DATE: April 28, 1999

CASE NO: 1999-ERA-00011

In the Matter of:

JOAN PASTOR,
    Complainant

    v.

VETERANS AFFAIRS MEDICAL CENTER,
    Respondent

Appearances:

    Gloria M. Gilman, Esq.
       For the Complainant

    Christopher J. Perillo, Esq.
       For the Respondent

Before: RALPH A. ROMANO
    Administrative Law Judge

   This is a proceeding brought under the employee protection provisions of the Energy Reorganization Act of 1974, 42 U.S.C. 5851 (hereinafter "the Act").

   Hearing was held in Philadelphia, Pennsylvania on April 12, 1999 and April 15, 1999.¹ Pending is Respondent's motion to dismiss on the ground of statute of limitations (ALJ 11).²

   Complainant was terminated from Respondent's employ by letter dated April 30, 1998, effective May 15, 1998 (Tr.105; CX 26).³ She filed her complaint herein on January 19, 1999 (Tr.5). At a discovery deposition on September 23, 1998,⁴ her supervisor, Dr. Dunkman, allegedly⁵ testified, inter alia, about circumstances surrounding the re-hire by Respondent, after Complainant's termination, of Mr. Ken Gebhart, a former co-worker of Complainant,⁶ as well as about Dr. Dunkman's plan, made prior to Complainant's termination, to rehire Mr. Gebhart (ALJ 2). These facts underlying Dr. Dunkman's deposition testimony first became known to Complainant on the date of this deposition.

   Complainant asserts that her complaint filing, facially outside the 180 day limit imposed under 42 U.S.C. 5851(b)(1), is timely under the doctrine of equitable tolling. That is, that since Respondent's stated reason for termination, i.e. lack of funding (CX 26), misled, and thus prevented, her from asserting her rights to redress under the Act (by concealment of the true, discriminatory reason for the discharge),⁷ the statue of limitations should not begin running until the September 23, 1998 discovery by her of the facts disclosed by Dr. Dunkman's deposition testimony.

   The law in the Third Circuit, insofar as invoked here as regards Complainant's asserted basis for equitable tolling relief, is clear. Oshiver v. Levin, et al, 38 F.3d 1380 (1994), adopting the ruling reached in Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924 (5th Cir. 1975). There is no question that "...where a defendant actively misleads the plaintiff regarding the reason for the plaintiff's dismissal, the statute of limitations will not begin to run, that is, will be tolled, until the facts which would support the plaintiff's cause of action are apparent, or should be apparent to a person with a reasonably prudent regard for his or her rights." Oshiver, at 1388.

   It is equally clear, however, that the statute of limitations shall not be suspended from running after a point in time where "...[a plaintiff's] suspicions were sufficient to lead a reasonable person to inquire further into the reasons for her discharge." Hart v. J.T. Baker Chemical Company, 598 F.2d 829 (3rd Cir., 1979), at 834. In Hart, plaintiff's initial letter communication to the governmental agency charged with

   In this case, Complainant had formally charged, by letter dated June 22, 1998⁸ , that she was terminated by Respondent in retaliation for her disclosures of violations of rules and regulations of the Nuclear Regulatory Commission (NRC) (GX 2).⁹ In this letter, she also indicated that "It is highly suspect that the research funds would have been cut..." (Id, at 3). I find these June 22, 1998 statements such as to be inconsistent with Complainant's proposition that it was not until her September 23, 1998 deposition discovery that "...facts which would support [her] cause of action [became] apparent, or should [have become] apparent to a person with a reasonably prudent regard for ...her rights". Oshiver, at 1388. At least as early as June 22, 1998,¹⁰ , by reason of these letter statements, Complainant could not be said to have been lulled or misled by Respondent into perceiving that her discharge was non-discriminatory. At least as early as that time, "...her suspicions were sufficient to lead a reasonable person to inquire further into the reasons for her discharge," and "...the facts upon which her charge [of discrimination] was predicated were known to her...". Hart, supra, at 834.

