly, the complaint was found to
be timely.
III B 2 b Unequivocal and final notice
In The Detroit Edison Co. v. Secretary, United States Dept.
of Labor, No. 91-3737, slip op. (6th Cir. Apr. 17, 1992)
(per curiam) (unpublished) (available at 1992 U.S. App. LEXIS
8280), the Sixth Circuit reversed the finding of the ALJ and the
Secretary of Labor that the Complainant had not received
unequivocal and final notice of the adverse employment decision.
The complainant had testified that "On 4-9-86 [more than 30
days prior to her complaint] Sam Thompson, my immediate
supervisor, informed me I was going back to uniform as [sic]
nuclear security officer. He said he wrote a memo trying to
prevent this but was unsuccessful." The Circuit court
pointed out that neither the Secretary nor the Complainant had
identified any evidence to support the conclusion that the notice
was equivocal or open to modification.
[Editor's note: The Sixth Circuit, however, upheld the
Secretary's alternative finding that the filing period was
equitably tolled based on other conduct by the Respondent].
III B 2 b Unequivocal, final notice
In Eisner v. U.S. Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), the ALJ made a
recommendation of dismissal based on the untimeliness of the
complaint. A summary of the circumstances follows:
The complainant was put on leave-without-pay status on
August 2, 1989.
According to the respondent, the complainant was given
an ultimatum of termination or resignation in December
1989.
The complainant was terminated effective January 18,
1990, by notice dated and admittedly received by the
complainant on January 12. The notice stated:
Upon reviewing your work performance, and as
we discussed on December 20, 1989, I have decided
to separate you from your position as an EPS
Student Trainee, effective January 18,
1990.
On January 25, 1990, the complainant was mailed a
"Notification of Personnel Action" showing
her "involuntary termination" effective
January 18, and a "Notice of Change in Health
Benefits Enrollment".
On January 31, 1990, one of respondent's personnel
indicated to the program attorney that he agreed that
the termination letter was "inappropriately
issued" (procedurally and semantically) and that
he would rescind it if the complainant would instead
submit a resignation letter. The complainant had no
knowledge of this remark.
Sometime in February 1990, respondent's program
attorney indicated to the complainant that if she would
submit a letter of resignation, the termination letter
would be rescinded.
The complainant testified that in light of her December
1989 and February 1990 conversations with respondent's
personnel, she did not consider the respondent's
decision final until March 7, 1990, when she learned
that the respondent was no longer willing to consider a
resignation letter or any action other than
termination.
The respondent conceded, for purposes of a summary
judgment motion on the timeliness issue, that
complainant filed her complaint on March 22, 1990.
The Secretary first considered when the complainant received
unequivocal, final notice. She agreed with the ALJ that the
termination letter and the government forms clearly indicated a
discharge on January 18, and "vividly reflect a final
discharge of a permanent nature." [quoting ALJ's
Recommended Decision and Order at 2]. The Secretary noted that
generally speaking, a cause of action for unlawful termination
accrues when the employee receives an unequivocal, final notice
of the decision. English v. Whitfield, 858 F.2d 957, 962
(4th Cir. 1988).
The facts of the case did not demonstrate affirmative misleading
or deceptive conduct by the respondent that would justify
tolling. See Dillman v. Combustion Engineering, Inc., 784
F.2d 57, 60 (2d Cir. 1986); Tracy v. Consolidated Edison Co.
of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992), slip op. at
6-7 and cases cited therein.
Even if an employer agrees to reconsider a termination decision,
such reconsideration alone is legally insufficient to toll a
limitations period. Delaware State College v. Ricks, 449
U.S. 250, 261 n.15 (1980); Electrical Workers v. Robbins and
Myers, Inc., 429 U.S. 229 (1976). The respondent's
willingness to ameliorate the effects of the complainant's
termination by accepting a resignation letter did not constitute
grounds for equitable estoppel in the instant case.
Dillman, 784 F.2d at 61; see English, 858 F.2d at
963; Naton v. Bank of California, 649 F.2d 691, 696 (9th
Cir. 1981). There was no allegation that the respondent's
willingness to accept a resignation letter was contingent on the
complainant's agreeing not to file a complaint, or that the
subsequent unwillingness to accept the complaint was based on
lapsing the filing period.
The complainant's admission that after receiving the termination
notice in January she contacted the respondent's Program Attorney
for help because she believed that the reasons for her
termination were pretextual, that her discharge was retaliatory,
and that neither termination nor forced resignation were
appropriate, also indicated that tolling was not appropriate.
See Kale v. Combined Insurance Co. of America, 861 F.2d
746, 753 (1st Cir. 1988); Nation, 649 F.2d at 696.
[Editor's note: The Secretary did, however, remand the case for
the ALJ to consider a separate allegation of discrimination based
on the refusal to accept the resignation letter.]
III B 2 b Unequivocal, final notice of decision
A cause of action for unlawful termination generally accrues when
the employee receives an unequivocal, final notice of the
decision. Eisner v. United States Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992).
III.B.2.b. Employer implied denial of access was not
final
In Crosier v. Westinghouse Hanford Co., 92-CAA-3
(Sec'y Jan. 12, 1994), the Secretary found that the Respondent's
denial of a badge and of site access was not sufficiently final
and unequivocal to trigger the start of the 30-day period for
filing a SWDA complaint where the Respondent (a nuclear facility)
admittedly did not tell the Complainant why it denied him access,
and the Compliant's employer (a supplier of contract labor) told
him it would take some time to gain access, which implied that
access would be forthcoming.
III B 2 b Oral notice sufficient
In McGarvey v. EG & G Idaho, Inc., 87-ERA-31
(Sec'y Sept. 10, 1990), the ALJ ruled that the thirty day period
for the filing of the complainant's ERA complaint commences on
the date the complainant was first orally notified by the
respondent of the decision to terminate him. On review by the
Secretary, the complainant argued that because his employment
contract with the respondent provided for "written
notice" of termination the filing period should not commence
until the date of written notice. In the alternative, the
complainant argued that equitable tolling was warranted because
reliance on the employment contract terms provided by the
respondent was reasonable and worked to his detriment.
The Secretary rejected both of these arguments. The written
notification merely confirmed what the complainant already knew.
Further, the record did not support the complainant's contention
that he did not believe he was finally and unequivocally
terminated until receiving the written notice because the
complainant had submitted to the respondent a claim for damages
for breach of employment contract prior to that date.
III B 2 b Definitions of final, definitive and
unequivocal notice of adverse job action
The ERA 30 day limitations period runs from the date the employee
receives final, definitive, and unequivocal notice of the adverse
job action. "Final" and "definitive" notice
denotes communication that is decisive or conclusive, i.e.,
leaving no further chance for action, discussion, or change.
"Unequivocal" notice denotes communication that is not
ambiguous, i.e., free of misleading possibilities.
In Larry, the Secretary found that a notice from
complainant's supervisor of a proposed transfer, accompanied by a
memorandum describing his serious challenge to the proposal
"appeared ambiguous and inconclusive." The Secretary
distinguished English v. Whitfield, 858 F.2d 957, 962 (4th
Cir. 1988), on the ground that in that case the notice was
unequivocal and absent any intimation that the decision was
subject to further appeal or reexamination.
Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June
28, 1991).
III B 2 b Pressure to rescind a complaint lacks
degree of permanence to
trigger awareness of duty to assert
rights
Courts recognize an equitable exception to statutory limitations
periods for continuing violations where,
rather than manifesting itself as series of discrete acts, the
unlawful employment practice manifests
itself over time. In order to invoke the exception, a
plaintiff must show that an ongoing
violation, and not just the effects of a previous violation,
extended into the statutory period.
Nathaniel v. Westinghouse Hanford Co., 91-SWD-2
(Sec'y Feb. 1, 1995), citing, inter
alia,Berry v. Bd. of Supervisors of LSU, 715 F.2d 971
(5th Cir. 1983), cert. denied,
479 U.S. 868 (1986) (court should consider whether the acts
involved the same type of discrimination,
were recurring, and lacked permanent adverse effect).
In Nathaniel, the Complainant was pressured on
October 24, 1990 to rescind an
electronic mail message in which she had raised health and safety
issues, she endured increasing
pressure to rotate out of her assigned work group during November
and early December; at some
unknown point the Respondent decided to transfer her; and on
December 4 she decided to quit rather
than rotate. She filed her complaint of unlawful discrimination
on December 10. Because of the
uncertainty associated with the timing of the Respondent's
transfer decision, the Secretary wrote that he
was inclined to find that that violation occurred on December 4
when the pressure to rotate finally
caused the Complainant to resign. The December 10 complaint of
unlawful discrimination therefore was
timely as to that violation. Furthermore, the October 24
violation met the standards for
extension into the statutory period.
The Secretary noted that, unlike a poor performance appraisal or
demotion, being pressured to rescind
a complaint lacks the degree of permanence which should trigger
an employee's awareness of and duty
to assert his or her rights, or which should indicate to the
employee that the continued existence of the
adverse consequences of the act is to be expected without being
dependent on a continuing intent to
discriminate.
III B 2 b Unequivocal notice of termination triggers
limitations period
In Wagerle v. The Hospital of the Univ. of Pennsylvania, Depts
of Physiology and
Pediatrics, 93-ERA-1 (Sec'y Mar. 17, 1995), there was
uncontroverted evidence that the
Complainant's position as research associate professor at the
University depended on his obtaining
outside funds to support his research. Although Complainant was
not terminated from employment until
July 31, 1992, the Respondent had provided clear notice in March
1992 that the University did not
intend to continue Complainant's employment beyond the duration
of his current outside grant and that
the likelihood of his timely obtaining additional outside funds
was very remote. The notice did not
intimate that termination was subject to further review or
appeal. Thus, the March 1992 notice, being
final and unequivocal, triggered the limitations period under the
ERA whistleblower provision. See
English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).
III B 2 b Final and unequivocal notice
In McDonald v. University of Missouri, 90-ERA-59
(Sec'y Mar. 21, 1995), the
Complainant was a Postdoctoral Associate for a lab at the
University of Missouri. On April 11, 1990 the
Complainant was told to wrap up her work in the next couple of
months, and on April 16, 1990, she was
informed that she would no longer be able to work in the lab. At
that time the locks were changed to
prevent her from entering the lab, and she was informed that her
current contract would not be renewed
and that she was being discharged effective April 30, 1990. The
professor heading the lab, however,
changed his mind and renewed the Complainant's contract through
June. Further, although the
Complainant no longer worked in the lab, her salary was increased
from 3/4 time to full time. The
personnel office was not notified of nonrenewal until June 1990.
On June 28, 1990, the professor
heading the lab informed the Complainant that she would be
finally discharged as of June 30, 1990.
The Complainant did not file a complaint with the DOL until July
27, 1990.
The Secretary concluded that the complaint was timely because the
final and unequivocal notice did not
come until June 28, 1990. The Secretary held that if notice had
been given in April that June 30 was
the effective date of discharge, the filing period would have
begun then -- but that the lab head in fact
equivocated about the final termination decision until June 28,
1990.
29 C.F.R. § 24.3(b) provides that "[f]or the purpose of
determining timeliness of filing, a complaint filed by mail shall
be deemed filed as of the date of the mailing." Where the
complaint is filed on the 31st day after the alleged violation,
and that day is a Monday, the complaint is timely pursuant to 29
C.F.R. § 18.4(a).
Stokes v. Pacific Gas & Electric Co., 84-ERA-6
(Sec'y Feb. 19, 1987) (order of remand).
