........................................


CASE NO:  95-WPC-0002


Fred Odom
    Complainant

  v.

Anchor Lithkemko/International Paper
    Respondent

........................................

Appearances:

     Lori Tetreault-Putz, Esq.
       For the Complainant

     Charles F. Henley, Jr., Esq.
       For the Respondent

Before:  RALPH A. ROMANO 
         Administrative Law Judge


            ORDER OF REMAND TO DISTRICT DIRECTOR

     This is a proceeding brought under the Federal Water
Pollution Control Act, 33 U.S.C. 1367 (hereinafter, "the Act").

     Respondent has moved to dismiss the complaint under 33
U.S.C. 1367(b) urging that Complainant filed his complaint
outside the thirty day limit specified in this section.[1]   The
parties filed their briefs on April 21, 1995.

     The parties have stipulated that the alleged discriminatory
action (Respondent's termination of Complainant from its employ) 
[PAGE 2]
occurred on September 12, 1994, and that Complainant mailed his
complaint to the Secretary of Labor on October 27, 1994, beyond
the thirty day limitation period.  Facially, these stipulations
would merit dismissal.  

     Mr. Odom advances several reasons why the time limit
violation should be excused[2] , but only one such reason
warrants consideration.  That is, that during the period of time
within which he may timely have filed his complaint (on October
5, 1994), he was telephonically informed by representatives of
the U.S. Department of Labor (DOL)[3]  that he had no right to
file a complaint with it because he did not report his alleged
environmental safety concerns other than to Respondent, and that
he could file a complaint with the EEOC, (U. S. Equal Employment
Opportunity Commission).  According to Mr. Odom, such advice was
tendered after he related all alleged operative facts surrounding
his situation, i.e., that he believed he was fired because he
reported environmental safety concerns to his employer.

     Respondent argues that Mr. Odom is less than credible in
this regard since: 1) his self interest taints such testimony,
and 2) because the Acting District Director of the Jacksonville,
Fla., DOL Wage and Hour Division, has shown by affidavit that
neither he nor the other investigators in his office have any
"present recollection" of the alleged telephone conversation with
Complainant, and that, in any event, if a telephone inquiry such
as Mr. Odom alleges, was in fact, made, neither he nor the other
investigators would have referred the caller to EEOC, but,
instead, consistent with procedure, would have provided
information to the caller regarding his right to file with it a
(whistleblower) complaint.

     I note first that Complainant testified consistently and
convincingly at both hearings (January 26, 1995 and March 10,
1995) relative to the details of his alleged telephone
conversations with DOL representatives.  Furthermore, he produced
telephone records corroborating his calls to DOL in D.C.  Under
intense cross-examination, his version of what occurred survived
intact without hint of contradiction, doubt or embellishment. 
Accordingly, I find Complainant's statement as to what occurred,
in relevant part, to be truthful and entirely credible.

     Moreover, even if I were to disregard the telephone call to
the Jacksonville, Fla. DOL office, there would remain the alleged
equally compelling (and uncontroverted) telephone discussion with
the D.C. DOL office in support of Complainant's contention.

     For these reasons, I am constrained to deny Respondent's 
[PAGE 3]
motion to dismiss as it has failed to sustain its burden[4]  to
establish that the complaint was untimely filed under 33 U.S.C.
1367(b).  I find, instead, that Complainant has credibly proven
that he was misled by the U.S. Department of Labor relative to
his right to pursue relief under the Act[5] , and thereby
entitled to equitable tolling of the statutory time limitation[6] 
for filing his complaint. Allentown v. Marshall, 657 F.2d
16 (3rd. Cir., 1981); Miller v. Marsh, 766 F.2d 490 (11th
Cir., 1985).

     As the within order is not dispositive of the merits,
reviewable on future appeal, if any, and, as such interlocutory
in nature, same is not transmitted by recommendation to the
Secretary of Labor for final order. 29 C.F.R. 24.6.

                            ORDER

     On the basis of the foregoing, it is hereby

     ORDERED, that this matter be and the same is
REMANDED to the District Director for investigation of the
merits of Complainant's complaint.



                                                          
                                   RALPH A. ROMANO
                                   Administrative Law Judge

Dated: April 28, 1995
Camden, NJ




[ENDNOTES]
              
[1]  The parties assert that in the event the subject motion to
dismiss is denied, the appropriate course of action would be a
remand to the U. S. Department of Labor, District Director,
Employment Standards Administration, Wage and Hour Division, for
his investigation of the merits of Complainant's claim.  I agree.

[2]  Including his busy and/or uncertain schedule, Respondent's
refusal to provide him his personnel folder, his ignorance of the
time limitation, and poor legal advice.

[3]  In Washington, D.C. and in Jacksonville, Fla.

[4]  The placement of which has been conceded by Respondent.

[5]  And thus prevented in an extraordinary way from asserting
his rights under the Act.

[6]  From October 5, 1994 until October 27, 1994 when Complainant
first learned of the time limitation.