granted until January 22, 1985, on which date the record was closed.

    Charles A. Kent, complainant, is an intelligent and knowledgeable 32 year old gentleman. He began working for Barton Protective Services Inc. (hereinafter Barton) in Atlanta, Georgia as a security guard in March 1978. He was full-time for a several months, and then was assigned to a part-time (24 hours) security guard post at the United Parcel Service (hereinafter United). He requested part-time because he had another job full time with the City of Atlanta (Water Works). On October 11-12, 1980, a diesel oil spill of about 4600 gallons occurred and Mr. Kent was blamed f or it because he did not make the hourly security rounds required on his post. United Parcel Service asked for his permanent removal from their facilities and Barton complied. Mr. Kent was told an entry would be made on his personnel card that he was negligent at his post. Mr. Kent was reassigned to a security guard part-time post in January 1981 to Cudahay Foods, where he continued until September 1, 1981, at which time Cudahay Food went bankrupt. He was then offered a full time job at BAR-S-Foods which he declined because of his other employment. At that time Barton promised him another post closer to his home. Near the end of October 1981 Mr. Kent contacted Barton concerning the shift promised him a month earlier. Mr. Kent stated that Gus Dixon's (of Barton)" attitude ... changed remarkably ... cool and indifferent as he told me there were no openings". He also spoke to Mr. Guvera, manager, who affirmed no job openings but said he would be assigned whenever a new post became available near his home. In December 1981 or January 1982 he was assigned to a weekend shift at Bar-S-Foods, reported for duty, found that someone else had taken the job, was sent home, and received 2 hours show-up pay. Mr. Kent was again told he had top priority for another weekend post closer to his home in 4 to 6 weeks. No further assignment was tendered to Kent. The record indicates that during the first 6 months of 1982 Mr. Kent periodically called Barton about getting a post assignment, but was always told that the supervisors were "in conference" He received a letter dated June 8, 1982 from James E. Sims Jr. Vice-President of operations for Barton requesting that he turn in the uniforms and equipment because he no longer works for Barton. Repeated phone calls by Kent for an explanation were wasted effort. "I was given the bureaucratic

runaround" and unable to get a conference with them. Mr. Kent was aware that under state law he was entitled to know the reasons for termination and also to receive an official notification. He received neither. Finally, in July 1982 Mr. Kent wrote a certified letter to Mr. Sims stating that he will not return the uniforms and equipment until he receives official notice and reasons for the separation. He did not receive any reply to this letter.

    On December 7, 1982 Mr. Kent filed a discrimination complaint with Department of Labor. He contended that Barton engaged in retaliatory discrimination against him because he reported the oil spill to Environmental Protection Agency (EPA). This was dismissed on April 20, 1983 because not filed within 30 days of the alleged violation the June 8, 1982 letter. A few days later in April 1983 Mr. Kent demanded a meeting with management at Barton. At the meeting Mr. Kent offered to return the uniform and equipment for an official separation notice. The offer was declined. Mr. Sims and Mr. Dixon told him the letter of June 8, 1982 was in error, he was not terminated, blamed everything on a misunderstanding, told him to hang on to the uniforms, and he would be reassigned a post when available. Barton also told him the security license would be sent to him as soon as the State Board takes action. In December 1983, Mr. Kent filed for unemployment compensation based upon the part-time work with Barton. His claim was denied. At this time Mr. Kent discovered that Barton reported that he failed to accept reassignment in late 1980 so he was shown as abandoning his job, while work was available. Contrary thereto, this record clearly establishes that Kent did in fact work from January to September 1981, in addition to receiving 2 hours show up pay in December 1981 or January 1982. On January 17, 1984 Mr. Kent filed his second complaint with the Department of Labor. He again alleged job discrimination on the part of Barton because he reported the oil spill to EPA in October 1981. Mr. Kent contends that Barton misled him as to the termination of employment, and still considers himself an employee until he gets official notice of termination. The alleged discrimination is the failure of the employer to assign him a work post since 1981 and continuing, because of the oil spill he reported to the EPA in October 1981.

