Complainants had not satisfied these requirements "because the evidence indicates that the alleged discriminatory conduct (i.e., complainants' termination from Navy project) occurred in the last week of October or the first week of November." ALJ Order at 2. Since Complainants Toth and Sylvester were terminated from the projects on or about October 31, 1985, when the J.R. Roberts Corporation succeeded Covington Constructors, and Complainant McGough continued on the site as a temporary J.R. Roberts employee through November 8, 1985, the ALJ held that the Sylvester and Toth complaints of December 20, 1985, and the McGough complaint of January 10, 1986, to the Wage and Hour Division of the Department of Labor were untimely. Id.

    Complainants contended that even if the thirty-day filing period is mandatory, it should commence from the dates of their actual terminations from Covington Constructors, rather than from their earlier removal from the Camp Pendleton projects. This argument was rejected by the ALJ as follows:

I reject complainants argument that because Toth and McGough remained employed with Covington Constructors until "early December" and Sylvester worked for Covington until June of 1986 the complaints were timely. (See first opposition brief, at page 20.). The date which triggers the running of the 30 day period is when the alleged discrimination by the Navy occurred, not when complainants ended their employment with Covington.

    The ALJ also rejected Complainants' attempts to come within the purview of equitable tolling exceptions to the thirty-day filing requirement.

If certain fact situations are established, the doctrine of equitable tolling may be applicable to these cases because the time periods stated in the relevant Acts are analogous to statutes

of limitation instead of jurisdictional bars. See, e.g., School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 18 (3d Cir. 1981). Equitable tolling applies in three principal situations: 1) plaintiff has been actively misled by defendant regarding the cause of action; or 2) plaintiff has been prevented in some extraordinary way from asserting his or her rights; or 3) plaintiff previously raised the exact claim but by mistake it was in an incorrect forum. See, e.g., City of Allentown, supra at 20; Smith v. American President Lines Ltd., 571 F.2d 102, 109 (2d Cir. 1978).

The evidence does not establish that any of these situations apply to the instant claims. The facts do not show, nor have the complainants attempted to allege, that these claims were mistakenly raised in an erroneous forum. The facts do not support complainants' conclusory assertions that they were prevented, in some extraordinary way, from asserting their rights, or that the Navy misled them regarding the cause of action. (See supplemental opposition brief, at page 6). Complainants have not asserted any tangible facts which support these allegations. Additionally, even assuming that the three situations set out above which allow for application of equitable tolling are not exclusive, see, e.g., City of Allentown, supra at 20, complainants have not argued that an alternative extraordinary situation occurred which would justify equitable tolling. After careful consideration of all of the evidence, even construed liberally in favor of complainants as the non-moving parties, I find that equitable tolling is not justified in these cases.

    Complainants continue to argue that the thirty-day filing rules in the statutory provisions invoked supra are merely permissive, rather than mandatory. Under Complainants' theory, if the thirty-day limitations were mandatory, the word "must" would have been used in the statutes. However, substitution of "must" for "may" in the pertinent statutory provisions would mean that alleged discriminatees are required to file complaints, regardless of their personal inclinations. Contrary to Complainants' assertion, the United States Court of Appeals for the Third Circuit in School District of the City of Allentown v. Marshall, 657 F.2d 16 (1981), did not leave this question open. In reversing a Secretary of Labor's decision holding, inter alia, that the filing language was permissive, rather than mandatory, under the Toxic Substances Control Act, the Third Circuit stated: "[B]ecause we conclude that there was no adequate basis for disregarding the time limit set out in the statute's clear language, the Secretary acted in excess of statutory limitations." 657 F.2d at 21. Moreover, the implementing regulation at 29 C.F.R. § 24.3(b) (1987) states clearly: "Any complaint shall be filed within 30 days after the occurrence of the alleged violation." (emphasis added). Thus "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful." Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (emphasis in original). Moreover, "'[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Id. (quoting Delaware State College v. Ricks, 449 U.S. 250, 257 (1980)). See also Janikowski v. Bendix Corporation, 823 F.2d 945, 947-48 (6th Cir. 1987); Nunn v. Duke Power Company, Case No. 84-ERA-27, Deputy Secretary's Decision and order of Remand, July 30, 1987, slip op. at 13-17; English v. General Electric Company, Case No. 85-ERA-2, Deputy Secretary's Final Decision and Order, January 13, 1987, slip op. at 4-11, appeal docketed, No. 87-3520 (4th Cir. February 17, 1987).

    Complainants continue to press the issue of equitable tolling in order to prevent dismissal of their complaints as untimely filed.

