Joint Exhibit 4 is a letter from Linda Gass' attorney at the time, Stephen Talbert Hyder, to Carol Merchant and Tom Reesor, Wage and Hour Division, U.S. Department of Labor, Nashville, Tennessee, dated July 1, 1996. It states that he represents Linda Gass as to any complaints that she has filed or has pending against her employer, Lockheed Martin Energy Systems, Inc. and Lockheed Martin Corporation. That Ms. Gass had pending a complaint filed with the Office of Contractor Employee Protection of the U.S. Department of Energy against the employer and that the purpose of his letter was to withdraw any complaint that was filed with the Department of Labor against said employers.

   Joint Exhibit 5 is a letter from Carol Merchant, Acting District Director, Wage and Hour Division, U.S. Department of Labor to Gordon G. Fee, President of Lockheed Martin Energy Systems in Oak Ridge, Tennessee dated July 2, 1996. This letter indicates that Linda Gass withdrew her complaint with the Wage and Hour Division filed under the Clean Air Act, Comprehensive Environmental Response, Compensation and Liability Act, Energy Reorganization Act, Safe Drinking Water Act, Solid Waste Disposal Act and Toxic Substances Control Act. Accordingly, she planned no further action in the case.

   Joint Exhibit 6 is a letter from Steven J. Goering, Staff Attorney, Office of Hearings and Appeals, U.S. Department of Energy, Washington, DC to Attorneys Edward Slavin and Robert Stivers dated May 8, 2000. It indicates with regard to a motion to transfer Ms. Gass' case to DOL OALJ filed by the complainant on May 1, 2000, that there was no procedure under the Part 708 regulations for transferring a complaint to another federal agency and if the complainant chose to file a complaint with the Department of Labor with respect to the same set of facts as alleged in her Part 708 complaint with DOE, her Part 708 complaint would be dismissed. He cites 10 C.F.R. § 708.15(d), 708.17(c)(3). Accordingly, the motion to transfer the case filed by the complainant, Case No. VWZ-0021 was dismissed.

   Joint Exhibit 7 is a letter from Steven J. Goering to Attorneys Robert Stivers and Edward Slavin dated May 19, 2000. This letter states, among other things, that he was dismissing Ms. Gass' complaint with DOE given that Ms. Gass filed a complaint with the Occupational Safety and Health Administration with respect to the same set of facts as alleged in her complaint under Part 708. This was based upon Section 708.17(c)(3) which states that dismissal for lack of jurisdiction was appropriate if the complainant filed a complaint under state or other applicable law with respect to the same set of facts as alleged in a complaint under said regulation.

   Joint Exhibit 8 is a letter from Carol Merchant to Attorney Edward Slavin dated September 5, 2000 indicating that it would be inappropriate to reinstate Ms. Gass' complaint of August 18, 1995 against Martin Marietta due to the statue of limitations.

   Joint Exhibit 9 is a letter from Attorney Slavin to the Honorable John M. Vittone, Chief Administrative Law Judge, U.S. Department of Labor, Washington, DC dated September 15, 2000. Essentially this letter is an appeal of the position taken by District Director Carol Merchant (Joint Exhibit 8).

   Joint Exhibit 10 is a letter from Attorney Stephen Talbert Hyder to Attorney Steven J. Goering dated March 11, 1999 indicating that he and his client, Linda Gass, had reached irreconcilable conflict on the manner in which the hearing should be prosecuted and he requested that he be permitted to withdraw as her attorney.

   Joint Exhibit 11 is a letter from Attorney Goering to Attorneys Hyder and Stivers dated March 15, 1999 permitting Mr. Hyder to withdraw as attorney for Linda Gass.

   Joint Exhibit 12 is a letter from Attorney Donna H. Smith, Knoxville, Tennessee to Attorney Steven Goering dated May 26, 1999 entering her appearance as attorney for Linda Gass in Case No. VWA-0028 before the Department of Energy.

   Joint Exhibit 13 is a copy of an e-mail sent by Attorney Smith to Attorney Goering, copy to Attorney Stivers dated July 19, 1999 indicating that Edward Slavin would serve as co-counsel for Ms. Gass, effective July 15, 1999.

   Jont Exhibit 14 is a Notice of Withdrawal of Counsel submitted by Attorney Donna Smith on January 13, 2000.

   Joint Exhibit 15 is a letter from Attorney Steven Goering to Attorneys Smith, Stivers, and Slavin dated January 28, 2000 permitting Donna Smith to withdraw as attorney for Linda Gass.

