DATE ISSUED: December 9, 1998

CASE NO: 1998-CAA-6

In the Matter of

GINA M. BROCK,
    Complainant,

    v.

WOODWARD-CLYDE CONSULTANTS,
    Respondent.

   This case arises from a complaint of discrimination under Section 507(a) of the Federal Water Pollution Control Act, 33 U.S.C. 1367; Section 322(a) of the Clean Air Act, 42 U.S.C. 7622; Section 110(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610; Section 1450 (i)(1)(A-C) of the Safe Drinking Water Act, 42 U.S.C. 300j-9; Section 7001(a) of the Solid Waste Disposal Act, 42 U.S.C. 6791; and Section 23(a) of the Toxic Substances Control Act, 15 U.S.C. 2622. The procedures for handling complaints under these federal employee protection statutes are set forth in the regulations promulgated at 29 C.F.R. Part 24 (1998). These statutes and regulations provide protection to employees from employment discrimination resulting from notification to the employer of an alleged violation of one of the statutes, refusal to engage in any practice unlawful under the statutes, or testifying in a proceeding regarding a provision of the statutes. 29 C.F.R. § 24.2(b). These activities are referred to as protected activities. The complainant in this proceeding claims the employer terminated her for engaging in such activities. The employer

disagrees and has filed a motion to dismiss or in the alternative for summary decision, arguing that since the complaint was untimely filed, it should prevail as a matter of law. The complainant disagrees.

    A motion for summary decision may be granted pursuant to the regulations setting forth the Rules and Procedures for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18, when there is no genuine issue as to any material fact and the party moving for summary decision is entitled to a decision in its favor as a matter of law. 29 C.F.R. § 18.40(d). If a genuine issue exists as to any material fact, one which affects the outcome of this case, I must deny the respondent's motion. 29 C.F.R. § 18.41(b). If the motion is denied, the matter would proceed to hearing. However, if no material question of fact has been raised, I would issue a summary decision resolving Ms. Brock's complaint pending any appeal.

   The regulations found in 29 C.F.R. Part 24 provide the applicable guidelines for filing a complaint. Section 24.3(b) provides that "any complaint shall be filed within 30 days after the occurrence of the alleged violation." 29 C.F.R. § 24.3(b). The respondent alleges the complaint was filed beyond the thirty-day filing period. The complainant has responded by arguing grounds exist which should toll the thirty day statute of limitations. In order to defeat the motion for summary decision, complainant must set forth specific facts which show there is a genuine issue of fact for the hearing regarding equitable tolling of the filing period. To determine whether grounds exist regarding equitable tolling, it is first necessary to examine the facts surrounding the filing of the complaint. The findings of fact which follow are made solely for the purpose of addressing the motion for summary decision. All inferences have been made against Woodward-Clyde as the moving party and in favor of Ms. Brock. Creekmore v. ABB Power Energy Systems, Inc., 93-ERA-24, p.5, n.4 (Dep. Sec'y, Feb. 14, 1996).

   The complainant, Gina M. Brock, was employed by Woodward-Clyde Consultants as a Senior Geologist. A meeting was held on September 26, 1997, between Ms. Brock and two supervisors, Ed Baker and Russ Killebrew, in which problems with Ms. Brock's work performance and attitude were discussed. Complainant was given a written reprimand which documented the issues covered at the meeting. She responded in writing to the memorandum, expressing her view of the issues discussed at the meeting. In response to the supervisors' claims that she displayed a cavalier attitude toward groundwater sampling, she informed her employer of two instances in which proper guidelines were not followed while sampling monitoring wells installed at a hazardous waste facility located in Doraville, Georgia. Ms. Brock's employment with respondent was terminated on October 9, 1997, after the company received her written response to the reprimand.

   Ms. Brock filed a claim with the Georgia Department of Labor on October 22, 1997. She also filed a discrimination complaint with the Equal Employment Opportunities

Commission (EEOC) on March 5, 1998. She was advised by the EEOC to pursue the retaliation portion of her claim with the U.S. Department of Labor. A complaint regarding these allegations was filed with the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor on March 20, 1998.

