(Rx-26). Consistent
with his testimony at the hearing, Mr. Malphurs also noted for
the file that "Dr. Kang wanted to talk about the NRC and his
reasons related to his responsibilities in that regard. I told
him repeatedly that this was entirely budgetary, that many very
tough decisions would have to be made and would be." Mr.
Malphurs testified that he did not recall exactly what was
discussed, but noted it was nothing of substance.
According to Dr. Kang, Mr. Malphurs told him that "I think you
are intentionally trying to make this Institution look bad....
[You) purposely didn't do your job. You then... are blaming the
Institution(sic] for your wrong doing." (Tl-89). When Dr. Kang
asked why he was being terminated, Mr. Malphurs allegedly
responded, "[w]ell, I wish could fire (you] with what you have
done, but that's not the reason I'm firing you. We just consider
all the factors and we cannot no -- we no longer don't need you."
(Tl-90). Dr. Kang testified that during this meeting he was
given the option of resigning, when Mr. Malphurs stated, "this is
my decision, but if you -- only thing you have option is that you
may resign. The final day your working days, November 29, so you
still have three weeks. I will wait. If you change your mind,
you resign, I will happily accept your resignation. My door is
wide open, you can come in anytime to discuss further, but I'll
let you know that you have no option -- no other options, you are
part-time...." (Tl-91).
Although the termination letter did not state any specific reason
for termination, Dr. Kang testified that, from the beginning, he
"absolutely" felt that the real reason was the problems with the
NRC. (T2-154).
That afternoon, Dr. Kang called Mr. Proskin for advice. He also
called Dr. Gross, the Director of Nuclear Medicine for VADC. Dr.
Gross, Dr. Kang's former supervisor at AMC, was outraged at the
action, and told him to seek a six-month extension and then
resign. After talking to Dr. Gross, Dr. Hang informed Mr.
Proskin of what Dr. Gross suggested. Mr. Proskin told Dr. Kang
to wait until he received a response from the letters he was
sending to Mr. Malphurs.
*. November 11, 1991 - (Rx33), according to Dr. Kang, Dr. Flesh
mentioned that he spoke to Dr. Gross, who had suggested that AMC
give Dr. Kang, at least, a few months extension of employment.
(Tl-93). Dr. Flesh "said he will consider it if I really want
to. .. sign on the paper stating that I will voluntarily resign
after the end of...those few months.... (Tl-93). Dr. Flesh
testified to the contrary, stating that after he received the
letter, he never offered Dr. Hang any alternatives to
termination. (T2-91). However, Dr. Flesh testified that he
suggested that Dr. Kang resign prior to the termination decision
back in June and July 1991.
*. November 13, 1991, Mr. Proskin sent a letter to Mr. Malphurs
declaring that he is representing Dr. Kang in all matters
relating to the VA. (CX-AA). The letter went on to "demand that
Dr. Kang be reinstated, since my investigation has revealed that
it is absolutely necessary to have a second physician in Nuclear
Medicine, and I believe that your motivation was improper if not
illegal. I am very concerned since the only conclusion I can
reach for Dr. Kang's dismissal seems to be the report of the NRC
which has squarely put the blame for all of the problems on the
Administration which is headed by you." The letter continued, "I
must point out to you that I am reviewing all avenues in regard
to this matter. ... I am investigating legal and other ways to
review this matter. I would suggest that in the best interests
of the VA Hospital and all concerned, you reinstate Dr. Kang to
his original position. I have initiated investigation into
various proceedings both administrative and legal.... I must
insist that I receive a response to this letter within four days
of the date of this letter. If I do not receive a response, ...
I will proceed accordingly."
That same day, Mr. Proskin also sent a letter to Mr. Knapp of the
NRC(CX-Y) in which he requested a copy of the NRC Final
Determination(November 4, 1991), and stated that "(a]lthough it
is only my suspicion at this time, it is my belief that Dr. Kang
is, indeed, being punished for standing up and telling the truth
to your Agency at the hearing. ... I am going to proceed on
behalf of my client to protect his rights and to avoid his being
punished for the misdeeds of the Administration of the Albany VA
Hospital.
