The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d)(1994). See, e.g., Webb v. Carolina Power & Light Co., Case No. 93-ERA-42, Sec. Dec., Jul. 17, 1995, slip op. at 4-6. This section, which is derived from Fed. R. Civ. P. 56, permits an ALJ to recommend summary decision for either party where "there is no genuine

issue as to any material fact and . . . a party is entitled to summary decision." 29 C.F.R. § 18.40(d). Thus, in order for Respondent's motion to be granted, there must be no disputed material facts and Respondent must be entitled to prevail as a matter of law. Gillilan v. Tennessee Valley Authority, Case No. 91-ERA-31, 91-ERA-34 (Sec'y August 18, 1995)(Slip. Op. at 3).

   The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). It is enough that the evidence consists of the party's own affidavit, or sworn deposition testimony and declaration in opposition to the motion for summary judgment. Celotex Corp., 477 U.S. at 324; Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1461 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). The determination of whether a genuine issue of material fact exists must be made viewing all evidence and factual inferences in the light most favorable to Complainant. Trieber v. Tennessee Valley Authority, Case No. 87-ERA-25 (Sec'y Sept. 9, 1993).

The Filing Period

   In the instant case, only facts pertinent to the timeliness of the filed complaint are germane to the summary decision determination. However, as a threshold issue, the date of discrimination must be established which commences the statutory filing period. The time period for administrative filings begins on the date that the employee is given final and unequivocal notice of the Respondent's employment decision. The United States Supreme Court has held that the proper focus is on the time of the discriminatory act and not the point at which the consequences of the act become painful. Chardon v. Fernandez, 454 U.S. 6, 9; 102 S.Ct. 28, 29 (1981); Delaware State College v. Ricks, 449 U. S. 250, 101 S.Ct. 498 (1980); See English v. Whitfield, 858 F.2d 957, 961 (4th Cir. 1988).

   Complainant admits he received a written notice of termination on August 26, 1996, effective October 25, 1996. The factual scenario supports a conclusion that he associated the termination with his alleged protected activity which prompted his filing of a complaint with DOE the following day, August 27, 1996.

   Upon review of the notice, I conclude that the notice is final, definitive and unequivocal. The notice is decisive and conclusive, leaving no further chance for action, discussion or change. There is no intimation in the notice that the employment decision was subject to appeal, review or revocation. The notice is unequivocal in that it is not ambiguous, i.e., free of misleading possibilities. The fact that assistance may be extended to Complainant in job search or placement does not alter the triggering date of the filing period. See Ballentine v. Tennessee Valley Authority, Case No. 91-ERA-23 (Sec'y Sept. 23, 1992)(Slip op. at 2). Thus, August 26, 1996, constitutes the date of alleged discrimination and the commencement of Complainant's filing period.

   Therefore, a timely complaint under the environmental statutes should have been filed by September 27, 1996 or by February 27, 1996 under the ERA. Since the complaint was not filed with DOL until April 22, 1997, it was clearly untimely. See Kang v. Department of Veterans Affairs Medical Center, Case NO. 92-ERA-31 (Sec'y Feb. 14, 1994); Cox v. Radiology Consulting Associates, Inc., Case No. 86-ERA-17 (Sec'y Nov. 6, 1986, ALJ Aug. 22, 1986); Prybys v. Seminole Tribe of Florida, Case No. 95-CAA-15 (ARB Nov. 27, 1996). I further find that there is no genuine issue of material fact concerning Complainant's failure to timely file his complaint within either the 30-day or 180-day statutory period. Accordingly, his complaint of discriminatory termination under the six environmental acts and the ERA is time-barred and it is recommended that such complaint be dismissed.

The Doctrine of Equitable Tolling

   Complainant argues that the statutory filing periods should be tolled for equitable considerations since he initially filed with the wrong forum (DOE) and relied upon Respondent's past actions in job accommodations.

   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 open invitation to the courts to disregard limitation periods simply because they bar what may be an otherwise meritorious cause. Accord, Rose v. Dole, 945 F.2d 1331, 1336 (6th Cir. 1991).

   In School District of the City of Allentown, the court noted the principal situations where tolling is appropriate relying on Smith v. American President Lines, LTD., 571 F.2d 102 (2d Cir. 1978) which interpreted Supreme Court precedent as implying that tolling might be appropriate only where a respondent actively misled the complainant respecting the cause of action; or where the complainant has in some extraordinary way been prevented from asserting his rights; or a complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. Id., at 19-20.

   The U.S. Court of Appeals for the Sixth Circuit, in whose jurisdiction this case arises, has delineated five factors to be considered in determining whether equitable tolling of a

limitations period is appropriate. Such factors are:

   (1) whether the plaintiff lacked actual notice of the filing requirements;

   (2) whether the plaintiff lacked constructive notice, i.e., his attorney should have known;

   (3) the diligence with which the plaintiff pursued his rights;

   (4) whether there would be prejudice to the defendant if the statute were tolled; and

   (5) the reasonableness of the plaintiff remaining ignorant of his rights.