Discussion and Findings: Applicability of Tolling Doctrines; Waiver

   There are two tolling doctrines that will, for equity purposes, stop the statute of limitations from running. These tolling doctrines have been applied in situations: (1) where the complainant has been actively misled by the respondent regarding the cause of action; or (2) has been prevented in some extraordinary way from asserting his or her rights; or (3) has previously raised the exact claim which by mistake was raised in an incorrect forum. McGough v. United States Navy, 2 OAA 3, 213, 86 ERA-18-20 (Decision and Order of Remand by the Secretary of Labor (June 30, 1988). The first tolling doctrine, equitable estoppel, focuses on whether the employer misled the complainant, thereby causing a delay in filing the complaint. The second doctrine, equitable tolling, focuses on whether a complainant was excusably ignorant of his or her rights or, alternatively, when a complainant files a timely complaint raising issues sufficient to state a cause of action under environmental whistleblowing laws, but files the complaint in the wrong forum. Prybys v. Seminole Tribe of Florida, 95 CAA 15 (ARC Nov. 27, 1996); Biddel v. Department of the Army, 93 WPC 9 (ALJ July 20, 1993). The equitable tolling doctrines, however, do not permit disregard of the limitation periods simply because they bar what may be an otherwise meritorious cause. School District of City of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981).

   It is my intention here to address only whether there exist equitable grounds for tolling the statute of limitations and ignore a myriad of other arguments. For example, complainant argues that DOL requires all parties to sign a whistleblower settlement when there never existed a settlement or that Ms. Gass' complaint (of August 18, 1995) was never withdrawn because withdrawal was not in her best interest, and was involuntary, etc., when her then attorney of record, Stephen Talbert Hyder, withdrew the complaint (Joint Exhibit 4) and explained that he had filed with DOE. Likewise, arguing that it was a mistake to re-file the complaint with DOE or labeling DOE as an unfair forum, does not give me jurisdiction. Once again, whether she was misled by her attorney or whether he made mistakes cannot be issues before me. As far as references to Atkins v. Schmutz Mfg. Co., Inc., 435 F.2d 527 (4th Cir. 1970), there is no vehicle for transfer similar to 29 USC 1406(a). Unlike Atkins, the complainant here made an election to file with DOL, where there existed jurisdiction and venue; thereafter, she made her own election (through her attorney) to withdraw her claim before DOL, and did so; then, she filed her claim with DOE, which had jurisdiction and venue to consider her claim, and used the savings statute with DOE to come within the statute of limitations.

A. Equitable Estoppel

   Complainant suggests that respondent, Lockheed Martin, misled Ms. Gass by promising settlement if she dismissed her DOL action, that respondent demanded withdrawal of the DOL complaint as a precursor to negotiation without advising DOL of this "settlement."

   In turning to Complainant's testimony, she testified, regarding the DOE complaint, that it was her understanding that her DOL complaint was being transferred to another forum. (TR 64) Ms. Gass' attorney at the time, Mr. Hyder, recommended moving the case from Wage and Hour, which was "doing nothing," to DOE and he was positive that the company would settle. (TR 89, 90) Complainant further explained that she agreed to transfer the case because although Investigator Reesor had interviewed her, nothing appeared to be happening and she was under considerable duress at work. Specifically, on several occasions, she could have been fired or the respondent could have made it look like she was at fault in some way. Further, she had a supervisor, Krista Turner, who was targeting her. Next, she was transferred to nuclear engineering, which was an unfamiliar area. This was also an extremely error prone job and she felt she was under extreme duress. (TR 83-86) Therefore, when Complainant saw something on a bulletin board regarding protecting workers in DOE which, she noted, was also her attorney's recommendation because he was positive the company would settle, she moved the case from DOL to DOE. (TR 89, 90) Complainant further testified that she did not remember whether she told her attorney what she read on the bulletin board about DOE jurisdiction or whether he brought it to her attention. (TR 95, 96)

   On or about June 11, 1996, DOE made a preliminary decision to accept jurisdiction of Ms. Gass' reprisal complaint (Joint Exhibit 2). Thereafter, on June 18, 1996, Lockheed Martin, through its attorney, informed Mr. Yurow, Complaint Analyst, DOE, that Lockheed Martin was willing to participate in an attempt to arrive at a mutually agreed upon resolution of the complaint and also informed Mr. Yurow that Ms. Gass' complaint before DOE was her third filing, she had other complaints before the Equal Opportunity Employment Commission and the United States Department of Labor (her August 18, 1995 complaint) and that Part 708.6 required that Ms. Gass affirm under oath that she had not pursued a remedy under state or other applicable laws on the same set of facts on another occasion.