*. November 20, 1991, Mr. Malphurs responded to Mr. Proskin's
letter(received November 19, 1991). (CX-X). The letter states:
It is correct that after a careful review of the
needs of the Medical Center, which included
budgetary constraints, Dr. Kang was notified that
his services would not be needed in the future.
The termination letter stated this information.
Evidently, he refuses to believe this is true.
The first determination by the NRC citing errors
at this Medical Center, has been accepted. The
more recent determination has been accepted by
this Medical Center. ... Future response to the
concerns of Dr. Kang should be directed to Mr.
Douglas Bender, Chief of Personnel Service at
this address.
* November 21, 1991, Mr. Proskin received a letter from Ms. K.
Smith of the NRC (Regional Counsel). (CX-Z). She responded to
Mr. Proskin's November 13, 1991 letter, and enclosed a copy of
the NRC Final Determination(November 4, 1991).
*. Tuesday, November 26, 1991, Dr. Kang testified that since he
knew the "end was closing... (and] (he] was kind of
desperate. .. (he] went down (to Mr. Malphurs office on the Friday,
that was November 26, that was two days before Thanksgiving Day,
to request to meet our Director, Mr. Malphurs." (Tl-94). Dr.
Kang continued, "I went down to see the Mr. Director, he was waiting
there about 4:00 o'clock, Friday, he was about to
leave... I have to ask some more extension. But how long you
need? I said, I will at least I need about six months. He
think, well, that may be too long, he says. Well, but still I
need about six months. If you sign the paper you will resign
voluntarily for end of six months, I will consider it. I'm
sorry, Mr. Director, I -- I'm not gonna sign any papers, you have
to just trust me. I will find a job in six months and I will
resign and leave. He said, -- he was thinking for a while, a few
second, he said, I'll let you know, I will -- I will consider it.
That was November 26 and Friday around, maybe, close to 5:00
o'clock." (T1-94).
Later, Dr Kang also stated that the he "request(ed]. . .the
[November 26th] meeting.... (Mr. Malphurs] did not offer to me
that extension. " (Tl-145-6).
Mr. Malphurs stated that Dr. Kang came down to see him at about 4
P.M. (on Monday or Tuesday), and "asked me to reconsider the
removal notice; said that he would guarantee that he would resign
in six months.... I reiterated that the -- my reasons for the
removal were budgetary and that the budgetary problems continued,
if not increased, and that if he wanted to talk about the NRC,
I'd be delighted to do that, but that that removal notice would
stand and I would not reconsider nor entertain his proposal for
extending him for six months. We talked, I think, for probably
about an hour and a half and at the end of that, he left." (T2-
24-5).
On cross-examination, Mr. Malphurs restated at the hearing that
"[Dr. Kang) proposed that I do away with the -- the termination;
he be given six months to find a job; and that he would guarantee
me that he would resign. (T2-40). When asked if he indicated to
Dr Kang that he would consider the extension and let him know on
the 29th, Mr. Malphurs said "no, I won't consider it." (T2-41).
*. Wednesday, November 27, 1991, Mr. Parkis, Mr. Malphurs'
assistant, testified that Dr. Kang met with Mr. Malphurs, but he
did not know the details. (T2-126-7). "My understanding was
that he asked Mr. Malphurs to change his mind and Mr. Malphurs
told me he did not. On Wednesday afternoon, before I went home
Mr. Malphurs told me he did not change his mind." (T2-127).
*. Friday, November 29, 1991, Mr. Malphurs was on leave for the
day, but was called at home by Mr. Parkis, who asked him if he or
Mr. Malphurs should call Dr. Kang. (T2-41). Mr. Parkis reported
that "Dr. Kang keeps calling me and says he's waiting to hear
something from you." Mr. Malphurs responded, "he's not waiting
to hear anything from me, I talked to him on Monday; I am not
reconsidering: I did not reconsider; go tell him that."
