Dated: February 12, 1988
Case No. 84 WPC-2

IN THE MATTER OF:

CHARLES A. KENT,
    Complainant

    v.

BARTON PROTECTIVE SERVICES,
    Respondent

For the Claimant:
TEDDY RAY PRICE, Esquire
TIMOTHY W. STORM, Esquire

For the Respondent:
DARA L. DE HAVEN, Esquire
MARILYN FISH, Esquire

Before: RENO E. BONFANTI
Administrative Law Judge

    This matter arises pursuant to the employee "whistleblower" protection provisions under the Water Pollution Control Act, 33 U.S.C. §1367 (1982), the Safe Drinking Water Act, 42 U.S.C. §300j-9(i) (1982), and the implementing regulations thereto at 29 C.F.R. Part 24 (1986).

    The Complainant, Charles A. Kent, charges discrimination in his employment as a security guard with Barton Protective Services, Inc. (hereinafter referred to as Barton), in retaliation for filing an "oil spill" report on October 7, 1981

with the federal Environmental Protection Agency (hereinafter referred to as EPA).

    Charles A. Kent's first complaint, filed on December 7, 1982, was dismissed by the Assistant Wage and Hour Administrator (DOL) James L. Valin on April 20, 1983. The Wage and Hour Division declined to c under 29 C.F.R. 24.4, and dismissed the complaint because of the failure to file within 30 days of the alleged violation. Kent filed another complaint on February 10, 1984 concerning job discrimination by Barton, urging reconsideration based upon equitable tolling arguments. The Wage and Hour Division again refused to investigate the matter. On June 24, 1984, the second complaint was dismissed because of the failure to file a complaint within 30 days of the discriminations. Mr. Kent pursued his case and was afforded a hearing before the undersigned judge on October 18, 1984. Barton was not a named party in that complaint, and, the limited issue entertained was only: Whether the complaint was timely filed? A finding in the affirmative would have necessitated further litigation, while a negative finding would have resulted in dismissal of the complaint without further legal proceedings. The complainant was represented by able counsel, offered documents, his own testimony, testimony of subpoenaed Gus Dixon and James E. Sims of Barton, the DOL Area Director Mr. Gilbert, and subpoenaed documents from the Environmental Protection Agency and the Georgia State Examining Board. After careful consideration of all of claimant's evidence, on February 14, 1985, the undersigned issued a Recommended Decision and Order dismissing the complaints because not timely. On February 25, 1985, Kent submitted a Motion for Reconsideration requesting that the case be reopened to allow him the opportunity to prove timeliness by a new allegation - that he contacted (but did not file a written complaint) the Equal Employment Opportunity Commission within 30 days of the termination letter of June 1982. The Motion was denied on March 15, 1985 because Kent, with able counsel, was already given a full opportunity to prove his case and the new allegation did not warrant any further action. Pursuant to 20 C.F.R. 24.6 the Recommended Decision/Orders, together with the record, were forwarded to the Secretary of Labor for a final order. On April 10, 1987 the Secretary of Labor issued a Remand Decision and Order, remanding the case to

the undersigned judge for a new hearing consistent with expressed due process guidelines. A de novo hearing was held on August 19 and 20, 1987 and the record was closed following the receipt of briefs on october 22, 1987. The Remand Decision of the Secretary of Labor has been diligently followed both procedurally and as to the substantive law enunciated therein. After careful evaluation of this record, I make the following summary, evaluation, findings and conclusions of law.

    Charles A. Kent, complainant, is an articulate and intelligent 34 year old gentleman. He has at least 3 years of college education. 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 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 for 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. 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 (manager at Barton) "attitude... changed remarkably ... cool and indifferent as he told me there were no openings". He also spoke to Mr. Guvera, manager, who abruptly 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 war, again told he had 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 frequently 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 and exit interview were wasted effort. "I was given the bureaucratic runaround" and unable to get a conference with them. Mr. Kent stated that under state law he was entitled to know the reasons for termination and also to receive an official notification. He received neither. 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, nor were his phone calls responded to.