"It must be remembered that the Complainants were

terminated from the project at the end of October 1985, at which time J.R. Roberts assumed the project for and on behalf of Covington Constructors, the employer of Complainants, After the termination from the project, Complainants did not become fully and completely aware that they had been terminated from the project because the DEPARTMENT OF NAVY and the ROICC interferences with their contract with Covington Constructors and their later interference with their prospective contract with J.R. Roberts. Complainants were mainly employed by Covington Constructors for some period of time into early December at which TOTH and MCGOUGH were terminated because of Covington Constructions loss of the Camp Pendleton Project. Complainant SYLVESTER was not terminated until June of 1986, therefore, the filing of the three Complaints with TOTH, SYLVESTER and MCGOUGH were all timely filed within thirty (30) days of their termination from Covington Constructors or within thirty (30) days from when they became aware the DEPARTMENT OF NAVY and the ROICC had wrongfully interfered with their contract with Covington Connectors and J.R. Roberts. It would be wrong to interpret the date of the termination of Complainants from the project as being the date that the violation or occurrence took place. The occurrence took place when Complainants were later terminated from Covington Constructors or when they became aware the DEPARTMENT OF NAVY and the ROICC had interfered with their contracts with Covington Constructors and J.R. Roberts, which would have been in the late part of November or early part of December 1985. The theory of equitable tolling also applies in this case in that the DEPARTMENT OF NAVY and the ROICC have actively interfered and mislead [sic] Complainants in respect to their contract rights in the matters before the Department of Labor, and that the Complainants have in some extraordinary way been prevented from asserting their right because of their inability to determine until such time in late November or early December in 1985 the discrimination precipitated upon them by the DEPARTMENT OF NAVY and ROICC by their interference with their employment contracts with

Covington Constructors and J.R. Roberts. The theories of Smith vs. American President Lines, Ltd. supra and Bonham vs. Dresser Industries, Inc., 569 F.2d 187 (3rd Cir. 1977), and Burnett vs. New York Central Railroad, 380 U.S.C. (sic) 424, (1965) apply to this case, if the Department of Labor is disinclined to find that the Complaints were filed within the thirty (30) day time-period."

It should be pointed out that the Environmental Employee Protection Statutes protect not only from discharge by an employer but also as to any discrimination against that employee with respect to the employees [sic] compensation, terms, conditions or privileges of employment. All five previously mentioned Environmental Protection Statutes not only preclude employees from being terminated but from being discriminated. Discrimination against the Appellants has continued beyond October 31, 1985 until such time that they approached J.R. Roberts and inquired to be employed with them as members of the Supervising Team and to such time although the Appellants may have been terminated from the project they were not necessarily terminated from Covington Constructors until some later date. This does not preclude THOMAS SYLVESTER from bringing an action for this harassment. This does not preclude MCGOUGH and TOTH from bringing an action from the point that they were actually terminated from covington Constructors. Upon reviewing all the facts and law of the aforementioned case, it can be seen that the thirty (30) day period has been relaxed by Case Authority and that the thirty (30) day period should run from the end of the continuing harassment or from the date of termination by the employer, whichever is later. on the basis of the foregoing, the Order of Dismissal should be reversed and this matter remanded for an Administrative Hearing.

Appellants' opening Brief at 8-11, quoting in part from their Supplemental Opposition to Motion to Dismiss at 5-6.

    Complainants' equitable arguments raise significant factual issues which should have been decided through a

hearing involving the testimony of witnesses and the presentation of evidence. Courts are reluctant to decide equitable tolling issues in the context of summary decision, such as the procedure used in this case, because these issues frequently involve the credibility of witnesses. Cocke v. Merrill Lynch & Company, 817 F.2d 1559, 1561 (11th Cir. 1987); Meyer v. Riegel Products Corporation, 720 F.2d 303, 307-09 (3rd Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984); Aronsen v. Crown Zellerbach, 662 F.2d 584, 595 (9th Cir. 1981), cert. denied, 459 U.S. 1200 (1983); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir. 1981).

    Accordingly, I am remanding this case to the ALJ for a full hearing to determine the timeliness of each complaint. In making these individual determinations, the ALJ shall establish the commencement date of the limitations period for each Complainant, which shall be the date 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 similarly situated to Complainant. McConnell v. General Telephone Company of California, 814 F.2d 1311, 1317-18 (9th Cir. 1987), cert. denied sub nom. General Telephone Company of California v. Addy, 108 S.Ct. 1013 (1988); Pruet Production Company v. Ayles, 784 F.2d 1275, 1279-80 (5th Cir. 1986); Adkins v. International Union of Electrical, Radio and Machine Workers, 769 F.2d 330, 335 (6th Cir. 1985); Boyd v. United States Postal Service. 752 F.2d 410, 414 (9th Cir. 1985); Vaught v. R.R. Donnelley & Sons Company, 745 F 2d 407, 410-11 (7th Cir. 1984); Aronsen v. Crown Zellerbach, 662 F.2d at 593-94; Ortiz v. Chicago Transit Authority, 639 F.Supp. 310, 312-13 (N.D. Ill. 1986); In the Matter of Charles A. Kent, Case No. 84-WPC-2, Secretary's Remand Decision and Order, April 6, 1987, slip op. at 10-11.

    If the ALJ determines that McGough's, Toth's and/or Sylvester's complaint was timely filed, he should proceed to decide the merits of that Complainant's case. This should involve a determination of: (1) the applicability of the statute(s) invoked by Complainant; (2) whether Respondent is subject to the statute(s); (3) whether Respondent violated the statute(s); and (4) remedial relief for any violations. Charles A. Kent at 10.

    It is ORDERED that this case is remanded to ALJ Joseph A. Matera for a hearing consistent with this Remand Decision and Order. The ALJ's findings and conclusions shall be submitted to me in the form of a recommended decision and order.

    SO ORDERED.

       ANN MCLAUGHLIN
       Secretary of Labor

Washington, D.C.