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| September 24, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter
In the matter of
KEVIN A. GARN v.
BENCHMARK TECHNOLOGIES and
TOLEDO EDISON COMPANY
The findings of fact and conclusions of law set forth in my order issued in this matter on August 15, 1988 are incorporated by reference as though fully set forth herein. After that order was issued the complainant amended his complaint, and respondent Toledo Edison Company renewed its motion to dismiss the complaint. Respondent Benchmark Technologies joined in that motion. The complainant has failed to allege that he filed any complaint with the NRC in which he sought a remedy for himself on or before July 23, 1987. Therefore, he has failed to allege that he mistakenly raised the "precise statutory claim in issue" in that forum on or before that date. Accordingly, it is conclued that none of the three grounds for equitable tolling of the statute of limitations set forth in School District of the City of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981) operates to render the claimant s complaint timely. The complainant's amended complaint also fails to show any instance of "blackballing" or blacklisting by respondents which occurred within 30 days before he filed his original complaint on February 22, 1988. He asserts that on or about February 18, 1988 he discovered that he was still on the "denied access" list at the [Page 2] Davis-Besse plant. However, his being placed on the "denied access" list had occurred long before the 30-day period prior to February 22, 1988. Therefore, even if it were considered that the original action of respondents in placing the claimant on the denied access list constituted blacklisting within the meaning of 29 CFR § 24.2(b), that action did not occur within a period which would have rendered the claimant's complaint timely under the Act. In view of the foregoing, it is concluded that the complainant's complaint is untimely, and it is recommended that the complaint be dismissed.
Dated: October 18, 1988
Charles W. Campbell
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