    The evidence in this case shows that Mr. Kent did not believe that he was responsible for the oil spill of 4600 gallons in October 1980 for which he was blamed. He undertook inquiries

in order to exonerate himself and protect his security license. He ascertained that neither Barton nor United Parcel took any action to investigate the oil spill, and found out that all such spillage reports are to be reported to the federal and state environmental agencies. Mr. Kent inquired repeatedly at the Federal Environmental Protection Agency (EPA) office over the period of the next 10 months whether the spillage was reported. He also discussed this matter with his attorney-friend, Jim White. In December 1980, Mr. Kent asked to see his personnel file at Barton and was told that no report of negligence was ever placed in his file and that they were satisfied with the way the incident was handled. After a year of waiting, Mr. Kent concluded that neither Barton nor United planned to report the oil spill, and conspired to cover-up the incident. He found out from the Georgia State Security Licensing Board that any misconduct by Barton could lead to de-certification of their security license. Mr. Kent expressed his feelings at that time by stating that "if I were to remain passive thinking that this whole incident would eventually be forgotten; the fact that I knew of the diesel oil spillage and made no attempt to prove my innocence or expose this incident makes me just as guilty of any infraction of Federal and State law." Consequently to protect himself, Mr. Kent submitted a written report of the oil spill to the Federal Environmental Protection Agency on October 7, 1981. He added, "In view of all of this, I strongly feel that no one is above the law and this cover-up must be exposed despite the fact that Barton Protective Services will probably ask for my resignation". (C. Exh. No. 1) Mr. Kent was also concerned about the status of his security license. In February 1982, Mr. Kent made a report of the oil spill to Georgia state Board of Private Detective and Security agencies asking them to investigate the oil spill. Mr. Kent stated that a security license is needed to be a security guard in Georgia and it can be revoked for a dishonest act, so he decided to protect himself by filing the report with the Board. The state Board informed Mr. Kent in March and May 1982 that no action would be taken on the matter.

    The record shows that the Environmental Protection Agency contacted United Parcel Service by telephone on October 8, 1981 inquiring about an oil spillage that may have occurred in October 1980. On November 10, 1981 EPA requested United to file a written report of the spill. In January and April 1982 United responded with reports of the incident. Essentially United acknowledged the oil spill but maintained that it was de-minimus,

did not discharge into public waters and therefore did not constitute any violation of environmental laws. The EPA records show that shortly after Kent's report to EPA he expressed some doubts about the status of his employment and asked how to clarify his record. EPA suggested he contact the Georgia State Board which regulates security firms. As noted previously, Kent took the suggestion and wrote to said Board, in February 1982. Kent continued making numerous telephone contacts with EPA during 1982. Kent asked EPA for a copy of United report, and it was denied. On August 9, 1982 Kent mentioned in a phone call to EPA that Barton wanted the uniforms returned because he no longer work there. Another phone call on October 1, 1982 referred to EPA and United contacts to an unnamed individual in connection with the spill; he requested a copy of the United's response under the Freedom of Information Act but it was denied because the matter was pending.

    At the hearing, James E. Sims, Vice President of operations and Gus Dixon, Operations Manager, both of Barton Protection Services Inc. were called to testify by complainant. Their testimony was vague and contradictory and of little probative value. They did not know when Kent was terminated and didn't recall any meeting with him in April 1983 wherein Kent was informed that the June 1982 letter was an error.

    The evidence Mr. Kent submitted shows that he discussed his early contacts with EPA in 1981 with attorney Jim White, and told him when he made the written report. Kent believed that Barton became aware of his reporting to EPA through contacts with White, his investigator, or law clerk. Kent recalls that at a social affair in December 1980, White told him that the owner of Barton was a personal friend as well as former business associate. Mr. Kent at the hearing was quite clear in testifying that Barton knew that Kent reported the oil spill to EPA as early as October-December 1981 (tr. pages 52 through 5T). Mr. Kent testified he reported the oil spill to EPA and the State Board because not to do so would make him an accessory to a criminal act. He testified that Barton knew in October 1981 that he filed the written report of the oil spill to EPA. He repeated his testimony that Barton knew this in October 1981. He testified that the job offer in December 1981 or January 1982 (sending him 15 miles to a post) which did not materialize and for which he received 2 hours show-up time, and then promised an assignment nearby home, following which he received the June 1982 letter was

all sheer "harassment" because he reported the oil spill incident. He testified that his complainant of February 10, 1984 with Department of Labor was filed within 30 days of the discriminatory act, or at least timely because of Barton's misrepresentation. The record shows Kent filed the similar complaint December 7, 1982. There is no contention of any such claim having been filed at any other time.

