also prevailed at the first appellate level. At the second appellate level the case was remanded to the trial court, where it was pending as of the date of this hearing. (T-319,320). The Workers' Compensation Board had paid to the District $1000.00 in the case. The District held the check for between six months and one year before releasing the money to Complainant.

   On Thursday, March 3, 1983, Complainant requested that his class be relocated because of exposed asbestos in the nearby boiler room. (T-250. The next day, Friday, air testing devices were installed in the building by TAKA, a company which conducts such tests. One device was placed in the corridor outside Complainant's classroom. Another was placed in the boiler room. (T-253). That afternoon Mr. Chambers, another teacher, saw complainant in front of the air testing device in the corridor waving an envelope. The two men went to speak with Mr. John Fitzsimmons, the Principal at Harbor Junior School. Mr. Fitzsimmons was in a meeting. When the meeting concluded Mr. Fitzsimmons went to speak with the two men. Complainant had left for the day but Mr. Fitzsimmons spoke with Mr. Chambers. Mr. Chambers related what he had seen in the hallway. He stated that he believed Complainant had tampered with the device. He wanted the test declared invalid. (T-261). Mr. Fitzsimmons spoke with Complainant on Monday, March 7. Complainant denied that Mr. Chambers had seen such a situation.

   When the test results were delivered to the School District they stated that one of the devices had been contaminated by asbestos. TAKA reported that large pieces of a foreign substance, later identified as crysotile asbestos were in the filter. The pieces of asbestos were of such a size that they could not have been airborne and must have entered the testing device by being shaken or placed on the filter. Moreover, TAKA, reported that the type of asbestos found in the filter was not present in any building material used in the school in the vicinity of the testing device. Once TAKA finished its report, it destroyed or disposed of the actual crysotile asbestos particles.

   Mr. Fitzsimmons received a written report from Complainant on March 9, 1983 and another from Mr. Chambers on March 12, 1983. These reports related to the incident in the corridor.

   In March and April, 1983 Complainant was excluded from two meetings of the industrial arts teachers. The first meeting was called by Mr. Morrow and his assistant on the Grievance Committee, Mr. Gomez. The meeting was called due to concerns on the part of industrial arts teachers that Grievance Committee representation of Complainant might - jeopardize

their jobs. Claimant was not invited to this meeting in order that his colleagues be free to speak their minds. Mr. Gomez took minutes of this meeting. During the meeting Mr. Morrow explained that Complainant had filed a grievance, that the grievance was legitimte under the contract, and that the Grievance Committee was therefore obligated to represent him. (T-329). The teachers who spoke out most strongly against Complainant were Mr. Maver, Mr. Chambers, and Mr. Galacci. The latter two were particularly concerned about losing the considerable amount of seniority which they had accrued.

   The second meeting was called approximately one or two weeks after the first meeting by the Industrial Arts Chairman, Mr. Marsh. Again Complainant was excluded, as were two other teachers who had joined in Complainant's initial 1979 grievance. The topics of discussion at this meeting were revealed at a third meeting, at which Complainant was present. The third meeting revealed that a teachers were still afraid of losing their position because of Complainant's actions and the publicity they were generating. (T-331).

   Complainant was directed to see a psychiatrist and on May 7 and May 13, 1983 he did so. Mr. Morrow accompanied him on these visits. (T-322, 323). Mr. Morrow testified that during the 6 years that he served as Chairman of the Grievance Committee, (T-303), no other teacher had been requested to see a psychiatrist.

   During May, 1983, the month of claimant's annual evaluation, the District required the claimant to get a doctor's certificate for absences over the past 4-5 years. Complainant produced a certificate stating that his absences were due to cancer treatment. (T-323). Dr. Almenoff did not consider the certificate to be adequate and claimant was docked for these sick days. (T-324). Complainant was also docked a day's pay for attending a workers' compensation hearing. (T-324). Complainant felt that he was entitled to take a personal day to attend the hearing and he filed another grievance over this matter. Complainant attempted to settle the matter with Dr. Almenoff, who told him she knew nothing of the grievance. She stated that Complainant needed to start with Mr. Fitzsimmons at the school level rather than with her at the district level. (T-326,327). When Complainant spoke with Mr. Fitzsimmons the next day, Mr. Fitzsimmons stated that he had cleared his action of docking Complainant a day's pay with Mr. Almenoff. (T-327). Under normal circumstances the school principal has no authority to dock a teacher's pay. (T-328).

