DATE:  July 8, 1992
CASE NO. 89-CAA-l


IN THE MATTER OF

ROBERT S. TRACY,

          COMPLAINANT,

        v.

CONSOLIDATED EDISON COMPANY,
OF NEW YORK, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER
                                     
    Before me for review is the Recommended Decision and Order (R.D.
and O.) of the Administrative Law Judge (ALJ) in this case arising
under the employee protection provision of the Clean Air Act, as
amended (CAA), 42 U.S.C. § 7622 (1988), and implementing
regulations at 29 C.F.R. Part 24 (1991).  The ALJ recommended
granting Respondent's motion for summary decision and dismissing the
complaint as untimely. [1]  Respondent has filed a brief before me
in support of the ALJ's recommended decision.

     Based on a review of the filings before the ALJ, I find that
his recital of the procedural history and the evidence and arguments
submitted by the parties is supported by the record and I agree with
the ALJ's recommendation to grant Respondent's motion for summary
decision and to dismiss the complaint as untimely pursuant to 29
C.F.R. § 24.3(b).
     It is undisputed that Complainant was suspended on August 22,
1988, [2] because of his "insubordination" on August 9, 1988, when
he refused to work at an underground site due to safety concerns. 
Complainant's counsel filed with the Department of Labor (DOL) a
complaint which was dated October 11, 1988, but not received until
October 31, 1988. [3]  The ALJ correctly concluded that the thirty
day period for filing this complaint under the CAA commenced on
August 22, 1988, the date Complainant received unequivocal notice of

[PAGE 2]
his suspension from Respondent.  See Delaware State
College v. Ricks, 449 U.S. 250, 258-261 (1980); English v.
General Electric Company, Case No. 85-ERA-2, Dep. Sec. Final
Dec. and Order, Jan. 13, 1987, (hereafter English) slip op.
at 4-11, aff 'd in relevant part
sub nom. English v. Whitfield, 858 F. 2d 957
(4th Cir. 1988); Ackison v. Detroit Edison Company,
Case No. 90-ERA-0038, Sec. Final Dec. and Order of Dismissal, Aug.
2, 1990, s1ip op. at 2.  Accordingly, the October 11 complaint was
not filed with the DOL within the thirty day period provided.
     The remaining issue is whether Complainant has presented
sufficient evidence to raise a genuine issue of material fact
concerning equitable tolling of the thirty day filing period, such
that a hearing is warranted in this case.  29 C.F.R. §
18.41(b); see generally School District of the City
of Allentown v. Marshall, Case No. 657 F.2d 16, 19-21 (3d Cir.
1981) (providing the three principal situations where application of
the equitable tolling doctrine is appropriate).  In order to defeat
Respondent's motion for summary decision, Complainant must set forth
specific facts showing that there is a genuine issue of material
fact for the hearing concerning equitable tolling.  29 C.F.R. §
18.40(c); see generally Colgan v. Fisher Scientific
Co., 935 F.2d 1407, 1413 (3d Cir. 1991); Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989);
Radobenko v.Automated Equipment Corp., 520 F.2d 540, 543-544
(5th Cir. 1975); Grizzard v. Tennessee Valley Authority, Case
No. 90-ERA-52, Sec. Final Dec. and Order of Remand, slip op. at 4-6;
Howard v. Tennessee Valley Authority, Case No.
90-ERA-24, Sec. Final Dec. and Order of Dismissal, July 3, 1991,
slip op. at 3, 5-6.
     Complainant asserted before the ALJ that equitable tolling of
the filing period was appropriate in this case, because during the
month of September, Respondent led him to believe that the
suspension issue would be resolved and there was no need to file a
complaint under the CAA.  See Complainant's Memorandum of
Law in Support of Application for a Hearing under the Clean Air
Act, dated May 18, 1989 (Complainant's Memorandum).  In support of
this allegation, Complainant proffered the affidavit of Mr. Patrick
Bencivengo, Business Agent for the Union who represented
Complainant.  See Affidavit of April 30, 1989.  Mr.
Bencivengo stated that after the Union filed a grievance on behalf
of Complainant, he spoke with various managers concerning
Complainant's suspension, including Complainant's supervisor, [4]
who informed him that Respondent was attempting to resolve the
issue and that the Union should take no further action.  The
affiant further states that on or about September 22, 1988, he was
informed that Respondent would not rescind the suspension and he
relayed this information to Complainant's counsel.
     In Complainant's Memorandum, Complainant's counsel
acknowledges that immediately following the suspension, Complainant