[Nuclear & Environmental Digest III B 3]
TIMELINESS OF FILING OF COMPLAINT; LACK OF EVIDENCE OF MAILING TO ANY GOVERNMENT AGENCY
In Roberts v. Battelle Memorial Institute, ARB No. 00-015, ALJ No. 1996-ERA-24 (ARB Apr. 30, 2001), Wage and Hour, the presiding ALJ, and the ARB all found that Complainant (who was proceeding pro se) had not made a timely filing of her ERA complaint. During the ARB appeal, however, Complainant asserted that she made a timely filing with OFCCP that raised cognizable claims under the ERA. She did not produce the purported filing, however. Thus, the ARB affirmed the ALJ. On review before the Sixth Circuit, Complainant produced a document that she alleged was the purported filing; the Sixth Circuit remanded for further fact finding. On remand, the ALJ contacted both OFCCP and the EEOC (to which the OFCCP had forwarded the filing), and each office forwarded copies of the material they had on file relating to the Complainant's filings at the relevant time. The ALJ also conducted a hearing at which Complainant testified and presented a copy of the complaint she alleged she filed and which allegedly contained cognizable ERA complaints. The complaint Complainant presented did not match the documentation found in the OFCCP and EEOC files, which only presented a sex discrimination complaint. Reciting the history of the case, including the repeated attempts during the first proceeding to get Complainant to present anything that would have shown the filing of a timely complaint, and reasoning that the evidence indicating that no government office appeared to have received a timely complaint letter raising ERA issues indicated that no such letter was ever mailed, the ALJ found that Complainant's testimony about the mailing was not credible and recommended dismissal of the complaint. The ARB adopted the ALJ's decision.
[Nuclear & Environmental Digest III B 3]
TIMELINESS OF FILING OF COMPLAINT; RELEVANT ACT IS MAILING, NOT RECEIPT
Pursuant to 29 C.F.R. § 24.3(b) the relevant question on timely filing of a complaint is whether the complaint was actually mailed, rather than actually received. Roberts v. Battelle Memorial Institute, ARB No. 00-015, ALJ No. 1996-ERA-24 (ARB Apr. 30, 2001) (ALJ erred in analogizing to Federal Tort Claims Act that there must be actual receipt of a complaint).
[Nuclear & Environmental Digest III B 3]
REQUEST FOR HEARING; TIMELY BUT NOT VIA MEANS SPECIFIED IN
REGULATIONS
In Lazur v. U.S. Steel-Gary Works, 1999-ERA-3 (ALJ May 18, 2000),
the ALJ concluded that a Complainant's request for hearing, if timely received by the Office of
Administrative Law Judges, would not be dismissed merely because the Complainant served the
request on the OALJ and the other parties by regular mail rather than one of the methods
specified in 29 C.F.R. 24.4 (fax, hand delivery or next-day delivery service). The ALJ concluded
that as long as the request actually was timely received, it did not matter that regular mail was
used.
[Nuclear & Environmental Digest III B 3]
TIMELINESS; TESTIMONY OF ATTORNEY THAT COMPLAINT LETTER HAD
BEEN SENT BY REGULAR MAIL
In Melendez v. Exxon Chemicals Americas, ARB No. 96-051, ALJ No.
1993-ERA-6 (ARB July 14, 2000), the ARB adopted the ALJ's finding that the testimony of
Complainant's attorney that the complaint letter to ESA had been sent by regular mail on the
Friday before the Monday the complaint was due to be filed, together with documentary evidence
showing receipt by ESA on the next Tuesday, established that the complaint was timely filed.
The ARB declined to accept Respondent's contention that the attorney's testimony could not be
relied upon because the letter had not been sent by certified mail, with return receipt service.
[Nuclear and Environmental Digest IV.B.3.]
EQUITABLE TOLLING; WRONG FORUM; BURDEN ON COMPLAINANT
In Rockefeller v. Carlsbad Area Office, U.S.
Dept. of Energy, ARB Nos. 99-002, 99-063, 99-067, 99-068, ALJ Nos. 1998-
CAA-10 and 11, 1999-CAA-1, 4 and 6 (ARB Oct. 31, 2000), Complainant asserted that he filed
a complaint with the EPA that qualified for the equitable tolling principle under the CAA
whistleblower provision of raising the precise statutory claim in issue but in the wrong forum.
The ARB found that equitable tolling could not be applied where Complainant failed to adduce
supporting evidence. The Board held that "[w]hen a complainant invokes
equitable tolling of a statute of limitations, it is the complainant's burden to demonstrate
existence of circumstances that would support tolling. Cf. Ross v. Buckeye Cellulose
Corp., 980 F.2d 648, 661 (11th Cir. 1993) (plaintiff in Title VII action has burden of proving
equitable reasons for failure to comply with limitations period)." Slip op. at 9.
Similarly, the ARB found that equitable tolling could not be applied to Complainant's filing of a MSPB appeal of his discharge by the Department of Energy. The ARB reviewed Complainant's letter of appeal, a memorandum to the MSPB examiner, and the MSPB's ALJ decision, and concluded that Complainant's MSPB whistleblower complaint related only to his assertion that DOE did not follow internal procedural regulations. The ARB wrote that "[w]here the gravamen of a complaint filed in the 'wrong forum' sounds under another, independent remedy and not under the provision under which relief is sought before us, there is no basis for invoking equitable tolling." Slip op. at 10-11.
III B 3 Last day on a Sunday
Where the thirty-first day after the alleged whistleblower
violation is a Monday, and the complaint was postmarked on that
day, the complaint is timely filed. See 29 C.F.R. §§
18.4(a) and 24.3(b).
Monteer v. Casey's General Stores, Inc., 88-SWD-1
(Sec'y Feb. 27, 1991).
III B 3 Complaint filed as of date of mailing
For the purpose of determining the timeliness of filing a CAA
whistleblower complaint, a complaint filed by mail shall be
deemed filed as of the date of the mailing. 29 C.F.R. §
24.3(b). Where there is no evidence of the date of mailing, but
the date on the complaint itself if beyond the time period
allowed for filing, the complaint is not timely. Tracy v.
Consolidated Edison Co. of New York, Inc., 89-CAA-1
(Sec'y July 8, 1992).
III B 3 Mailing is date of filing
A complaint in an ERA whistleblower action is deemed filed as of
the date of mailing rather than receipt. See 29 C.F.R.
§ 24.3(b); Stokes v. Pacific Gas & Electric Co.,
84-ERA-6 (Sec'y Feb. 19, 1987). Rainey v. Wayne State
University, 89-ERA-8 (Sec'y May 9, 1991).
III B 3 Evidence of date of mailing
Where the complainant's credibility was questionable, the ALJ
relied on the documentary evidence of record to conclude that the
complaint had not been timely filed. The complainant testified
that he mailed the complaint on January 26, 1988, but the receipt
date stamped on the complaint by the Department of Labor was
March 3, 1988. Day v. Georgia Power Co., 88-ERA-42
(ALJ June 23, 1989), aff'd, (Sec'y Mar. 23, 1990).
III B 3 Delay in postmark
The complaint in Rex v. Ebasco Services, Inc., 87-
ERA-6 (Sec'y Apr. 13, 1987), was found to be timely despite
having a postmark dated the 31st day following the commencement
of the filing period. The Secretary adopted the ALJ's finding
that the complaint was in fact mailed on the 30th day based upon
complainant's counsel's affidavit that she had placed the
complaint in a mail box in front of a post office between 6:00
and 6:30 p.m. on the 30th day. The mail box indicated that the
last pick up was at 7:00 p.m. Later, upon learning that Wage
& Hour had found the complaint not to be timely, she made
inquiries to the post office, and learned that mail from this box
and other cities is taken to a central processing station in
another city for all mail in the area. She was informed that
although mail picked up in the 7:00 p.m. pickup was generally
postmarked on the day it was mailed, any one or a combination of
factors could have occurred delaying the postmark.
III B 3 Filing period runs from date Complainant
wrote resignation letter rather than
date he actually delivered it
In a "constructive partial discharge" case, the date
from which the limitations period for filing
an ERA complaint began running was the date the Complainant wrote
the letter of resignation rather
than the date he allegedly actually delivered the letter to the
Respondent.
Gomez v. University of Puerto Rico Medical
Science Campus, 89-ERA-43 (Sec'y Apr. 20, 1995)
(Secretary did not rule on whether a "constructive partial
discharge"
was a cognizable ground on which to base an ERA whistleblower
complaint).
III B 3 Proof of date of filing of complaint
In Mansour v. Oncology Services Corp., 94-ERA-41
(ALJ Nov. 23, 1994)(order continuing hearing and confirming
rulings), the Department of Labor was unable to find the envelope
disclosing the postmark of Complainant's letter of complaint to
the DOL, or any other proof of the date
the letter was sent. The ALJ suggested that the Counsel for the
DOL bring this egregious circumstance
to the attention of appropriate officials at DOL so that it never
recurs. The ALJ wrote:
The deadlines for whistleblower case complaints are
important, and the retention in DOL's
case file of the envelope with the postmark proof of mailing
would have solved the problem in
this case. Regrettably, there is no requirement in the
regulation (29 C.F.R. § 24.3) that a
complaint filed by mail be sent by certified mail. Such a
requirement would be a useful
amendment.
In Lewis v. U.S. Environmental Protection Agency,
ARB No. 04-117, ALJ Nos. 2003-CAA-5 and 6 (ARB Mar. 30, 2007), the ALJ erred in applying the "continuing violation" doctrine to find that the Complainant had made a timely complaint
alleging that the EPA had engaged in adverse employment action when it failed to follow its internal peer review process for granting permission to its scientists to publish
research papers. Rather, the ARB found applicable the "discrete action" standard from Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 114-15 (2002). Thus, because the
Complainant knew more than two months prior to filing of his environmental whistleblower complaint that a scientist well-known to advocate a position different from that of the Complainant in
regard to the subject of the paper (whether sludge fertilization presents public health risks) had inappropriately participated in the peer review, and the applicable limitations period
was only 30 days, the complaint was untimely.
[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; DISTINCTION BETWEEN CONTINUING EFFECTS OF A DISCRETE ADVERSE ACTION AND A CONTINUING VIOLATION
In Erickson v. U.S. Environmental Protection Agency, ARB No. 03-002, ALJ No. 1999-CAA-2 (ARB May 31, 2006), the Complainant did not timely file an environmental whistleblower complaint upon being transferred to a new position. The ARB found that she appeared to be arguing on appeal that her whistleblower complaint was timely because, upon transfer to a new position, she had been shunned by co-workers, "put on display" by being stationed in the library, was underutilized, and was required to supervise computer specialists even though she lacked necessary skills. The ARB, however, found that the Complainant was actually complaining about the consequences � i.e., the "continuing effects" -- of her transfer. The Board distinguished between the continuing effects of a prior adverse action and continuing violations. The Board noted that "to allow a continuing effects theory to revive expired or stale claims would render the filing time periods in the whistleblower provisions a nullity." USDOL/OALJ Reporter at 22 (footnote omitted).
III C 1 Continuing
discrimination
[NOTE: The following discussion is from McCuistion v.
Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991).]
Courts generally recognize an equitable exception to statutory
limitations periods for continuing violations "'[w]here the
unlawful employment practice manifests itself over time, rather
than as series of discrete acts.'"[1]
_________
Footnote [1]
The court in Malhotra v. Cotter & Co., 885 F.2d
1305, 1310, explained:
What justifies treating a series of separate
violations as a single continuing violation? Only that
it would have been unreasonable to require the
plaintiff to sue separately on each one. In a setting
of alleged discrimination, ordinarily this will be
because the plaintiff had no reason to believe he was a
victim of discrimination until a series of adverse
actions established a visible pattern of discriminatory
mistreatment.
Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir.
1989), quoting Abrams v. Baylor College of Medicine, 805
F.2d 528, 532 (5th Cir. 1986). In order to invoke the exception,
a plaintiff must show that an ongoing violation, and not just the
effects of a previous violation, extended into the statutory
period. Bruno v. Western Elec. Co., 829 F.2d 957, 960
(10th Cir. 1987). See English v. Whitfield, 858 F.2d 957,
962-963 (discrete, consummated, immediate violation is not
"continuing" merely because its effects carry forward);
compare Held v. Gulf Oil Co., 684 F.2d 427, 430-432 (6th
Cir. 1982) (where, throughout employment, plaintiff's
disproportionately heavy workload never lightened, sex-based
innuendos continued, and plaintiff absolutely was excluded from
using the supply terminal, sex discrimination continued through
date of constructive discharge). The court in Berry v. Bd. of
Supervisors of LSU, 715 F.2d 971 (5th Cir. 1983), cert.
denied, 479 U.S. 868 (1986), identified the following three
factors as bearing on this determination:
(1) Subject matter. Do the acts "involve the
same type of discrimination, tending to connect them in
a continuing violation?" Berry at 981.
