WHISTLEBLOWER NEWSLETTER
United States Department of Labor Office of Administrative Law Judges Law
Library
December 6, 1996
This newsletter covers the materials that became available during
the period from November 8 to December 6, 1996
RESPONDENT'S ADDRESSING OF SAFETY CONCERN
[STAA Digest V A 2 d]
In Patey v. Sinclair Oil
Corp., 96-STA-20 (ALJ Aug. 2, 1996), adopted (ARB Nov. 12, 1996), Complainant
expressed concerns about the method for refueling locomotives. Respondent fully addressed
those concerns, but Complainant still felt uneasy about the refueling and informed Respondent
that he did not wish to do it in the future, after which Complainant was discharged. The ALJ
found that Complainant's valid safety concerns had been corrected by Respondent, and that his
other concerns were simply apprehension on the part of Complainant and did not constitute
protected activity.
SETTLEMENTS; SIDE AGREEMENTS MUST BE REVEALED; FUTURE
REQUIREMENT OF CERTIFICATION THAT NO SIDE AGREEMENTS EXIST
[N/E Digest XVII G 6]
In Biddy v. Alyeska Pipeline Service
Co., 95-TSC-7 (ARB Dec. 3, 1996), the parties to a whistleblower settlement
submitted a nominal settlement to the
Department for approval, and did not reveal the existence of a side agreement constituting the
bulk of the total settlement amount. Indicating that it was "perturbed at counsels'
persistence in attempting to maintain the fiction of two separate, independent settlement
agreements, when the information contained in both agreements is directly required by the Board
in carrying out its statutory responsibilities...", slip op. at 2 (citation omitted), the Board
held that:
In the future, the Board will require all parties requesting approval of
settlements of cases arising under the employee protection provisions of the
environmental protection statutes to provide us with the settlement documentation for any
other claims arising from the same factual circumstances forming the basis of the federal
claim, or to certify that no other such agreements were entered into between the parties.
Slip op. at 3.
TIMELINESS OF COMPLAINT; CONTINUING VIOLATION APPLIES TO
DISCRIMINATION, NOT UNDERLYING SAFETY VIOLATION
[N/E Digest III C 1]
In Bachmeier v. Tombstone
Pizza, 96-STA-33 (ALJ Nov. 25, 1996), the ALJ had issued an order to show cause why the matter should not be dismissed for
lack of
a timely filing by the Complainant. In response, Complainant, who had been discharged more
than 180 days prior to the filing of the complaint, asserted that the safety violation underlying his
complaint had continued to occur until recently. The ALJ noted that the timeliness of a
complaint may be preserved under the theory of a continuing violation where there is an
allegation of a course of related discriminatory conduct and where the charge is filed within the
requisite time period after the last alleged discriminatory act. The ALJ found, however, that
"[a] continuing violation for the purposes of timeliness requires continuous discrimination,
not a continuation of the asserted safety violation. The discriminatory acts must be sufficiently
related to constitute a course of discriminatory conduct." Slip op. at 2. Finding no
evidence of a continuing violation, or other extenuating circumstances, the ALJ recommended
dismissal of the complaint.
TIMELINESS; DISTINCTION BETWEEN PURPOSES OF EQUITABLE TOLLING
AND EQUITABLE ESTOPPEL
[N/E Digest IV A]
The doctrine of equitable tolling focuses on whether a duly diligent complainant was
excusably ignorant of his or her rights. Equitable estoppel focuses on whether the employer
misled the complainant and thereby caused the delay in filing the complaint. Prybys v.
Seminole Tribe of Florida, 95-CAA-15 (ARB Nov. 27, 1996).
TIMELINESS; INTERNAL GRIEVANCE PROCEDURE OR OTHER COLLATERAL
REVIEW DOES NOT TOLL FILING PERIOD
[N/E Digest IV C 6]
Pursuit of a remedy within an employer's organization or by means of some other
collateral review does not toll the filing periods provided for by employee protection provisions.
SeePrybys v. Seminole Tribe of
Florida, 95-CAA-15 (ARB Nov. 27, 1996), citing International Union of Electrical, Radio & Machine Workers v. Robbins &
Myers, Inc., 429 U.S. 229 (1976) and Greenwald v. The City of North Miami Beach,
587 F.2d 779 (5th Cir. 1979).
TIMELINESS; EQUITABLE ESTOPPEL; INDUCING COMPLAINANT TO DELAY
FILING
[N/E Digest IV B]
In Prybys v. Seminole Tribe of
Florida, 95-CAA-15 (ARB Nov. 27, 1996), Complainant alleged that a misrepresentation was made to management, prior to the
termination decision, indicating Complainant was prepared to resign. This alleged
misrepresentation, however, did not invoke equitable estoppel regarding the timeliness of
Complainant's complaint to DOL because Complainant did not allege any statements that misled
him regarding the fact that his employment was terminated.
Similarly, Complainant alleged that statements by tribal officials lead him to believe that
his termination would be reviewed at the next tribal council meeting. Such statements, however,
did not invoke equitable estoppel because they do not indicate that tribal officials suggested that
the termination decision would be reversed if he refrained from filing a federal complaint.
The Board noted that within the context of employee protection legislation, equitable
estoppel "concerns whether the employer 'misrepresented or fraudulently concealed from
[complainant] facts necessary to support his complaint(s) or induce[d] him to delay filing' a
complaint." Id., slip op. at 7, quoting In Re Kent, 84-WPC-2,
slip op. at 4 (Sec'y Apr. 6, 1987).
TIMELINESS; EQUITABLE TOLLING; CONSULTATION WITH ATTORNEY
[N/E Digest IV C 5]
Although not reaching the issue in the case sub judice squarely, the Board in
Prybys v. Seminole Tribe of Florida,
95-CAA-15 (ARB Nov. 27, 1996), noted a distinction in the caselaw between merely consulting
with an attorney and with retaining an attorney for purposes of imputing counsel's presumptive
knowledge of a statute of limitations to the prospective client for
purposes of equitable tolling analysis. The Board concluded that the cases of Mitchell v. EG
& G (Idaho), 87-ERA-22 (Sec'y July 22, 1993) and Kent v. Barton Protective
Services, 84-WPC-2 (Sec'y Sept. 28, 1990), aff'd 946 F.2d 904 (11th Cir. 1991),
cert. denied, 112 S.Ct. 1284 (1992), involved more than preliminary contact with an
attorney, and therefore were "consistent with the principle that 'not all contacts with an
attorney are sufficient to impute constructive knowledge.' Bass v. Burleigh and
Associates, 727 F.Supp. 1030, 1032 and n.5 (M.D. La. 1989)(imputation of constructive
knowledge appropriate 'only when the attorney-client relationship is of some significant
duration.' [citing Jacobson v. Pitman-Moore, Inc., 573 F.Supp. 565, 569 (D. Minn.
1983)])." Slip op. at 8 n.5.
TIMELINESS; ALTHOUGH TIME-FRAME FOR FILING IS SHORT, IT MUST BE
SCRUPULOUSLY OBSERVED
[N/E Digest IV A]
In Prybys v. Seminole Tribe of
Florida, 95-CAA-15 (ARB Nov. 27, 1996), the Board observed that the 30-day
statutory limitations period for filing of environmental employee protection complaints is
extremely brief, but that the filing period was the mandate of Congress. The equitable tolling
doctrine does not permit an agency to disregard a
limitations period merely because it bars what may otherwise be a meritorious cause; restrictions
on equitable tolling must be scrupulously observed. Citing School Dist. of City of
Allentown
v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981).