Rose v. Dole, at 1335 (citing Wright v. State of Tenn., 628 F.2d 949, 953 (6th Cir. 1980)(en banc)).

   Complainant does not claim a lack of knowledge or notice of the filing requirements. He actively and diligently pursued his rights before DOE and it is unreasonable to conclude that Complainant remained ignorant of his rights under the extant circumstances, particularly after consulting with Mr. Carpenter, an attorney with the Government Accountability Project. (Complainant's deposition at pp.8-10). The Supreme Court stated in Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 1726, 80 L.Ed.2d 196 (1984), that "[a]lthough absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply once a factor that might justify tolling is identified, it is not an independent basis for invoking the doctrine . . . ." (Emphasis added). Therefore, the absence of prejudice to Respondent is not a determinant factor. Thus, having considered the foregoing factors, I find such factors unpersuasive in determining the appropriateness of equitable tolling.

   Complainant argues that he invoked the wrong forum by filing a complaint with DOE because the concerns expressed by his protected activity, i.e., "misstorage of nuclear weapons parts" and the alleged discrimination which followed were fully protected by the ERA. As further support for his contention, he avers that DOE mishandled his complaint, failed to mediate his concerns, was dilatory in responding to congressional inquiries and would not have been impartial as a "trier of fact." Significantly, Complainant does not contend that he mistakenly filed his complaint in the wrong forum nor did he offer evidence in support of such an allegation. Complainant's failure to offer any evidence in support of this allegation precludes tolling. See 29 C.F.R. §18.40(c)(a party opposing a motion for summary decision may not rest on mere allegations). Thus, his reliance on an administrative law judge decision in Biddle v. Department of the Army, Case No. 93-WPC-9 (ALJ July 20, 1993) and Sawyers v. Baldwin Union Free School District, Case No. 85-TSC-1 (Sec'y Oct. 5, 1988), both of which are factually inapposite, is clearly misplaced. It is further patently clear, through Complainant's opposition, deposition and correspondence with DOE, that he became

dissatisfied with DOE's failure to properly process his complaint and, for that reason, filed a complaint with DOL.

   Neither party has offered the complaint filed with DOE nor the precise statutory claim or remedy sought therefor, however even assuming it would have constituted a valid cause of action if timely filed with DOL, I find that Complainant can not avail himself of the principle of equitable tolling because he did not mistakenly file his initial complaint in the wrong forum. See Prybys, slip op. at 5 (pursuit of alternative remedies does not toll the statute of limitations); Cox, slip op. at 10 (relief sought through other measures does not justify the application of equitable tolling).

   Complainant further contends that Respondent's actions or non-actions form a basis for implementing equitable tolling. Complainant argues that he relied upon Respondent's past practice of job placement for displaced workers. He asserts that "2,000 available jobs" existed, he applied for certain openings, but was not selected. The Secretary and the courts have recognized that a respondent may be equitably estopped from relying on the statute of limitations if it has induced or deliberately misled an employee into neglecting to file timely. Tracy v. Consolidated Edison Co. Of New York, Case No. 89-CAA-1 (Sec'y July 8, 1992)(slip op. 5-6); Prybys, slip op. at 6. Complainant has not raised a contention nor presented any evidence that Respondent deceived or misled him or coerced or attempted to coerce him into not filing a complaint. In fact, Complainant testified in deposition that he delayed filing to ascertain whether DOE would resolve his situation through informal mediation. (Deposition, p. 16). Under such circumstances, equitable tolling is not appropriate. See Rose v. Dole, supra., (where complainant delayed filing a complaint with DOL in anticipation of favorable action on an unemployment application).

   Furthermore, Complainant's subjective expectations of job placement with assistance from Respondent does not toll the statute of limitations. Complainant failed to demonstrate reliance on any conduct or action by Respondent which would support equitable tolling. See Ballentine, slip op. at 2 (belief that complainant would be placed in another position or receive an employment accommodation did not toll the statutory filing period).

   Complainant's reliance on Larry v. The Detroit Edison Co., Case No. 86-ERA-32 (Sec'y June 28, 1991)(slip op. at 12-19), aff'd sum nom. The Detroit Edison Co. v. Sec'y, United States Dept. of Labor, No. 91-3737 (6th Cir. April 17, 1992) is also misplaced. In Larry, respondent engaged in misleading and confusing actions with a deliberate design to cause complainant to delay filing. Here, Complainant has not alleged any action or conduct by Respondent to misrepresent or mislead him into delaying his complaint filing nor has any evidence of such action otherwise been established.

   Thus, Complainant has failed to establish any basis for invoking equitable tolling of the statute of limitations. Accordingly, his complaint is barred by the statutes of

limitations prescribed in the environmental acts and the ERA. Therefore, it is hereby recommended that the instant complaint be dismissed.

   In view of the foregoing findings and conclusions, the hearing presently scheduled for November 12, 1997, is hereby cancelled.

   ORDERED this 28th day of October, 1997, at Metairie, Louisiana.

       LEE J. ROMERO, JR.
       Administrative Law Judge