    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 1982 letter was deemed to be the termination of employment action. A few days later in April 1983 Mr. Kent demanded a meeting with management at Barton. At the alleged meeting Mr. Kent offered to return the uniform and equipment for an official separation notice. The offer was declined. Mr. Sims and Mr. Dixon allegedly 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. The record shows that on April 25, 1983 Kent wrote to the State Board of Licensing stating that he was employed as a security officer but did not get the necessary registration application from his employer. He asked the Board to correct and bring up to date his license to perform security work. (Joint Exh. 5) 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 considered himself an employee until officially notified 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. He sought advice on filing a slander lawsuit against Barton or United; he was advised that he would need a written report charging him with negligence which resulted in the oil spill. (Joint Exh. 4) White was his attorney from 1980 until November 1982, at which time he sought other counsel. The record shows Kent told the interviewer, Mr. Gilbert, after filing the complaint in 1982, that he did not call the EPA initially to "blow the whistle" but rather to get the hoped for report with the truth in it to clear me. (Joint Exh. 2) 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. Barton told Kent that someone had to be blamed for the oil spill. 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 or a security guard could lead to de-certification. Also, EPA told Kent that serious legal consequences could result from the failure to report and that in order to protect himself Kent should submit a written report of the incidence to clear his name. Kent expressed his attitude 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. 1) Mr. Kent was 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 George 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 was warranted to investigate the oil spill. No reference was made to the status of Kent's security license.

    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 works 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.

    The evidence Mr. Kent submitted shows that he discussed his early contacts with EPA in 1980 and 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. 1984, pages 52 through 57) Mr. Kent testified he reported the oil spill to EPA and the State Board because not to do so would make him an asscessory 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 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 "harrassment" 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. Kent made the same argument with respect to the complaint of December 7, 1982. Kent maintains that he continued to be an employee of Barton (at least until October 1984) because he was not given an exit interview nor the reasons for termination.

    At the de novo hearing in August 1987, additional documentary evidence was introduced. Testifying were: Charles A. Kent, complainant; Richard L. Gilbert, the area office director (DOL) with whom the 2 complaints were filed; Gus Dixon, James Sims, and Henry Guivara of Barton Management; Robert May, III of the State of Georgia's Environmental Protection Agency; and Thomas M. Mishow, the Chief Administrative Officer of the Georgia Board of Private Detective and Security Agencies.

    Kent's case rests on two theories as to why the complaint(s) should be considered timely filed. If not timely and equitable tolling does not apply, then any determination as to whether he was discriminated against becomes moot since no relief can be granted. First theory: Kent testified that he visited the federal Equal Employment Opportunity Commission Office immediately after receiving his June 1982 letter of termination from Barton, and complained about discrimination because of filing an oil spill report to EPA. Second theory: Kent met with Barton in April 1983, Barton informed him that June 8, 1982 letter was in error, he was still considered an employee, and he should keep his uniforms. Kent filed an application for state unemployment benefits in December 1983 based on his belief that he was merely laid off due to lack of work, until he read Barton's statement in the state file that he was terminated in late 1980 for sleeping on the job and failure to accept assignment. At that time he concluded that Barton had misled him about the status of his employment that Barton had discriminated against him since he filed the oil spill report in October 1981, and that Barton continues to discriminate against him. Kent filed the second complaint with DOL on February 10, 1984, maintaining that it should be deemed timely because of the misrepresentations of Barton.

    With reference to the contact with EEOC, I note that this allegation was first raised by letter from Kent dated February 25, 1985 and his testimony in August 1987. (HT 1987, p. 171-176) After receiving the June 8, 1982 letter from Barton he telephoned EEOC in Atlanta, and the following day visited and spoke to an interviewer who had 12 years of experience involving employee-employer type of disputes. Kent made it "perfectly clear that I felt very strongly that I had been unjustly fired because of the report I filed with

the EPA and requested help in seeking action against Barton". Kent was shown a copy of the EEOC guidelines and told they had no jurisdiction over his grievance. There is no corroborating testimony or documentary evidence for this allegation. The only contact with any federal agency, prior to the claims filed with the federal Department of Labor, named in his comprehensive "A Request for Help" and testimony in October 1984 was the Environmental Protection Agency. (Joint Exh. 1) Nowhere in Kent's considerable writings and two complaints, or records obtained the Department of Labor, EPA, and state Board of Licenses, (and EEOC) is there any reference or assertion of any contact with EEOC to complain of any discrimination or wrongful job actions. (Exhibits R-6, R-8, R-12, C-1) Mr. Gilbert showed and discussed the timeliness of the claim pursuant to the Field Operations handbook which states a complaint is timely when "the complainant has raised the precise statutory claim but has done so in the wrong forum". FOH 52x52-2(b)(1) and (3) (Exhibit R-5). Kent explored the timeliness issue with Solicitor Office in the National Office (washington, D.C.) according to a document in the file from Mr. Gilbert dated April 5, 1983, (Exhibit R-9) with reference to the tolling under (b)(1) where employer misleads employee to delay, and (b)(2) where the precise claim is raised in the wrong forum. Mr. Gilbert testified that Kent visited him 6 to 8 times between December 1982 through April 1983, after the dismissal of the complaint. Kent testified that at the outset Mr. Gilbert explained the filing requirement of 30 days from the date of discrimination. (HT 1987, p. 39) They discussed the requirements of the law. Kent himself investigated to see if there was any way of getting around the 30 day time limitation and did find out about the tolling considerations. The denial by Mr. Valin of Kent's complaint by letter dated April 20, 1983 states that subsequent to the termination notice in June 1982 and the complaint filed in December 1982, "we are not aware of any record which shows that you contacted a federal agency to specifically register a complaint regarding your termination or to seek recourse under any Federal law" (Exhibit R-11). Kent responded to Mr. Valin by letter stating that Environmental Protection Agency and Barton Protective Services "would contain all the information necessary to determine if tolling is justified". In Kent's chronological history of his case filed in 1984 he enclosed a copy of the

