DATE:  July 13, 1993
CASE NO. 92-ERA-51


IN THE MATTER OF

JOHN GABBRIELLI,

          COMPLAINANT,

     v.

ENERTECH,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     This case arises under the "whistleblower" provision of the
Energy Reorganization Act of 1974, as amended (ERA or the Act),
42 U.S.C. § 5851 (1988), and the implementing regulations at
29 C.F.R. Part 24 (1992).  After holding a hearing limited solely
to the question of whether the complaint was timely filed, the
Administrative Law Judge (ALJ) issued a Recommended Decision and
Order (R.D. and O.) on December 28, 1992, ruling that the
complaint should be dismissed.  Pursuant to 29 C.F.R. §
24.6(b), the ALJ's decision is now before me for review. 
Although  afforded the opportunity, neither Complainant, who has
proceeded pro se throughout the proceeding, nor
Respondent has filed a response to the ALJ's R.D. and O.  After
reviewing the entire record, I agree with the ALJ's
recommendation of dismissal, but modify and supplement his
analysis as follows.
     The ERA, as applicable in this case, provides that any
employee who believes that he has been discharged or otherwise
discriminated against . . . in violation . .  . [of the Act] may,
within thirty days after such violation occurs, file (or have any
person file on his behalf) a complaint with the Secretary of
Labor . . . alleging such discharge or discrimination.  42 U.S.C.

[PAGE 2]
§ 5851(b)(1).  Here, Complainant filed a complaint with the
Department of Labor in April 1992, alleging that he was
unlawfully terminated by Respondent in January 1989, over three
years earlier.  Thus, the complaint was filed well outside the
statutory limitations period.  Although the limitations period is
subject to equitable modification, e.g., Larry v.
Detroit Edison Co., Case No. 86-ERA-32, Sec. Dec. and
Ord., June 28, 1991, slip op. at 12-19, aff'd sub nom.
Detroit Edison Co. v. Secretary, United States Department of
Labor, No. 91-3737 (6th Cir. Apr. 17, 1992), equity does not
countenance this complaint.
     As a threshold argument, Complainant contends that because
of his personal problems and Respondent's misleading behavior, he
did not realize until October 1991, that Respondent had a
retaliatory motive for his "layoff."  See Transcript (T.)
at 23, 28-29, 63.  Complainant testified that when he was
terminated, "[i]t was my understanding that Enertech just simply
didn't have the work, that should work come up, that they would
contract me on an individual job basis."  T. at 24-25. 
Complainant explained that the explanation was believable given
the state of the industry.  T. at 32-33.  Two to three times a
year, Complainant contacted Respondent's corporate quality
control manager, Toni Cottrill, about new contract opportunities;
was cordially told that he would be welcome to any work that
became available; and was asked to leave a telephone number at
which he could be contacted.  T. at 16, 28, 33.  Finally,
however, in October 1991, Cottrill informed Complainant that she
had sought approval of a new contract for Complainant with
Respondent's president, but the president stated that Complainant
was not to be rehired.  T. at 29, 33-34.  Complainant alleges
that only then did he realize that Respondent never intended to
rehire him and that his protected activity was the actual reason
for his termination.  T. at 28, 57.
     While it is clear that Complainant's divorce and personal
problems cannot justify his delay in filing, see,
e.g., Christopher v. General Motors Parts Division,
525 F. Supp. 634, 636 (E.D. Mich. 1981), aff'd mem., 703
F.2d 559 (6th Cir. 1982), it is less clear whether the
limitations period should be modified on account of Cottrill's
assurances.  The ALJ summarily found that "until October 10,
1991, Enertech lulled [Complainant] with false assurances that he
would be considered for rehiring" and that, therefore, the
thirty-day period began to run from October 10, 1991.  R.D. and
O. at 3.  I disagree. [1]     
     Even if Cottrill made misstatements or misrepresentations on
which Complainant relied to delay filing, the particular facts of
this case would warrant suspension of the limitations period only
until August 1990.  By then, Complainant knew or should have
discovered the falsity of the misstatements or the concealment 
[PAGE 3]
that he alleges caused him to delay.  See Rhodes v.
Guiberson Oil Tools Division, 927 F.2d 876, 879, 881-82 (5th
Cir. 1991), reh'g denied, 1991 U.S. App. LEXIS 10415 (5th
Cir. 1991), and cert. denied, 112 S. Ct. 198 (1991);
cf. In re Kent, Case No. 84-WPC-2, Sec. Rem. Dec.
and Ord., Apr. 6, 1987, slip op. at 11 (limitations period is
tolled until "facts that would support a discrimination complaint
were apparent or should have been apparent to a person with a
reasonably prudent regard for his rights similarly situated to
the complainant").  This action is time barred because
Complainant failed to file a complaint within thirty days
thereof.
     In August 1990, Complainant learned from one of Respondent's
other employees that another man had been hired "almost
immediately . . . to fill my vacant spot, which I was told that
there was not a spot, because of lack of work."  T. at 26.  In
view of the assertive letter Complainant wrote to Respondent
prior to his termination, Complainant's Exhibit (CX) 6, and this
evidence that Complainant's job was filled "almost immediately"
after his layoff, I conclude that Complainant was aware of
sufficient facts to support an ERA complaint.  In fact,
Complainant admits that he suspected discrimination, yet the
record does not show that Complainant specifically confronted
Cottrill or otherwise investigated this particular information. 
T. at 25-26; Complainant's final summation, dated October 16,
1992, at 1.  Rather, even though almost two years had passed, he
alleges that he continued to believe Cottrill's assurances of the
possibility for reemployment.  Perhaps distracted by his personal
problems, Complainant simply did not act diligently to evaluate
the propriety of the reason for his termination upon obtaining
sufficient information to question it.  See Rhodes,
927 F.2d at 881-82; cf. Cada, 920 F.2d at 451;
Cocke v. Merrill Lynch & Co., 817 F.2d 1559, 1561-62 (11th
Cir. 1987).
     Furthermore, even if I were to accept Complainant's
threshold argument and find the filing period tolled until
October 1991, his complaint is time barred.  Complainant claims
that within a week of realizing Respondent's motive for
terminating him in October 1991, he contacted the resident
inspector of the Nuclear Regulatory Commission (NRC), who was
stationed at his current work place.  T. at 29.  The record
verifies that Complainant provided information about "employment
discrimination" and several alleged safety violations involving
Respondent.  CX 2.  According to Complainant, the resident
inspector took notes and stated that he would forward the
concerns to the NRC regional office.  Complainant thought that he
had "initiated the process" and did not discover the proper
procedure for filing an ERA complaint until March 1992, when he
received a letter on an unrelated matter from the NRC.  T. at 41,

