5. Respondents argue that the last possible date of any alleged discriminatory and retaliatory conduct occurred on September 9, 1997, when Decedent noted that he had been harassed and intimidated over his safety complaints.

6. The complaint states that Decedent "made complaints to appropriate officials in the Nuclear Regulatory Commission and at Connecticut Yankee with regard to the harassment and intimidation prior to his death."

7. On September 25, 1997, Kenneth Rickett's suffered a heart attack, and was pronounced dead at 11:29 p.m.

8. Complainant alleges that she was informed of Decedent's death sometime in the early hours of September 26, 1997.

9. Four months following Decedent's death, Complainant alleges that she learned that counsel for Northeast Utilities and Connecticut Yankee stated that they would see that Decedent "got his" in retaliation prior to his death. "Subsequent to his death, additional evidence has been uncovered which establishes a pattern and intent to retaliate against Mr. Ricketts for his testimony regarding the radiological practices of Northeast Utilities and Connecticut Yankee. . . . Specifically, counsel for Northeast Utilities and Connecticut Yankee stated that they would see that Mr. Ricketts got his."

10. On February 3, 1998, Complainant filed an application with the Connecticut Probate Court to be appointed Administratrix of Decedent's estate. The letters of Administration were issued on March 3, 1998, twenty-eight (28) days later.

11. On March 25, 1998, Complainant filed a complaint with the Department of Labor, 181 days following Kenneth Rickett's death.

12. On May 20, 1998, the Occupational Safety and Health Administration issued a letter of determination denying Complainant's complaint.

13. On May 22, 1998, Counsel for Complainant filed a timely request for a hearing before the Office of Administrative Law Judges.

   The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d). This section, which is derived from Fed. R. Civ. P. 56, permits an Administrative Law Judge to recommend summary decision for either party where "there is no genuine issue as to any material fact." 29 C.F.R. § 18.40(d). The non-moving party must present affirmative evidence in order to defeat a properly supported

motion for summary judgment. Gillilian v. Tennessee Valley Authority, 91-ERA-31 (Sec'y Aug. 28, 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The determination of whether a genuine issue of material fact exists must be made viewing all the evidence and factual inferences in the light most favorable to the non-movant. Id. (citing OFCCP v. CSX Transp., Inc., 88-OFC-24 (Asst. Sec'y Oct. 13, 1994)).

   This Judge, acknowledging that summary decision is rarely granted, has applied this standard to the case at hand and concludes that Respondent NU's Motion must be DENIED. I find and conclude that under the doctrine of equitable tolling, Complainant has filed a timely complaint, and that a genuine issue of fact exists over whether or not Respondent NU is potentially liable as an employer under the present circumstances.

   Respondent NU's motion presents three main issues for consideration. First, whether or not an estate has standing under the Act to bring a so-called whistleblowing complaint. Second, if so, whether or not Complainant has filed a timely complaint in this matter; and finally, whether or not Respondent NU should be dismissed as a party to this proceeding. I shall address each issue independently.

   Initially, I must briefly address Respondent NU's argument that Complainant does not have standing to file an whistleblower complaint under the Act. NU argues that there is no legal authority by which an estate may bring an action under the ERA. The proper party who may file a complaint is determined by looking to the language of the proper regulations and rules of practice. 29 C.F.R. § 24.3(a) provides: "Who may file. An employee who believes that he or she has been discriminated against by an employer in violation of any of the statutes listed in § 24.1(a) may file, or have another person file on his or her behalf, complaint alleging such discrimination."

   The OALJ Rules of Procedure do not specifically address the issues of whether or not "an employee" includes representatives of a decedent's estate. Nevertheless, in such circumstances it is appropriate for an administrative law judge to look towards the Federal Rules of Civil Procedure for guidance. See 29 C.F.R. 18 §18.1(a). For example, the Administrative Review Board has held that a representative of a deceased complainant may be substituted as a party in an ERA claim which had already been filed, pursuant to Fed. R. Civ. P. 25(a). Billings v. Tennessee Valley Auth., 91-ERA-12 (ARB June 26, 1996) at n.2. Similarly, I find it appropriate to look towards the Federal Rules definition of a "party" to resolve the present issue. Fed. R. Civ. P. 17(a) provides that a proper party may be an executor or administrator of a real party in interest's estate.

Accordingly, this Administrative Law Judge, resolving all doubts in Complainant's favor for purposes of this motion, finds and concludes that Complainant, as the Administratrix of Decedent's estate, has standing to bring this present claim.