    I have carefully considered all the evidence in this case and my conclusions are as follows:

    1. Kent was employed on a regular basis (part-time 12 to 24 hours per week) from March 1978 to October 11, 1980, and from January 1981 to September 1981 with Barton Protection Services, Inc.

    2. Kent made numerous contacts in the calendar year 1981 with the Environmental Protection Agency prior to filing a report of the oil spill on October 7, 1981. Said Oil spill occurred in October 1980, for which Kent was blamed for being negligent on duty. Kent sought to exonerate himself from blame and from being involved in any non-reporting of said oil spill. He filed a report in October 1981 with EPA and in February 1982 with the Georgia State Board of Security License asking them to investigate the oil spill. Kent believed that if the oil spill was not reported and investigated, he would be an accessory to the conspiracy to cover-up the incident.

    3. Barton became aware in October 1981 that Kent filed a report of the oil spill with EPA. Kent was not assigned to any security posts from this date on (except the 2 hour show-up time).

    4. Kent believed, as early as the second week of October 1981, when he called Barton, that Barton was aware that he reported the oil spill to EPA. Kent's attempted contacts to obtain a post with Barton over the next 7 months were fruitless and the letter of June 8, 1982 made it clear that he was terminated or at least not being considered for any job posts with Barton. The alleged discriminatory act or event from which to measure the 30 day timeliness for the complaint began no later

than Kent's receipt of the June 8, 1982 letter. There is no claim nor is there any proof that a complaint for retaliatory discrimination was filed in any federal or state agency within 30 days of the act or event.

    5. Kent was employed either full or part-time almost continuously with Barton from March 1978 until September 1981 except for a period of less than 3 months after the oil spill (October 1980 - January 1981). His repeated contacts with Barton from October 1981 through July 1982 seeking a job post were obviously nil, and, Mr. Kent, was of the opinion during all this time that he was not being given an assignment in retaliation for the report he made to EPA. Kent first noted a change in Barton's attitude a week after he filed the EPA report, believed the 2 hour show up-time job in December 1981 and the June 1982 letter were harrassment. The supervisors were always "in conference" when he called about the June 1982 letter, and his certified letter to Barton in July 1982 went unanswered. His security license was not renewed. Kent was fully aware and believed that Barton deliberately refused him job posts because he blew the whistle.

    6. Kent in making the report of the oil spill to EPA was engaged in protected activity under the Act. Since Barton, the employer, did not have the opportunity to defend against the charges of discrimination, I do not make any finding thereon. For the purposes of this proceeding only, I assume that the claimant made out a prima facie case of retaliatory discrimination but he has the burden to establish he timely filed the complaint of discrimination.

    7. There was no action on the part of Barton which prevented, interferred, or misrepresented facts in any way misleading Kent as to his employment status with Barton in 1981 or 1982. Kent filed his first complaint of alleged discrimination resulting from the protected activity on December 7, 1982.

    8. Upon being informed in April 1983 that his complaint was not filed within the 30 day time limit, Mr. Kent offered Barton a return of his equipment and uniform if they would give him reasons and an official termination notice [He had also asked for this in July 1982]. However, Barton declined, stated the letter was an error and maintained that he was still considered an employee. In December 1983 when Kent filed an unemployment

claim, he discovered that Barton reported him to the Employment Security Agency as terminated in late 1980 because he abandoned his job in failing to accept reassignment. Kent testified that, on January 17, 1984 he reached the conclusion that Barton discriminated against him ever since he filed the EPA report in October 1981, that he continues to be discriminated against, that Barton misled him as to the status of his job, and that because of being misled, his complaint should be considered timely filed. The second complaint was filed with Department of Labor on February 10, 1984.

