Date: January 18, 1996
In the Matter Of:
Paul T. Prybys
Claimant
v.
Seminole Tribe of Florida
Employer
Case No.: 95-CAA-15
DECISION AND ORDER RECOMMENDING DISMISSAL OF COMPLAINT
This is a whistleblower action brought under the employee
protection provision of the Safe Drinking Water Act ("SDWA"), 42
U.S.C. 300j-9(i)(1991 & Supp. 1995), and the Department of Labor
regulations at 29 C.F.R. §24 (1995).[1] Complainant, Paul
Prybys, worked for Respondent, the Seminole Tribe of Florida
(hereinafter "Tribe"), first as an Environmental Health Officer,
and later as a Technical Director in the Water Resource
Management Department. He alleges that the Tribe terminated his
employment on October 18, 1994 and refused to consider his appeal
of that termination in retaliation for his cooperation with the
Environmental Protection Agency.
On April 14, 1995, Complainant filed a complaint with the
Wage and Hour Division of the United States Department of Labor.
By letter dated May 16, 1995, the Wage and Hour Division notified
Complainant that it could not conduct an investigation into the
matter because the complaint was untimely. On May 19, 1995,
Complainant requested a formal hearing before this Office.
On July 14, 1995, at the request of the administrative law
judge, Complainant submitted an affidavit setting forth the facts
upon which his claim is based. on August 21, 1995, Respondent
filed a Motion to Dismiss for Untimeliness and for Lack of
Subject Matter Jurisdiction. On October 9, 1995, Complainant
submitted a response opposing dismissal. For the purpose of
adjudicating this motion, I accept as true all allegations of
fact set forth by Complainant in his affidavit which are
discussed below.
[PAGE 2]
On September 6, 1994, Craig Tepper, the Director of Water
Resource Management for the Tribe, wrote a letter to the tribe's
General Counsel, James Shore, recommending that Complainant be
dismissed from his position as Technical Director for the Tribe.
After learning of Tepper's recommendation, a tribal board member
informed Complainant that he was in no danger of being terminated
from his position. On September 9, 1994, Tepper wrote to Shore
again and informed him that Claimant had agreed to resign
effective October 18, 1994. Claimant was not aware of this
letter at the time it was written; rather, he claims that he
expressly told Tepper that he would not agree to resign from his
job.
On October 17, 1994, the Personnel Director, Danielle Dixon,
informed Complainant that a personnel action was processed
stating that Complainant was resigning effective October 18,
1994, in order to seek other opportunities. Tepper proposed the
personnel action and Shore approved it. Complainant informed
Shore in writing on October 17, 1994 that he did not wish to
resign. Complainant sent a copy of this letter to Dixon in the
Personnel Department. Complainant received no response from
Shore or the Personnel Department.
Sometime in November of 1994, Complainant filed an appeal of
his termination with the Tribe. Based upon what he was told by
"other tribal officials," Complainant believed that his
termination would be reviewed at the next Tribal Council meeting.
Complainant heard nothing further from the Tribe until he
received a letter dated February 1, 1995, stating that his appeal
was denied because it was not filed within thirty days after his
termination on October 18, 1994.
Upon receiving notification that his appeal was denied,
Complainant immediately sought legal advice. One attorney told
Complainant that he had at least one year to commence legal
action. Subsequently, Complainant consulted with another
attorney who referred Complainant to his present attorney, Donald
McCoy. Complainant first consulted with McCoy on April 13, 1995.
On April 14, 1995, Complainant filed a complaint under the
employee protection provisions of SDWA and other environmental
statutes. Prior to his consultation with McCoy, Complainant was
not aware of the thirty day time limit for filing a complaint in
this matter.
Respondent argues that Complainant should have filed his
complaint in this mat7ter no later that thirty days following
[PAGE 3]
Complainant's discharge from his employment with the Tribe.
Thus, given Complainant's discharge date of October 18, 1994,
Respondent maintains that Complainant should have filed his
complaint with the Wage and Hour Division of the U.S. Department
of Labor on or before November 17, 1994.
Complainant concedes that the statutory time limit for
filing a complaint under the Act is thirty days, but contends
that genuine issues of fact exist as to whether the thirty day
time limitation should be tolled on equitable grounds. More
specifically, Complainant contends that equitable tolling is
applicable here because he gave Respondent notice that he
protested his termination; the Tribe has not been prejudiced by
the delayed filing since the Tribe's failure to respond to
Complainant's October 17, 1994 letter caused most of the delay;
and because Complainant acted reasonably and in good faith at all
times, in particular by requesting and waiting for review by the
Tribal Council, members of which promised Complainant his appeal
would be heard.