Mr. Parkis corroborated Mr. Malphurs' account of the events.
(T2-125-6).
Dr. Kang reported that until the time Mr. Parkis came to see him,
he awaited word from Mr. Malphurs on the extension of his
employment. (Tl-95).
*. December 11, 1991, DOL Investigator J. Weaver reported in the
"Whistleblower Narrative" that the "NRC respond(ed] to Proskin's
letter of November 13, 1991, outlining the procedures for filing
a complaint under the whistleblower statutes with DOL."
(CX-EEE). (The record does not contain the actual response letter
from the NRC.)
*. December 24, 1991, Mr. Proskin mailed a letter to the
Department of Labor, titled the Complainant's "Formal Complaint
under Federal Employee Protection Statutes."
*. December 30, 1991, All of the remaining temporary employees
were terminated effective January 31, 1992. (CX-DD-DDD).
FINDINGS AND CONCLUSIONS
I. Timeliness of the Complaint
AMC contends that Dr. Kang's administrative complaint was
filed untimely and should, therefore, be dismissed as a matter of
course.
Section 5851(b) (1) of the Act provides that:
Any employee who believes that he has been
discharged or otherwise discriminated against by
any person in violation of subsection (a) of this
section may, within thirty days after such
violation occurs, file... a complaint with the
Secretary of Labor... alleging such discharge or
discrimination.
The regulations pertaining to Federal employee protection
statutes, which apply the Act, provide in §24.3(b) that:
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 shall be deemed filed as of the date of
mailing.
AMC argues that, since Dr. Kang was given notice of his
termination on November 6, 1991, but did not file a complaint
with DOL until December 24, 1991, it is untimely.
Dr. Kang argues that although he received a notice of
termination on November 6, 1991, which, in fact, stated that it
was to be effective November 29, 1991, the notice was not final
and unequivocal. He maintains that the notice did not become
final and unequivocal until November 29, 1991, the date he was
formally released from employment and the complaint was filed
within 30 days on December 24, 1991.
Generally, in matters involving discrimination under federal
statutes, the Supreme Court has held that the date of the alleged
violation is the time of the discriminatory act, not the time at
which the consequences of the act become painful. See Chardon v.
Fernandez , 454 U.S. 6, 102 S.Ct. 28 (1982); Delaware State
College v. Ricks , 449 U.S. 250, 101 S.Ct. 498 (1980). While the
cited opinions concern claims brought under 42 U.S.C. §1983 and
Title VII, respectively, the Ricks-Chardon rule has been
specifically extended to cover claims of discrimination raised
under §5851 of the Act. English v. Whitfield , 858 F.2d 957 (4th
Cir. 1988).
The court in English held that the filing period for a
complaint brought under the Act begins to run on the date the
employee was given "final and unequivocal notice of (the]
employment decision having delayed consequences. ... Until that
time, there is the possibility that the discriminatory decision
itself will be revoked, and the contemplated action not taken,
thereby preserving the decision status quo." Id . at 961 (4th Cir.
1988).
By ruling of May 29, 1992, AMC was denied a summary decision
on the ground that there was a possible issue of material fact
concerning the "final and unequivocal" nature of the notice given
to Dr. Kang.
It is determined that the form of the notice of termination
itself was final and unequivocal. There is no warrant to
conclude that the document indicated that the decision was
conditional or would be subject to any further review,
revocation, or change of any kind. The only question concerning
finality is what may have occurred or been said at the time Mr.
Malphurs delivered the notice to Dr. Kang on November 6, 1991, or
during the meeting later in November before Thanksgiving.
