Flynn v. OK Industries, Inc., 1999-WPC-1 (ALJ Jan. 13, 1999)

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USDOL/OALJ Reporter
Flynn v. OK Industries, Inc., 1999-WPC-1 (ALJ Jan. 13, 1999)

U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
(504) 589-6201

DATE: January 13, 1999

CASE NO.: 1999-WPC-1

In the Matter of

FORREST L. FLYNN, JR.,
Complainant,

against

OK INDUSTRIES, INC.,
Respondent.

APPEARANCES:

GARY W. UDOUJ, ESQ.
Post Office Box 2102
Fort Smith, Arkansas 72902-2102
On behalf of the Complainant

MATTHEW HORAN, ESQ.
Smith, Maurras, Cohen and Redd, PLC
Post Office Box 10205
Fort Smith, Arkansas 72917-0205
On behalf of the Respondent

RECOMMENDED ORDER GRANTING MOTION TO DISMISS

This claim is brought under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq., (1972). Specifically, Complainant alleges Respondent has violated the employee protection/ whistleblower provisions found in 33 U.S.C. § 1367.

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Procedural History

Complainant was employed as a lab technician in Respondent's wastewater treatment facility. His duties included wastewater testing and reporting on compliance with federal pollution standards. Complainant alleges that his supervisor falsified, or directed the falsification of, test results and methods. Complainant reported this to state officials and was referred to the Environmental Protection Agency ("EPA"). (See Exhibit 8 to Complainant's November 23, 1998 Brief (Original Complaint to U.S. Department of Labor, p. 1)).

Complainant suffers from some type of pre-existing mental illness (which appears to be stress/anxiety related).¹ After his report to the EPA, pressure and stress at work increased until May 5, 1998, when he went to the company nurse to explain his "whistleblowing" and the resulting stress. The nurse brought him to the personnel office, where he was suspended with pay pending an "investigation" of his pollution violation claims. (See Complainant Brief, p. 1; Exhibit 8, p. 2, Complainant's Brief).

Respondent then sought the release of Complainant's medical records for the stated purpose of determining whether he could safely perform his job duties while under duress. (See Complainant Brief, p.2; Exhibit 1, Complainant Brief). Complainant agreed to provide some records, and he signed a limited release on May 14, 1998. (See Complainant Brief, p.2). On June 26, 1998, Respondent's Director of Human Resources sent Complainant a letter stating he would be placed on leave without pay pending a review of his psychiatric status, and giving him until July 3 to produce his full medical record for review by Respondent's physician. (See id.). The letter indicates Respondent felt such action was warranted because Complainant allegedly had told his supervisor and the plant nurse that his "mental instability" was at a "suicidal-depression" stage. (See Exhibit 3, Complainant Brief). Complainant refused to sign the full release, and inquired by letter when he would be allowed to return to work and what could he expect upon his return. (See Complainant Brief, p.2; Exhibit 4, Complainant Brief). On July 1, 1998, Complainant's treating psychiatrist sent a letter stating that Complainant was fit to work, and that he presented no risk to himself or others. (See Complainant Brief, p.2; Exhibit 5, Complainant Brief). Respondent continued to insist on full disclosure of the medical records, and on July 10, 1998, sent Complainant a certified letter stating that his status had been changed to medical leave without pay. (See Complainant Brief, pp. 2-3; Exhibit 6, Complainant Brief). Respondent also stated the decision would not be reviewed until the requested records were received, nor would any phone calls from Complainant be accepted. (See

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Complainant Brief, p.3; Exhibit 6, Complainant Brief). On July 21, 1998, Complainant sent a letter to Respondent requesting his accrued vacation pay, information on cashing out his 401(k) plan, and information on medical leave/family medical leave. (See Complainant Brief, p.3; Exhibit 7, Complainant Brief). Complainant received no response. (See Complainant Brief, p.3).

Complainant's attorney then filed a Complaint with the Secretary of Labor ("Secretary") on August 19, 1998, via certified mail. (See Complainant Brief, p.3; Exhibit 8, Complainant Brief). On October 15, 1998 the Regional Supervisor for OSHA found the Complaint was untimely, and that Complainant had failed to provide evidence in support of tolling the time limits. (See Complainant Brief, pp.3-4; Exhibit 12, Complainant Brief). Complainant's Notice of Appeal to this office was filed October 22, 1998.

