1 As noted in my order dated February
9, 1989, the parties waived
the ninety day requirement of 42 U.S.C. § 5851(f).
2 Apparently Complainant filed an
earlier complaint under the
Occupational Safety and Health Act. (See reference to OSHA complaint,
below.) However, such a complaint is not before we for consideration.
3 I have found only one court opinion
touching on tolling of the
limitation period in 29 C.P.R. Part 24: English v. Whitfield, 858
F.2d 957 (4th Cir. 1988). This opinion of the U.S. Court of Appeals
for the Fourth Circuit is not controlling as the alleged violation of
the Act in the instant case occurred within the jurisdiction of the
Second Circuit. English held that a time-bar defense to a claim might
be avoided because of equitable estoppel" where
an employee's failure to file in timely fashion is 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
charge. (Citation omitted.)
The Court further explained:
Absent evidence that the employer acted to deceive the
employee as to the existence of its (sic) claim or otherwise
to mislead or coerce the employee into not filing a claim in
a timely fashion, we will not find the employer equitably
estopped to plead the bar of untimely filing.
Finally, the Court stated that "even an employer's confirmation of
that hope [for a continuing employment relationship] could not estop
the employer absent some indication that the promise was a
quid-pro-quo for the employee's forbearance in filing a claim."
Applying these concepts, the Court rejected as a foundation for
equitable estoppel the employer's "repeated assurances that permanent
placement was being sought elsewhere in the company" or "assertions of
a[n employer] executive that [the employer] did not intend to fire
her." English at 963.