See Graham v. Adams, 640 F. Supp. 535, 538-539
(D.D.C. 1986) (continuing violation allegations must
connect remote claims to incidents addressed by claims
timely filed). (2) Frequency. Are the acts
"recurring . . . or more in the nature of an
isolated work assignment or employment decision?"
Berry at 981. Under this factor, a complainant
can establish a continuing violation either through a
series of discriminatory acts against an individual or
a respondent's policy of discrimination against a group
of individuals. Green v. Los Angeles Cty.
Superintendent of Sch., 883 F.2d 1472, 1480-1481
(9th Cir. 1989). The distinction is between
"'sporadic outbreaks of discrimination and a
dogged pattern.'" Bruno v. Western Elec.
Co., 829 F.2d at 961, quoting Shehadeh v.
Chesapeake & Potomac Tel. Co., 595 F.2d 711,
725 n.73 (D.C. Cir. 1978) (In Bruno, the court
focused on the defendant's intent "to take any
action necessary to get rid of plaintiff" in
affirming the district court's finding of a continuing
violation).
(3) Degree of permanence. Does the act have the
degree of permanence which should trigger an employee's
awareness of and duty to assert his or her rights, or
which should indicate to the employee that the
continued existence of the adverse consequences of the
act is to be expected without being dependent on a
continuing intent to discriminate? Berry at
981.
In considering this factor, the court in Waltman
v. Int'l Paper Co., reasoned: Acts of harassment
that create an offensive or hostile environment
generally do not have the same degree of permanence as,
for example, the loss of a promotion. If the person
harassing a plaintiff leaves his job, the harassment
ends; the harassment is dependent on a continuing
intent to harass. In contrast, when a person who
denies a plaintiff a promotion leaves, the plaintiff is
still without a promotion even though there is no
longer any intent to discriminate. In this latter
example, there is an element of permanence to the
discriminatory action, which should, in most cases,
alert a plaintiff that her rights have been violated.
875 F.2d at 476.
A compelling case might be made for the presence of a continuing
violation, however, where a respondent engages in a systematic
practice of denying promotion opportunities and other benefits.
See Tyson v. Sun Refining & Marketing Co., 599 F.
Supp. 136, 138-140 (E.D. Pa. 1984), and cases discussed therein.
Evidence of discriminatory actions antedating the filing period
but found not to be "continuing" violations
nevertheless may constitute relevant background evidence, i.e.,
"[e]vidence of past practices may illuminate . . . present
patterns of behavior." Malhotra v. Cotter & Co.,
885 F.2d at 1310. Accordingly, earlier violations properly bear
on questions of Respondent's later motivation, even if the
associated claims are untimely.
[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY WAIVED ON APPEAL IF NOT RAISED BEFORE THE ALJ
Even though ARB review of a ALJ decision under the environmental whistleblower laws is de novo, where the Complainant did not raise a contention that all of the alleged adverse actions occurring before the 30 day limitations period should be considered timely based on a continuing violation theory until review before the ARB, the Board found that the issue had been waived on appeal. Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004).
[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION DOCTRINE; DISCRETE EVENTS
The continuing violation doctrine is not available for discrete acts. Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-15 (2002).
See alsoJones v. United States Enrichment Corp., ARB Nos. 02-093 and 03-010, ALJ No. 2001-ERA-21 (ARB Apr. 30, 2004) (ALJ erred in making findings that three discrete events occurring before the limitations period violated the ERA; even if they were adverse to the Complainant, they were not actionable).
But also see Schlagel, supra, holding that although not actionable, the ALJ properly admitted evidence of otherwise time-barred alleged adverse actions and fully considered them as relevant evidence probative of the Respondent's decision making process regarding the actionable adverse actions occurring within the limitations period.
[Nuclear & Environmental Whistleblower Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION DOCTRINE
In Belt v. United States Enrichment Corp., ARB No. 02 117, ALJ No. 2001 ERA 19 (ARB Feb. 26, 2004), the Complainant had received final and unequivocal notice that he would be discharged under an involuntary reduction in force, and had not filed his ERA whistleblower complaint within 180 days of that event. The Complainant argued that the continuing violation doctrine applied to equitably toll the filing period. The ARB found that only two discrete acts occurred within 180 days before the complaint was filed the signing of retirement papers by the Complainant and the benefits plan manager at Respondent's resource center and the signing of an exit questionnaire by the Respondent's employment manager during the course of the Complainant's exit interview. Neither document demonstrated discriminatory or retaliatory motive on the part of the Respondent. The Board held that: "Rather, both documents resulted from the alleged adverse action ... when [the Respondent] notified [the Complainant] that his request to be riffed had been accepted." These discrete acts "were not adverse actions but rather the logical effects of [the Respondent] notifying [the Complainant] of the involuntary RIF...." The Board held that "[b]ecause the date on which the mere effects of a discrete act occurred is not relevant to the issue of timeliness, and no discriminatory act occurred within 180 days prior to the date [the Complainant] filed his complaint..., we hold that [the Complainant's] reliance on the so called continuing violation theory fails." Slip op. at 14 15 (citations omitted).
[Nuclear and Environmental Whistleblower Digest III C 1]
TIMELINESS; ENVIRONMENTAL COMPLAINT FILED OUTSIDE 30-DAY LIMIT IS TIME BARRED UNLESS EQUITABLE TOLLING APPLIES OR RESPONDENT'S ACTIONS ONLY BECAME APPARENT WITH PASSAGE OF TIME
In Ilgenfritz v. U.S. Coast Guard Academy, ARB No. 99-066, ALJ No. 1999-WPC-3 (ARB Aug. 28, 2001), Complainant alleged that a series of actions taken by Respondent over a 2 year period constituted hostile acts of a continuing nature so as to provide an equitable exception to the 30-day time limit for filing a complaint under the whistleblower provisions of the CERCLA and the SWDA.
The ARB concurred with the ALJ's statement that claims alleging illegal conduct that occurred more than 30 days prior to the filing of a complaint are time-barred unless either (a) equitable tolling is appropriate or (b) the Respondent's actions constitute a continuing pattern of retaliatory conduct that is apparent only with the passage of time. The Board agreed with the ALJ that none of the grounds for equitable tolling applied to the instance case. The ARB found that Complainant's complaint faired no better under the continuing violation doctrine where there was no prolonged employer decision-making process that made it difficult for Complainant to determine the actual dates of the allegedly discriminatory acts, and there was no evidence of an underlying policy or pattern of discrimination. Rather, the Board found that the acts of which Complainant complained were discrete and varied in kind, were implemented by several different supervisors, and were mostly distant in time from the complaint filed following his termination.
[Nuclear & Environmental Digest III C 1]
TIMELINESS OF FILING; CONTINUING VIOLATION
In Overall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), the ARB applied continuing violation theory to find that a timely filing, where Respondent had engaged in an unlawful coverup of a safety problem, which, insofar as it related to Complainant particularly, resulted in a series of retaliatory actions taken by Respondent in furtherance of the coverup. Complainant made a timely filing in regard to his eventual layoff, and therefore, under continuing violation theory, a timely filing was deemed to have been made as to all retaliatory actions by Respondent.
[Nuclear & Environmental Digest III C 1]
TIMELINESS OF FILING; CONTINUING VIOLATION; POST-HEARING DISCOVERY
In Foley v. Boston Edison Co., ARB No. 99-022, ALJ No. 1997-ERA-56 (ARB Jan. 31, 2001), Complainant argued that his complaint should be considered timely under the continuing violation theory because when during post-hearing discovery Complainant attempted to obtain an investigative file, Respondent objected on relevancy grounds; the ALJ issued a protective order to which Complainant agreed to abide; Respondent subsequently proffered an agreement adopting the non-disclosure language of the protective order. Complainant alleged that the proffer of the agreement constituted the last in a series of retaliatory actions that would render his complaint timely. The ARB agreed with the ALJ that the proffer of the agreement was an unrelated discrete act, and could not be viewed as part of a continuing violation.
[Nuclear & Environmental Digest III C 1]
CONTINUING VIOLATION; IF TIMELY FILED COMPLAINT IS NOT PROVEN AS
RETALIATORY DISCRIMINATION, THRESHOLD TEST FOR CONTINUING
VIOLATION THEORY IS NOT MET
InHoltzclaw v. Secretary of Labor, No. 97-3347 (6th Cir. Jan. 15, 1999)
(unpublished) (available at 1999 WL 68745) (case below 1995-CAA-7), the Sixth Circuit applied
the requirements for establishing a continuing violation stated in Bell v. Chesapeake & Ohio
Ry. Co., 929 F.2d 220, 22 (6th Cir. 1991) to Complainant's environmental whistleblower
complaints. The court noted that the Bell test requires a demonstration of a policy of
discrimination, a continuing course of conduct, and present effects of past discrimination. A
threshold requirement, however, is that the plaintiff must show a present violation. Thus, in
Holtzclaw, the court considered first whether the only complaint that was filed
within the 30-day filing period was supported by substantial evidence. Since the court affirmed
the ARB's determination that it was not, the continuing violation test was not met.
[N/E Digest III C 1]
CONTINUING VIOLATION DOCTRINE
Citing Connecticut Light & Power Co. v.
Secretary of United States Dep't of Labor, 85 F.3d 89, 96 (2d Cir. 1996), for a
description of the continuing violation standard exception to the strict application of the
limitations period for filing a whistleblower complaint, the Sixth Circuit in Varnadore v. Secretary of
Labor,
Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below 92-CAA-2 et al.), summarized the
continuing violation theory as follows:
In other words, under the continuing-violation doctrine, a single non
time-barred act can save other acts that are time-barred but the mere fact that
retaliation or discrimination continued over a long period does not mean one can simply
ignore statutes of limitations altogether.
[N/E Digest III C 1]
CONTINUING VIOLATION STANDARD; STANDARD OF REVIEW;
SECRETARY'S
INFERENCES
In Varnadore v. Secretary of
Labor, Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below
92-CAA-2 et al.),
Complainant asserted on appeal to the Sixth Circuit that the Secretary had wrongly disregarded
the factual findings of the ALJ relating to application of the continuing violation standard
exception to the strict application of the limitations period for filing a whistleblower complaint.
Essentially, the question related to whether Complainant was "threatened" with an
unfavorable office assignment during the period in which his complaint would not have been
time barred. If there was no threat, as the Secretary found, the Secretary correctly found that
the
complaint was time barred because no violative act occurred within the relevant time period.
The court noted that its standard of review is that it "may overturn the Secretary's
decision only if we find that the decision 'is unsupported by substantial evidence' or if it is
'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"
Id. (citations omitted) The court added that "[t]his highly deferential
standard of
review is not altered merely because the Secretary disagrees with the ALJ" and that it
defers to the inferences that the Secretary derives from the evidence, not the ALJ's.
Id.
(citations omitted).
The court found that the ALJ's recommended decision did not contradict the Secretary on
this point. Moreover, the court found that even if the ALJ had reached the opposite conclusion
(that discussion of an office reassignment was retaliation), the Secretary was not prohibited
from
disagreeing, and the Secretary's decision was supported by substantial evidence.
[N/E Digest III C 1]
CONTINUING VIOLATION THEORY; NEGATIVE REFERENCE MADE WITHIN THE
FILING LIMITATIONS PERIOD -- EVEN THOUGH NOT ITSELF AN INDEPENDENT
ERA VIOLATION BECAUSE IT DID NOT RESULT IN TANGIBLE JOB DETRIMENT --
PERMITS EXAMINATION OF ALL ALLEGED INCIDENTS ON THE MERITS
In Webb v. Carolina Power & Light Co., 93-ERA-42 (ARB Aug. 26,
1997), Complainant was a contract engineer who was laid-off, and filed an ERA complaint
alleging that later he was not considered for rehire because of whistleblowing activity.
