DATE: September 28, 1990
CASE NO. 84-WPC-2

IN THE MATTER OF

CHARLES A. KENT,
    COMPLAINANT,

    v.

BARTON PROTECTIVE SERVICES,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    On February 12, 1988, Administrative Law Judge (ALJ) Reno E. Bonfanti issued a Recommended Decision and order (R.D. and O.) dismissing the discrimination complaints filed by Charles A. Kent under the employee protection provisions of the Federal 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 at 29 C.F.R. Part 24 (1986) as untimely filed.

    As summarized by the ALJ:

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 conduct any investigation, 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 [sic]. 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 [6], 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.

R.D. and O. at 1-2.

    Secretary Brock's 1987 Remand Decision and Order held that the 1984 ALJ hearing was so procedurally flawed by the ALJ's failure to provide for Barton's participation as party respondent that he could not decide the timeliness of Kent's complaints at that time. Id., slip op. at 7-10. Accordingly, he remanded the case to the ALJ for a new hearing in which Barton was to be given full opportunity to participate as respondent. Id. at 10. The ALJ was also directed to consider various equitable tolling issues gleaned from the earlier ALJ proceeding, including whether Barton misrepresented or fraudulently concealed from Kent facts necessary to support his complaints or induced him to delay filing them. In this regard, the Secretary cited Kent's alleged meeting with Barton officials, who allegedly told him that he was still a Barton employee and that they were attempting to find a post for him.

The ALJ should determine whether such a meeting occurred and whether Kent could reasonably assume it to be in the nature of a rehire or imminent recall, regardless of what management's true intentions and motives may have been at the time. At least from that date, unless time-barred, Barton's failure to reassign Kent might be actionable, if such failure was the product of prohibited discrimination.

The ALJ should consider whether such a meeting or any other acts by Barton lulled Kent into inaction regarding his cause of action.

Id. at 12 (citations omitted). Citing School District of the City of Allentown v. Marshall, 657 F.2d 16, 19, 21 (3d Cir. 1981) and Hicks v. Colonial Motor Freight Lines, 84-STA-20, Secretary's Decision, December 20, 1985, the Secretary also directed the ALJ to consider whether the filing period should be tolled on the basis of Kent's alleged resort to the wrong forum (the Equal Employment Opportunity Commission) for the assertion of his claim. Id. at 12-13.

    The ALJ held a de novo hearing on August 19 and 20, 1987, consistent with the Secretary's 1987 Remand Decision and Order. The ALJ found "not credible," R.D. and O. at 10 (emphasis in original), Kent's assertion of contact with the Equal Employment

Opportunity Commission (EEOC) within the requisite thirty days of receipt of Barton's termination letter of June 8, 1982.

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 [from] 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 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 [School District of the City of Allentown v. Marshall, 657 F.2d 16 (3d 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 [in] 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.

R.D. and O. at 8-10 (emphasis in original).

    The ALJ also found that Barton had not engaged in any equitable tolling activities which precluded Kent from the timely filing of his complaints.

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 complaint(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 of action.

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.

R.D. and O. at 13-14. The ALJ summarized and evaluated the evidence for any equitable tolling activities by Barton as follows:

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 nonresponse 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-stated (sic) 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).

R.D. and O. at 10-11.

    On February 23, 1988, Mr. Kent submitted a memorandum and a letter to Ms. Beverly Miles, Office of Senator Wyche Fowler, Jr., Atlanta, Georgia, requesting that Mr. Kent's enclosed copy of pages 1, 2, 6, and 7 of the Hearing Transcript (Tr.) and Mr. Kent's personal Comments, which he characterized as exceptions or objections to the R.D. and O., id. at 1, be submitted to the Secretary for review and consideration. Although represented by counsel, Mr. Kent chose to submit his exceptions pro se, rather than through his attorneys, who did not file any pleadings with the Secretary on his behalf.¹ Upon receipt of Mr. Kent's documents as forwarded by Senator Fowler's office,² the Office of Administrative Appeals sent copies to Respondent and its counsel. On April 27, 1988, Respondent filed Barton Protective Services' Reply to Claimant's Objections and Exceptions to the Recommended Decision and order.

    As indicated above, the ALJ relied in part on Kent's September, 1983, conversation with the Georgia Board of Examiners to support his finding that no meeting took place in April, 1983, at which Barton officials told Kent that he was still a Barton employee. R.D. and O. at 10-11. Kent argues that if "I still felt that in September of 1983 that I had been unjustly terminated by Barton in June of 1982, it is clearly obvious that

Comments at 2-3 (emphasis in original). Based upon the evidence as a whole, I agree with the ALJ's conclusion that Kent spoke with an investigator of the Georgia Board of Examiners.³ In any event, even if Kent never spoke with anyone at the Georgia Board of Examiners, the other record evidence supports, and I agree with, the ALJ's conclusion, that Kent did not have a meeting with Barton management in April, 1983, during which Barton indicated that Kent remained an employee, and that Barton did not mislead Kent or cause him to delay the filing of his complaints. R.D.

¹ Mr. Kent's memorandum concluded: "Ms. Miles, your careful review of this will explain why I have chosen to go through your office and not my attorneys'." Similarly, page 1 of his Comments states: "[N]otwithstanding the fact that I am represented by able counsel in this case, for compelling reasons I find that for the record I must offer these comments . . . to insure that I am afforded the fundamental right of due process and the full opportunity to address an issue in which I have a vital interest."

² Similarly, Mr. Kent had requested that then Congressman Fowler's office submit Kent's request for the earlier hearing in his case to the Chief Administrative Law Judge. See Secretary's 1987 Remand Decision and Order at 4-5.

³ Although Kent's Comments do not specifically challenge the ALJ's conclusion that the April, 1983, meeting with Barton officials did not occur, I disagree with Barton's Reply to Claimant's Objections and Exceptions to the Recommended Decision and order at 5-6, n.2, that "Kent's objection to this one piece of supporting evidence for that conclusion is entirely irrelevant." Page 3 of Kent's Comments allude to his continued allegation of the April, 1983, meeting: "Thirdly, the aforementioned statement contained in this investigator's memorandum is inconsistent with statements and testimony contained in the record made by me concerning my employment status with Barton subsequent to April of 1983." Moreover, even if Kent's Comments contained no reference to the April, 1983, meeting he has not waived his position before the ALJ since the presentation of his position does not require the filing of an exception on this or any other finding. See 29 C.F.R. § 24.6(b) (1989).