The Second Circuit, in whose jurisdiction this matter
arises, has held that, in general, "the time periods commence
upon the employer's commission of the discriminatory act and are
not tolled or delayed pending the employee's realization that the
conduct was discriminatory unless the employee was actively
misled by his employer, he was prevented in some extraordinary
way from exercising his rights, or he asserted his rights in the
wrong forum, in which event tolling of the time bar might be
permitted as a matter of fairness." Miller v. International Tel. &
Tel. Corp. , 755 F.2d 20, 24 (2d Cir. 1985), cert denied , 474 U.S.
851 (1985), 106 S.Ct. 148, 88 L.Ed.2d 122 (1985).
This three part test for tolling or delaying statutory time
limitations was developed in an earlier Second Circuit case,
Smith v. American President Lines, Ltd. , 571 F.2d 102 (1978),
based on that court's interpretation of the Supreme Court's
opinion in Electrical Workers v. Robbins & Myers, Inc. , 429 U.S.
2,29, 97 S.Ct 441, 50 L.Ed.2d 427 (1976). The test has been
widely applied in numerous cases arising under a number of
"whistleblower" statutes, including the ERA. In particular, the
test was adopted by the Third Circuit in a case under a kindred
statute to the ERA, the Toxic Substance Control Act. School
Dist. of Allentown v. Marshall , 657 F.2d 16 (3d Cir. 1981).
Relying on the holding in School Dist. of Allentown , the
Secretary required the test be applied in a recent Energy
Reorganization Act decision at the administrative law judge
level. See Hill v. Tennessee v. Valley Authority , 87 ERA 23
(July 24, 1991). It must be remembered that, as the court in
School Dist. of Allentown noted, the three categories are not
exclusive, but should be considered as the principal situations
where tolling is appropriate. 657 F.2d at 20.
The court defined an "extraordinary" circumstance as one in
which "it would have been impossible for a reasonably prudent
person to learn that his discharge was discriminatory." Id .
Since the Secretary has applied this test in cases arising
under Federal employee protection statutes including the Act, it
is considered to be the appropriate standard to be applied in
determining whether to allow equitable relief in this case.
According to Dr. Kang, in the meeting on November 26, 1991,
he was, once again, offered the option of resigning if he put it
in writing; but this time it came directly from Mr. Malphurs, not
Dr. Flesh.7 Again, Dr. Hang refused to
sign any such
agreement.
Under the first prong of the test, if a complainant can show
that he was actively misled by the actions of an employer he may
be entitled to equitable relief from dismissal of his complaint
for untimeliness. "(A)bsent some employer conduct likely to
mislead an employee into sleeping on his rights", equitable
estoppel should be denied. Price v. Litton Business Systems,
Inc. , 694 F.2d 963, 966 (4th Cir. 1982).
In Price , the Court of Appeals for the Fourth Circuit denied
an employee's request for the tolling of the Age Discrimination
in Employment Act's thirty-day limitations period on the grounds
of estoppel because he did not show that his "failure to file in
(a] timely fashion (wa]s the consequence either of a deliberate
design by the employer or of actions that the employer should
have unmistakably have understood would cause the employee to
delay filing his charge. " Id . at 965. The court elaborated that
an employee's hope for rehire, transfer, promotion, or a
continuing employment relationship cannot toll the statute
without a showing of some affirmative conduct likely to be relied
on by the employee.
Although Price is a decision of the Fourth Circuit, it is
highly persuasive in light of the fact that it has been applied in
a decision of the Southern District of New York, Pfister v.
Allied Corp. , 539 F.Supp. 224 (S.D.N.Y. 1982), and in English ,
the lead opinion involving the Act's time limitations which has
been repeatedly cited as controlling authority by both parties.
In Pfister , the court denied equitable relief where there
was no allegation that the defendant acted in bad faith or
deceitfully lured the plaintiff into settlement discussions, or
that it attempted, in any way, to cause the plaintiff to miss the
appropriate filing date. The court refused to fault an employer
who merely discussed settlement absent any bad faith by that
party.