    9. Kent was engaged in protected activity under the whistleblower statutes when he filed the report on October 7, 1981 with the EPA. Kent suspected that Barton knew of his report as early as the second week of october 1981 by their manner of telephone response that no job was available, and further testified clearly that Barton knew as early as October 1981 that he made the report. From October 1981 until June 1982 I find no action or inaction on the part of the employer such as to mislead Kent as to the potential for further post assignments. To the extent that Barton in April 1983 informed Kent that he is still considered an employee, I must note that he did not get any job assignments prior thereto or subsequently. Whether Kent is still considered an employee is not relevant in determining when any discriminatory conduct by Barton occurred as a result of the protected activity Kent engaged in. Even the confusing personnel records which incorrectly showed employment ended in late 1980 as well as the report to the Employment Security Agency (Unemployment) showing the same do not prove Kent's assertions that the employer's misrepresentations were the reason he did not file the complaint within the 30 days. Kent's assertion that it was not until January 17, 1984 that he became aware of the pattern of retaliatory discrimination is not credible. I find that neither the complaint of December 7, 1982 nor the complaint filed February 10, 1984 were filed within the 30 day period nor was there any misrepresentation by the employer which occassioned the late filing of complaints.

    Title 33 USC 1367(b) provides that:

"Any employee ... who believes that he has been fired or otherwise discriminated against by any person in violation of subsection (a) of this Section may, within 30 days after

such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination."

Title 29 CFR 24.3 provides:

"(b) Time of Filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation".

Claimant argues that his complaint was timely because the "discriminatory act" was continuing and he did not know until 1984 that he was really terminated. He further argues that the employer's misrepresentation and "equitable tolling" provisions require that the complaint of discrimination must be considered as timely filed.

    The U.S. Court of Appeals in the 3rd Cir., Allentown v. Marshall 657 F2d 16 (1981) held that: (1) the 30 day statutory period of filing the complaint is not jurisdictional and equitable tolling may apply, (2) lack of prejudice to other party does not excuse delay, (3) employee's ignorance of the law was not enough to invoke equitable tolling. The Court noted three principal situations where tolling is appropriate: (1) where defendant has actively misled plaintiff, or (2) plaintiff in some extraordinary way has been prevented from asserting his rights, or (3) plaintiff has timely raised the precise claim in issue but in the wrong forum. The Court recognized that certain conduct of the defendant could lead to estoppel and thereby warrant equitable tolling. The Court stated that the restrictions on equitable tolling must be scrupulously observed and the tolling exception is not an invitation for courts to disregard legislative limitation periods simply because they may bar an otherwise meritorious cause. Similarly, the Court of Appeals in the 5th Circuit, Greenwald v. City of North Miami Beach, 587 F2d 779 (1979) denied relief. In Greenwald, the plaintiff sought local grievance review timely but the complaint under the whistleblower statute was not filed within 30 days from the discriminatory Act. The mere fact that plaintiff had sought civil service review did not toll the 30 day time limitation under the Act.

    Upon careful consideration of this record I find Kent was fully aware of the alleged discriminatory acts (non-assignment of

posts) prior to June 8, 1982, and, fully aware of the alleged discriminatory Act (termination of employment) on June 8, 1982. No complaint was filed within 30 days thereof with the Department of Labor or any other federal agency. No timely complaint of a discriminatory act covered by the employee "Whistleblower" provisions of the federal acts was filed. The complaint does not meet any of the criteria for invoking the equitable tolling provisions of law. I do not find any conduct of the employer that has prejudiced the employee from the timely filing of said complaints. I do not find any extraordinary cirumstances that have prevented complainant from timely filing a complaint within 30 days of the alleged discriminatory acts following the "protected activity". I do not find any overriding equitable considerations to extend the 30 day filing period provided by the controlling law. The Complainant had a full opportunity to prove that he timely filed his complaint. Since his evidence failed to prove it, the complaint must be dismissed.

    It is hereby recommended that the complaints filed by Charles A. Kent, complainant herein, must be dismissed because they were not timely filed.

       Reno E. Bonfanti
       Administrative Law Judge

Dated: FEB 14 1985
Washington, D.C.

REB/dew