court's decision in District of the City of Allentown v. Ray Marshall and Hanna (Ct of Appeal, 3rd. Cir., 1981) with reference to the tolling exception. (Joint Exh. 1) In June 1984, Kent received a letter from Mr. Gilbert of the Department of Labor, stating that after consulting with the National Office, the second complaint is denied because any rights were precluded by the failure to meet the timeliness requirement. No testimony was offered at the hearing before the undersigned judge october 1984 about any contact with any federal agency other than EPA. In my decision of February 14, 1985, I held that the 30 day time limit must be measured from receipt of the June 8, 1982 letter, that the untimely filing was not occasioned by employer misrepresentations, and cited Allentown, supra, holding that equitable tolling may be applicable where plaintiff has raised the precise claim in issue but in the wrong forum. I concluded that Kent did not timely file his complaint(s) nor did he meet any of the bases warranting equitable tolling. As noted above, Kent's first assertion of contact with EEOC was made on February 25, 1985. In August 1987, he testified that he previously mentioned the EEOC contact to Mr. Gilbert and his attorney. This is not corroborated. After due regard for demeanor and credibility factors, in light of the evidence of record, I find not credible that Kent made any contact with the EEOC relative to employment discrimination within 30 days of the termination of employment of June 8, 1982.

    With reference to the second theory that the complaint was timely filed in January 1984 because Barton misled claimant as to the status of his employment, Kent relies on an alleged meeting with Barton in April 1983, at which he was told that the June 1982 letter was incorrect, he was still an employee, hold onto the uniforms, and he would get a post later. All three of Barton's witnesses (Dixon, Sims, Guivara) deny any such meeting or information given to Kent. Kent testified that this meeting took place after he received the April 20, 1983 letter from Mr. Valin (DOL) rejecting the complaint because it was not filed within 30 days of the termination notice of June 8, 1982. Kent has maintained throughout that he was not fired/terminated in June 1982 because: (1) he was not granted an exit interview (2) the employer did not give him reasons for termination (3) the employer did not respond to his letter of July 1982, and (4)

he still has the uniforms. On April 25, 1983, after the meeting with Barton, Kent complained to the Georgia State Board of Examiners asking their help to get his security license. The Board investigated the matter and took no action. A memorandum of an interview (by telephone) dated September 20, 1983 by the investigator contains this remark: "In June 1982 he received a copy of a letter from Barton that he should turn in his uniforms that he no longer worked there, but he has never received official termination notice and has been unable to get anyone from Barton to talk to him about his termination". (Joint Exh. 5, p. 10-14) Kent's evidence also shows that despite numerous and frequent telephone calls from late in 1981 into 1983 to Barton, he was unable to talk with management or schedule a meeting. It was clear that Barton had knowledge in October 1981 that Kent reported the oil spill to EPA. Also, clear in Kent's mind is that he was being discriminated against because he blew the whistle. He stated in his 'A Request for Help' that he was aware that Barton probably would "ask for my resignation" because of reporting it to EPA. The non-response to numerous efforts to contact Barton principals made it quite obvious as to why he was not assigned any post after october 1981, in view of having worked regularly for Barton since March 1978. The letter of June 8, 1982 was clearly a termination notice,even if Kent refused to accept it as such. Kent sought a more definitive notice of termination so as to pursue other causes (unemployment, slander, or exoneration of negligence), but Barton refused to comply. The fact that Barton in 1983 mid-staled the facts or dates of termination with reference to the Unemployment claim does not avail Kent with respect to the timeliness of his complaint filed in January 1984. Kent was aware of all relevant facts at the appropriate times.