The ARB found that the limitations period for filing the complaint began on the date that
Complainant strongly suspected that Respondent was wrongly excluding him from consideration
for employment. Although Complainant's complaint was filed more than 180 days after that
date, Complainant had also alleged a continuing violation. Thus, the ARB next considered under
the continuing violation theory whether an adverse action had occurred within 180 days of the
filing. Focusing on the "same subject matter" element of the three-part-test found in
Thomas v. Arizona Public Serv. Co., 88-ERA-212 (Sec'y Sept. 25, 1993), the ARB
found that the continuing violation theory applied. The ARB wrote:
Systematically excluding an individual from consideration for
employment, by its very nature, is a continuing course of conduct and may constitute a
continuing violation if it is based upon an employee's protected activity. Egenrieder
v. Metropolitan Edison Co./G.P.U., Case No. 85-ERA-23, Order of Remand, Apr.
20, 1987, slip op. at 4. In this case, [Complainant's former supervisor's] negative
reference [about Complainant's performance, which the ARB found to be motivated by
discriminatory animus, and which was made within 180 days of the filing of the
complaint], to the extent that it is accepted as evidence of an ongoing decision to
exclude [Complainant] from consideration for employment, is sufficiently similar
in nature to [Complainant's] other allegations as to constitute a continuing
violation. Accordingly, the merits of all of the alleged claims will be considered.
Slip op. at 7.
In a footnote, the ARB indicated that the former supervisor's remark that was within the
180 days prior to the filing of the complaint, was not itself an independent ERA violatin because
there was no evidence of a tangible job detriment resulting from the remark. Slip op. at 6 n.4.
Nonetheless, the ARB found that the former supervisor's "discriminatory animus could
have manifested itself earlier in other actions that Carolina Power took in failing to rehire
[Complainant]. We therefore examine the merits of all of the alleged incidents to determine if
they were tainted by the same animus. If so, [Complainant] would have the opportunity to show
that the [former supervisor's] remarks were evidence of a practice of exclusion that wrongfully
prevented [Complainant] from being considered for jobs for which he was qualified."
Id.
In reviewing the evidence, however, the ARB concluded that Complainant had not
established that the former supervisor's comments were part of an ongoing practice of exclusion
which explained the earlier adverse actions.
[N/E Digest III C 1]
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY
Where each of the alleged acts creating a hostile working environment did not involve the
same type of discrimination and was an isolated employment decision lacking a common subject
matter, the Board in Holtzclaw v. Commonwealth
of Kentucky Natural Resources and Environmental Protection Cabinet, 95-CAA-7
(ARB Feb. 13, 1997), held that
Complainant failed to establish a continuing course of harassment to render complaints filed
more
than 30 days after the allegedly harassing incidents timely.
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION APPLIES TO
DISCRIMINATION, NOT UNDERLYING SAFETY VIOLATION
[N/E Digest III C 1]
In Bachmeier v. Tombstone
Pizza, 96-STA-33 (ALJ Nov. 25,
1996), the ALJ had issued an order to show cause why the matter should not be dismissed for
lack of
a timely filing by the Complainant. In response, Complainant, who had been discharged more
than 180 days prior to the filing of the complaint, asserted that the safety violation underlying his
complaint had continued to occur until recently. The ALJ noted that the timeliness of a
complaint may be preserved under the theory of a continuing violation where there is an
allegation of a course of related discriminatory conduct and where the charge is filed within the
requisite time period after the last alleged discriminatory act. The ALJ found, however, that
"[a] continuing violation for the purposes of timeliness requires continuous discrimination,
not a continuation of the asserted safety violation. The discriminatory acts must be sufficiently
related to constitute a course of discriminatory conduct." Slip op. at 2. Finding no
evidence of a continuing violation, or other extenuating circumstances, the ALJ recommended
dismissal of the complaint.
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION THEORY;
SETTLEMENT OFFER
[N/E Digest III C 1]
In The Connecticut Light
& Power Co. v. Secretary of the United States Dept. of
Labor, No. 95-4094 (2d Cir. May 31, 1996) (available
at 1996 U.S. App. LEXIS 12583)(case below 89-ERA-38), the
Respondent asserted that the Complainant's complaint, which was
based on the proffer of a settlement agreement containing an
illegal gag provision, should be time-barred because it was filed
more than thirty days after the settlement agreement was
received. The Secretary of Labor had held that the complaint was
not time-barred by focusing on the letter breaking off
negotiations.
The Second Circuit noted that the ERA limitations period
generally begins to run from the date that a complainant learns
of the employer's final decision, but concluded that application
of this rule was inappropriate given the nature of the violation:
the adverse action in question is not a discrete decision taken
by an employer, but rather a negotiation tactic, employed over a
period of months, by which the Respondents attempted to coerce
Complainant into agreeing to a gag provision. Rather, the court
determined that it would apply the continuing violation standard.
The court held that the continuing violation rule applies
where the plaintiff proves i) an underlying discriminatory policy
or practice, and ii) an action taken pursuant to that policy
during the statutory period preceding the filing of the
complaint. The court found that the two prongs applied to the
facts of the instant case. The court rejected the Respondent's
focus on the date the Complainant received the settlement
proposal, both on the basis of contract law, and because the
court viewed "the violation to encompass the negotiations
process as a whole, and not just one particular product of the
negotiations." 1996 U.S. App. LEXIS at *23. The court
stated that
[t]he discussion of offer and rejection, while
preclusive with respect to [the Respondent's] argument,
misses the appropriate timing focus--the negotiation tactic
employed by [the Respondent] throughout the process.
Therefore, we hold that the Secretary properly ruled that
the complaint was timely because the last act pursuant to an
ongoing, discriminatory policy occurred within the statutory
period when [the Respondent] revoked its outstanding
settlement offer . . . .
1996 U.S. App. LEXIS at *23.
III C 1 Timeliness of complaint; continuous nature of
Respondent's actions renders entire complaint
timely
In Carter v. Electrical District No. 2 of Pinal
County, 92-TSC-11 (Sec'y July 26, 1995), the Complainant
was demoted, then given added duties, then received a substantial
pay decrease, and was finally discharged. Only the pay decrease
and the discharge occurred within the filing period for a TSCA
complaint. Nonetheless, the Secretary found that the continuous
nature of the Respondent's actions rendered the entire complaint
timely.
III C 1 Discriminatory act of continuing
nature
In Eisner v. U.S. Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), the ALJ made a
recommendation of dismissal based on the untimeliness of the
complaint. A summary of the circumstances follows:
The complainant was put on leave-without-pay status on
August 2, 1989.
According to the respondent, the complainant was given
an ultimatum of termination or resignation in December
1989.
The complainant was terminated effective January 18,
1990, by notice dated and admittedly received by the
complainant on January 12. The notice stated:
Upon reviewing your work performance, and as
we discussed on December 20, 1989, I have decided
to separate you from your position as an EPS
Student Trainee, effective January 18,
1990.
On January 25, 1990, the complainant was mailed a
"Notification of Personnel Action" showing
her "involuntary termination" effective
January 18, and a "Notice of Change in Health
Benefits Enrollment".
On January 31, 1990, one of respondent's personnel
indicated to the program attorney that he agreed that
the termination letter was "inappropriately
issued" (procedurally and semantically) and that
he would rescind it if the complainant would instead
submit a resignation letter. The complainant had no
knowledge of this remark.
Sometime in February 1990, respondent's program
attorney indicated to the complainant that if she would
submit a letter of resignation, the termination letter
would be rescinded.
The complainant testified that in light of her December
1989 and February 1990 conversations with respondent's
personnel, she did not consider the respondent's
decision final until March 7, 1990, when she learned
that the respondent was no longer willing to consider a
resignation letter or any action other than
termination.
The respondent conceded, for purposes of a summary
judgment motion on the timeliness issue, that
complainant filed her complaint on March 22, 1990.
After first considering when the complainant received
unequivocal, final notice, and finding that it occurred on
January 12, the Secretary considered whether the circumstance fit
under a continuing violation theory. The Secretary found that
all of the incidents recited by the complainant were clearly
separate and distinct and not acts of a continuing nature.
See Green v. Los Angeles County Superintendent of Schools,
883 F.2d 1472, 1480-81 (9th Cir. 1989); London v. Coopers
& Lybrand, 644 F.2d 811, 816 (9th Cir. 1981);
Helmstetter v. Pacific Gas & Electric Co., 86-SWD-2
(Sec'y June 15, 1989), slip op. at 8. Rather, the acts were
sufficiently permanent to trigger the complainant's awareness of
the respondent's alleged discrimination. Berry v. Board of
Supervisors of LSU, 715 F.2d 971, 981 (5th Cir. 1983).
Consequently, the continuing violation theory did not preserve
the timeliness of the complainant's claim.
[Editor's note: The Secretary did, however, remand the case for
the ALJ to consider a separate allegation of discrimination based
on the refusal to accept the resignation letter.]
III C 11 Continuing violation
From: Bonanno v. Northeast Nuclear Energy Co., 92-
ERA-40 and 41 (Sec'y Aug. 25, 1993).
The ERA filing period commences on the date that a complainant is
informed of the challenged actions rather than at the time the
effects of the actions are ultimately felt. See Ballentine v.
Tennessee Valley Authority, 91-ERA-23 (Sec'y Sept. 23, 1992);
Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y
July 3, 1991), aff'd sub nom. Howard v. United States Dept. of
Labor, 959 F.2d 234 (6th Cir. 1992).
Where Complainant learned of the issuance of a disciplinary
letter, a layoff, dunning notices about unpaid medical bills, and
a neurologist's "pre-existing condition" report, all
more than 30 days prior to the filing of the complaint, his
subjective belief that these actions might not be permanent (a
correct belief in the case of the disciplinary letter, layoff,
and dunning notices) did not alter the triggering of the filing
period. [citations omitted]
[Editor's note: Complainant's complaint was based on his
treatment following an industrial accident in which he was cited
for not wearing a hard hat; the complaint was filed prior to the
change from 30 to 180 days for filing]
Cases under the ERA recognize that the 30-day limit is not
jurisdictional, and may be subject to equitable tolling. See
Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989),
aff'd sub nom. Doyle v. Secretary of Labor, No. 89-7863
(11th Cir. 1989); School District of City of Allentown v.
Marshall, 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).
III C 1 Mere continuity of employment is
insufficient to prolong life of a cause of
action
Where Complainant alleged "harassment" since 1981, but
the only action specifically and timely raised was a 1985
performance evaluation (which was found to be nondiscriminatory),
the Secretary quoted Delaware State College v. Ricks, 449
U.S. 250, 257 (1980): "Mere continuity of employment,
without more, is insufficient to prolong the life of a cause of
action for employment discrimination." Bassett v.
Niagara Mohawk Power Corp., 85-ERA-34 (Sec'y Sept. 28,
1993).
III C 1 Continuing discrimination
Employee filed suit under Employee Protection section of ERA
alleging she was unlawfully subjected to employment related
discrimination because she registered and pursued safety
complaints against her employer, GE, with the NRC. The Secretary
dismissed her claim as untimely under section 5851(b)(1).
Employee contended that the "continuing violation"
principle discussed in Bruno v. Western Elec. Co., 829
F.2d 957 (10th Cir. 1987), should apply here and that a
"continuing violation" extending into the charge period
occurred. Thus, she may challenge the earlier termination
decision, a letter dated May 15, 1984, as an element of the
"continuing violation." The court disagreed and
distinguished the continued efforts of the employer in
Bruno to force the employee to retire from the
communicated decision to the employee here which was a discrete
violation of her right not to suffer retaliatory discharge.
Therefore, the court held that a consummated, immediate violation
may not be treated as merely an episode in a "continuing
violation" because its effects necessarily carry over on a
"continuing" basis. English v.
Whitfield, 858 F.2d 957, 962 (4th Cir. 1988).
III C 1 Demotion
In English v. Whitfield, 858 F.2d 957, 962 (4th Cir.
1988), the Fourth Circuit affirmed the Deputy Secretary's finding
that the Complainant's claim of discriminatory discharge was
untimely. The court remanded the case, however, for consideration
of the complainant's claim of retaliatory harassment as a
continuing violation separate from and independent of her barred
discharge claim.