   An employee who believes that he or she has been discharged or otherwise discriminated against in violation of 42 U.S.C. §5851(a) must file a complaint with the Secretary of Labor within 180 days after such discriminatory act. 42 U.S.C. § 5851(b)(1). The time period for administrative filings begins running on the date that the employee is given definite notice of the challenged employment decision. Bonanno v. Northeast Nuclear Energy Co., 92-ERA-40/41 (Sec'y Aug. 25, 1993). The time limits, however, are in the nature of a statute of limitations and are subject to equitable tolling.

   For the purpose of this Motion for Summary Decision, this Judge finds and concludes that the 180 day period within which the complaint must have been filed began to run on Thursday, September 25, 1997, the date Mr. Ricketts's died. In choosing this date, I reject several argument of the parties, and also note some general ambiguity of this factual record.

   First, I reject Complainant's two proposed dates for starting the filing period. First, Complainant argues that the period should begin four months following Decedent's death when Administratrix learned of some allegedly incriminating information. Second, Complainant argues that the time period should commence on September 26, 1997, the day following Decedent's death and when Administratrix Sharon Ricketts actually learned of her husband's death.

   The law is clear that the time period begins when the employee received definite notice of a challenged employment decision. Thus, I conclude that such definite notice must occur during the employee's lifetime. The Complainant's estate only possesses those rights held by Decedent, and thus any substantive action taken prior to Decedent's death is irrelevant in regards to when the statutory period begins to run. Accordingly, I find that the time Sharon Ricketts allegedly learned of incriminating information has no bearing on the time period in this matter. Further, the time when she learned of her husband's death in no way affects the fact that the Respondents could not have taken a challengeable employment action after he had died.

   Further, I reject Respondents' argument that the period should begin, at the latest, on September 9, 1998. Initially, I must note that the record, as developed to date, is unclear as to the precise timing of the alleged conduct. While it is argued that some alleged discriminatory action occurred between May and July of 1997 when Decedent assignments were changes, complaints of harassment are more open-ended. Respondent NU has presented part of Decedent's personal notes, indicating harassment and discriminatory action on September 9, 1997, however, this record only contains this one page. I note that it is possible, when analyzing the facts and circumstances in the light most favorable to the Complainant, that Decedent continued to suffer harassment up until the day he died, which was a weekday.

   In light of this uncertainty, and under the proper standard for summary judgment, I conclude the time period began on September 25, 1997. Therefore, Complainant should have filed a complaint on or before March 25, 1998. Complainant, however, filed this claim on March 26, 1998, 181 days later, and as such the claim is untimely and shall be dismissed, unless grounds for equitable tolling exist. In the present case, however, the Complainant has presented persuasive evidence as to why this claim should be tolled due to the extraordinary circumstance of this case. Accordingly, for the following reasons, I conclude that this complaint is timely.

   Generally, the doctrine of equitable tolling is narrowly applied and focuses on a complainant's excusable ignorance of his or her statutory rights as a reason to modify the limitations period. Harrison v. Stone & Webster Engineering Corp., 91-ERA-21, at 2 (Sec'y Oct. 6, 1992). The Secretary of Labor has uniformly held that equitable tolling of the statutorily imposed time period for filing an ERA complaint is possible only if: (1) the complainant was misled by the employer, (2) the complainant was prevented in some extraordinary way from asserting his rights, or (3) the complainant timely filed the precise statutory claim in the wrong forum. See, e.g., Bonanno v. Northeast Nuclear Energy Co., 92-ERA-40/41 (Sec'y Aug. 25, 1993); Hall v. EG&G Defense Materials, Inc., 97-SDW-9 (ARB Sept. 30, 1998); Prybys v. Seminole Tribe of Florida, 95-CAA-15, at 4 (ARB Nov. 27, 1996); see also Smith v. American President Lines, Ltd., 751 F.2d 102, 109 (2d Cir. 1978). This Administrative Law Judge, in considering the application of the doctrine of equitable tolling, is guided by the Administrative Review Board's decisions which recognize the restrictions on equitable tolling must be "scrupulously observed" and that the doctrine does not permit "disregard [of the] limitations periods simply because they bar what may be an otherwise meritorious cause." See Prybys, 95-CAA-15, at 8 (citing School Dist. of City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981)). Further, tolling is not appropriate "out of vague sympathy for particular litigants." Billings v. TVA, 86-ERA-38 (Sec'y June 28, 1990) (citations omitted). On the other hand, the Secretary has held that while tolling is only permitted in exceptional circumstances, "this general rule must not be applied in such a way that the underlying purposes of that law are frustrated. Thus, it is exceedingly important that an appropriate balance be struck between fidelity to the statutory directive that complaints be pursued and investigated in a timely manner on the one hand and fairness to whistleblowing complaints on the other." Hill and Ottney v. TVA, 87-ERA-23/24, at 3 (Sec'y April 21, 1994), aff'd, 65 F.3d 1331 (6th Cir. 1995).

