90-SDW-2

In the Matter of

GAYLE EISNER
    Complainant

    v.

U.S. ENVIRONMENTAL PROTECTION AGENCY
    Respondent

   Although it remains unclear which law Complainant filed this action under, all of the statutes which could possibly be applicable require the complaints to be filed within 30 days of the action complained of. 42 U.S.C. § 7622(b)(1); 42 U.S.C. § 300 j-g(i)(2)(A); 42 U.S.C. § 6971(b); 33 U.S.C. § 1367(b); 42 U.S.C. § 9610(b); 15 U.S.C. § 2622(b)(1).

   The undisputed facts disclose that Complainant acknowledges receiving the termination letter about which she complains on January 12, 1990. That letter plainly fixed the effective date of discharge at January 18, 1990. Further, Respondent on January 25, 1990, mailed to Complainant copies of two personnel documents clearly indicating that she had, in fact, been terminated. The first document was the Standard Form 50 (SF-50) terminating her as of January 18, 1990. The second document was the Standard Form 2810 (SF-2810) indicating that her government health benefits would be terminated on the basis of her January 18, 1990 termination from federal service.

   Complainant's contention that she was not aware that her termination was "final" is totally without merit. Her argument that a former employee's pursuit of a possible internal remedy affects the finality of a termination date has been consistently rejected by the courts. Electrical Workers v. Robbins & Meyers, Ins., 429 U.S. 229 (1976); Delaware State College v. Ricks, 449 U.S. 250 (1980). But, even if her argument was Legitimate, the offer to accept a letter of resignation in exchange for the termination letter of January 12, 1990, hardly qualifies as internal procedure affecting termination. She would have been out of work in either event. Besides that, there is nothing in the record indicating that Complainant even wanted her job back.

   There is also no grounds demonstrated whereby the statute of limitations for filing the subject complaint could properly be equitably extended. There is no allegation that Respondent affirmatively mislead the Complainant in any respect and thereby lulled her into failing to preserve some right. Villasenor v. Lockheed Aircraft Corp., 640 F.2d 207 (9th Cir. 1981). There were no actions of someone other than the Complainant that were somehow misleading or constituted fraudulent conduct. Smith v. Mc Clammy, 740 F.2d 925 (11th Cir. 1984). In fact, no one anywhere ever held out any hope of reinstatement. "An employee's hope for rehire, transfer, promotion, or a continuing employment relationship... cannot toll the statute absent some employer conduct likely to mislead an employee into sleeping on his rights." Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir. 1982).

   Finally, there is no "continuing violation" present in this matter. Instead, the particular discharge involved here was a single certain event, and Complainant was obliged to seek relief from it within the statutory 30 day period or leave it altogether. To be sure, the termination letter of January 12, 1990 and the following documents vividly reflecting a final discharge were of a permanent nature and should have triggered Complainant's awareness of and duty to assert her rights. Berry v. Board of Sup'rs of LSU, 715 F.2d 971, 980 (5th Cir. 1983), cert. den. 479 U.S. 868.

   Finding that Complainant was discharged on January 18, 19900 and put on written notice of the discharge six days before, but

filed the instant action no earlier than March 22, 1990, some sixty four days following her termination, the subject complaint must be and is hereby dismissed for failure to comply with the statutory thirty day filing time limit required by Congress.

   So ordered this 27th day of March 1991 in San Francisco, California.

       JAMES J. BUTLER
       Administrative Law Judge

JJB:mj