   After reviewing the psychiatrist's report and the statements given to him by Complainant and Mr. Chambers, Mr. Fitzsimmons recommended that

charges be brought against Complainant for tampering with the air testing device. (T-232). This recommendation was forwarded to Dr. Almenoff as part of Complainant's annual evaluation.

   The School District initiated proceedings against Complainant under Section 3020a of the State education law on June 15, 1983, and suspended him on or about June 17, 1983. (CX-60).

    On July 5, 1983, Complainant sent a letter to the Environmental Protection Agency (EPA). That letter stated, in pertinent part:

I call your attention to the recent Newsday article, Sunday July 3, 1983. As a direct result of may "blowing the whistle" on illegal and improper Asbestos work in the Baldwin schools while students occupied the buildings, I was suspended by Board of Education Resolution on June 15, 1983. I received this notice of suspension by certified mail on June 18, 1983.

(CX-49). On August 30, 1983, the EPA issued a noncompliance report indicating that the School District was violating EPA rules and regulations regarding asbestos.

   On July 13, 1984 a panel set up under the State education law recommended that claimant should be fined $2,000.00 and reinstated. On August 8, 1984 the District Board of Education authorized the filing of an appeal to the Commission of Education of New York State. The district requested that Complainant be terminated. On April 10, 1985 the Commissioner issued a decision authorizing the School District to suspend claimant for one year without pay. On April 17, 1985 the Board of Education suspended claimant effective April 18, 1985.

   While this process was proceeding, Complainant filed a complaint under the Toxic Substances Control Acct with the U.S. Department of Labor. That complaint, dated October 6, 1984 and addressed to "Mark D. Cowan, Chief of Staff, United States Labor Dept., (for Secretary of Labor)," alleges that the School District, in retaliation for Mr. Sawyers actions, sent him to see a psychiatrist. The complainant further asserts that because the School District was unable to use the doctor's report to terminate claimant, it resorted to a Section 3020a suspension. (RX-1).

   The Wage and Hour Division of the Department of Labor issued its decision on February 15, 1985. That decision held that Complainant was a protected employee engaging in protected activity within the ambit of the Toxic Substances Control Act. The decision ordered that Complainant be reinstated to his position as an Industrial Arts teacher at Harbor Junior

High School. The decision also contained the following paragraph:

   This letter will also notify you that if you wish to appeal the above findings and remedy, you 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 Vanguard Building, Suite 700 1111 - 20th Street, N. W. Washington, D. C. 20036

   The decision was sent out on February 15 by certified mail to "Dr. Roland Jones, Baldwin School District, Hastings and Millburn, Baldwin, N. Y., 11510." Dr. Jones is the Superintendent of Schools. The return receipt was stamped February 19, 1985 by the Post office and signed by one Barbara Foster.

   The administrative offices of the School District were closed from Saturday, February 16, 1985 through Sunday, February 24, 1985. The letter was officially stamped in the Superintendent's office as received by the School District on February 25, 1985. This same day, the District responded to the Department of Labor determination by filing an appeal via telegram. The telegram, recognizing a potential timeliness issue, stated:

The Baldwain Union Free School District hereby formally appeals from the determination of Julius R. Chenu dated February 15, 1985 in the above captioned matter and respectively requests a hearing on the matters at issue. The District Administrative Offices were closed during the week of February 18, 1985 and no administrative or clerical staff were present. Consequently the request for a hearing is timely. This is especially so since Mr. Lemar had inddicated that he would send me individual modification (sic) of the area directors determination. Although I am listed as the copy recepient of the February 15 letter I have still not received it on the ordinary course of business. Copies of this telegram have been sent to Mr. Sawyers and Mr. Chenu.

The telegram was signed by Lawrence W. Reich.

   Dr. Almenoff testified that Barbara Foster holds the job of cleaner, or custodian, in the High School. The Superintendent's office is located in a building approximately one and one half miles from the High School. (T-50, 51). Although the letter was addressed to the Superintendent's office, it appears that it was delivered to the high school because the administrative offices were closed. (T-51). Testimony was received which stated tht although it was highly unlikely that Ms. Foster would have been working in the administrative offices during the time in question, it was a possibility. (T-52).

   There are three times during the school year when the Baldwin School District closes. These periods are during the Christmas, Spring, and Easter vacations. None of the witnesses were able to testify as to how the receipt of mail during these periods is handled. Dr. Amenoff, however, was able to state custodial staff would be present at both buildings during vacations.

