May 27, 1998, in which he alleged that on March 27, 1998, one of the company trucks of Assured Transportation & Delivery, Inc., ("Assured") was involved in a hazmat spill in the City of Riverside. After he arrived on the scene and discussed the correct manner of cleaning up the spill with a captain of the fire department, he contacted his supervisor, Tony Montalte, who advised him to "get something and shore up the material in the bed of the truck, close the door and . . . go to a self serve car wash and hose it down the drain because if not it's going to cost us a small fortune to clean it up." Amato refused to dispose of the material in an improper way. Then, on March 30, 1998, he was replaced by a new branch manager, and during the next three days he was harassed and demoted three times. On April 2, 1998, he was suspended, and on April 9, 1998, he was fired.

   On May 28, 1998, the Occupational Safety and Health Administration informed Amato that it was dismissing his complaint without investigation because the complaint was not filed timely as required by Section 24.3(b) of 29 CFR 24. Amato then filed a timely appeal on June 9, 1998.

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

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   A hearing was held in Long Beach, California, on July 23, 1998, at which time the parties were afforded full opportunity to be heard and present evidence. Amato submitted Exhibits A through G which were admitted into evidence, and Assured submitted Exhibit 1 which was also admitted into evidence.

   Amato contends that he pursued this matter in a timely fashion and should not be penalized for not knowing the correct agency which could assist him concerning this matter.

   Assured contends that Amato's complaint was not filed with the appropriate administrative agency until May 27, 1998, which was well beyond the 30-day deadline prescribed by law.

Whether Amato's complaint is time-barred by his failure to file his complaint with the appropriate agency within 30 days.

   The Act's 30-day filing period has been held not to be jurisdictional under the proper circumstances. School District of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981); Sawyers v. Baldwin Union Free School District, 85-TSC-1 (Sec'y Oct. 5,

1988). In Allentown, which is cited with approval in Sawyers, the Third Circuit Court of Appeals held that 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; and (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 Amato that he was either misled by Assured regarding his rights under the Act or that he was in some extraordinary way prevented from exercising his rights. The only argument presented for invoking equitable tolling is that Amato raised timely the precise issue, i.e., the unlawfulness of his discriminatory discharge, with the Department of Industrial Relations of the State of California.

   The Toxic Substances Control Act provides that "[any employee who believes that the employee has been discharged or otherwise discriminated against . . . may . . . file . . . a complaint . . . alleging such discharge or discrimination." 15 U.S.C. §2622(b)(1). The Department of Labor regulations establishing Procedures for the Handling of Complaints under Federal Employee Protection Statutes, including the Toxic Substances Control Act, 29 CFR Part 24, provide in §24.3(c) that "[n]o particular form of complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions, with pertinent dates, which are believed to constitute the violation."

advised Amato that his complaint had been filed under the wrong section code, and this man made the following notations on the April 20, 1998, letter: "Incident 3-27-98--demoted next week & then terminated--filed within 30 days," and "Per complainant stated told fire department of unsafe conditions after by [sic] told by employer of chemicals in unsafe conditions--also, look at section 6310."(CX-D; Tr. 7).

   In a letter dated April 29, 1998, the assistant labor commissioner advised Amato that his complaint did not fall under any specific statutory discriminatory provisions of the Labor Code enforced by his agency. Thus, the Department of Industrial Relations was unable to proceed on Amato's behalf on the complaint (CX-E).

   According to Amato, approximately two weeks after the receipt of the April 29, 1998, letter and approximately one month from the time that he first complained to the Department of Industrial Relations, he saw the assistant district director of the U.S. Department of Labor and explained his situation to him (Tr. 8). The assistant district director telephoned the San Francisco office and the problem was transferred to a Mr. Charles E. Byers, a discrimination investigator for the Occupational Safety and Health Administration (CX-F; Tr. 8-9). Mr. Byers informed Amato that he would have to condense his March 27, 1998, memorandum (CX-C; Tr. 9). Amato then condensed his five page memorandum into one page (Tr. 9). This memorandum, dated April 25, 1998, was then forwarded to Mr. Byers on May 27, 1998 (CX-G). Then, on May 28, 1998, Amato was advised by letter that his complaint had not been filed timely (EX-1).

   Based on the foregoing, I hereby find that Amato's complaint was timely filed under the provisions of the Toxic Substances Control Act.

       DANIEL L. STEWART
    Administrative Law Judge

NOTICE: This Recommended 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, N.W., Washington, D.C. 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).