The parties agreed that the sole issue to be decided at the time is whether the complaint was timely filed. It was agreed that if a determination is made that the complaint was timely filed, then the complaint would be remanded to the Employment Standards Administration of the U.S. Department of Labor for an investigation of the facts alleged by the Complainant in his complaint.

    Complainant, John P. Cox, D.O., is a specialist in radiology with experience in nuclear medicine. He was employed by the Respondent, Radiology Consulting Associates, Inc., from July 1, 1983 until October, 1985. Respondent provides diagnostic radiology services to various hospitals including the Metro Health Center ("MHC") in Erie, Pennsylvania. The radiology services provided to the MHC include fluoroscopy, reading of x-rays, angiography, ultrasonography, nuclear medicine and CT scans. Complainant worked as a radiologist at MHC under the contract between the Respondent and MHC.

    Complainant's employment agreement with the Respondent permitted both parties to terminate the relationship, without cause, upon the giving of a 90-day notice. A meeting was held on August 28, 1985 at the offices of Respondent between Drs. Reich, Seidelmann, and Janicki, officers of the Respondent, and the Complainant at which time Complainant was informed that his employment would be terminated under the 90-day notice provision. Complainant was given written notice of the termination by letter dated September 17, 1985, which he received on September 19, 1985.

    Complainant contends that his employment was terminated because he had complained to the Nuclear Regulatory Commission about problems with quality control at the MHC's nuclear medicine department. Dr. Reich, president of the Respondent, testified that the Complainant was fired because of work-related problems such as abusive language and failure to respond to emergency calls.

    Although he was not an MHC employee, the Complainant asked that his termination from employment be reviewed by MHC. On October 14, 1985, an "executive staff meeting" was held at MHC at which Dr. Reich was invited to explain why Complainant's employment was being terminated. Complainant was not invited to the october 14th meeting. A second meeting was held on

October 17, 1985, at which time Complainant was permitted to state his version of the events. After the October 14th meeting, Dr. Reich went to Complainant's office and told Complainant he was immediately terminated from any further employment and he was not to finish reviewing cases on which he was working.

    Dr. Reich testified that Complainant was told to leave on October 14, 1986 because he was soliciting business away from the Respondent in violation of a non-competitive clause in the employment agreement and because he had made disparaging remarks about Respondent. Complainant denies that he was soliciting Respondent's business or defaming the Respondent.

    Complainant ceased performing services for Respondent on October 14, 1985. However, he continued to be paid through the remainder of the 90-day period, that is, until December 17, 1985.

    An attorney retained by Respondent sent Complainant a letter threatening legal action and the termination of the remaining weeks of Complainant's salary because of alleged tortious interference with the Respondent's business relationship with MHC and defamation of Respondent.

    On or about December 3, 1985, the Complainant received his last paycheck from the Respondent. It was for November and the first 17 days of December. Subsequent to receiving his last pay, the Complainant asked for reimbursement of various miscellaneous expenses such as attendance at meetings, disability insurance and license fees. Complainant received a check reimbursing him for these expenses during the first week of February 1986. The amount of the check was $2,548.21.

    The October 14, 1985 executive staff meeting at MHC was recorded. Both the Complainant and the Respondent requested the tapes or minutes of the meeting. Both requests were refused. Complainant procured a copy of the meeting minutes surrepitiously during the last week of January, 1986, from a member of the Board of Directors of MHC.

    Complainant filed his Complaint with the Department of Labor on February 12, 1986.

    Section 210(b)(1) of the Energy Reorganization Act provides that:

    Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of sub- section (a) may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the 'Secretary') alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission."

    The Complainant's complaint was dismissed by the Department of Labor because it found that the complaint was not filed within 30 days after an alleged violation as required by Section 210(b)(1). Respondent requests that this appeal be dismissed for the same reason. Complainant asserts that the complaint was timely filed.