On November 9, 1998, a pre-hearing telephone conference was held; the parties agreed to file simultaneous briefs on November 23, 1998. A Motion to Dismiss Appeal was filed January 5, 1999, based on the claim that the Complaint is untimely.

Issues

Two related issues are presented:

1. Is the August 19, 1998 Complaint timely (based on the alleged non-response to the July 21, 1998 letter)?

2. Does the "continuing violation" doctrine apply, making the Complaint timely as to any other past acts of alleged discrimination?

Is the Complaint timely?

Section 1367 provides "whistleblower" protection for persons reporting violations of the Federal Water Pollution Control Act. The relevant portion here is subsection (b): "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 thirty days after such alleged violation occurs, apply to the Secretary of Labor for a review of such firing or alleged discrimination." (emphasis added). The Code of Federal Regulations also gives time limits applicable to such complaints: ". . . any complaint shall be filed within 30 days after the occurrence of the alleged violation." (29 C.F.R. § 24.3(b)(1)).

Since the Complaint was filed August 19, 1998, in order for it to be timely, it must describe discriminatory/ retaliatory behavior within the 30 days prior to the filing of the Complaint. Respondent argues that the last possibly discriminatory/retaliatory act it performed was placing Complainant on unpaid medical leave on July 10, 1998, and if Complainant wished to complain about this, under the time limits set by the act he was required to do so by August 12, 1998. (See Respondent's Brief, p.1). Complainant has not argued that any of the

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principles of equitable tolling apply, and therefore, at least as to Respondent's actions on July 10, the Complaint is untimely. Of course, the same is also true of any earlier incidents of alleged discrimination.

Although Complainant has alleged a number of discriminatory incidents, it appears that the only one which could be timely is Respondent's failure to answer Complainant's July 21 letter. Complainant argues that Respondent's failure to respond, and the failure to provide Complainant with the benefits requested in the letter,² are violations of § 1367. (See Complainant Brief, pp.4-5). Since this denial occurred sometime after July 21, it would be within the pre-filing 30 day period, and therefore Complainant argues his Complaint is timely, at least as to this particular allegedly discriminatory act. (See Complainant's Brief, p.5).

However, Respondent argues that even if its non-response is seen as discriminatory, the Complaint is still untimely since it was received by the Secretary on August 25, 35 days after the July 21 letter. Respondent claims that the date of receipt is controlling under the "Rules" (See Respondent's Brief, p.1); however, Respondent provides no citation in support, and the Code of Federal Regulations clearly states that in these types of claims, "For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing." 29 C.F.R. § 24.3(b)(1). Therefore the Complaint is deemed filed as of August 19, 1998.

Respondent also points out that the July 21, 1998 letter and its failure to respond were not cited in the original complaint to the Secretary.³ (See Respondent's Brief, p.2). The July 21 letter is first mentioned in a letter from Complainant to Secretary dated August 27, 1998, more than 30 days after the letter was sent. However, assuming that the failure to respond to the July 21 letter is a violation of § 1367, it is impossible to accurately date such a violation.

I find no case squarely addressing whether failure to respond is a violation within the meaning of the statute; however, certain cases do provide interesting comparisons. Decisions usually find that timeliness of a complaint is judged by when the allegedly discriminatory action is taken, not necessarily when the effects of such an action are felt. Thus, even though the particular effects of a discriminatory act may extend into the future, it is the time of the act itself which matters. For example, Hadden v. Georgia Power Co., 89-ERA-21 (Sec'y Feb 9, 1994) found that repeated denials of re-employment were not a continuing violation, and each denial was not a separate discriminatory act; the denials were merely the continuing effect of the earlier decision barring re-employment.

If the reasoning of Hadden is applied to the present case, I think it is clear that the non-response to the July 21 letter can not be seen as a separate act of

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discrimination. Instead, it appears to me that the non-response is simply an effect of Respondent's July 10 letter to Complainant. In that letter, Respondent placed Complainant on leave without pay and stated:

We will not reconsider this decision until after we review your records. We will not receive calls from you on this matter, until after we have received your records. . . . I have made it very clear that we will proceed no further without the ability to assure ourselves about the danger you may present to yourself and others.