   OSHA investigated the claim and found the allegations could not be substantiated due to the fact the complaint had been filed beyond the thirty day time restraints provided by statute. Ms. Brock appealed the decision to the Office of Administrative Law Judges. On September 28, 1998, respondent filed its motion to dismiss or in the alternative for summary judgment. I issued an order allowing complainant time to respond to the motion. Complainant responded, but did not address the untimeliness issue. An Order to Show Cause was then sent to Ms. Brock, requiring her to demonstrate why her complaint should not be dismissed as untimely filed. A response to this order was received on November 18, 1998.

   I reiterate the applicable time restraints imposed by statutes and regulations provide a thirty day period after discriminatory action occurs for the filing of a complaint. 29 C.F.R. § 24.3(b). The discriminatory action alleged by complainant occurred on October 9, 1997, when Ms. Brock was discharged from employment with Woodward-Clyde. A complaint was not filed with the U.S. Department of Labor until March 20, 1998. As such, the complaint was initiated well beyond the required thirty day filing period.

   Courts have held, however, that the time limitation provisions in Federal whistleblower actions are not jurisdictional, so that the failure to file a complaint within the statutory period is an absolute bar to the administrative action. School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 18 (3rd. Cir. 1981). Instead, these provisions are considered analogous to statutes of limitation and therefore may be tolled by equitable consideration. Id.

   In Allentown, the court relied on the Second Circuit's interpretation of Supreme Court decisions to identify three areas where tolling the time provisions would be appropriate. Id. relying on Smith v. American President Lines, Ltd., 571 F.2d 102 (2nd Cir. 1978). The court found equitable tolling appropriate when:

1) the defendant has actively mislead the plaintiff respecting the cause of action;

2) the plaintiff has in some extraordinary way been prevented from asserting his rights; or,

3) the plaintiff has raised the precise statutory claim in issue, but has mistakenly done so in the wrong forum.

   However, the doctrine of equitable tolling is to be narrowly applied. The restrictions should be "scrupulously observed" and the tolling exception should not be used by courts to disregard limitation periods simply because they bar what may otherwise be a meritorious claim. Id.; Prybys v. Seminole Tribe of Florida, Case No. 95- CAA-15 at 8 (ARB Nov. 27, 1996). When applying the doctrine of equitable tolling, I must attempt to strike the appropriate balance between "fidelity to statutory directive that complaints be pursued in a timely manner on the one hand and fairness to whistleblower complaints on the other." Hill and Ottney v. TVA, 87 ERA-23/24 at 3 (Sec'y April 21, 1994), aff'd 65 F.3d 1331 (6th Cir. 1995).

   In her response to the motion to dismiss/summary judgment, complainant raises several facts which she argues should toll the filing of her complaint. First, she discusses claims which were filed with other agencies, one with the Georgia Department of Labor and one with EEOC. Equitable tolling may be applicable when, within the statutory time limits, a complaint raising the precise statutory claim is filed mistakenly in the wrong forum. This exception does not apply to complainant's EEOC claim since it was filed on March 5, 1998, well beyond the thirty day period provided in the statute.

   Ms. Brock's claim with the Georgia Department of Labor was filed on October 22, 1997, which is within thirty days of the alleged discriminatory action. The evidence submitted by complainant regarding this claim consists of a copy of a letter sent to that agency and a Claim Examiner's Determination. The letter references a phone conversation between complainant and the agency and indicates that copies of the memoranda regarding Ms. Brock's performance were attached to the letter. Complainant states in the letter that the reason for her termination was unclear and that if she had to give a reason, it would be because she responded to the written reprimand. The claim determination form discusses the Employment Security Law and entitlement to unemployment benefits. The Georgia Department of Labor determined that although Ms. Brock was terminated for "unsatisfactory job performance," she was eligible to receive unemployment benefits since she had not been given adequate time to improve her performance.

