87-ERA-34

In the Matter of

DONNA SISK,
    Complainant

    v.

TRANSCO PRODUCTS, INC.,
    Respondent

   This matter arises pursuant to the employee "whistleblower" protection provisions of the Energy Reorganization Act of 1974, 42 U.S.C. § 5851, as implemented by 29 C.F.R. § 24.1 et seq.

   The issue to be decided is whether Complainant's claim is barred by the thirty-day statutory period for filing a complaint under the Act. 42 U.S.C. § 5851(b)(i).

   Equitable tolling of the thirty-day statutory period for filing a complaint under the Energy Reorganization Act is proper only under very limited circumstances. In School Dist. of the City of Allentown v. Marshall, 557 F.2d 16 (3rd Cir. 1981) the Third Circuit, examining a similar provision under the Toxic substances Control Act, 15 U.S.C. § 2622(b), noted three principal situations where tolling is appropriate:

(1) where defendant has actively misled plaintiff, or (2) plaintiff in some extraordinary way has been prevented from asserting his rights, or (3) plaintiff has timely raised the precise claim in issue but in the wrong forum.

This analysis was applied to the Energy Reorganization Act in Matter of Kent, 84-WPC-2.

   The facts in this case are as follows: Complainant, Donna

Sisk, was dismissed from her position as a Quality Control Manager for Transco, Incorporated, on April 5, 1987. On April 20, 1987 Sisk's attorney sent a letter to Transco's president, Howard Goss. The letter stated that Sisk understood that the alleged reason for her termination was "absence from the job site without permission" but that "any normal person would have to conclude that there were other reasons involved in Miss Sisk's termination." The purpose of the letter was to avoid "a serious court confrontation." " On May 18, 1987, Sisk received notice from the Unemployment Compensation Commission that Transco's actual stated reason for her dismissal was "excessive unauthorized absences."

   Sisk claims that the thirty-day statutory period for filing a complaint should be tolled until May 18 and her complaint considered timely. None of the three situations espoused in Allentown v. Marshall, where tolling is appropriate, apply to this case. Sisk did not raise her claim in an inappropriate forum within the thirty-day period, nor has Transco actively misled her in any meaningful fashion. Finally, Sisk has not in some "extraordinary way" been prevented from asserting her rights. The April 20, 1987 letter from Sisk's attorney indicates that, at the time of her dismissal, Sisk suspected that Transco had acted with illegal motivation in dismissing her. Thus, the fact that Sisk did not know the actual stated reason for her dismissal had no detrimental effect on her ability to file an action within the allotted time, and thus did not in any extraordinary way prevent her from asserting her rights.

   Although the list of situations discussed in Allentown v. Marshall where tolling is appropriate is not exhaustive, "[t]he tolling exception is not an open-ended invitation to the Courts to disregard limitations periods simply because they bar what may be an otherwise meritorious cause." Allentown v. Marshall, 657 F.2d at 19. At the time of her dismissal, Complainant suspected that she was fired illegally. I can find no reason why the thirty-day statutory period to file a complaint should be tolled.

   For the foregoing reasons, it is hereby RECOMMENDED that the complaint filed by Donna Sisk, Complainant herein, be DISMISSED.

      JOHN M. VITTONE
      Associate Chief Judge

Dated: 12 NOV 1987
Washington, D. C.