[PAGE 3]
filed a grievance through the union on August 29, and filed a
whistleblower complaint under the Occupational Safety and Health
Act on August 24 (admittedly identical to the instant CAA
complaint), and that Mr. Bencivengo of the union initiated the
alleged negotiations with Respondent.
     Based on review of the submissions of both parties on this
issue and the pertinent case law and prior decisions of the
Secretary on equitable tolling and summary decisions, I find that
a summary decision dismissing this complaint as untimely is
appropriate . See generally Rodolico v. Venturi,
Rauch and Scott Brown, Case No. 89-CAA-00004, Sec. Final
Dec. and Order, Feb. 21, l992, slip op. at 2-4.  Complainant has
failed to raise a genuine issue of material fact concerning his
allegation that equitable tolling is warranted because he was
misled by Respondent.  Even taking Complainant's evidence in the
light most favorable to the Complainant, it is insufficient under
the case law and the prior decisions of the Secretary on equitable
tolling to warrant a hearing on the issue.
     Courts generally have held that unless the employer has acted
deliberately to deceive, mislead or coerce the employee into not
flling a claim in a timely manner, equitable estoppel will not
apply. [5]  See English v. Whitfield, 858 F.2d 957,
963 (4th Cir. 1988); Clark v. Resistoflex Co., 854 F.2d at
768-769 . Moreover, the doctrine of equitable tolling is narrowly
applied. See generally Electrical Workers v.
Robbins & Myers, Inc., 429 U.S. 229, 236-240 (1976); City of
Allentown 657 F.2d at 19-21; Symmes v. Purdue
University, Case No. 87-TSC-5, Sec. Final Dec. and Order of
Dismissal, March 10, 1992, slip op. at 2-3; Garn v.
Benchmark Technologies, Case No. 88-ERA-21, Sec. Dec. and Order
of Remand, Sept. 25, 1990, slip op. at 7-8; Billings v.
Tennessee Valley Authority, Case No. 86-ERA-3B, Sec.
Final Dec. and Order of Dismissal, June 28, 1990, slip op. at 9-10;
Doyle v. Alabama Power Co., Case No. 87-ERA-43, Sec.
Final Dec. and Order, Sept. 29, 1989, slip op. at 2-6,
aff'd, Doyle v. Sect. of Labor, No. 89-7863 (11th
Cir. Nov. 26, 1991).
     As the ALJ found, Complainant's submissions here are
insufficient to support his contention that he was affirmatively
misled or deliberately delayed by Respondent such that equitable
tolling is appropriate.  The affidavit, alleging that post-
suspension and after the union filed a grievance to initiate
arbitration, a union representative initiated a discussion with
management over Complainant's situation and that the management
representative indicated the Union should not take further action
because the matter was being resolved, is not sufficient evidence to
support Complainant's contention that he was misled about his claim.
This evidence does not indicate that Respondent deliberately sought
to mislead or delay Complainant from filing a CAA claim, but rather 
[PAGE 4]
that the union approached Respondent and was involved in negotiation
and arbitration on Complainant's behalf.  See Electrical
Workers v. Robbins, 429 U.S. at 236-240 (employee's pursuit of
internal grievance procedure set up in collective bargaining
agreement does not toll filing requirement); Ackison v. Detroit
Edison Co., Case No. 90-ERA-0038, slip op. at 2 (Complainant's
use of internal grievance procedures does not toll filing period);
In Pfister v. Allied Corp., 539 F. Supp. 224, 227
(S.D.N.Y. 1982) (employer's participation in settlement discussions
does not toll statute of limitations for filing action over
discharge because no evidence acted in bad faith or deceitfully
lured plaintiff to miss appropriate filing date).
    The undisputed facts here, that Complainant was represented by
counsel during this period and did immediately file a grievance and
an identical whistleblower complaint under the OSHA, further support
a finding that Complainant cannot invoke equitable tolling in these
circumstances.  See generally Kent v. Barton
Protective Services, Case No. 84-WPC-2, Sec. Final Dec. and
Order, Sept. 28, 1990, slip op. at 11-12, aff'd, Kent v.
U.S Department of Labor, (11th Cir. Oct. 3, 1991);
McGarvey v. EG & G Idaho, Inc., Case No. 87-ERA-31,
Sec. Final Dec. and Order, Sept. 10, 1990, slip op. at 3-4;
Symmes, Case No. 87-TSC-5, at 2-3, and appended ALJ's R.D.
and O. at 6-8.  The parties' submissions establish that Complainant
was given final and unequivocal notice of his immediate suspension
on August 22 and promptly proceeded to pursue his remedies with the
assistance of the union and his counsel.  There is no evidence
presented sufficient to raise a material question of fact as to
Respondent deliberately misleading Complainant into missing the
filing deadline for the CAA.  Accordingly, the complaint is
DISMISSED.
     SO ORDERED.