   These documents evidence a claim with the Georgia Department of Labor regarding the payment of unemployment benefits and the issue of whether Ms. Brock should be entitled to those benefits. In order for the doctrine of equitable tolling to apply to a claim filed in another forum within the thirty day time period, the precise statutory issue must be raised in that complaint. Allentown, supra at p. 20; Lewis v. McKenzie Tank Lines, Inc., 92-STA-20, at pp. 2-3, (Sec'y Nov. 24, 1992); Grover v. Houston Lighting & Power, 93-ERA-4 at p. 3, (Sec'y Mar. 16, 1995). While the exact statutory provisions at issue need not be cited, the complaint must allege facts which indicate retaliatory action was taken in response to protected activity. Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3, at pp. 3-4 (ARB May 28, 1997). The claim must have also been filed by mistake in the wrong forum. Claims which are filed in pursuit of alternate remedy or as a means seeking relief through other measures do not toll the time period for filing. See Prybys at 5; Cox v. Radiology Consulting Associates, Inc., 86-ERA-17 (Sec'y Nov. 6, 1986).

   Nowhere in the documents submitted to the Georgia Department of Labor does Ms. Brock state, or even imply, that respondent retaliated against her for raising safety concerns in her memorandum. Instead, the claim appears to be solely related to unemployment benefits. Accordingly, I find the claim filed with the Georgia Department of Labor is insufficient to equitably toll the thirty day filing period.

   As support for tolling the time restraints, Ms. Brock has also provided information that she was under a doctor's care after her discharge from Woodward-Clyde. She states that she went into a severe depression after being terminated and suffered anxiety attacks. Complainant sought professional help and medication was prescribed by a physician to relieve depression and anxiety.

   It is possible that having a mental disorder could fall within the "extraordinary circumstances preventing plaintiff from asserting his rights" element of the equitable tolling doctrine under the proper circumstances. However, courts have held that tolling is proper with mental disorder only in extreme situations where the complainant's mental condition prevents him from managing his affairs and understanding his legal rights. Hall v. EG&G Defense Materials, Inc., 97-SDW-9, at p. 5 (ARB Sept. 30, 1998) (citing Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996), cert. denied, 117 S.Ct. 316 (1996). An even stricter standard, applied by some courts, requires the complainant to have been adjudged mentally incompetent or institutionalized during the filing period. Id., citing Biester v. Midwest Health Services, Inc., 77 F.3d 1264, 1268 (10th Cir. 1996).

   The circumstances at issue in the Hall case are factually similar to those alleged in this case. The complainant in Hall introduced a report by a psychiatrist who treated him for major depression and who put him on various medications. At the same time, the facts indicated that Mr. Hall was capable of understanding his legal rights during the filing period as evidenced by his signing a settlement in his divorce proceeding and testifying before the Industrial Commission. In this case, Ms. Brock states she was seeing Dr. Mark Gronsbell, who prescribed various medications to help relieve her depression and anxiety. There is no evidence that she was unable to understand or act upon her rights. In fact, during the filing period, she was in contact with the Georgia Department of Labor, writing a letter in support of her claim for unemployment benefits. As such, her mental condition is an insufficient basis to support tolling the time limitations provided by statute.

   In her response to the Order to Show Cause, Ms. Brock mentions several other factors she feels weigh in her favor and should toll the time period for filing this action. She mentions that the law regarding whistleblower complaints is not well known, even to other governmental agencies, that the EEOC investigator thought she had 180 days, and that there were no posters informing her of her rights at Woodward-Clyde. It is well settled, however, that ignorance of the law alone is an insufficient reason to toll the statute of limitation. Allentown, supra at 21; Lewis v. McKenzie Tank Lines, Inc., supra at p. 2; Harrison v. Stone & Webster Engineering Corp., 91-ERA-21, at p. 2 (Sec'y Oct. 6, 1992).

   In summary, even after examining all the evidence in favor of complainant, she has not shown sufficient facts to support a finding that equitable tolling of the filing period is warranted in this case. Complainant has, therefore, failed to raise a genuine issue of material fact which would require holding a hearing with respect to the timeliness issue.

   For the reasons stated above, IT IS HEREBY RECOMMENDED that the employer's motion for dismissal or summary decision be granted and Gina Brock's complaint be dismissed.

       DONALD W. MOSSER
       Administrative Law Judge

NOTICE: This Recommended Order of Dismissal will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S- 4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Order of Dismissal, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).