Date:  January 7, 1994


Case No. 93-ERA-53

IN THE MATTER OF 

RONALD GAVENSKY
     Complainant

     v.

NORTHEAST NUCLEAR ENERGY CO.
     Respondent

Before:  JEFFREY TURECK
          Administrative Law Judge

RECOMMENDED SUMMARY DECISION AND ORDER

       By letter dated March 5, 1993, complainant filed a complaint
against Northeast Nuclear Energy Company alleging violations of
the Energy Reorganization Act of 1974, as amended (hereinafter
"ERA"), 42 U.S.C. §5851, and the implementing regulations at
29 C.F.R. Part 24.  By letter dated April 8, 1993 from Richard D.
Sansone, Assistant District Director, Wage and Hour Division,
Employment Standards Administration of the U.S. Department of
Labor, complainant was notified that his complaint was being
denied.  He was notified in that letter that:

          if you wish to appeal the [denial of his claim],
          you have a right to a formal hearing on the 
          record.  To exercise this right you must,
          within five (5) calendar days of receipt 
          of this letter, file your request for a hearing 
          by telegram to:

          The Chief Administrative Law Judge, U.S. Department
          of Labor ....

(Emphasis added).  It is undisputed that complainant took no
action in regard to the dismissal of his claim until July 8,
1993, on which date he states he spoke to Mr. Sansone and asked
him how he could go about appealing the dismissal (see
complainant's letter dated August 27, 1993, hereinafter "Request 
[PAGE 2]
for Hearing").  Nevertheless, complainant did not request a
hearing until he wrote a letter dated August 27, 1993 addressed
to the Chief Administrative Law Judge.  That letter was not
mailed until August 30th, and was not docketed in this Office
until September 13, 1993.  

     Respondent filed a Motion for Summary Dismissal on
December 7, 1993, contending that the complainant failed to file
a timely request for hearing.  Complainant filed a response to
that motion by letter dated December 11, 1993.  In response to a
telephone call from the complainant to my office on December 21,
1993, complainant was invited to file any further arguments in
response to the Motion for Summary Dismissal.  He
indicated that he had nothing new to raise.  I find that this
case is appropriate for a summary decision, since "the record
taken as a whole raises no genuine issue of material fact so as
to warrant a hearing."  Miriello v. Carolina Power and Light
Company, 87-ERA-17 (Decision and Order to Show
Cause of the Secretary, Jan. 23, 1992).[1]   It is
recommended that respondent's motion be granted.[2]  

              FINDINGS OF FACT AND CONCLUSIONS OF LAW

     Section 24.4(d)(2)(i) of the regulations applicable to
whistleblower proceedings under the ERA states:

          If on the basis of the investigation the 
          Administrator determines that the complaint 
          is without merit, the notice of determination
          shall include, or be accompanied by notice to 
          the complainant that the notice of determination
          shall become the final order of the Secretary
          denying the complaint unless within five calendar
          days of its receipt the complainant files with the
          Chief Administrative Law Judge a request by telegram
          for a hearing on the complaint.
  
(Emphasis added).  There is no contention by the complainant that
he did not receive the determination denying his complaint in a
timely manner.  Nor is there any contention that he filed a
request for hearing prior to the August 27, 1993 letter to the
Chief Administrative Law Judge.    Accordingly, it is clear that
the complainant did not file a request for hearing within five
days after receipt of the determination denying his complaint. 
Rather, he waited 4 1/2 months to do so.[3]   

     Although the request for hearing is therefore clearly
untimely, that does not end the inquiry.  For the five-day period

[PAGE 3]
in which to file a request for hearing under Part 24 is not
jurisdictional, and is subject to equitable tolling.  Cf.
Miriello v. Carolina Power and Light Co., supra, slip
op. at 7.  But equitable tolling is only appropriate in very limited
circumstances.  These were enumerated in another DOL
whistleblower case as follows:

          "[(1)] the defendant has actively misled the 
          plaintiff respecting the cause of action,
          [(2)] the plaintiff has in some extraordinary 
          way been prevented from asserting his rights,
          or
          [(3)] the plaintiff has raised the precise 
          statutory claim in issue but has mistakenly 
          done so in the wrong forum."

School District of the City of Allentown v. Marshall, 657
F.2d 16, 20 (3d Cir. 1981), quoting Smith v. American
President Lines, Ltd., 571 F.2d 102 (2d Cir. 1978). 
Complainant has not alleged any facts which would provide a basis
for equitable estoppel under any of these rationales.  Clearly,
nothing he has alleged would meet either the first or third test
set out in Allentown v. Marshall.  In regard to the second
test, in his request for hearing complainant stated that he did
not file a timely appeal of the Assistant District Director's
denial of his complaint because of "physical and mental problems
...."  He stated that he "feared physical harm would come to me
namely death by heart attack if I went to a hearing."
(Emphasis in original).  Regardless of whether claimant's self-
diagnosis of his physical condition was correct, he was wrong in
believing he could unilaterally toll the five-day period for
filing a request for hearing.  Rather, it was incumbent upon him
to file the request for hearing in a timely manner, at which
point he could have moved for a delay in scheduling his case for
hearing.  Moreover, that he was hospitalized for psychiatric
treatment in May does not provide a basis for failing to file a
request for hearing in April.  Nothing extraordinary prevented
complainant from filing a timely request for hearing.  

     Finally, in his response to respondent's Motion for
Summary Dismissal, complainant argues that the procedures for
whistleblower proceedings are "too technical for the average
person."  In general, he undoubtedly is correct.  That is why we
urged him to retain counsel.  But there was nothing complicated
or unclear with the Assistant District Director's notice that an
appeal of his decision had to be filed within five days;
moreover, there is nothing to indicate that complainant was 
[PAGE 4]
unaware of this notice or did not understand it.  Rather, the
complainant chose to ignore this instruction.  His cognizant
failure to file his request for hearing within the five-day
period set out in the regulations does not provide a basis for
equitable tolling.

     Accordingly, I find that the request for hearing was
untimely by over four months, and it is recommended that this
case be dismissed.   

                        RECOMMENDED ORDER

     It is recommended that this case be dismissed due to the
untimely filing of the request for hearing.



                              ___________________________
                              JEFFREY TURECK
                              Administrative Law Judge






[ENDNOTES]
           
[1] The record of this case consists of the following: 
Respondent's Motion for Summary Decision, with attached
Exhibits A (District Director's acknowledgement of filing of
complaint), B (Assistant District Director's denial of the
complaint), and C (Complainant's request for hearing);
Complainant's October 5, 1993 Statement and Witness List,
November 6, 1993 Allegation of Discrimination, November 8, 1993
Notice of Determination and Witness List, and December 11, 1993
response to respondent's Motion for summary judgment; and DOL's
Administrative File. 

[2] It should be noted that the complainant is unrepresented by
counsel in this proceeding.  It appears that he went to see an
attorney on March 29, 1993 (see Administrative File at 1),
but it does not appear that the attorney ever represented him
before DOL.  Complainant was advised by me in orders issued on
September 28th and November 15th to retain an attorney, but
indicated in a telephone conversation with my law clerk on
November 19th that he has not been able to get an attorney. 
Since claimant offered no hope of being able to retain counsel,
there was no alternative but to proceed with the case.

[3] Even if it were to be found that the complainant's
conversation with the Assistant District Director on July 8, 1993
was a request for hearing under the regulations, a conclusion I
reject, that conversation took place three months after the
determination denying the complaint was issued.  The findings of
fact and conclusions of law in this decision would be just as
applicable if July 8, 1993 was considered to be the date the
request for hearing was filed.