WHISTLEBLOWER NEWSLETTER
United States Department of Labor
Office of Administrative Law Judges Law Library

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. See Prybys 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).