    There is no case law interpreting the 30-day filing period of subsection (b)(1); however, there is ample case law under the "whistleblower" or employee protection provisions of other statutes such as the National Labor Relations Act, Safe Drinking Water Act, Title VII of the Civil Rights Act and the Toxic Substances Control Act.

    The Respondent argues that the 30-day time period runs from the date that the Complainant was notified of the discriminatory discharge, that is, either from August 28, 1985, the date of the meeting when he was given 90-days notice, or from September 19, 1985, the date on which he received the termination letter. Respondent cites as authority the U. S. Supreme Court opinion in Delaware College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed. 2d 431, where the Court held that the limitation period for the filing of an employee's claim of discriminatory discharge commenced not at the time of termination, but when the employee received notice of the employer's intention to terminate him. In Ricks, professors at Delaware College would lose their teaching position one year after the denial of tenure. Ricks filed his

complaint of discriminatory discharge after his employment ended. The Court held that the complaint should have been filed after tenure was denied since termination was inevitable. The Court quoted the Court of Appeals for the Ninth Circuit as reasoning 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." Id. 449 U.S. at 258. Here, under the Ricks reasoning, the complaint should have been filed within 30 days after September 19, 1985. However, even if the Ricks holding does not apply to these facts and it is determined that the violation occurs when the Complainant terminates employment, then the complaint should have been filed within 30 days after October 14, 1985, the last day that the Complainant was employed by the Respondent. Neither theory allows for a finding that the complaint was timely filed.

    Complainant asserts that the Respondent was responsible for a series of continuing discriminatory acts which toll the 30-day filing requirement. Complainant cites Scott v. Claytor, 469 F. Supp. 22 (D. Col. 1978) for the proposition that a pattern of continuing discrimination will cause the normal time limits for filing a complaint to be suspended. However, even if a discriminating course of conduct is alleged and proven, at least one of the discriminatory acts must fall within the 30-day period. The Court in Scott stated:

" There being a timely complaint as to one and an apparent relationship among the three, the Court concludes that a continuing claim of discrimination is presented . . . . " Id. at 26.

Here, the latest actions of the Respondent that could arguably be considered discriminatory in violation of Section 5851 of the ERA are the statement by Dr. Reich to the Complainant that his employment was terminated immediately or the letter from Respondent's attorney threatening legal action. Those actions occurred in October, 1985, and thus do not fall within 30-days of the filing of the Complainant's complaint. The only other contact the Respondent had with the Complainant was the forwarding of Complainant's paychecks or reimbursement of his expenses. Accordingly, it is determined that the 30-day filing requirement is not tolled by a continuing series of violations.

    Complainant argues that if the 30-day filing period is held to commence on September 19, 1985, then the limitation period must be held to have been tolled by equitable considerations. Initially, the courts have held that time limitation provisions in like statutes are not jurisdictional, in the sense that a failure to file a complaint within the prescribed period is an absolute bar to administrative action, but rather are analogous to statutes of limitation and thus may be tolled by equitable consideration. School District of the City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981); Coke v. General Adjustment Bureau, Inc., 64 F.2d 584 (5th Cir. 1981); and Donovan v. Hakner, Foreman & Harness, Inc., 736 F.2d 1421 (10th Cir. 1984). The Court in School District of the City of Allentown warns, however, that the restrictions on equitable tolling must be scrupulously observed; the tolling exception is not an opened invitation to the courts to disregard limitation periods simply because they bar what may be an otherwise meritorious cause.

    The Complainant alleges three reasons why the periods of limitations should have been found to be tolled: (1) the Complainant needed written corroborating evidence on the reason for his termination of employment; (2) Complainant was concerned that filing a complaint would jeopardize his salary and benefits; and (3) Complainant filed a complaint in an alternate forum, i.e., before the MHC executive staff.