On remand, the Secretary found that the Fourth Circuit's
rationale in finding that the discriminatory discharge claim was
time barred foreclosed a claim that the nature of work to which
the complainant had been transferred pending her ultimate layoff,
which was of a lower order of skill and prestige, itself
constituted continuing harassment which can revive her discharge
claim. Once the complainant had notice of the adverse action
"in form final an unequivocal" 858 F.2d at 962, the
time for challenging the discharge began to run. The nature of
the work in the transfer position was simply the "natural
effect" of the earlier notice of the decision to take
adverse action against the employee. English v. General
Electric Co., 85-ERA-2 (Sec'y Feb. 13, 1992).
III C 1 Present disadvantage because of
prior discrimination
In Bassett v. Niagara Mohawk Power Co., 86-ERA-2
(Sec'y Sept. 28, 1993), Complainant was demoted from a
supervisory position in 1981. The Secretary agreed with the ALJ
that to the extent Complainant was attempting to challenge or
recover damages for that incident, the claim was untimely and
could not be resurrected under a continuing violation theory.
The Secretary stated that the demotion was a consummated,
immediate act which may not be treated as an episode in a
continuing violation because its natural effects necessarily
carry over on a continuing basis. See English v.
Whitfield, 858 F.2d 957, 962-63 (4th Cir. 1988).
Complainant's theory that were it not for his alleged
discriminatory demotion in 1981, he would be higher in the 1985
organizational chart, did not, in itself, charge a present
violation of the ERA, but only charges a present disadvantage
because of prior discrimination. See Cates v. Trans World
Airlines, Inc., 561 F.2d 1064, 1072 (2d Cir. 1977);
English v. General Electric Co., 85-ERA-2 (Sec'y Feb. 13,
1992).
III. C. 1 Timely filing of discriminatory acts of
continuing nature; nature of continuous acts
The fact that one alleged discriminatory act occurred during the
30 days prior to the filing of the complaint does not in itself
determine whether, under a continuing violation theory, the
complaint was timely as to all of the alleged discriminatory
acts. A complainant must file the complaint within 30 days of an
alleged discriminatory act if the employer's notice concerning
that act was sufficiently "final and unequivocal" in
form.
In the instant proceeding, the Complainant's supervisor denied a
promotion to the Complainant on the ground of lack of diversified
experience, lack of initiative, lack of willingness to work
overtime, and lack of a needed cross-certification. The
supervisor later reassigned the Complainant in part to give her
the needed cross-certification, and because "it dovetailed
very nicely with [the Complainant's] desire for promotion."
The Secretary found that the denial of the requested promotion
was not final and unequivocal because the supervisor implied that
additional cross-training could make up for the Complainant's
purported lack of diversified experience and ultimately qualify
her for the position. The cross-training, according to the
Secretary, meant that the denial of promotion was not so final
that it triggered the period for filing an ERA complaint.
[The complainant, did not file a complaint until about one year
after the reassignment, when she was informed that she would have
to be recertified on a number of procedures.]
The Secretary continued, noting that the timeliness of a claim
may be preserved under the continuing violation theory where
there is an allegation of a course of related discriminatory
conduct and the charge is filed within 30 days of the last
discriminatory act. Guidance is found in Berry v. Board of
Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert.
denied, 479 U.S. 868 (1986), which lists three factors for
determining whether the acts are sufficiently related:
Whether the alleged acts involve the same subject
matter;
whether the alleged acts are recurring or more in the
nature of isolated decisions, and
the degree of permanence.
The Secretary found that in the instant proceeding the denial of
promotion, the reassignment, and the suspension of test
certifications involved a common subjection matter -- cross
training.
[A fourth alleged discriminatory act, assignment to PC
training, was dissimilar, nonrecurring and permanent, and
therefore not part of a continuing violation (the Secretary
noted, however, that evidence of discriminatory acts
antedating the filing period, but found not to be continuing
violations, may still constitute relevant background
evidence.]
The Secretary found that the "denial of promotion was a
recurring act in that it was reflected in regular pay checks that
did not include the additional pay of a senior technician."
In addition, the Secretary found that the denial of promotion did
not have such a degree of permanence as to make the Complainant
aware that she still would not be promoted, absent continuing
discrimination. The Secretary relied on the fact that the
promotion could occur whenever the supervisor deemed the
Complainant qualified and higher management approved, and that if
her current supervisor left, the Complainant might be promoted by
his replacement. The Secretary noted that the Ninth Circuit
recognizes that a finite event such as the failure to promote may
constitute a continuing violation when the discriminatory policy
against promotion continues until the filing of the complaint.
Williams v. Owens-Illinois, Inc., 665 F.2d 918, 924 (9th
Cir. 19 xx), cert. denied, 459 U.S. 971 (1982).
In contrast, the Secretary found that Complainant's assignment to
a different section was sufficiently permanent to trigger the
filing period, because the Notice of reassignment not only
indicated as the reason giving the Complainant broader
experience, but also to provide additional coverage in the other
section; nor was the Notice of temporary, informal cross-training
previously used by the engineering department.
Thomas v. Arizona Public Service Co., 89-ERA-19
(Sec'y Sept. 17, 1993).
III C 1 Continuing violation
In Bruno v. Western Elec., Co., 829 F.2d 957 (10th Cir.
1987), the employee did not claim a constructive or actual
discharge, but challenged employer's continued efforts to force
his retirement -- efforts which had failed. A consummated,
immediate violation may not be treated as merely an episode in a
"continuing violation" because its effects necessarily
carry over on a "continuing" basis. English v.
Whitfield, 858 F2d 957 (4th Cir. 1988).
III C 1 Separate and permanent incidents
Where incidents are clearly separate and sufficiently permanent
to trigger the complainant's awareness of the respondent's
alleged discrimination, the continuing violation theory does not
preserve the timeliness of the complainant's claim. Eisner
v. United States Environmental Protection Agency, 90-SDW-
2 (Sec'y Dec. 8, 1992).
III C 1 Continuing violation theory applies to ERA
cases
In Egenrieder v. Metropolitan Edison Co., 85-ERA-23
(Sec'y Apr. 20, 1987), the Secretary concluded that a claim of
continuing violation should be considered when determining the
timeliness of an ERA employee protection complaint.
Since blacklisting, by its very nature, is a continuing course of
conduct, it may constitute a continuing violation if it is based
upon an employee's protected activity under the ERA.
Blacklisting being both insidious and invidious, cannot be easily
be discerned. There may be a considerable lapse of time before a
blacklisted employee has any basis for believing he is the
subject of discrimination.
The Secretary remanded the case to the ALJ for a full hearing
on the merits. The Secretary found that without a full
evidentiary hearing, it is not possible to determine if
Respondent's conduct was in violation of the ERA. (The ALJ's
first hearing was confined to the issue of timeliness)
III C 1 General allegations not sufficient
To support a continuing violation theory, the complainant must
allege a separate discriminatory act occurring within the
limitations period. See Egenrieder v. Metropolitan Edison
Co., 85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 3-8.
General allegations of continuing discrimination are not
sufficient to establish a continuing violation and preserve the
timeliness of a complaint.
Howard v. Tennessee Valley Authority, 91-ERA-36
(Sec'y Jan. 13, 1993).
III C 1 Factors; discrete act not a continuing
violation
From English v. General Electric Co., 85-ERA-2
(Sec'y Feb. 13, 1992):
When an employee is demoted, involuntarily transferred, or ineed
fired on the spot, the effect is not limited to the loss of the
previous job. Any employee who has been demoted or involuntarily
transferred to an undesirable job is required to perform work of
lower skill and prestige and suffers the humiliation associated
with that adverse action. The notice of adverse action is
"a consumated, immediate violation [and] may not be treated
as merely an episode in a 'continuing violation' because its
effects necessarily carry over on a 'continuing' basis."
858 F.2d at 962-63.
The Fourth Circuit and many other courts have reached similar
conclusions with respect to demotions and other discrete acts of
discrimination, or have distinguished situations where a demotion
or discharge was the result of a policy or practice of
discrimination against a class of employees. Thus, the Fourth
Circuit has held that discriminatory acts may be considered
'lawful' when no charge is filed within the applicable time
period after the act.'" Woodward v. Lehman, 717 F.2d
909, 915 (4th Cir. 1983) (quoting Carty, The Continuing
Violation Theory After United Airlines, Inc. v. Evans, 31
Hastings L.J. 929, 950 (1980)). Similarly, the Ninth Circuit
rejected the continuing violation theory where an employee was
discharged and alleged continuing harassment by the giving of
adverse references and describing the employee as a troublemaker,
explaining that "a single act by an employer adverse to an
employee's interests, such as a discharge, layoff, or failure to
transfer or promote, begins the running of the statute of
limitations and the natural effects of the alleged discriminatory
act are not regarded as 'continuing.'" London v. Coopers
& Lybrand, 644 F.2d 811, 816 (9th Cir. 1981).
The Secretary has also held that a discrete act, such as a poor
performance evaluation, cannot be considered part of a continuing
violation where it has the degree of permanence which should
trigger an employee's awareness of and duty to assert his or her
rights, or which should indicate to the employee that the
continued existence of the adverse consequences of the act is to
be expected without being dependent on a continuing intent to
discriminate.
McCuistion v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov.
13, 1991).
III C 1 Mere fact that various acts affected
working conditions does not establish
link necessary to invoke continuing violation
rule
In Gillilan v. Tennessee Valley Authority,
92-ERA-46 and 50 (Sec'y Apr. 20, 1995), the
Complainant attempted to invoke the continuing violation theory
by alleging that his nonselection for a
position, the Respondent's failure to call him for overtime on
one date, and its failure to assign him to
another plant, involved "'the same course of events, that
is, management's determination to deny
[him] opportunities to earn additional pay through overtime or
promotion to higher paying
positions.'" Slip op. at 5, quoting Complainant's position.
The Secretary characterized the Complainant's theory as that the
various actions were related because
they all allegedly affected his working conditions. The
Secretary held that this theory was "not
sufficient to establish the link that is necessary in order to
fit within the continuing violation rubric. A set
of isolated, permanent decisions involving disparate facts does
not amount to a continuing
violation." Slip op. at 5 (citations omitted).
In addition, because the later actions were found not to be
retaliatory by the ALJ (a finding that the
Secretary adopted), there was no timely discriminatory action
upon which the Complainant could hang
his untimely complaint under the continuing violation theory.
The Secretary noted that a full discussion of the appropriate use
of the continuing violation theory is
found in OFCCP v. CSX Transportation, Inc., 1988-OFC-24 (Sec'y
Oct. 13, 1994), slip op. at 22-26.
III C 1 Summary decision; discovery must be permitted
to allow Complainant to establish
link for purposes of continuing violation
theory
In Flor v. United States Department of Energy,
93-TSC-1 (Sec'y Dec. 9, 1994), the ALJ
had recommended dismissal based on his finding that the complaint
was not timely filed. The
Secretary, however, found that the Complainant had asserted a
timely, related STAA complaint. In
addition, the Complainant had asserted a continuing violation
theory as to certain acts occurring outside
the STAA filing period. The Complainant had filed discovery
regarding those acts, to which the
Respondent had not responded prior to the issuance of the ALJ's
recommended order. Because the
discovery may have provided a link between those acts and the act
timely complained of, the Secretary
remanded the case to the ALJ to permit the Complainant to obtain
discovery. The Secretary noted that
under Berry v. Board of Supervisors of L.S.U., 715 F.2d
971, 981 (5th Cir. 1983), cert.
denied, 479 U.S. 868 (1986), the trial judge should make a
fact specific inquiry in cases where the
plaintiff alleges a continuing violation.
In addition, the Secretary directed the ALJ to consider on remand
whether, under the continuing
violation theory, the complaint was timely under other alleged
environmental whistleblower provisions as
to the other acts that occurred more than 30 days prior to filing
the complaint. This was important
because the Complainant had alleged a TSCA violation, that
provides an additional remedy of
exemplary damages not provided by the STAA.