In English , the Fourth Circuit denied estoppel where there
was no evidence presented to show that the employer acted to
deceive, mislead, or coerce the employee into not filing. The
court held that "even an employer's confirmation of (an
employee's] hope (for a continuing relationship) could not estop
the employer absent some indication that the promise was quid-pro-
uo for the employee's forbearance in filing a claim."
English , 858 F.2d at 963. The court continued, "(the) quid-pro-
quo for forbearance from suit. . is the critical element giving
rise to estoppel under our rule." Id .
Therefore, it is believed that the relevant caselaw
establishes that an employee must show reasonable reliance on the
deliberate, bad-faith actions of the employer, which were
intended to mislead him or he should have unmistakably understood
was intended to cause him to forbear from filing a complaint in a
timely fashion.
Dr. Kang contends that immediately after receiving the
notice of termination, he and AMC engaged in a discussion of
alternative methods of resolving the employment dispute short of
actual termination. In support, Dr. Kang relies on his talks
with Mr. Malphurs on November 6 and about November 26, 1991, in
which the issue of his voluntary resignation was discussed, more
specifically, at the time the notice was delivered to him at 3:30
P.M. on November 6, 1991, where Mr. Malphurs allegedly told him,
"if you resign, I will happily accept your resignation. My door
is wide open, you can come in anytime to discuss further." (Tl-
91). As mentioned above, Dr. Kang declined to resign at that
time, and immediately called Dr. Milton Gross. Nothing in Dr.
Kang's testimony indicates that he told Dr. Gross that he was
offered the option of resigning, nor that the option of resigning
was ever discussed. Rather, it appears that it was Dr. Gross who
thought of resignation instead.
Neither party called Dr. Gross as a witness to corroborate
or contradict Dr. Kang's account. Dr. Kang's described exchange
with Dr. Gross fails to show that there was any discussion of
resignation between Mr. Malphurs and Dr. Kang, and there is no
indication that Dr. Gross was speaking on behalf of AMC or the VA
when he gave Dr. Kang the advice. Dr. Kang's testimony leads to
the view that upon receiving the notice of termination, he sought
assistance from his friend, Dr. Gross, to keep from being fired.
After he talked to Dr. Gross on November 6th, Dr. Kang then
attempted to contact Mr. Proskin that afternoon. Mr. Proskin's
assistant told Dr. Kang not to engage in any form of settlement
through resignation, at that time, because it would jeopardize
his legal remedies. Dr. Kang was informed that Mr. Proskin would
send a letter to Mr. Malphurs, and he should wait until a
response is received. Mr. Proskin sent a letter to Mr. Malphurs
November 13, 1991.
He testified that Mr. Malphurs said he would consider the
extension/resignation but his testimony does not indicate that
Mr. Malphurs told him he would give him a definite answer, or
when, or if he would, in fact, ever do so. Considering this
meeting occurred on Tuesday, November 26th and he was to be
terminated on Friday the 29th, an answer would have had to come
the next day or on the 29th because of Thanksgiving on the 28th.
(It is possible it was this meeting on November 26 that took only
seven or eight minutes which perhaps could explain the
discrepancy between Mr. Malphurs testimony and his notations on
the termination notice concerning the length of the November 6
meeting with Dr. Kang).
On the 29th, Dr. Kang called Mr. Malphurs a number of times
to find out if the extension had been granted. Since Mr.
Malphurs was on leave, he was contacted at home by Mr. Parkis who
asked him whether Dr. Kang should be waiting to hear from him
about his employment extension.
Mr. Malphurs testified that he never offered to reconsider
his decision, or entertain any alternatives to termination. He
repeatedly stated at the hearing that he told Dr. Kang that the
entire reason for termination was budgetary, had nothing to do
with the NRC, and resignation was not an available option.
There is nothing in the record aside from Dr. Kang's
testimony to support his contention that he was offered the
option of resigning, or that the employer entertained the idea of
extending his employment. There is no reason to question Dr.