    Complainant contends that the limitation period should be tolled because he needed time after the August 28th meeting to gather corroborating written documentation supporting his allegation of discriminatory actions. He argues that the limitation period should be found to commence at the time he received the documentation supporting his claim, that is, during the last week of January, 1986, when he received the minutes of the October 14th meeting at MHC.

    Complainant cites cases in support of his argument holding that employees have been excused from compliance with periods of limitations on the basis that they were unaware that the discrimination may have occurred until after the expiration of the filing period. However, that is not the case here. Complainant testified that Dr. Reich told him at the August 28, 1985 meeting

that his employment was being terminated because he complained to the NRC on quality control at the nuclear medicine department of the MHC.

    In Coke v. General Adjustment Bureau, Inc., supra, the Court held that a forbearance from filing a claim because of a representation by the employer that it would reinstate the employee would be justification for an equitable tolling. The Court in Donovan v. Hakner, Foreman & Harness, Inc., 736 F.2d (10th Cir. 1984) instructed that it is generally accepted that when an employer misleads an employee regarding a course of action, equitable estopped may result. Here, the Complainant does not argue that he was mislead by the Respondent or was ignorant of the facts, rather, he argues that he should have had time to gather evidence supporting his claim. Complainant's theory would negate the purpose of a limited filing period as the period could conceivably never end. The purpose of Section 5851 of the ERA is to empower the Department of Labor to investigate a claim and gather evidence. The claim does not have to be fully developed and proven when filed. In Hyson v. Boorstin, 32 FEP cases 1542 (D.D.C. 1982), the Court held that an employment discrimination action complaint should be filed when the employee obtains information that gives him a "reasonable suspicion" that he has been the victim of discrimination. The Court reasoned that an employee cannot wait until he has all the supporting facts that make a claim more creditable and that the additional facts would presumably come to light in a resulting Equal Employment Opportunity investigation. In the present case, the 30-day period is not tolled by the Complainant's desire to procure corroborating evidence. The Complainant does not allege that the Respondent attempted to conceal information or mislead him. Nor does he allege that he needed any additional information. His desire to procure corroborating evidence does not toll the statute.

    Complainant also asserts that he did not file a timely complaint with the Department of Labor because he was concerned that the Respondent would respond by stoping payment of benefits due him. He argues that this fear of retribution should toll the statutory period. The courts have been reluctant to toll a statutory time period without a showing that the Respondent took deliberate actions to prevent the employee from filing a timely action. The Court in School District of the City of Allentown v. Marshall, supra, listed specific limited instances where equitable

tolling could be justified. One of those is where "the plaintiff has in some extraordinary way been prevented from asserting his rights." Id at 20. In Fleischhaker v. Adams, 481 F. Supp. 285 (D.Col. 1979), the Court held that threats of reprisal or other acts of intimidation could serve to toll a 30-day notice provision but that a mere subjective fear of reprisal or feeling of intimidation is not sufficient to toll the 30-day period. "[T]here must be some clear objective basis for the complainant have felt intimidated, threatened, or otherwise dissuaded from asserting her rights." Id at 292. In accord are the decisions in Kreigesmann v. Barry-Wekmiller Co., 739 F.2d 357 (8th Cir. 1985) and Chambers v. European American Bank & Trust Co., 601 F. Supp. 630 (E.D.N.Y. 1985). In Kriegesmann the Court held that an employee's forbearance from filing a complaint because of his belief that his employer may retaliate by cutting his service benefits or sabotaging his efforts to fund a new job is insufficient to cause an equitable tolling. Rather, the Court reasoned, the employee's failure to file in a timely fashion must be the consequence either of a deliberate design by the employer or of actions that the employer should unmistakenly have understood would cause the employee to delay filing his charges. In Chambers the Court held that the fear of losing severance benefits does not pose an equitable consideration that would toll the time for filing.