   Moreover, Complainant testified that in November, 1997 she overheard Dr. Dunkman tell Mr. Gebhart that he, Dr. Dunkman, would fire Complainant for her reports of violations. This overheard conversation, of course, would be some direct evidence of an unlawful discriminatory termination. Counsel argues that Complainant thereafter minimized the value of this prospective evidence upon learning of the (apparently legitimate) stated reason for her termination, along with the fact of Mr. Gebhart's (apparently logical) simultaneous termination. Thus, upon and through her May, 1998 termination, Complainant is said to have been under the continued deception of Respondent that her termination was lawful, until the September, 1998 deposition testimony. But, as noted, it cannot reasonably be concluded that as of June 22, 1998, Complainant was still deluded or lulled into thinking that the termination was for the Respondent-stated reasons! At that time, she was fully pursuing her remedy for discriminatory retaliation for her NRC disclosures before the MSPB, highlighting her suspicion that the stated reason for termination was pretextual. There then existed no inaction on the part of Complainant by reason of Respondent's deception and concealment of the alleged true reason for her termination.

   Counsel also suggests that since not "...all of the facts upon which [Complainant's] charge of discrimination was predicated were known to [Complainant]..."¹¹ earlier than September 23, 1998, equitable tolling should apply. But, counsel confuses "facts" as used in Hart, supra, with evidence. While Dr. Dunkman's deposition testimony may well be used as evidence in ultimately proving the merits of her case (and, circumstantial evidence, at that, in addition to the direct evidence of the noted overheard conversation),¹² that testimony is not a "fact" in the context used by the Court in Oshiver, supra, to describe those elements of proof necessary to support the proposition of when one "...could first have reasonably discovered that her dismissal may have been discriminatory." Hart, supra., at 834.

   Finally, it is noted that while the facts in Reeb, supra, appear to be strikingly similar to those here, thus justifying the tolling of the statute of limitations, in Reeb, supra, there was no evidence, as here, of intervening behavior on the part of plaintiff clearly inconsistent with a state of being continually lulled into inactivity in lawfully redressing a wrong, or of continued ignorance through deception up until the time of discovery of new information.¹³ . I find that Complainant did not first discover that the stated reason for her termination might be pretextual (as in Meyer and Reeb) upon Dr. Dunkman's deposition testimony. Such deposition testimony, however, may well have provided further evidence of the discriminatory conduct complained of (as in Hart).

   Further, I am mindful of the universal rule that equitable tolling is to be used sparingly, and with caution, Seitzinger v. Reading Hospital, 165 F.3d 236 (3rd Cir. 1999), and that Complainant has had her full "day-in-court" before the MSPB¹⁴ , which, I am informed, also has jurisdiction to grant the relief sought herein under the Act.

   I find that the filing of Complainant's complaint was untimely under 42 U.S.C. 5851(b)(1).

   On the basis of the foregoing, I recommend the Complaint be DISMISSED.

      RALPH A. ROMANO
       Administrative Law Judge

Dated: April 28, 1999
Camden, New Jersey

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).

¹ Complainant produced two of her three witnesses on her case in chief. Continuation of the trial, tentatively scheduled for the end of May, has been aborted due to the within disposition of this matter. The evidentiary hearing of this case included all issues, including Respondent's defense of statute of limitations (see Adm. Law Judge Exhibit - ALJ 10).

² Respondent's motion to dismiss includes other grounds, unnecessary to address.

³ References are: Tr. - for trial transcript, CX - for Complainant's exhibits, and GX - for Respondent's exhibits.

⁴ Held in the context of a proceeding brought by Complainant before the Merit Systems Protection Board (MSPB).

⁵ The actual interpretation of this testimony is in dispute. For purposes of the within ruling, however, Complainant's interpretation, as here noted, is accepted as correct.

⁶ Mr. Gebhart had been terminated, effective May 15, 1998 at the same time as Complainant (Tr.106).

⁷ These alleged facts are to be, and are herein, taken to be true, or "...as alleged...", Oshivar, infra., at 1388.

⁸ This letter to the U.S. Office of Special Counsel lays the foundation for a proceeding before the MSPB .

⁹ Which charge forms the basis of her complaint here for violation of the Act.

¹⁰ At which time, even had Complainant then filed her complaint, such filing would not have been timely under the Act. 42 U.S.C. 5851(b)(1).

¹¹ Oshiver, supra, at 1387, emphasis added.

¹² Counsel argues that this statement would be excludable under the hearsay rule. I suggest it is admissible as an exception thereto - admission against interest.

¹³ I find the decision reached in Meyer v. Riegel Products Corp., 720 F.2d 303 (3rd Cir. 1983), to be distinguishable for the same reason.

¹⁴ Trial has been held, and a final decision is awaited by the parties.