(Exhibit 6, p.1-2, Complainant's Brief). Certain similarities are readily apparent: the July 10 letter from Respondent refusing to discuss the matter further is similar to the decision in Hadden to bar re-employment; Complainant's July 21 letter can be likened to repeated applications for re-employment. In other words, the non-response to Complainant's letter is simply an effect of the July 10, 1998 letter from Respondent which cut off contact between the parties. (See also, EEOC v. McCall Printing Corp., 633 F.2d 1232, 1237 (6th Cir. 1980)(repeated refusals for relief from a discriminatory act do not constitute new acts of discrimination)).

I am also persuaded by Respondent's argument regarding the dangers of allowing a claimant to simply "reset the clock" on his own initiative. Under Complainant's interpretation of the law, an employee may revive an otherwise time-barred claim at any time by his own act, e.g., mailing a letter. If this is allowed, the only way an employer in a similar situation could avoid committing a possibly discriminatory act is to give in; if the employer does not, or simply ignores the letter, then that decision would be the subject of a discrimination claim. (See Respondent's Brief, p.3-4). This can not be the intent of the law.

Therefore, I find the Complaint is untimely since it was not filed within 30 days of a discriminatory act as required by 33 U.S.C. § 1367.

Does the "continuing violations" doctrine apply?

Complainant argues that Respondent's prior acts of discrimination should be considered under the "continuing violations" doctrine. If this is found to apply, then the Complaint would be timely as to these earlier violations. These alleged violations include:

1. Complainant's immediate suspension with pay pending an investigation after he informed Respondent of his reports to the EPA;

2. Placing Complainant on medical leave status after he refused to sign a medical release (which he believes would have violated his rights under federal law);

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3. Respondent's refusal to receive calls or discuss any other matter with him until he signed the medical release;

4. Threats of termination for insubordination if he continued to call the company to inquire about his status and benefits;

5. Violations of Respondent own employee handbook and policies by placing him on medical leave without pay;

6. Disparate treatment of Complainant and his manager, even though Respondent had information that the manager had violated federal pollution laws.

(See Complainant's Brief, p.5).

Complainant acknowledges the usual rule that the limitations period begins to run from the date a complainant learns of an employer's "final decision." However, Complainant argues the "continuing violation" doctrine should apply to make all his claims of past violations timely. Both parties have cited Connecticut Light & Power Co. v. Secretary of the U.S. Dept. Of Labor, 85 F.3d 89 (2d Cir. 1996), which sets out a two part test for the "continuing violation" doctrine. The court found that the general 30 day limitation was inappropriate where the alleged discrimination was not a discrete event, but was instead a negotiating tactic used over a period of months. The court explained the doctrine this way: "in cases where the plaintiff proves i) an underlying discriminatory policy or practice, and ii) an action taken pursuant to that policy during the statutory period preceding the filing of the complaint, the continuing violation rule shelters claims for all other actions taken pursuant to the same policy from the limitations period." (Id., p. 96).

As discussed above, this is a two part test; if either part is not satisfied, then the doctrine does not apply. Thus, if there is no act within the statutory period, then there is no reason to look for the policy/pattern of discrimination. Since I have already found there was no discriminatory act within the thirty days prior to the filing of the Complaint, then the "continuing violation" doctrine does not apply. Thus, the Complaint is untimely as to any past acts of discrimination.

ORDER

It is therefore ORDERED that:

Complainant's appeal be denied, as the complaint is untimely as to all alleged acts of discrimination.

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So ORDERED this the 13th day of January, 1999 at Metairie, Louisiana

RICHARD D. MILLS
Administrative Law Judge

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).

[ENDNOTES]

¹ Although the exact nature of Complainant's mental condition is not specified, he has been receiving psychiatric treatment since May of 1995. (See Exhibit 5, Complainant's Brief). My comment on the nature of his condition is based on a letter to Complainant from Respondent, wherein Respondent states Complainant told other workers that his "mental instability goes through three stages: anxiety, panic, and suicidal-depression. . . ." (Exhibit 3, Complainant's Brief).

² In his letter of July 21, 1998, Complainant requested his accrued vacation pay, and information on both his 401(k) plan and on family/medical leave. (See Exhibit 7, Complainant's Brief).

³ The letter to the Secretary discusses Complainant's initial suspension with pay, his refusal to sign the medical release, his change in status to medical leave without pay, Respondent's refusal to accept phone calls, Respondent's alleged violation of its own employee handbook, and Respondent's failure to suspend Complainant's supervisor who allegedly violated federal pollution laws. Complainant's July 21 letter and the alleged non-response are never mentioned.