   Lawrence Reich, Esquire, is an attorney for the District and the author of the February 25, 1985 telegram. (T-62). He first became aware of the Department of Labor determination through a conversation with Dr. Jones earlier that same day. At this time Dr. Jones informed Mr. Reich that he had received notification from a Mr. Chenu of the Department of Labor of a right to seek a formal hearing in connection with the Sawyers matter. (T-63).

   At some point before the Department of Labor determination was issued, Mr. Reich made the specific demand of a Mr. Lamarr in the Wage and Hour Division that he receive copies of any notices sent to the District. Mr. Lamarr agreed to this and Mr. Reich did, fact, receive a copy of the determination by certified mail on Tuesday, February 26, 1985 (T-64, 65).

   Mr. Reich testified that he was employed in the office of the counsel to the State Education Commissioner prior to his current position. The firm with which Mr. Reich is currently employed acts as counsel to 16 school districts. Based upon his 19 years of dealing with different school districts, it is Mr. Reich's opinion that during short holiday periods, school administrators are usually not present at work (T-77). He found that the general pattern among the school districts represented by his firm is to have a Spring break, during which time no administrators work (T-80).

I. Timeliness of the Appeal

   Complainant alleges that because Respondent's appeal was not filed in a timely fashion, it should be dismissed. Specifically, Complainant argues that the signature of Barbara Foster on the Post Office receipt dated February 19, 1985 constitutes valid receipt of the letter for timeliness purposes. From this premise Complainant concludes that appeal must necessarily be filed by February 24, 1985 in order to be timely.

   A good deal of testimony at the hearing turned on the issue of whether Barbara Foster was authorized to sign for and/or to accept mail for the School District. I find this issue to be immaterial to the issue of official notice.

   As Respondent notes, the School District is an organization of sorts rather than an individual. As such, only certain individuals within its system will posses enough authority to speak for it, to enunciate its policies, or to take responsibility for wrongs committed by it. Dr. Jones, as superintendent of Schools and head of the District is one such person. Mr. Reich, as appointed counsel, is, under certain circumstances, another. Notice of legal proceedings to one of these me would be sufficient to constitute notice to the District.

   Whether or not Ms. Foster had authority to sign for mail is an issue distinct from the issue of whether she had authority to open, read, and act on the comments of such mail on behalf of the District. It is clear to me that notice to a cleaning person, and hence to Ms. Foster, does not contitute receipt of notice to the District. I find, therefore, that the District did not receive notice of the Department of Labor determination until Monday, February 25, 1985. The District's request for hearing was, therefore, well within the five day limit.

   Even assuming, arguendo, that Ms. Foster's acceptance of the letter on February 19, 1985 did constitute valid receipt of notice under the regulations, I find the telegram to fall within the prescribed time limitation. Complainant argues that the School District, "as a municipal subdivision of the state has a responsibility to accept mail from the United States Postal Office in a timely and efficient fashion. (Brief of Claimant 7). Complainant asserts that because the District chose to shut itself down during mid-February it should not be allowed to "bootstrap" itself up, thereby avoiding the timely response requirement. Complainant's brief states:

... There is nothing in the Code of Federal Regulations or statutory law which precludes the type of service effected here. Moreover the Civil Practice laws and Rules of the State of New York also do not make allowance for the close of business offices on a business day in the context of a municipal subdivision of the state.

(Brief of Claimant 7).

   In addressing this issue I look first to the language of the provision itself. Section 29.4(d)(3)(i) of Part 29 of the Code of Federal Regulations states in pertinent part:

(3)(i) If on the basis of the investigation the Administrator determines that the alleged violation has occurred, the notice of determination shall include an appropriate order to abate the violation, and notice to the respondent that the order shall become the final order of the Secretary unless within five calendar days of its receipt the respondent files with the Chief Administrative Law Judge a request by telegram for a hearing....

(emphasis added).

   The language of the regulation clearly states that the time limit for filing a request for hearing is five days from receipt of the notice of determination. In formulating such a time frame it is necessary that the Secretary balance the benefit given to the Respondent with the limited time in which Complainant could be faced with a possible reversal to its detriment. When the Secretary promulgated Section 24.4(d)(3)i) it was entirely within his discretion to use the word "issuance," or such language, instead word "receipt" underscored above. Had the provision been so promulgated it would have read as follows:

...the order shall become the final order of the Secretary unless within five calender days of its issuance the respondent files with the Chief Administrative Law Judge a request by telegram for a hearing....