[PAGE 4]
64-66.
     First, this case does not fall within the narrow category of
cases that permit tolling because the employee "raised the
precise statutory claim in issue mistakenly in the wrong forum." 
School District of the City of Allentown v. Marshall, 657
F.2d 16, 20-21 (3d Cir. 1981); Sawyers v. Baldwin Union Free
School District, Case No. 85-TSC-1, Sec. Dec. and Ord. of
Rem., Oct. 5, 1988, slip op. at 5.  In Sawyers, the filing
period was tolled because the record showed that a timely
complaint, sufficient under the whistleblower statute and the
regulations at 29 C.F.R. § 24.3, had been filed with the
wrong agency.  There is no such documentation in evidence here.
[2]   Furthermore, unlike cases relying on this particular
tolling doctrine, the record does not show that Respondent
"received timely notice of the specific statutory claim that was
subsequently asserted" by Complainant, thereby providing
Respondent with the protection which the expeditious time frame
is intended to provide.  See Fox v. Eaton Corp.,
615 F.2d 716, 719-20 (6th Cir. 1980), cert. denied, 450
U.S. 935 (1981); Hicks v. Colonial Motor Freight Lines,
Case No. 84-STA-20, Sec. Fin. Dec. and Ord., Dec. 10, 1985, slip
op. at 9 n.7; cf. Larry, slip op. at 18; CX 2.
     Next, Complainant argues that his mistake should be excused
because Respondent never posted an NRC Form 3 notice of his
whistleblower rights.  The ALJ found that Respondent was not
legally required to post the notice and that, in any event,
Complainant was not entitled to tolling on this ground.  R.D. and
O. at 5.  I need not decide the question of Respondent's legal
duty to post NRC Form 3 because I agree that under the
circumstances here, Respondent's failure to post cannot provide a
basis for equitable modification.
     The Secretary previously has addressed posting issues,
relying on cases arising under the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1982). 
See Harrison v. Stone & Webster Engineering Corp.,
Case No. 91-ERA-21, Sec. Fin. Dec. and Ord., Oct. 6, 1992, slip
op. at 2-4; McNally v. Georgia Power Co., Case No. 85-ERA-
27, Sec. Fin. Dec. and Ord., Sept. 8, 1992, slip op. at 9-10. 
Under the ADEA, the courts have held that an employer's failure
to comply with posting requirements tolls the limitations period
only unless or until the employee acquires actual or constructive
knowledge of his ADEA rights, e.g., until the employee
acquires general knowledge of his right not to be discriminated
against on account of age, or until he has the means of obtaining
that knowledge, such as by viewing the informational poster
somewhere outside the place of employment.  Clark v.
Resistoflex Co., 854 F.2d 762, 768 (5th Cir. 1988);
McClinton v. Alabama By-Products Corp., 743 F.2d 1483,
1485-86, n.4 (11th Cir. 1984).