Kang's credibility, only his power of recall of events and
conversations that took place during a very stressful period of
time. Had Dr. Kang, in fact, been offered the option on November
6th and 11th8 of resigning, the need of
asking Mr. Malphurs for
"some more extension" on the afternoon of the 26th does not become
readily apparent.
There is nothing in Dr. Kang's account or the rest of the
record of what transpired after he received the November 6th
termination notice to conclude that he was "actively misled", or
that he was led into a false sense of security that would
justifiably excuse the requirement of filing a complaint within
thirty days. He does not allege bad faith on the part of Mr.
Malphurs or Dr. Flesh. There is no evidence that either engaged
in false negotiations regarding options to the professed reasons
for his termination, or that they acted in such a manner as to
ensure his forbearance from filing a timely complaint.
The evidence of record establishes that AMC would be
operating fiscal year 1992, beginning October 1, 1991, under
budgetary constraints and that AMC's staff would have to be, and
was, in fact, trimmed by the end of January 1992. Whether or not
Dr. Kang had to be one of the first to go or had to be separated
at all goes to the merits of his complaint, but the fact that
AMC had prepared a budget in August 1991 reduced from the one
prepared earlier in April tends to support the position of Mr.
Malphurs and Dr. Flesh that, in their minds, as they testified,
the termination of Dr. Kang was final.
Further, it seems logical to conclude that the grant of
permission to resign in six months would not necessarily extend
the date of the discriminatory act, and the time to file a
complaint, but would only become a face-saving measure postponing
the time at which the consequences of the alleged illegal act
became painful. Dr. Kang knew by November 6, and certainly not
later than November 29, 1991, that he had to leave AMC and
according to his own testimony that from the beginning he
"absolutely" felt that the reason for his termination was the
problems with the NRC.
Dr. Kang's complaint alleges both his removal as Chief of
Nuclear Medicine, as well as, his termination as violations of
his protected activity and he testified that his problems had
been going on since the NRC inspection. (T2-154). He obtained
legal assistance as early as July 1991 when he attended the
second NRC conference and questions were raised shortly
thereafter concerning the reasons for his demotion. There is
nothing in the record to show why a reasonably prudent person
under the same circumstances would not have filed a complaint
as early as the summer of 1991.
In his own mind, Dr. Kang believed he was a victim of
discrimination before his notice of termination. He could have
acted reasonably in filing a complaint as early as August 1991
and certainly, the entire week after November 29, in time to meet
the thirty-day deadline of December 6, 1991.
Upon consideration of the entire record, it is concluded
that there is no persuasive evidence to show that Mr. Malphurs or
Dr. Flesh so acted as to have misled Dr. Kang and to have caused
him to sleep on his right to file a timely claim, nor that there
were any extraordinary circumstances which prevented Dr. Kang
from filing in time.
The courts, in general, and the Supreme Court, in
particular, have been less forgiving to receive late filings
where the complainant has simply failed to exercise due diligence
in preserving his legal rights. see Irwin v. Veterans Admin. ,
111 S.Ct. 453 (1990); Baldwin County Welcome Center v. Brown , 104
S.Ct 1723 (1984). The Court in Irwin explained that Federal
courts have extended equitable relief sparingly, and the
principles of equitable tolling do not extend to "what is at best
a garden variety claim of excusable neglect. " Id . at 458.
In this case, the failure to file in a timely fashion falls
short of being excusable or justifiable within those legal
precedents.
Based on the evidence of record, testimony of witnesses, and
the applicable law, it is found that to be timely the complaint
had to be filed with the DOL by the close of business, December
6, 1991, and the complaint which was filed on December 24, 1991,
was, therefore, untimely. Dr. Kang's cause of action is time-
barred, and should be dismissed.
Owing to the decision in this matter, the merits of this
case and any other issues are not addressed.
RECOMMENDED ORDER
It is recommended that the Secretary of Labor DISMISS this
cause of action as being untimely filed.
AARON SILVERMAN
AS/
[ENDNOTES]
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