    From my evaluation of the credible evidence, I find that no meeting took place in 1983 at which Barton indicated that he was still an employee. I find no action on the part of Barton which misled Kent or caused him to delay filing either the first or second complaint. It was clear to Kent, long before he filed the complaint in December 1982, that he believed that he was being discriminated against. The doctrine of continuing discrimination is not applicable on these facts. Moreover, there was no rehiring of Kent, nor was he led to believe that he was still an employee of

Barton. On this issue, I believe Barton's evidence that no meeting occurred in 1983 as asserted by Kent. As late as September 20, 1983, Kent indicated that Barton would not talk to him about the termination in June 1982 (Joint Exhibit 5, page 14).

    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."

    The controlling case law is reflected in the following Greenwald v. city of North Miami Beach (Ct. of Appeals 5th Cir. 1979); The School District of the city of Allentown v. Marshall 657 F.2d 16 (3rd. Cir. 1-981); Smith v. American President Lines Ltd. 571 F.2d 102 (2nd. 1978); United Van Lines v. Evans (4111 U.S. 553) 1977; Meyer v. Riegel Products Corp. 720 F.2d 303 (3rd. Cir. 1983); and Hicks v. Colonial Motor Freight Lines 84-STA-20 (1-985)(Secretary of Labor, December 10, 1985).

    In Allentown, supra, the appellate court, in denying relief from the 30 day time limit for filing the complaint, set out the principal grounds wherein the doctrine of equitable tolling may be applied as, (1) where plaintiff has been actively misled by the defendant, (2) plaintiff in some extraordinary way was prevented from asserting his rights, or (3) plaintiff raised the precise statutory claim but in the wrong forum. In Greenwald, supra, the appellate court refused to apply the doctrine of equitable tolling where plaintiff timely filed a grievance under the civil service rules but did not file a Whistleblower complaint within the 30 days time limit. In any event the courts uniformly held that a complaint filed in the wrong forum must be timely as well as identifying the precise statutory claim. The Secretary of Labor in Hicks, supra, adopted the administrative Law Judge's dismissal of the Whistleblower complaint because it was not filed within the 30 day time limit not was equitable tolling warranted. In that case a letter was

sent to EEOC within the statutory time limitation referring vaguely to a wrongful dismissal but the precise Whistleblower claim was not filed until 5 days after the expiration of the statutory period.

Although Smith, supra, Donovan, supra, and Meyer, supra would acknowledge and grant relief from the time bar where subsequent actions by on employer mislead or induce an employee to delay filing a Whistleblower complaint, the facts in the instant case do not establish those factors. The applicability of equitable tolling considerations hinges on the facts of each case. The complainant herein has not proven facts warranting waiver, estoppel, or equitable tolling in accordance with established principles of law.

1. The complaints filed December 1982 and January 1964 are in issue. The second complaint is a refiling of the first complaint.

2. The complaints fall within the whistleblower provisions of the Water Pollution Control Act and the Safe Drinking Water Act. Barton was aware as early as October-November 1981 that Kent filed the oil spill report.

3. Kent was engaged in protected activity under the Act (33 U.S.C. 1367) when he filed the oil spill report with the Environmental Protection Agency in October 1981.

4. The obvious facts sufficient to support a discrimination complaint were apparent to Kent no later than receipt of the letter dated June 8, 1982. There was no contact by Kent with the EEOC or any other federal or state agency within 30 days to complain of discrimination because of 'blowing the whistle'.

5. The evidence does not show that Barton misrepresented or fraudulently concealed facts necessary to support his complaints or induce him to delay filing the complaints(s).

6. The evidence does not support finding that any meeting took place in 1983 between Barton and Kent from which Kent could reasonably assume being rehired or recalled to a

security post.

7. The evidence does not establish any conduct by Barton which lulled Kent into delay or inaction regarding his whistleblower cause or action.

8. Kent did not contact or file a complaint within 30 days to any federal agency alleging discrimination by Barton because of reporting the oil soil.

9. The evidence does not establish that either the 1982 or 1984 complaint meets any of the criteria for invoking the equitable tolling provisions of the law. There are no overriding equities to warrant extending the 30 day filing provision of the Law.

10. The complainant has not met his burden of proof.

    It is hereby recommended that the discrimination complaint(s) filed by Charles A. Kent be dismissed because they were not timely filed.

       RENO E. BONFANTI
       Administrative Law Judge

Washington, D.C.