    In this case the Complainant has not shown that the Respondent took any actions which would cause Complainant to fear that a timely filing would jeopardize benefits owed to him by the Respondent. Complainant asserts that the October 19, 1985 letter from Respondent's attorney was intimidating to the extent that it dissuaded him from a timely filing. However, a clear reading of the letter shows that it is not the "clear objective basis" for a feeling of intimidation referred to by case law. The letter threatens legal action and a termination of remaining weeks of salary as a result of alleged defamatory statements and interference with Respondent's business relationships. It does not concern Complainant's claims of discriminatory discharge. Moreover, the Complainant received the last of his pay from Respondent on December 23, 1985; thus, even if the statute was tolled until he received all his pay, the 30-day filing period would still have lapsed before February 11, 1986, the date on which the Complainant filed. The only benefits that were outstanding after December 3, 1985, are the miscellaneous expenses

    Complainant alleges in his reply brief that equitable tolling should apply because the Complainant requested a hearing before the executive staff of MHC. The Court in School District of the City of Allentown v. Marshall, supra, recognized that equitable tolling could exist where "the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum." Id at 20. While the Complainant sought some redness from MHC, Complainant has not alleged that he mistakenly went to the MHC instead of the Department of Labor for relief. The fact that relief is sought through alternative measure does not justify the application of equitable tolling. The U. S. Supreme Court in International Union of Electrical, Radio and Machine Workers v. Robins & Meyers, Inc., 429 U.S. 229, 97 S.Ct. 441, 50 L.Ed.2d 427 (1976) held that pursuit of collective bargaining grievance procedures does not toll the running of the limitation period within which a complaint of racial discrimination must be filed with the EEO, as Title VII remedies are undependent of pre-existing remedies. See also Greenwald v. City of North Miami Beach, Florida, 587 F.2d 779 (11th Cir. 1979) where the court held that an employee's request for local civil service's board review of his discharge did not toll the 30-day time limitation for filing a claim under the Safe Drinking Water Act. Accordingly, it is determined that Complainant's request for a meeting or hearing with the executive staff of the MHC does not toll the filing time limitation.

    Finally, Complainant argues that general principles of fairness mandate that his complaint be considered on its merits. Complainant argues that: there is no prejudice to the Respondent; the matter is not stale; the claim should not be decided on

procedural grounds; and the purpose of the statute would otherwise be defeated. Initially, prejudice to Respondent or lack of it is irrelevant. Kriegesmann v. Barry-Wekmiller Co., supra. Also, the staleness or newness of the claim is irrelevant. The Court in School District of the City of Allentown, supra, stated:

    It is clear that we may not read the clear terms out of the statute merely because the short period between the violation and the filing of the complaint did not create the risk of inadequate evidence through fading memories or loss of witnesses. This prejudice to defendant, or lack of it, is simply irrelevant when Congress has drawn a line at the point where it believed claims should be barred. Id. at 20.

    In the City of Allentown, the Court quoted the U. S. Supreme Court's decision in Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed 2d 532 (1980):

    [e]ven if the interest of justice might be served in this particular case by [permitting this claim to be heard], in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law. 447 U.S. at 826.

    The 30-day time limitation for filing claims is short and may result in significant numbers of well-founded claims not being investigated. Moreover, it may thwart the purposes of the ERA by diminishing the protection of the employees who report unhealthy or unsafe practices to the NRC. However, the limitation on time for filing claims was set by Congress and neither the administering agency nor the courts have the authority to change it.

    In sum, the Complainant failed to file his complaint with the Department of Labor under Section 5851 of the ERA within 30 days after the purported violation occurred and the Complainant has not alleged or proven facts on which an equitable tolling of the

30-day period could be based. Therefore, I have no discretion but to dismiss the complaint.

    AND NOW, this 22nd day of August, 1986, IT IS HEREBY RECOMMENDED that the complaint of John P. Cox, D.O., filed on February 11, 1986, be dismissed.

       THOMAS M. BURKE
       Administrative Law Judge

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