   The above considered, I find insufficient evidence that Lockheed Martin misled Ms. Gass to do anything. Ms. Gass testified fully under oath as to her reasons why she and her attorney decided to transfer the case to DOE and not once did she mention Lockheed Martin inducing her, through threats or promises, to do so. With respect to Mr. Stivers' letter of June 18, 1996 to Mr. Yurow (Joint Exhibit 3) I find this letter both proper and reasonable under the circumstances. Mr. Stivers' letter of June 18, 1996 certainly cannot be evidence of inducement to transfer to DOE since the letter was written after Ms. Gass filed her complaint with DOE. Mr. Stivers' letter asks Mr. Yurow to review Ms. Gass' right to file a complaint with DOE considering Part 708.6; it did not necessarily cause Ms. Gass or her attorney, Stephen Hyder, to dismiss the DOL complaint, although it may have been the stimulus for Ms. Gass and/or her attorney to elect their remedy. Accordingly, as complainant was not actively misled by respondent, equitable estoppel is not applicable to her case.

B. Equitable Tolling

   The doctrine of equitable tolling allows a complainant to avoid the bar of the statute of limitations if, despite all due diligence, he is unable to obtain vital information bearing on the issue of his claim. Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946). It does not assume wrongful effort by the respondent to prevent the complainant from suing; the complainant, however, is assumed to know that he has been injured, but he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant. Cada v. Baxter Healthcare Corp., 920 F.2d 446 (1990) (emphasis added).

   The primary illustration given in Cada and subsequently cited in other cases, is one in which an employee is fired and does not realize that he has a potential age discrimination suit until he discovers his much younger replacement. After this discovery, he files suit, but by this time the statute of limitations period has passed. Cada, 920 F.2d at 451. The equitable tolling doctrine is, therefore, essentially a doctrine of "excusable ignorance."

   Unfortunately for complainant, this second tolling doctrine also does not apply. First, according to her testimony, there was no doubt in her mind that she was subjected to adverse action or "wrongdoing", both before and after she filed her complaint. Second, complainant was also aware that the wrongdoing she alleges in her complaint was attributable to the respondent. Thus, unlike a person who has allowed the statute of limitations to expire, not knowing she has a claim for relief, complainant filed her original complaint within the statutory time period and filed this second complaint with the knowledge of the respondent's alleged wrongdoing. These facts do not invoke the protections of equitable tolling. Therefore, if I am to have jurisdiction to hear this case, there must be another equitable ground for hearing it.

C. Delay in Investigation

   Title 29 C.F.R. § 24.4, entitled, "Investigations," in effect at the time Ms. Gass filed her August 18, 1995 complaint with the U.S. Department of Labor, states in pertinent part:

(d)(1) Within 30 days of the receipt of a complaint, the Administrator shall complete the investigation, determine whether the alleged violation has occurred, and give notice of the determination which shall contain a statement of reasons for the findings and conclusions therein. Notice of the determination which shall be given by certified mail to the complainant, the respondent, and to their representatives. At the same time the Administrator shall file with the Chief Administrative Law Judge, U.S. Department of Labor, the original complaint and a copy of the notice of determination.

   I accept as true Ms. Gass' testimony that at the time she filed her complaint and during the ten and one-half months that her complaint was pending before DOL, Wage and Hour Divsion, she was under extreme duress at work and other than being interviewed by an investigator, there was no information regarding the investigation or whether there was an investigation. The investigation, if any, was still incomplete by the time she filed a new complaint with DOE. Ms. Gass' testimony under oath on this issue was persuasive, compelling, and uncontradicted. Therefore, the question that must be asked is whether Ms. Gass was prevented, in an extraordinary way, from asserting her rights as a whistleblower under the various statutes set out in her August 18, 1995 complaint before the U.S. Department of Labor, due to the combination of the job duress and the failure of Wage and Hour to complete an investigation within the time mandated by 29 C.F.R. § 24.4(d)(1); or, stated a different way, was the withdrawal of her complaint before DOL on or about July 2, 1996 voluntary, or necessitated by the combination of duress and the failure of DOL to act in accordance with the Code of Federal Regulations. Here lies complainant's final argument for equitable grounds why I should accept jurisdiction.