III C 1 Continuing violation allegation must be
supported by facts
A claim of continuing violation cannot be considered where the
Complainant has not provided any factual evidence, through
affidavits or otherwise, which would indicate a factual issue
precluding dismissal on the basis of the Respondent's summary
judgment motion. Under the continuing violation doctrine,
"[m]ere continuity of employment, without more, is
insufficient to prolong the life of a cause of action for
employment discrimination." Delaware State College v.
Ricks, 449 U.S. 250, 257 (1980).
Thus, where a Complainant offers nothing besides the conclusory
phrase "continuing violation" to justify a tolling of
the statute, and pertinent factual information of a
discriminatory act or acts during the limitations period had not
been submitted to buttress this theory, the ALJ correctly
dismissed the Complainant's action on the basis of summary
judgment. Billings v. Tennessee Valley Authority,
86-ERA-38 (Sec'y June 28, 1990).
III C 1 Must be an allegation of
discriminatory conduct within limitations
period to invoke continuing violation
theory
Under the continuing violation theory, the timeliness of an ERA
whistleblower complaint may preserved
only where there is an allegation of a course of related
discriminatory conduct and the charge is filed
within 30 days (180 days for complaints covered by the 1992
amendments to the ERA) of the last
discriminatory act.
Wagerle v. The Hospital of the Univ. of Pennsylvania, Depts of
Physiology
and Pediatrics, 93-ERA-1 (Sec'y Mar. 17, 1995).
III C 1 Continuing violation theory; what acts are
sufficiently related
In Flor v. United States Department of Energy,
93-TSC-1 (Sec'y Dec. 9, 1994),the
Secretary found that the Complainant had filed a timely STAA
complaint, and that one of the alleged
adverse acts that occurred outside the STAA time limit for filing
was nonetheless timely under the
continuing violation theory.
The Secretary noted that in analogous ERA cases, the timeliness
of a claim may be preserved under
the continuing violation theory "where there is an
allegation of a course of related discriminatory
conduct and the charge is filed within thirty days of the last
discriminatory act." For guidance
concerning whether alleged discriminatory acts are sufficiently
"related" to constitute a
course of discriminatory conduct, the Secretary has turned to a
case under Title VII of the Civil Rights
Act of 1964, Berry v. Board of Supervisors of L.S.U., 715
F.2d 971, 981 (5th Cir. 1983), cert.
denied, 479 U.S. 868 (1986). The Berry court listed
three factors: (1) whether the alleged
acts involve the same subject matter, (2) whether the alleged
acts are recurring or more in the nature of
isolated decisions, and (3) the degree of permanence. 715 F.2d
at 981. Concerning the degree of
permanence, in English v. Whitfield, 858 F.2d 957, 962
(4th Cir. 1988), the Court of Appeals held
that an ERA complainant must file the complaint within the
prescribed 30 days after an alleged
discriminatory act if the employer's notice concerning that act
was sufficiently "final and
unequivocal" in form.
In the instant case, an initial interview concerning an
investigation into the Complainant's security
clearance occurred more than 180 days prior to the filing of the
complaint. The Secretary, found,
however, that the initial interview was not a permanent, final
action, and that final action did not occur
until six months later when the Respondent suspended the
Complainant's security clearance. Applying
Berry and English, the Secretary found that the
interview and the investigation into the
Complainant's security clearance involved the same subject matter
and were closely connected to
suspension of the clearance, an action about which the
Complainant timely complained under the
STAA.
[Editor's note: The ALJ had considered the
complaint to be primarily a TSCA complaint,
and did not discuss the timeliness of a STAA complaint. See
Flor v. United States Dept. of
Energy, 93-TSC-1 (ALJ Mar. 26, 1993), slip op. at n.1. The
Secretary found the existence of a
STAA complaint through a liberal interpretation of the
complaint.]
III C 1 Last occurrence initiates filing
period
Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y
Sept. 25, 1990), slip op. at 9-11.
Where the complainant alleged that up until and during the thirty
day period prior to filing of his complaint, the respondent, in
retaliation for the complainant's protected activity, maintained
his name on a "denied access" list which prevented his
future employment at the plant from which he had been formerly
employed, the complainant has alleged an independent violation of
blacklisting within the meaning of 29 C.F.R. § 24.2(b).
Since the complainant alleged a continuing course of unlawful
retaliatory blacklisting, he alleged a continuing violation.
SeeEgenrieder v. Metropolitan Edison Co., 85-ERA-
23 (Sec'y Apr. 20, 1987), slip op. at 6. Where there is a
continuing violation, a complainant is not required to file suit
when initially discriminated against; rather, timeliness is
measured from the last the occurrence of discrimination. See
Roberts v. North American Rockwell Corp., 650 F.2d 823 (6th
Cir. 1981); Shehadeh v. Chesapeake & Potomac Telephone
Co., 595 F.2d 711, 724 (D.C. Cir. 1978); Egenreider,
slip op. at 4. Accordingly, the Secretary declined to accept the
respondent's argument that the initial act of placing the
complainant's name on the denied access list triggered the
thirty-day filing period.
The Secretary also concluded that the complainant's allegation of
an inquiry and response concerning his status was a sufficiently
specific allegation that the respondent committed an act of
discrimination within thirty days prior to the filing of the
complaint. The Secretary noted that in Roberts, "the
court of appeals held that where a continuing discriminatory
policy exists, an applicant who would automatically be rejected
because of that policy need not formalistically continuously
apply, only to be rejected; oral inquiries about a previous
application are sufficient proof that she/he is, in effect,
continually applying and being continually unlawfully
rejected." Slip op. at 11.
III C 1 Consummated immediate violations;
advancement opportunities denied
Where Complainant alleged that he was bypassed and/or denied
advancement opportunities in retaliation for bringing safety and
quality concerns to Respondent and/or the NRC, all of his com-
plaints for retaliation that allegedly occurred prior to thirty
days before the filing of his complaint were time barred since
each instance was a consummated immediate violation rather than a
continuing violation. The ALJ noted, however, that past non-
selection or withdrawals from management training programs is
relevant evidence to show past behavior of both the company and
Complainant. Kettl v. Gulf States Utilities Co.,
92-ERA-16 (ALJ Dec. 30, 1992).
III C 1 Generally
From: Garn v. Benchmark Technologies, 88-ERA-21
(Sec'y Sept. 25, 1990):
The employee protection provision of the ERA, and the regulations
implementing the provision, provide that any complaint shall be
filed within thirty days after the occurrence of the alleged
violation. 42 U.S.C. § 5851(b)(1); 29 C.F.R. §
24.3(b). The time limits, however, are in the nature of a
statute of limitations and are subject to equitable tolling.
Lastre v. Veterans Administration Lakeside Medical Center,
87-ERA-42 (Sec'y Mar. 31, 1988), slip op. at 3; see School
District of the City of Allentown v. Marshall, 657 F.2d 16,
19 (3d Cir. 1981). The timeliness of a claim also may be
preserved under the "continuing violation" theory where
there is an allegation of a course of related discriminatory
conduct and the charge is filed within thirty days of the last
discriminatory act. Egenrieder v. Metropolitan Edison
Co., 85-ERA-23 (Sec'y Apr. 20, 1987). The continuing
violation theory, however, cannot resurrect claims about
discrimination concluded in the past, even though the effects of
the discrimination persist. Delaware State College v.
Ricks, 449 U.S. 250 (1980); United Air Lines, Inc. v.
Evans, 431 U.S. 553 (1977); English v. Whitfield, 858
F.2d 957 (4th Cir. 1988); Janikowski v. Bendix Corp., 823
F.2d 945 (6th Cir. 1987); Berry v. Board of Supervisors of
L.S.U., 715 F.2d 971 (5th Cir. 1983), cert. denied,
479 U.S. 868 (1986). The Supreme Court emphasized that the
critical question is whether any present violation exists.
Ricks, 449 U.S. at 258; Evans, 431 U.S. at 558.
Alleged retaliatory acts of discharge and blackballing are
separate and discrete acts which cannot be considered together as
constituting one continuing violation. Generally, the doctrine
of continuous discrimination does not apply to acts such as
discharge, which is a consummated, immediate violation. See,
e.g, English, 858 F.2d at 962; Berry, 715 F.2d at 980.
In fact, with respect to the analogous situation of discharge
followed by discriminatory referencing, the Court in Berry
specifically stated:
[W]here an employee is discharged without the actionable
period but is injured by his former employer's
discriminatory references within this period, . . . the
latter acts are not a continuation of the initial discharge.
Shehadeh v. Chesapeake & Potomac Telephone Co.,
595 F.2d 711, 720 (D.C. Cir. 1978); Tarvesian v. Carr
Division of TRW, Inc., 407 F. Supp. 336, 340 (D. Mass.
1976). But see EEOC v. United States Fidelity &
Guaranty Co., 414 F. Supp. 227, 233 (D. Md.
1976).
Id. This is true even though the acts may have been
prompted by the same discriminatory state of mind.
Shehadeh, 595 F.2d at 720.
Where the Complainant was discharged by the Respondent in 1986,
and then worked in partnership until that partnership was
dissolved in the fall of 1988, his complaint under the employee
protection provision of the CAA was not timely where he filed his
complaint on May 16, 1989. The Complainant alleged that the
Respondent caused the breakup of his partnership due to
blacklisting. The only evidence of an alleged blacklisting,
however, were two letters concerning the breakup of the
partnership, one in November 1988, and the other dated March 16,
1989.
Both the discharge and the termination of the partnership fell
outside the 30 day filing period, and the Complainant did not
submit anything indicating that tolling was appropriate. The
March 16, 1989 letter was also beyond the 30 day filing period.
In addition, the Complainant did not raise "a sufficiently
specific allegation that [Respondent] committed an act of
discrimination within thirty days prior to his filing the
complaint," Garn v. Benchmark Technologies, 88-ERA-
21 (Sec'y Sept. 25, 1990), slip op. at 11, to render timely his
generalized claim of blacklisting. See Doyle v. Alabama Power
Co., 87-ERA-43 (Sec'y Sept. 29, 1989), aff'd without
opinion, Doyle v. Secretary, United States Dept. of Labor,
949 F.2d 1161 (11th Cir. 1991), cert. denied, 113 S.Ct.
225, 121 L.Ed. 162 (1992) (unpublished 11th Cir. decision
available at 1991 U.S. App. LEXIS 29326).
Rodolico v. Venturi, Rauch and Scott Brown, 89-CAA-
4 (Sec'y Feb. 21, 1992).
[Nuclear & Environmental Whistleblower Digest III C 2] TIMELINESS; EVIDENCE THAT COMPLAINANT SHOULD REASONABLY HAVE SUSPECTED BLACKLISTING
"The ARB has held generally that the thirty day statutes of limitation in environmental whistleblower cases begin to run on the date when facts which would support a discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his rights." Pickett v. Tennessee Valley Authority, ARB No. 00 076, ALJ No. 2000 CAA 9 (ARB Apr. 23, 2003).
In Pickett, Complainant had worked for TVA, and during his tenure had raised several safety complaints. Thereafter, he received an injury while at work and filed for, and received those benefits. TVA later investigated and challenged Complainant's eligibility for FECA benefits. OWCP determined that benefits should be terminated, but ECAB reversed that determination.
In regard to his environmental whistleblower complaint, Complainant alleged that he did not learn of blacklisting by Respondent until after he received materials responding to FOIA and Privacy Act requests and that his filing of a whistleblower complaint was timely because it was made within thirty days of his receipt of the FOIA and Privacy Act materials. The ARB, however, found that, assuming arguendo that Respondent had engaged in blacklisting, the circumstances were such that Complainant should reasonably have suspected any such alleged blacklisting before June 1999 specifically that he had been given a series of allegedly unsuitable job offers, that he had been made aware of Respondent's OIG investigation, his termination from employment, and Respondent's refusal to reinstate him because of alleged downsizing. The ARB noted that Complainant had suspected "stonewalling" by Respondent as evidenced by his communications with his Senator. Thus, the ARB concluded that an adverse course of conduct undertaken by Respondent against Complainant was apparent long before Complainant filed his complaint.
