DATE ISSUED: FEB 8 1988
CASE NO. 88-WPC-1

In the Matter of

EARL W. ARTHRELL

    v.

PITTSBURGH SPRING, INC. AND D. G. S. COMPANY

   This case was scheduled for hearing in December, 1987, but was continued by order of December 23, 1987 to allow the complainant some additional time in which to seek legal representation. Subsequently on January 14, 1988, a Motion for Summary Decision, Brief, and Answer were filed by counsel for the defendant D. G. S. Company (D.G.S.). In its Motion, D.G.S. contended that the action should be dismissed for 1) failure to state a claim under the Federal Water Pollution Control Act, 33 U.S.C.A. section 1251 et. seq., and 2) failure to comply with the thirty day filing requirement of 33 U.S.C.A. section 1367 (b) and 29 C.F.R. section 24.3(b).

   The evidence of record shows that a complaint was filed with the U. S. Department of Labor on November 27, 1985, alleging that complainant was fired from his job on November 26, 1985 as a result of his action earlier that month while on duty, in which he called the local police department to report a chemical spill. The November 27, 1985 complaint was filed with the Occupational Safety and Health Administration (OSHA) of the U. S. Department of Labor. On January 24, 1986, OSHA notified the respondent that a complaint had been filed alleging a violation of section 11(c) of the Occupational Safety and Health Act.

   The respondent was then notified on November 9, 1987 that the Wage and Hour Division of the U. S. Department of Labor had received a complaint on November 4, 1987 alleging discriminatory employment practices in violation of the Federal Water Pollution Control Act. On November 24, 1987, the respondent was notified of the results of the Wage and Hour Division's compliance actions. In this correspondence, the respondent was held to be required to pay the complainant lost wages from November 26, 1985 to October 18, 1987, excluding certain time periods when he was employed elsewhere, and to expunge of the adverse personnel actions from the complainant's record. By telegram dated November 27, 1987, the employer appealed the action of the Wage and Hour Division and requested an administrative hearing on the matter.

   Under the regulations at 29 C.F.R. § 18.40(d) and § 18.41, an administrative law judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to a summary decision. Id.

   With regard to the employer's first argument, that the complainant has failed to state a claim under the Federal Water Pollution Control Act, the evidence (including pleadings, etc.) in its current state, is insufficient to support such an allegation. The respondent has provided no affidavits or other documentation of its allegation that no report was ever prepared concerning the alleged spill, or that proceedings under the Federal Water Pollution Control Act have not been brought against it. The respondent must be more specific in its allegations, and must provide sworn statements or other evidence to verify its contentions; otherwise, the case must proceed to hearing for a full inquiry into the alleged facts.

   With regard to the respondent's second contention, that the complainant did not comply with the thirty day filing requirement of 33 U.S.C.A. §1367(b), I find that the doctrine of equitable tolling can justifiably be applied to the facts of this case. Here, the initial complaint (November 27, 1985) was filed in a timely manner. The difficulty which is presented is that the complaint was filed with OSHA rather than with the Wage and Hour Division, which the regulations indicate is the proper forum for a complaint under the Federal Water Pollution

Control Act. 29 C.F.R. 24.3(d).

   However, in examining the considerations which might result in application of the equitable tolling doctrine, I note first that both OSHA and the Wage and Hour Division are units of the U. S. Department of Labor. The employee protection statute of the Federal Water Pollution Control Act, 33 U.S.C.A. §1367, requires only that the complaint be filed with the Secretary of Labor. The complainant has complied with the statutory requirement, with his OSHA-filed complaint. This case is distinguishable from School District of City of Allentown v. Marshall, 657 F. 2d 16 (3rd Cir. 1981), upon which the respondent relies, because in Allentown, in which the court refused to apply equitable tolling principles, the initial complaint was filed with the EPA, an agency completely outside of, and organizationally unrelated to, the office of the Secretary of Labor. The fact that the complainant's timely initial complaint here was filed with the appropriate department is a factor which supports application of the equitable tolling doctrine.

   A second factor which the courts consider in determining whether equitable tolling will be invoked is whether the complainant is or was represented by counsel. Hart v. J. T. Baker Chemical Corp., 598 F. 2d 829 (3rd Cir. 1;79). Here, the complainant has not had the benefit of legal representation. Thus, his filing with the inappropriate unit of the Labor Department is understandable and excusable, given his layman's status. The error in filing is more fairly attributed to the Department, which should perhaps have determined at an earlier date that the complaint was filed with the wrong departmental unit. However, the complainant should not be penalized for this departmental error or inefficiency by outright dismissal of his claim.

   Thirdly, the respondent's interpretation of the Allentown case as requiring the raising of the precise statutory claim but in the wrong forum for the application of equitable tolling principles, is somewhat erroneous. The Allentown court specifically acknowledged that the three situations enumerated therein as appropriate for the application of equitable tolling were not necessarily exclusive. Allentown, 657 F. 2d at 20. In addition, while in one sense the precise statutory claim was not raised in both the OSHA and Wage and Hour filings, one must

again consider the circumstances of the complainant's lay status and the department's role in initially assigning an interpretation to the facts of the case. The complainant raised the same set of facts in both the initial and later filings with the Department of Labor. The respondent was on notice of a potential violation with respect to those facts from January, 1986, when it received claim notification from OSHA. I find this case similar to Burnett v. New York Central Railroad, 380 U. S. 424 (1965), in which equitable tolling was applied to save an action in Federal court under the Federal Employer's Liability Act (FELA) from dismissal, when a timely FELA action had previously been filed in state court but was dismissed due to improper venue. As stated by the Court in Burnett, the petitioner "did not sleep on his rights but brought an action within the statutory period in the state court of competent jurisdiction. Service of process was made upon the respondent notifying him that petitioner was asserting his cause of action." 380 U.S. at 429.

   Similarly, Mr. Arthrell did not sleep on his rights but immediately after his firing alleged an unlawful practice on the employer's part before the U. S. Department of Labor. The Department shortly thereafter notified respondent of the complaint. The most that can be said is that the complaint was initially characterized by the Department as an allegation of a violation of the Occupational Safety and Health Act. but was later re-categorized as more appropriately a Federal Water Pollution Control Act complaint. However, the facts upon which the alleged violation was based remained the same, and respondent was given timely notice of the complaint's existence. Therefore, I find the complaint to be timely filed based upon equitable tolling considerations.

   For the above reasons, IT IS ORDERED that the respondent's motion for summary decision is DENIED. The case will be set for hearing at a later date.

       DANIEL L. LELAND
       Administrative Law Judge

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