   The first grounds for equitably tolling the filing period is where an employer actively misleads the Complainant. There is, however, no companion grounds for where the Complainant relies on incorrect information from third parties. See English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); Clark v. Resistoflex Co., 854 F.2d 762, 768-69 (5th Cir. 1988); Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989). In the present case, there is neither evidence nor allegations of such conduct by the Respondents, and therefore, this ground for tolling is inapplicable.

where a complainant is prevented in some extraordinary way from filing a timely complaint. Such situations, the Secretary has warned, occur only in truly exceptional cases that involve not mere sympathies, but rather concrete circumstances where denial of tolling would constitute an extreme and unjustified prejudice to Complainant. For example, the Secretary has tolled under this grounds where a complaint was untimely filed due to a complainant's attorney's mental incompetence. Gillilian v. TVA, 91-ERA-31/34 (Sec'y Aug. 28, 1995).

   A parent company acts in the capacity of an employer by establishing, modifying, or otherwise interfering with an employee of a subordinate company regarding the employee's compensation, terms, conditions or privileges of employment. Stephenson v. National Aeronautics & Space Admin., 94-TSC-5 (ARB Feb. 13, 1997), aff'd (ARB Apr. 7, 1997). By way of example, the Administrative Review Board has stated the president of a parent company who hires, fires or disciplines an employee of one of its subsidiaries may be deemed an "employer" for purposes of the whistle blower provisions. Id. at 3. The Board has noted that the underlying question is whether the Respondent acted "as an employer with regard to the complainants, whether by exercising control over production of the work product or by establishing, modifying or interfering with the terms, conditions or privileges of employment." Stephenson v. National Aeronautics & Space Administration, 94-Tac-5 (ARB Apr. 7, 1997).

   Respondent NU argues that it is not liable under the Act, because it is merely a parent corporation and is in no way responsible for any alleged discriminatory action taken by Connecticut Yankee. Specifically, NU states that it is a business trust whose assets consist of stock held for the benefit of shareholders and that it has no employees. Further, NU argues that Decedent was, at all relevant times, an employee of CY, who worked under CY management, a separate legal entity. NU states that it has no involvement in the day to day management of CY plants. NU states that while it and its subsidiaries own approximately forty-nine (49) percent of CY, that alone is not grounds to view it as Decedent's former employer.

   Complainant's complaint alleges discriminatory conduct by both NU and CY. Complainant alleges that facts exist tying NU to the management, organization, and discriminatory practices relevant to CY and this case. Specifically, Complainant alleges that NU manages the operation of the Millstone and CY plants, and was in charge of overseeing operations at all times relevant to this case. Complainant alleges that NU, especially through its subsidiaries Northeast Nuclear Energy Company and Northeast Utilities Services Company, functioned as the "managing entities of CY." Complainant supports these claims with copies of various personnel policy and procedures establishing direct management and operational links between NU and CY. In response, NU acknowledges one of its subsidiaries, Northeast Utilities Service Company, was responsible for some policy action with CY. However, NU maintains it is a discrete entity with no employees and no connection to Decedent.

   This Administrative Law Judge, upon review of the documentation and allegations filed in response to Respondent NU's motion, finds and concludes that a genuine issue of fact exists as to whether or not NU is an employer under the Act in this matter. The Complainant has alleged sufficient facts of discrimination by NU, and also a requisite connection to the management and operation of the plants where Complainant worked. Specifically, I note that Complainant has well supported its opposition, and raises some questions as to the relationship between NU, CY, and Northeast Utilities Services Corporation. The parties may

submit additional evidence on this issue at the hearing, and perhaps then will become more clear the extent of NU's involvement. However, at this time, I find that the facts, when viewed in the light most favorable to the Complainant, present a genuine issue of material fact on this extremely important issue. Accordingly, the Motion to Dismiss Respondent NU as a party is hereby DENIED.

   Based upon the foregoing reasons, I find and conclude that while Complainant technically failed to file this claim within the 180-day time period mandated by the statute, I find that persuasive evidence and reasons justify the tolling of this limitation period due the extraordinary circumstances involved in this claim. Accordingly, Respondent's Motion for Summary Decision is hereby DENIED. Further, I hereby DENY Respondent NU's motion to be dismissed as a party, as genuine factual issues are involved regarding the extent of NU's connection to Decedent. Finally, I note that the issues raise in Respondent CY's resubmitted Motion of Continuance shall be addressed in a concurrent Order of this Judge establishing the appropriate procedural and discovery deadlines for this case.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts
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