III C 2 TIMELINESS; CONTINUING VIOLATION THEORY AND
BLACKLISTING
The timeliness of an ERA complaint may be preserved under
the continuing violation theory "where there is an
allegation of a course of related discriminatory conduct and the
charge is filed within [one hundred and eighty] days of the last
discriminatory act." Thomas v. Arizona Public Service
Co., 89-ERA-19, slip op. at 13 (Sec'y Sept. 17, 1993);
Garn v. Benchmark Technologies, 88-ERA-21, slip op. at 6
(Sec'y Sept. 25, 1990) The continuing violation theory
particularly applies to complaints of blacklisting because
"there may be considerable lapse of time before a
blacklisted employee has any basis for believing he is the
subject of discrimination." Egenrieder v. Metropolitan
Edison Co., 85-ERA-23, slip op. at 8 (Sec'y Apr. 20, 1987).
In Webb v. Carolina
Power & Light Co., 93-ERA-42 (Sec'y July 14,
1995), the ALJ improperly granted summary decision on the issue
of timeliness where there were disputed issues of fact concerning
an alleged instance of blacklisting within the 180 day
limitations period, and when the Complainant knew, or should have
known, that he was not selected for a position.
III C 2 Blacklisting
The timeliness of a blacklisting allegation is measured from the
last occurrence of discrimination. See Roberts v. North
American Rockwell Corp., 650 F.2d 823, 828 (6th Cir. 1981).
In cases under the ERA, the determination is whether there was an
alleged discriminatory act within 30 days of the filing of the
complaint. See Garn v. Benchmark Technologies, 88-ERA-21
(Sec'y Sept. 25, 1990) and Egenreider v. Metropolitan Edison
Co./G.P.U., 85-ERA-21 (Sec'y Apr. 20, 1987) (both remanding
to ALJ for hearing on whether complainant timely alleged
continuing violation through blacklisting). Thus, where the
respondents presented materials in a motion for summary judgment
establishing that the complainant was aware of the decision not
to rehire him more than 30 days prior to the filing of the
complaint, and the complainant did not submit any materials to
substantiate the allegation that his application was rejected
"a few weeks" prior to filing of the complaint and that
he later received a letter outlining why he was not rehired,
there was no genuine issue of material fact, and the respondents
were entitled to summary judgment as a matter of law. Gore
v. CDI Corporation, 91-ERA-14 (Sec'y July 8, 1992).
III C 2 Affirmative defenses
In Smith v. Tennessee Valley Authority, 89-ERA-12
(ALJ Oct. 1, 1991), the respondent first raised the issue of
timeliness of the filing of the complaint on the first day of the
hearing. The ALJ noted that there was no provision within the
ERA or 20 C.F.R. Part 24 that addresses when a party must raise
the issue of the 30-day time limitation. Referring to Federal
Rule of Civil Procedure 8(c), the ALJ noted that statutes of
limitations are affirmative defenses, and that courts have held
that affirmative defenses are waived if not pleaded. He also
noted that a defendant may amend his pleading to include an
affirmative defense by leave of court; that the court has the
discretion to permit an amendment when it will promote the
presentation of the merits of the action, the adverse party will
not be prejudiced by the sudden assertion of the defense, and
will have ample opportunity to meet the issue. Fed. R. Civ. P.
15; but that it is not an abuse of discretion to deny a such a
motion proffered just before trial.
In the instant case a prehearing order had directed the parties
to set forth the issues involved in the proceeding and the remedy
requested. The respondent was given 20 days to file its response
to the complainant's statement. Although the respondent did not
raise the issue of timeliness until noon on the first day of the
hearing, it did raise the issue within 20 days of the filing of
the complainant's statement. Thus, the ALJ concluded that the
issue was timely raised. He also noted that the parties were
allowed to fully argue and present evidence relating to the
motion during the course of the hearing. Hence, he concluded
that the defense was not waived by the respondent.
III C 2 Blacklisting treated separately from
discharge
A blacklisting claim cannot resurrect the failure of a
complainant to file timely a complaint regarding an allegedly
retaliatory discharge. The issue of the timeliness of the
discharge is treated separately from the issue of timeliness of
blacklisting allegations. See Garn v. Benchmark
Technologies, 88-ERA-91 (Sec'y Sept. 25, 1990). Holden
v. Gulf States Utilities, 92-ERA-44 (ALJ Apr. 22, 1993).
III C 2 Blacklisting, initiation of filing period upon
knowing or suspecting first instance;
conflict of ALJ decisions
In Holden v. Gulf States Utilities, 92-ERA-44 (ALJ
Apr. 22, 1993), the ALJ held that an aggrieved blacklisted
employee must file his DOL complaint within 30 days of known or
suspected discrimination. Thus, where there was an instance of
alleged blacklisting within 30 days prior to the filing of the
complaint, but the Complainant had knowledge of earlier instances
of blacklisting, the ALJ found that the complaint was not timely.
But, in Simmons v. Arizona Public Service Co., 93-
ERA-5 (ALJ Apr. 15, 1993), the ALJ concluded that although seven
allegations were untimely because the Complainant devoutly
believed he had been a victim of discrimination prior to the
culmination of the events, the most recent complaint was timely.
III C 2 Timely blacklisting complaint exposes
respondent to liability for each prior
instance committed in same course of
conduct
In Holden v. Gulf States Utilities, 92-ERA-44
(Sec'y Apr. 14, 1995), the Secretary held
that under the continuing violation theory, when a respondent
commits an alleged act of blacklisting and
a complaint is timely filed, the respondent is exposed to
liability for each prior alleged act of blacklisting
committed in the same course of discriminatory conduct.
In Holden, the ALJ had concluded that a
blacklisting complaint was untimely because
the Complainant had been tipped off to the possibility of
blacklisting a year before he filed a
complaint.
In Greenwald v. The City of North Miami Beach, 78-SDW-1
(Sec'y Apr. 3, 1978), aff'd,Greenwald v. North Miami
Beach, 587 F.2d 779 (5th Cir. 1979), cert. denied, 44
U.S. 826 (1979), the Complainant's complaint under the employee
protection provision of the SDWA was found to be time barred.
Subsequently, the Complainant reapplied for employment, and upon
being told that there was no vacancy, filed a complaint alleging
continuing discrimination. The Secretary adopted the following
language from the ALJ's recommended decision:
A review of the statutory language, history, and cases
provides no basis for a complaint by an applicant for a
position, unlike Title VII of the Civil Rights Act, nor is
there any basis for complaint by a former employee whose
previous employment relationship has already been subjected
to an opportunity for hearing and is now closed off by a
final order. To find jurisdiction here it would be
necessary to go behind the earlier case, Case No. 78-SDWA-1,
to find the employment relationship requisite to this
proceeding, and to reopen issues involved there. The
doctrine of res judicata bars reopening such matters which
have become final.
Therefore, absent the existence of an employer-employee
relationship, there is no subject matter jurisdiction and
the complaint must be dismissed.
Greenwald v. The City of North Miami Beach, 80-SDW-
2 (Sec'y Apr. 14, 1980).
[Nuclear & Environmental Whistleblower Digest III C 3] CONTINUING VIOLATION; NO REHIRE DECISION MUST BE TIMELY COMPLAINED OF; LATER REJECTION UNDER NO REHIRE DECISION DOES NOT CREATE A CONTINUING VIOLATION CAUSE OF ACTION
In Johnsen v. Houston Nana, Inc., ARB No. 00 064, ALJ No. 1999 TSC 4 (ARB Jan. 27, 2003), Complainant alleged that Respondent's refusal to rehire him constituted a continuing violation subject to a new limitations period. Earlier, Complainant had been designated illegible for rehire, and had not taken a timely appeal of that designation. The ARB affirmed the ALJ's grant of summary judgment against the Complainant, holding that the refusal to rehire months later did not constitute a separate discriminatory act. Rather, Complainant had 30 days from the date that he had definitive, final and unequivocal notice of the "no rehire" decision to initiate any complaint that regard.
III C 3 Under the continuing violation theory, the act
occurring within the limitations period need not
be "legally sufficient" itself, but it
must be an instance of discrimination
Where the Complainant was treated like all other electricians in
having to retake a Nuclear Accreditation Bonus examination (which
makes an electrician eligible for a monthly bonus), and he passed
the examination and receives the bonus, the Secretary found that
requiring the Complainant to retake the examination was not an
adverse action. Although the Complainant complained that he was
disadvantaged because a mechanical instructor administered his
exam, whereas an electrical instructor administered the exam to
his coworkers -- which allegedly put him at a disadvantage if he
needed an explanation of a test question -- the Secretary noted
that the Complainant was on sick leave the day the other workers
took the exam.
The Complainant had alleged a continuing violation. Only the
reexamination occurred within the limitation period for filing an
ERA complaint, and the ALJ found that because there was no
adverse action within that period, the complaint was untimely as
to all other earlier acts of alleged discrimination.
The Secretary noted that in Title VII cases, the discriminatory
act occurring within the limitations period need not be a
"legally sufficient" claim itself to invoke the
continuing violation theory, but it must be an act of
discrimination. In the case before the Department, there was no
adverse action, and thus no incident of discrimination within the
limitations period. Thus, the continuing violation theory did not
apply to make the incidents outside the limitations period
cognizable ERA complaints. Moody v. Tennessee Valley
Authority, 91-ERA-40 and 92-ERA-49 (Sec'y Apr. 26, 1995).
III C 3 Continuing violation theory; pattern of
discrimination; even if last claim is timely but
not actionable, evidence of all of Respondent's
actions may be considered in regard to the matters
occurring within the limitations period
Where Respondent's adverse employment actions were not isolated
employment decisions as much as recurring restrictions imposed on
the Complainant's terms of employment which adversely affected
his ability to advance, there was such a pattern of
discrimination that the last incident about which a complaint was
logged within the statutory limitations period made the entire
set of events a timely complaint under the continuing violation
theory. The Secretary noted that even if the last claim were
held timely but not actionable, evidence of all of the
Respondent's actions properly could be considered in regard to
the true character of the matters occurring within the
limitations period. Simmons v. Arizona Public Service
Co., 93-ERA-5 (Sec'y May 9, 1995).
III C 3 Continuing violation theory does not preserve
the timeliness of acts prior to 30 days prior to
the filing of the complaint where that complaint
is not actionable
Where the alleged discriminatory act precipitating the complaint
is found not to be actionable, the continuing violation theory
may not be applied to preserve the timeliness of additional
allegations of discriminatory acts which occurred outside the 30
day filing period immediately preceding the complaint. See
generally Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1528
(7th Cir. 1990); Egenrieder v. Metropolitan Edison Co.,
85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 3-8; Garn v.
Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990),
slip op. at 10.
III C 3 Continuing effect of earlier discrimination
Hadden v. Georgia Power Co., 89-ERA-21
(Sec'y Feb. 9, 1994)
The ALJ recommended dismissing the complaint as untimely,
and alternatively held that even if it were considered timely,
the complainant failed to establish the inference that the
adverse actions were motivated by the complainant's protected
activity. The Secretary agreed with the ALJ and dismissed the
complaint as untimely.
Complainant was fired by one of Respondent's contractors,
rehired several months later after settling the complaint, and
refired shortly thereafter. Although complainant did not receive
written notification that he was permanently barred from
employment with the Respondent until over two years from his
final discharge, the complainant was informed he was permanently
barred within months of his discharge. The Statute of
Limitations begins to run when the claimant is first notified of
the adverse action, and that notification need not be written.
The Secretary rejected the complainant's argument that
repeated denials for re-employment constitute a continuing
violation with each denial being a separate discrimination act.
Instead, the Secretary found such repeated denials the continuing
effect of the initial decision to permanently bar re-employment.
Since the complaint was dismissed as untimely, the Secretary
did not address the issue of burden of proof.
