Royce J. Hannel ("Hannel"), the Claimant, filed a complaint with the Department of Labor alleging that he was terminated from his employment with Midwest Industries, Inc. ("Midwest") because he had contacted the Iowa Department of Water, Air and Waste Management ("IDWAWM") regarding fears of contamination of his drinking water. The IDWAWM investigated and found that Midwest had been dumping waste acetone in the Ida County Landfill. on or about December 11, 1984, Midwest admitted that it had been dumping the acetone in the landfill for the last two years at a rate of about 30 gallons per month. Hannel was terminated on January 11, 1984, and filed his complaint against Midwest on March 29, 1985.

   On April 3, 1985, the U. S. Department of Labor advised Hannel that since over 60 days had passed since his termination, the complaint was not timely filed. Subsequently, Hannel filed a request for a hearing, which was held in Sioux City, Iowa, on August 14, 1985. At the hearing, both parties were afforded full opportunity to be heard, present evidence, and to examine and cross-examine witnesses. Additionally, while closing arguments were not heard, both parties were given the opportunity to submit post-hearing briefs.

Issue Presented

   The issue at the hearing was limited to whether the Department of Labor's determination that Hannells filing of his complaint was barred for failure to meet the 30-day filing requirement was correct.

Background

   In order to discuss the issue of whether Hannells complaint was timely filed, the following facts are assumed to be true without so deciding.

   Midwest is a manufacturing company located in Ida Grove, Iowa, which produces farm equipment, boat trailers, and, in the division where Hannel worked, model airplanes. Midwest does not operate under a collective bargaining agreement and does not use seniority principles for layoffs.

   Hannells employment at Midwest began in 1979 when he was hired as a welder. Later, Hannel operated the fiberglass machinery that formed the radio-controlled airplanes. Hannel

testified that when lack of business necessitated layoffs in 1980, Midwest kept him working after two layoffs of employees who had been employed longer. Further, Hannel testified that on at least one occasion, Byron Godbersen, the owner of Midwest, told him he was an excellent employee and expressed satisfaction with his performance.

   In the summer of 1984, Hannel began to become concerned that waste acetone he knew Midwest was dumping in the landfill approximately 2.2 miles north of his farm was contaminating his well water. On November 30, 1984, Hannells wife contacted IDWAWM regarding the acetone. Subsequently, Midwest was cited for improperly disposing of the acetone on or about December 14, 1984.

   Hannel was laid off from work on January 11, 1985, allegedly due to lack of work. The complaint that is the basis for this action was filed with the Department of Labor on March-23, 1985, over 60 days after Hannel was terminated. In the meantime, on January 1, 1985, Hannells wife did inform IDWAWM by telephone that her husband's employment had been terminated.

Positions of the Parties:

Whether Hannel's complaint is time-barred by
his failure to meet the 30-day filing requirement.

   The Act's 30-day filing period has been held not to be jurisdictional and both parties agree that equitable tolling will be allowed under the proper circumstances. School District of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981). Based on its reading of Supreme Court cases, the Third Circuit Court of Appeals held there were at least three situations where equitable tolling should be allowed: (1) where the defendant has actively misled the plaintiff respecting the cause of action; (2) where the plaintiff has in some extraordinary way been prevented from asserting his rights; (3) where the plaintiff has timely raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. Id. at 20.

   It is not contended by Hannel that he was either misled by Midwest regarding his rights under the Act or that he was on some extraordinary way prevented from exercising his rights. The only argument presented for invoking equitable tolling is that Hannel raised the precise issue, the unlawfulness of his discriminatory discharge with IDWAWM rather than with the proper agency, the U.S. Department of Labor.

   The question in this case reduces to whether the Hannel's wife contacted IDWAWM the intention was to make a charge that Hannel had been unlawfully terminated by Midwest for his filing a charge with IDWAWM initially. Hannel testified that when the telephone conversation took place he was unaware that he had a claim against Midwest for an unlawful discriminatory act. (Tr. 24). Later Hannel testified that it was not until after the conversation with IDWAWM that he discovered that there was legal protection available for retaliatory actions taken against employers who report violations of the Act by their employers. (Tr. 25).

   It is clear from the above that Hannel could not have raised the precise issue in the wrong forum. The discriminatory discharge could only have been raised if Hannel had been aware that some protection existed. By admitting that he did not learn of the protection available to him until after the telephone call to IDWAWM, Hannel has completely negated the possibility that this issue could have been raised at that time.

   On the basis of the foregoing, and the record as a whole,

find and conclude that Hannel has presented no circumstances that allow for equitable tolling of the filing period. Since the complaint was clearly filed after the expiration of the 30-day filing requirement, the Complaint is barred.

   Based on the foregoing, and the record as a whole, I hereby recommend that the complaint be dismissed in its entirety.

       Daniel Lee Stewart
       Administrative Law Judge

Dated: September 27, 1985