[PAGE 5]
     Here, Complainant testified, and the documentary evidence
proves, that in 1988, prior to his termination by Respondent,
Complainant knew that he had the right to contact the NRC
concerning any problem and that he "would be protected by doing
that."  T. at 47-48, CX 6.  Complainant was aware that an NRC
Form 3 exists and covers nuclear power plant workers' rights.  T.
at 46, 49.  Moreover, Complainant admits that NRC Form 3 is
posted in his current work place and that although he did not
read it, it was "part of [his] reasoning for talking to [the NRC
resident inspector]."  T. at 64.  Thus, at the time he voiced his
concerns to the inspector, Complainant had both actual and
constructive knowledge of his ERA rights, and cannot rely on
Respondent's failure to post as an excuse for his untimely
filing.
     Complainant does not otherwise claim that Respondent or the
NRC resident inspector prevented him from timely filing an ERA
complaint.  Although Complainant may have relied on erroneous
advice from his current co-workers, T. at 29, 60, the ultimate
responsibility lies with Complainant, who failed diligently to
read the NRC Form 3 or to inquire further into the law.  Given
Complainant's actual and constructive knowledge of his statutory
rights, his mere ignorance of a specific provision contained in
the statute does not toll the limitations period.  See
Jackson v. Richards Medical Co., 961 F.2d 575, 579-80 (6th
Cir. 1992); Kale v. Combined Insurance Co., 861 F.2d 746,
754 (1st Cir. 1988); cf. Rose v. Dole, 945 F.2d
1331, 1335 (6th Cir. 1991) (ignorance of the law alone is not
sufficient).
     Considering all these circumstances, equitable modification
is inappropriate.  See Andrews v. Orr, 851 F.2d
146, 151-52 (6th Cir. 1988).  See also City of
Allentown, 657 F.2d at 21; Doyle v. Alabama Power Co.,
Case No. 87-ERA-43, Sec. Fin. Dec. and Ord., Sept. 29, 1989, slip
op. at 4-6, aff'd sub nom. Doyle v. Secretary, United
States Department of Labor, No. 89-7863 (11th Cir. Nov. 26,
1991); Chappell v. Emco Machine Works Co., 601 F.2d 1295,
1303 (5th Cir. 1979).
     Accordingly, the case IS DISMISSED on the basis of an
untimely complaint under 42 U.S.C. § 5851. [3] 
     SO ORDERED.


                              ROBERT B. REICH
                              Secretary of Labor


Washington, D.C.


 


[ENDNOTES]
           
[1]   This is not a case in which the employer should be estopped
because its promises were a quid-pro-quo for the employee's
forbearance in filing a discrimination complaint, see
English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988);
Leake v. University of Cincinnati, 605 F.2d 255, 258 (6th
Cir. 1979), or because the employer deliberately attempted to
mislead the employee and deter him from filing a claim,
see Cada v. Baxter Healthcare Corp., 920 F.2d 446,
451-52 (7th Cir. 1990), cert. denied, 111 S. Ct. 2916
(1991); T. at 33; cf. Amburgey v. Corhart Refractories
Corp., Inc., 936 F.2d 805, 810-11 (5th Cir. 1991).

[2]   Compare Pirone v. Home Insurance Co., 507 F.
Supp. 1281, 1285 (S.D.N.Y. 1981), aff'd mem., 742 F.2d
1430 (2d Cir. 1983) (copy of an interview reduced to writing
constitutes a charge under the ADEA). 

[3]   I agree with the ALJ's discussion rejecting Complainant's
claims of "blacklisting" and a continuing violation.  R.D. and O.
at 6; see also Janikowski v. Bendix Corp.,
823 F.2d 945, 948 (6th Cir. 1987).  I also agree that alleged
incidents occurring in September 1992, are not properly before
me.  R.D. and O. at 6; see Gundersen v. Nuclear Energy
Services, Inc., Case No. 92-ERA-48, Sec. Fin. Dec. and Ord.,
Jan. 19, 1993, slip op. at 7-8.