                                        LYNN MARTIN
                                        Secretary of Labor

Washington, D.C.
[ENDNOTES]

[1] Respondent filed a motion for summary decision with
supporting affidavits requesting dismissal on the grounds of
timeliness in accordance with 29 C.F.R. § 18.40 (l991).  In
response, the ALJ issued an order requesting the parties to submit
all evidence and briefs on the timeliness issue.  The ALJ relied on
the parties' submissions to consider the Respondent's motion.

[2] Complainant was notified of his two day suspension at 8 a.m. on
August 22, 1988.  The suspension was effective immediately and 
[PAGE 5]
lasted until 11 p.m. on August 23, 1988.

[3] The regulations provide that for the purpose of determining
timeliness of filing, a complaint filed by mail shall be deemed
filed as of the date of the mailing.  29 C.F.R.  24.3(b). Although
there is no evidence of the date of mailing in this record, it does
not matter here, since the date on the complaint itself is beyond
the time period allowed for filing.

[4] Mr. Bencivengo states that he spoke with "Mr. Robert Tully,
Division Manager of Bronx Electric," who told him of efforts to
resolve Complainant's matter.  Respondent proffers two affidavits in
support of its motion and opposing Mr. Bencivengo's affidavit on
this statement.  The first affiant is Mr. John Tully, the General
Manager for Electrics Operations, Bronx Division, who states that he
never spoke to Mr. Bencivengo.  The second affiant is Mr. Robert
Blick, Division Manager, Electrical Distribution Services, Bronx
Division, who states that he participated in the decision to suspend
Complainant, and informed Complainant and his union representative,
Mr. Sommer, of that decision on August 22, 1988.  Further, Mr. Blick
states that since August 22, he never spoke with Mr. Bencivengo or
anyone else concerning possible recision of Complainant's
suspension.  Evidence was submitted in support of these affidavits,
including the Union grievance, dated August 29, 1988, designating
Mr. Sommer as Complainant's union representative.

[5] Filing periods are subject to equitable modification. 
Zipes v. Transworld Airlines. Inc., 455 U.S. 385, 393
(1982). Generally, the doctrines of equitable estoppel and equitable
tolling are mechanisms for modifying a limitations period. 
See Clark v. Resistoflex Co., 854 F.2d 762, 768-769
(5th Cir. 1988); Kale v. Combined Ins. Co. of America, 861
F.2d 746, 752 (1st Cir. 1988).  Respondents may be equitably
estopped from claiming the time bar defense where they have induced
or deliberately misled an employee into neglecting to file promptly. 
Clark at 769, n. 4; Felty v. Graves-Humphreys Co., 785
F.2d 516, 519 (4th cir. 1986); Larry v. The Detroit Edison
Co., Case No. 86-ERA-32, Sec. Dec. and Order, June 28, 1991,
slip op. at 12-19, aff'd sub nom. The
Detroit Edison Co. v. Secretary, United States Department of
Labor, No. 91-3737 (6th Cir. 1992).  The doctrine of equitable
tolling focuses on the complainant's excusable ignorance as a reason
to modify the limitations period.  Clark at 769, n. 4; Cf.
Andrew v. Orr, 851 F.2d 146, 150 (6th Cir. 1988) (doctrine of
equitable tolling applies when employee misses filing deadline
because of affirmative misleading conduct by employer or ineffective
but diligent conduct by employee).