Date: 2-11-97

Case No. 95-TSC-16

In the Matter of

ERIC BECKMANN
    Complainant

    v.

ALYESKA PIPELINE SERVICE COMPANY
    Respondent

    This case arises under the Toxic Substances Control Act ("TSCA"),15 U.S.C. § 2622; the Clean Air Act (CAA) 42 U.S.C. § 7622; the Water Pollution Control Act ("the Clean Water Act" ("CWA"), 33 U.S.C. § 1367 and the Solid Waste Disposal Act ("SWDA") 42 U.S.C. § 6971 ("the Acts"). The complainant is Eric Beckmann, a former employee of the respondent, Alyeska Pipeline Service Company ("Alyeska"). He alleges that his termination was motivated by retaliation for protected activities under the Acts.

    The complainant was terminated by the respondent in 1992. His complaint was received by the Wage-Hour Division on November 14, 1994. On May 9, 1995, the Wage Hour Division advised him that its investigation did not verify that discrimination was a factor in his termination. Wage-Hour found that a condition of his employment with Alyeska was to make his residence in Valdez, Alaska, that complainant did not comply with this condition, that the driving force behind his termination was the misleading personal residence information he provided the firm and the mistrust and resentment this generated in Alyeska management and that it was not possible to conclude that he was terminated because of protected safety related disclosures. On May 16, 1995, the complaint requested an administrative hearing.

    The parties agreed that a significant threshold issue in this

matter is whether the complainant timely filed his complaint with Wage-Hour. The applicable statutes all have 30-day statutes of limitations, but Wage-Hour did not receive a written complaint until almost two years after complainant's termination. After completion of discovery limited to timeliness issues, Alyeska has moved for summary decision on the grounds that the complaint is untimely and can not be excused by the doctrine of equitable tolling.

    The standards governing motions for summary decision and for failure to state a claim on which relief can be granted in environmental whistleblower cases are set forth in Varnadore v. Martin Marietta Energy Systems, DOE, 95-CAA-2, 92-CAA-5, 93-CAA-1, 94-CAA-2, 94-CAA-3, 95-ERA-1 (ARB June 14, 1996) slip op. at pp. 15-16. Such motions are governed by 29 C.F.R. §§ 18.40 and 18.41. The standards set forth by the United States Supreme Court in the cases of Anderson v. Liberty Lobby, 477 U.S. 242 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986) are applied to motions for summary decision. A party opposing such a motion is not permitted to rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue of fact for the hearing. To defeat a properly supported motion for summary decision, the non-moving party must present affirmative evidence. If the non-movant fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, there is no genuine issue of material fact and the movant is entitled to summary decision.

    I find that there are no disputed issues of material fact for a hearing in this matter as to whether complainant's complaint was timely. (Respondent's motion for summary decision ("Alyeska motion") at 3-9; Complainant's opposition to respondent's motion for summary judgment ("C. Opp.") at 2.) Complainant was terminated by Alyeska at the end of October 1992, and was aware no later than December 24, 1992 that higher management had rejected his appeal to reverse the termination. As respondent argues, assuming for purposes of the motion that complainant did not receive the December 14, 1992 letter from its vice-president of operations C.D. Davidson affirming his termination until December 24, 1992, the last date for complainant to have filed a timely complaint with Wage-Hour under the applicable thirty-day statutes of limitations was January 25, 1993.

    The complainant opposes the motion for summary decision on the grounds that, because Alyeska entered into negotiations with Ms. Holen by their attorney Mindy Kornberg, offered him a settlement, and contacted the Joint Pipeline Office ("JPO"), Alyeska waived any claim of untimeliness. He concludes that "Mr. Beckmann maintained a reasonable belief that Alyeska and its agents, expressed, implied or apparent were addressing his claims." (C. Opp. at 4).

    The complainant's arguments are without merit. The authorities under which complainant brings these actions expressly require a complaint to be filed with the Secretary of Labor.¹ Complaint has offered no evidence of any basis for a reasonable belief that Alyeska is somehow an agent of the Secretary of Labor which might address his claims under these Acts.

    Complainant has also offered no evidence that the "claims" that were addressed by Alyeska during the period of negotiations with Ms. Holen had anything to do with the Acts. The record indicates that, on the contrary, until his letter to Wage-Hour, complainant had failed to articulate any connection between his grievances against Alyeska and any activity protected by the Acts.

    I find that, as a matter of law, the doctrine of equitable tolling does not excuse the late filing here. That doctrine, which is available only in special circumstances, applies where a showing is made that:

(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 or her rights; or

(3) the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum.

¹Such a complainant must also be in writing. 29 C.F.R. § 24.3 (c). Nevertheless, even if, as complainant argues, he orally filed his original complaint by telephone in June 1994 with Wage-Hour(C. Opp. at 4), and an oral complaint were permissible, his claim would not be timely, as it is outside the thirty day limitations period.