TIMELINESS; CONTINUING VIOLATION DOCTRINE; REQUIREMENT OF
DISCRIMINATORY ACT WITHIN LIMITATIONS PERIOD; RELATIONSHIP TO
HOSTILE WORK ENVIRONMENT [N/E Digest III C 4]
In Varnadore v. Oak Ridge National Laboratory,
92-CAA-2 and 5 and 93-CAA-1 (Sec y Jan. 26, 1996), the Secretary
noted that there are two elements to the continuing violation
theory: (1) the complainant must show a course of related
discriminatory conduct, and (2) the charge must be filed within
30 days of the last discrimination. The Complainant attempted to
show that the alleged discrimination continued to within 30 days
of the filing of the complaint based on the fact that he
continued to feel the effect of an assignment of office space
that was isolated from fellow employees and involved exposure to
mercury vapor at the time he filed his complaint. The Secretary
rejected this reasoning, noting that the fact that a complainant
continues to suffer the effects of a retaliatory act outside the
limitations period does not render a claim timely. The Secretary
held that the act of assigning the Complainant to that
office space occurred only once, and that this act was similar to
other types of discrete personnel actions such demotions,
transfers, and negative performance rating, all of which have
lingering effects but for which relief from the limitations
period is not granted. Slip op. at 70-77.
The Secretary found that although the ALJ was correct in noting a
connection between a hostile work environment and the continuing
violation theory, he erred in finding that a showing of hostile
work environment is sufficient itself to conclude that the
continuing violation doctrine applies. Rather, the second part
of the continuing violation doctrine - an instance of
discrimination within the limitations period - must be present
for the a complaint to be considered timely filed pursuant to
that doctrine. Slip op. at 78-80.
III C 3 Requirement that there have been an act of
discrimination within 30 days prior to filing
of complaint
A complaint filed under a continuing violation theory of
blacklisting or discriminatory referencing is untimely if the
complainant does not allege that the respondent committed an act
of discrimination within 30 days prior to the filing of the
complaint. See Shehadeh v. Chesapeake and Potomac Telephone
Co., 595 F.2d 711 (D.C. Cir. 1979). Doyle v. Alabama
Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989).
In Belt v. USDOL, Nos. 04-3487, 04-3926 (6th Cir. Jan. 25, 2006) (unpublished) (case below ARB No. 02-117, ALJ No. 2001-ERA-19), the Sixth Circuit indicated that the ARB misstated, in a potentially material way, the legal standard for assessing the applicability of the hostile work environment exception to the running of the ERA statute of limitations, when it stated: "To prevail on a hostile work environment claim, the complainant must establish that the objectionable conduct was extremely serious or serious and pervasive." Slip op. at 11, quoting ARB slip op. at 8 (emphasis as added the court). The court, however, found that later in the opinion the ARB correctly stated the standard as only requiring that the Complainant demonstrate that the alleged discrimination was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment." Id. (emphasis as added by the court). The court held that, on balance, it was clear that the ARB applied the correct standard despite its initial misstatement.
[Editor's note: The ARB accepted this distinction in Brune v. Horizon Air Industries, Inc., ARB No. 04-037, ALJ No. 2002-AIR-8 (ARB Jan. 31, 2006).]
III C 4 Hostile work
environment
In Varnadore v. Oak Ridge National Laboratory, 92-
CAA-2, 5 and 93-CAA-1 (ALJ June 7, 1993), the ALJ found that the
Complainant's complaint was not untimely based on the doctrine
"continuing violations" -- discriminatory acts
occurring in such a way that it is difficult to define with
precision when they take place. "They unfold rather than
occur." Slip op. at 78 (citing Bell v. Chesapeake and
Ohio Railway Co., 929 F.2d 220, 223 (6th Cir. 1991)). The
ALJ found that the doctrine was applicable because:
the Respondent had fostered a hostile work environment
from at least February 1990 extending into the post-hearing
period of the proceeding
the Complainant evidently did not realize in February
1990 that his transfer was a first step in separating him and
leading to an indefinite period of incompatible jobs
he was assigned to inappropriate office space used as
waste depositories and to isolate him from fellow workers
he was given a number of adverse performance appraisals
influenced by hostility arising from his protected activity
the hostile work environment culminated in an August
1992 posting of a memo attacking and ridiculing the Complainant
for pursuit of a remedy in the instant proceeding.
The ALJ explained that a hostile work environment arising out of
a related series of incidents is not a discrete, consummated,
immediate violation.
[Nuclear and Environmental Whistleblower Digest III C 4]
TIMELINESS OF COMPLAINT; HOSTILE WORK ENVIRONMENT; ELEMENTS
In Schlagel v. Dow Corning Corp., ARB No. 02-092, ALJ No. 2001-CER-1 (ARB Apr. 30, 2004), citing National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-15 (2002), the ARB reviewed the elements of a claim that a hostile work environment rendered all adverse employment actions, including those occurring prior to the 30 day limitations period, actionable.
The Board summarized the Supreme Court ruling in Morgan, stating that "[i]n contrast to discrete adverse actions, a hostile work environment occurs over a series of days, or perhaps years, and a single act of harassment may not be actionable on its own. Hostile work environment claims are based on the cumulative effect of individual acts. ... A complaint alleging hostile work environment is not time-barred if all the acts comprising the claim are part of the same practice and at least one act comes within the thirty-day filing period." Schlagel, USDOL/OALJ Reporter at 10 (citations omitted). Thus, if the Complainant "were able to show that at least one act comprising the hostile work environment occurred within thirty days prior to filing his complaint, his entire hostile work environment cause of action would be deemed timely and he could proceed to litigate the merits." To establish a hostile work environment, a complainant has to prove that:
1) he engaged in protected activity;
2) he suffered intentional harassment related to that activity;
3) the harassment was sufficiently severe or pervasive so as to alter the conditions of employment and to create an abusive working environment; and
4) the harassment would have detrimentally affected a reasonable person and did detrimentally affect the complainant.
USDOL/OALJ Reporter at 10-11 (citations omitted).
In the case sub judice, the Board rejected the Complainant's hostile work environment claim for rendering pre-limitations period actions timely because he had not addressed or shown that the Respondent's allegedly adverse employment actions were in violation of elements 3 and 4.
Although not actionable, however, the ALJ properly admitted evidence of otherwise time-barred alleged adverse actions and fully considered them as relevant evidence probative of the Respondent's decision making process regarding the actionable adverse actions occurring within the limitations period.
[Nuclear and Environmental Whistleblower Digest III C 4]
TIMELINESS OF COMPLAINT; ALLEGATION OF HOSTILE WORK ENVIRONMENT; DENIAL OF REQUEST FOR RELIEF FROM DISCRIMINATION DOES NOT TOLL THE LIMITATIONS PERIOD
In Sasse v. USDOL, No. 04-3245 (6th Cir. May 31, 2005) (case below ARB No. 02-077, ALJ No. 1998-CAA-7), the Sixth Circuit found that the "hostile work environment" analysis of National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002), as relevant to the question of whether a complaint had been timely filed, was applicable to whistleblower cases arising under the CAA, SWDA and FWPCA. The court agreed with the ARB that none of the employment actions that the Complainant had listed in his complaint had occurred within the applicable 30-day statute of limitations.
The court rejected the Complainant's argument that the time period was tolled by the Respondent's refusal to transfer a secretary away from him (the Complainant having alleged that he had been assigned a "drunken" secretary in an effort to harass him). The court wrote that "[w]e have held that 'the denial of a request for relief from discrimination does not itself constitute a discriminatory act that tolls the statute of limitations.'" (citations omitted).
[Nuclear & Environmental Whistleblower Digest III C 4]
TIMELINESS OF COMPLAINT; HOSTILE WORK ENVIRONMENT; TIMELY EVENT MUST BE "COMPONENT" OF THE ALLEGED HOSTILE WORK ENVIRONMENT TO EXTEND FILING PERIOD
In Belt v. United States Enrichment Corp., ARB No. 02 117, ALJ No. 2001 ERA 19 (ARB Feb. 26, 2004), the ALJ had accepted the Complainant's argument that, although he did not timely file a complaint with 180 days of the notice of his RIF, under National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the existence of a hostile work environment meant that his claim would be timely if the claim was part of the same unlawful practice and at least one act fell within the filing period (in the case sub judice, the date the Complainant was actually terminated). The ARB held that the ALJ misapplied Morgan.
First, the Board made findings indicating the absence of a hostile work environment. Although the Complainant presented an NRC letter raising generalized concerns about a "chilled environment" at the facility at which the Complainant worked, the NRC letter did not refer specifically to the Complainant or the department in which he worked, nor did it mention harassment or hostility or indicate an abusive atmosphere. The ARB found evidence that the Complainant actually worked in a supportive rather than a hostile environment; and that although Complainant had a less than ideal working relationship with a supervisor, he himself admitted that the relationship was professional.
Finally, the Board observed that, even if the record had demonstrated a hostile work environment, at least one of the acts comprising such an environment must have occurred less than 180 days before the date the complaint was filed. The Board held that the dates of the actual discharge and exit interview (as opposed to the date that notification of the RIF) were not "components" of the alleged hostile work environment.
[Nuclear & Environmental Whistleblower Digest III C 4] TIMELINESS; HOSTILE WORK ENVIRONMENT AS EXTENSION OF FILING PERIOD
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), Complainant argued that the existence of a hostile work environment should cause the 30 day filing period for an environmental whistleblower complaint to be extended. The ARB, referring to its finding after reviewing the entire record that a hostile work environment did not exist, found that the limitations period could not be extended on this basis.
[Editor's note: The ARB noted that if the Complainant had been able to prove the existence of a hostile work environment within 30 days of the date of her complaint, her cause of action would relate back to otherwise stale claims. From a practice note perspective, this means that it is necessary to fully adjudicate a hostile work environment issue before an equitable tolling based on that hostile work environment issue can be decided.]
[Nuclear & Environmental Whistleblower Digest III C 4] HOSTILE WORK ENVIRONMENTAL; TIMELINESS; DIFFERENCE BETWEEN DISCRETE ACTS AND THOSE THAT MAKE UP A HOSTILE WORK ENVIRONMENT
In Gorman v. The Consolidated Edison Corp., 2001 ERA 42 (ALJ Nov. 21, 2002), the ALJ agreed with the Complainant's argument that the recent Supreme Court decision in National Railroad Passenger Corporation v. Morgan, ___U.S.___, 122 S.Ct. 2061 (2002) (a Title VII case), was applicable to Complainant's ERA whistleblower complaint. The ALJ concluded:
I glean from Morgan several differences between "discrete" acts and acts that make up a hostile work environment. First, where an employer's conduct against an employee is actionable in and of itself B i.e., it directly affects his wages, hours or other terms or conditions employment B it constitutes a discrete act for which the statute of limitations begins to run immediately. In such a circumstance, even if subsequent employer discriminatory conduct is related to the earlier conduct the later conduct does not re start the statute of limitations for the earlier conduct. However, where the discriminatory conduct is less severe B for example, a "mere offensive utterance," such as racial jokes, racial epithets, and race based negative comments B it is a not a discrete act that would support a cause of action, but it could constitute a portion of the fabric making up a hostile work environment.
Slip op. at 3 4 (footnotes omitted). Applying this distinction, the ALJ analyzed the acts Complainant contended were not time barred because they constituted a hostile work environment that continued into the statutory time period, and found that those acts that were actionable insofar as they directly affected Complainant's conditions of employment were time barred. The ALJ, however, observed that such acts may be admissible in evidence as background evidence.
[Nuclear & Environmental Whistleblower Digest III C 4]
TIME LIMITATIONS ON FILING IN DISCRIMINATION CLAIMS,
GENERALLY
In National Railroad Passenger Corp. v.
Morgan, _ US _, 122 S Ct 2061, 153 L Ed 2d 106 (2002), a Title VII claim,
the United States Supreme Court examined the application of time limitations in situations
involving the raising of claims of discrete discriminatory or retaliatory acts, and situations
involving charges alleging a hostile work environment. The Court held that a Title VII plaintiff
raising claims of discrete discriminatory or retaliatory acts must file his or her charge within the
statutory period, but that claims based on a hostile work environment will not be time barred
if all acts constituting the claim are part of the same unlawful practice and at least one act falls
within the filing period. In neither instance is a court barred from applying equitable doctrines
that may toll or limit the time period. An employer may raise laches if the plaintiff
unreasonably delays filing and as a result harms the defendant.