Citing Greenwald v. City of North Miami Beach, Fla.,
587 F.2d 779 (5th Cir. 1979), Respondent argues that
Complainant's pursuit of an appeal before the Tribal Council does
not toll the thirty day time limitation for filing a complaint
under the Act. In Greenwald, the Fifth Circuit held that
the thirty day time limitation for filing a complaint under the
Safe Drinking Water Act is not tolled on account of the
employee's appeal to the local civil service board. The court
reasoned that the SDWA does not require employees to exhaust
their state or local remedies prior to filing a complaint under
the Act and further, that the remedy provided by the Act is
independent of any local remedies. As an employee's pursuit of a
local remedy has no bearing on his pursuit of a remedy under the
SDWA, likewise it should have no bearing on the time limit for
filing the SDWA complaint.
Complainant counters that Greenwald is not "a correct
statement of the present law on equitable tolling in this
Circuit," and that under Hill v. Georgia Power Co., 786
F.2d 1071 (11th Cir. 1986), an employee's cause of action under
section 301 of the Labor Management Relations Act, 29 U.S.C.
185 (1978), does not arise until the employee knew or should have
known of the employer's final action - that is, when the
grievance procedure was exhausted.
I am unpersuaded by Complainant's arguments on this point.
Although Greenwald was issued by the Fifth Circuit Court
of
[PAGE 4]
Appeals, it is binding precedent in the Eleventh Circuit as are
all Fifth Circuit cases issued prior to October 1, 1981.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981). Moreover, while Georgia Power stands for the
proposition that a cause of action does not accrue until the
grievance procedure is exhausted, it arises under an entirely
different statute than Greenwald and the instant case;
thus, Georgia Power neither overruled nor modified
Greenwald. Accordingly, I find that the limitations
period in this matter cannot be equitably tolled on account of
Complainant's pursuit of a local remedy, namely an
appeal before the Tribal Council.
In any event, even if the limitations period could be tolled
on account of Complainant's pursuit of an appeal before the
Tribal Council and the Council members' assurances to him that
his appeal would be heard, his complaint would be time barred
nonetheless. Complainant unequivocally knew that he was finally
terminated on or about February 1, 1995, when he received a
letter from the Tribe denying his appeal on the grounds that it
was not timely filed. Assuming the limitations period did not
begin to run until that point, Complainant would have had to file
a complaint within thirty days, yet he waited until April 14,
1995 to do so. As cause for the delay in filing at that point,
Complainant explained that he was unaware of the limitations
period and that he consulted three lawyers before learning of it.
Complainant's ignorance of the law, however, is insufficient
to toll the limitations period for filing a complaint. See
e.g., Mitchell v. EG & G (Idaho), 87-ERA-22, slip op. at 19
(Secretary of Labor's Final Decision and order, July 22, 1993).
Furthermore, equitable tolling is unavailable because Complainant
sought and obtained legal advice during the limitations period.
Kent v. Barton Protective Services, 84-WPC-2, slip op. at
11-12 (Secretary of Labor's Final Decision and Order, September
28, 1990). Counsel is presumptively aware of whatever legal
recourse may be available to his or her clients; that knowledge
is imputed to Complainant once he consults with counsel.
Mitchell v. EG & G (Idaho), 87-ERA-22, slip op. at 10-11.
Even if, as Complainant contends, one lawyer informed him that he
had at least one year to commence legal action against the Tribe,
equitable tolling is inapplicable.
In conclusion, Complainant has alleged no facts which would
warrant tolling the thirty day limitations period applicable to
whistleblower complaints under the SDWA or any of the other
environmental statutes governed by Part 24 of the regulations.
Accordingly, it is recommended that the complaint be
DISMISSED.[2]
ROBERT G. MAHONY
Administrative Law Judge
[ENDNOTES]
[1]
In his complaint, Complainant refers to the employee protection
provisions of several'pther environmental statutes; in his
affidavit, he refers only to the employee protection provision of
the SDWA. However, the time limit for filing a complaint under
each of the employee protection provisions cited is the same:
thirty days. Thus, for the purpose of this motion, it is not
necessary to resolve precisely which statute Complainant contends
Respondent violated; accordingly, I refer only to the SDWA.
[2]
Because this recommended decision is based on a statute of
limitations defense, the issue of subject matter jurisdiction is
not reached.