   In her "Supplemental Citations and Motion to Schedule Hearing" dated January 3, 2003, and in her Brief at line 30, complainant states that, "The DOL Employment Standards Administration (ESA) Wage-Hour Division (WHD) breached its legal duty to investigate and make findings within 30 days on [complainant's] timely 1995 whistleblower complaint." In support of this position, complainant cites the language of 29 C.F.R. § 24.4, supra. While the language of the regulation provides that within 30 days the administrator "shall complete the investigation", (emphasis added) the U.S. Supreme Court and subsequent courts addressing this issue have construed these regulatory provisions as merely directory, rather than mandatory or jurisdictional in nature.

   In so doing, they hold that mandatory language alone, minus language specifying the consequences of failure of action, does not "divest the administrator of the authority to investigate after that time." Brock v. Pierce County, 476 U.S. 253, 266 (1986). See also The Law Company, Inc., ARB No. 98-107 at 12 (September 30, 1999); Timmons v. Mattingly Testing Svcs., Case No. 95-ERA-40, ARB Dec. and Ord. of Rem., (June 21, 1996) (discussing regulatory time limitations imposed on the Department of Labor for investigating and adjudicating whistleblower complaints under the Energy Reorganization Act); Thomas v. Arizona Public Service Co., Case No. 89-ERA-19, Sec. Dec., (September 17, 1993).

   As further clarification, the Administrative Review Board reasoned: "Absent any statement of contrary intent, such a limitation provides a projected timetable for agency action on a given complaint, rather than curtailing the agency's authority to resolve complaints." The Law Company at 12. Here, there is nothing in the language of the regulation at issue indicating what, if any, consequences would result by the Wage and Hour division's failure to complete an investigation during the thirty day time frame. Therefore, it must be construed as lacking an intent to bar agency action beyond the prescribed time frame and is therefore not jurisdictional or mandatory in nature. As difficult as this may be for the complainant, especially in light of her testimony regarding her attempts to expedite her complaint while it was before the Department of Labor, her argument that the Wage and Hour division breached its legal duty to investigate within thirty days is not supported by case law.

   Thus, even considering the duress Complainant experienced at work during the ten months the Department of Labor investigation was pending, there is no legal basis to toll the statute of limitations back four years. I recognize that this result is harsh and ultimately denies Complainant the ability to present her full case in court; however, the situation remains that the tolling doctrines do not apply to her case, the delay in investigation, although unfortunate, was not a fatal act on the agency's part, complainant chose to litigate her case at the Department of Energy on the advice of her attorney and backed up by her own research, and the case remained at that agency for almost four years.

D. Waiver

   Complainant's theory on waiver, as stated by her attorney, seems to be as follows and this argument appears at TR 42 and 43:

The complaint never went away, I mean, it was there in the Federal Record Center, it had to be brought back from Atlanta. There was never any signed writing, by Ms. Gass, saying I withdraw my complaint. In order for her to withdraw a complaint, she has to be advised of her rights. Nobody ever advised her of her rights. Nobody from DOL, nobody from DOE, Ms. Merchant never called up; Ms. Merchant never obtained any signed writing, from Ms. Gass, saying I am dropping my complaint. There was discussion between attorneys, and Ms. Gass essentially was affirmatively misled, by the Respondent into thinking that if she proceeded with the DOE, she would get a quick settlement; and that her problems would go away.

   Ms. Gass was represented by an attorney who advised Ms. Merchant on July 1, 1996 that she was withdrawing her complaint. (JX 4) The Secretary of Labor has held that where a complainant is represented by counsel, he has "access to a means of acquiring knowledge of his rights and responsibilities"... Kent v.Barton Protective Services, 84-WPC-2 (Sec,y Sept. 28, 1990) Moreover, the Secretary also stated, "Counsel are presumptively aware of whatever legal recourse may be available to their client, and this constructive knowledge of the law's requirements is imputed to plaintiff." (citations omitted). Furthermore, there is no evidence of wrongful inducement by Mr. Stivers or Lockheed Martin.

   Accordingly, having considered all of the evidence, having read the parties' briefs and being otherwise fully informed, I recommend that Complainant's Complaint, filed on or about May 9, 2000, be dismissed for lack of jurisdiction. Respondent's Motion for Summary Judgment is GRANTED.

       MICHAEL P. LESNIAK
       Administrative Law Judge

NOTICE: This Recommended Decision and 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, NW, Washington, DC 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. §§ 24.7(d) and 24.8.