In such a manner could a strict five day time limitation have been imposed. As the language currently stands, however, I find that the Secretary intended to allow for limited flexibility in the time granted for filing a request for hearing. Having so found I find that where the last day of the five day period falls on a Sunday, the filing of a hearing request on the next business day will constitute a timely submission. Complainant concedes that the five day period closed on Sunday, February 24, 1985 and that Respondent's request for hearing was filed on Monday, February 25,

1985. Claimant has not "pulled itself up by its bootstraps" by taking advantage of the vacation closing. Indeed, the school administrative offices are closed every weekend, as are most businesses throughout the State. I conclude that the appeal is timely.

II. Timeliness of the Original Complaint

   Having ascertained that the appeal was filed in a timely fashion, I now reach the merits of the appeal. Respondent alleges that Complainant's original complaint, dated October 6, 1984, should be barred as untimely pursuant to 15 U.S.C. § 2622. That section states in pertinent part:

Any employee who believes [he] has been discharged or otherwise discriminated against ... may, within 30 days after such alleged violation occurs, file ... a complaint with the Secretary of Labor ... alleging such discharge or discrimination ...

15 U.S.C. § 2622(b)(1).

   Section 24.3 of Part 29 of the Code of Federal Regulations provides:

(b) Time of filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

   In order to determine whether the complaint was filed in a timely fashion it is necessary to examine the complaint itself. The complaint states, in pertinent part:

In retaliation, the school district sent me to a psychiatrist. When the district found that they could not use the psychiatrist's report to get rid of me, they resorted to the 3020a suspension I am currently involved in those proceedings and only recently by Board of Education resolution, a vote was passed on a resolution to continue the suspension.

(RX-1).

   Complainant was sent to see the psychiatrist May, 1983. He was subjected to the Section 3020a suspension on or about June 17, 1983. His claim with the Department of Labor was not filed until October 6, 1983,

more than three months after the June 17 suspension. It is clear that this filing does not fall within the time set forth by the Act and related regulations.

   Complainant, however, asserts that the doctrine of equitable tolling should apply to extend the period of filing. Under that doctrine the time period set for hearing requests is analogized to a statute of limitations. The "statute" will be tolled for equitable reasons where a party can prove that such a tolling is necessary. In the present case, Complainant asserts that because he filed a timely complaint with the Environmental Protection Agency within the 30 day period, the time limit should have been tolled as of the date of that filing, July 5, 1983.

   It is true that the doctrine of equitable tolling will apply where "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, (3rd Cir. 1981) quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2nd Cir. 1978). This restriction on equitable tolling must be "scrupulously observed." Allentown, 657 F.2d at 19.

[T]he filing of a claim in the wrong forum must also be timely before it will toll the appropriate limitations period. The tolling exception is not an open-ended invitation to the courts to disregard limitations periods simply because they bar what way be an otherwise meritorious cause. [Courts] may not ignore the Legislative intent to grant the defendant a period of repose after the limitations period has expired.

Id. at 20.

   The parties agree that Complainant did, indeed send a letter to the EPA on July 6, 1983. Respondent asserts, however that because the letter did not constitute a "claim," the above-noted exception for equitable tolling is not applicable. I find that the Allentown case is controlling under these circumstances.

   In that case, also filed under the Toxic Substances Control Act, complainant wrote to the EPA "praising an official for his appearance on a television program about asbestos in school buildings. [The Complainant] narrated his own experiences in Allentown and his receptiveness to advice and help." Id. at 18. The Third Circuit in that case noted that this

letter did not constitute a complaint.

   In the present case Complainant's letter apprised the EPA of Complainant's situation and, in fact, used the language "blowing the whistle." (CX-49). Nowhere in that letter, however, does Complainant make a prayer for relief. I therefore find that Complainant's letter to the EPA did not constitute a "complaint" or "claim."

   Having so found, it necessarily follows that the doctrine of equitable tolling does not apply to the present case. Complainant's original complaint was not filed in a timely manner.

   Because I have found that Complainant's original complaint was untimely filed, I find it unnecessary to address the issues of whether the Department of Labor rendered its initial decision within the proper time limitations and whether Respondent discriminated against Complainant for engaging in protected activity.

   In accordance with 29 C.F.R. § 24.3 I recommend that the Secretary dismiss the complaint.

       ROBERT J. SHEA
       Administrative Law Judge

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