arguments of the
parties, and applicable
regulations, statutes, and case law. Each exhibit received into
evidence, although perhaps not specifically mentioned in this
Decision, has been carefully reviewed.
I find that both Dr. Rainey and Dr. Thomas M. Sullivan were
credible witnesses.
ISSUES
1. Whether the complaint of Dr. John M. Rainey, Jr., was
filed within thirty days after the occurrence of the
alleged violation;
2. Whether the limitation period for the filing of a
complaint was equitably tolled as the result of the
conduct of Wayne State University and/or the Lafayette
Clinic.
FINDINGS OF FACT
The determination letter of the U.S. Department of Labor was
addressed to Daniel J. Bernard, Assistant General Counsel, Wayne
State University. However, it carried the caption of this
proceeding as being John M. Rainey, Jr., v. Lafayette Clinic. As
I read the record of this case, I find that the complaint of Dr.
Rainey was made against Wayne State University and the Michigan
Department of Mental Health of which the Lafayette Clinic is an
agent. (JX 49) It appears to me as though both the Lafayette
Clinic and Wayne State University are instrumentalities of the
State of Michigan. However, for purposes of this case, those
instrumentalities will be treated separately since Dr. Rainey
clearly lodged his complaint against both entities.
The Complainant, John M. Rainey Jr., M.D. (hereinafter Dr.
Rainey or Complainant), is a tenured Associate Professor in the
Department of Psychiatry in the School of Medicine, Wayne State
University (hereinafter WSU). He was first employed at WSU in
July of 1974, was tenured in 1981, and was promoted to an
Associate Professor with continuing tenure in August of 1987.
(Tr. 30) In addition to his responsibilities as a full-time
Professor in the School of Medicine at WSU, Dr. Rainey also had
been a party to a series of personal service contracts which he
bad executed with the Lafayette Clinic (hereinafter Lafayette).
(DX 5, 64, 65) These contracts were one year in duration and
each contained a proviso that the contract "may be terminated by
either party with or without cause upon thirty days notice in
writing to the other party." Dr. Rainey signed the first of
these contracts with the Department of Mental Health (hereinafter
referred to as DMH) sometime during the year 1976, and that
contract provided for part-time employment for about eight hours
a week. The later contracts which he executed between 1978 and
1988 with DMH were also personal service contracts calling for
him to provide eight hours a week of work at Lafayette. Rainey
had also served on the salary review committee of WSU. He
testified that the personal services contracts supplementary
income was a part of the total compensation package of WSU. (Tr.
33) Dr. Thomas M. Sullivan, the Acting Director of Lafayette,
seemed to reinforce that theory.
The Michigan DMH, including its facility located at
Lafayette, was permitted under Michigan law to contract for
mental health services. Lafayette is a DMH research facility, as
well as a provider of mental health care. Some of the research
performed at Lafayette was provided by independent contractors
through personal service contracts with DMH. When the Clinic
desires the services of an independent contractor, a contractual
Personal Services Request Form is executed by Lafayette and
forwarded to DMH for either their approval or disapproval. (JX
5, p. 6) Upon approval of the contractual request, the personal
services contract is then prepared and executed by the parties.
(JX 5, pp. 1-4)
WSU and Lafayette had a written understanding as to the
relationship of each to the other. (JX 1) As that agreement
indicates, the purpose of the arrangement was to provide good
hospital care for mentally ill patients, improve the instruction
for students, and also conduct research in the field of mental
health. The agreement provided, in part, that DMH remained fully
responsible for the overall operation of Lafayette. WSU acquired
responsibility for both the undergraduate and graduate medical
education programs at Lafayette through the chairman of the
Department of Psychiatry of the School of Medicine of the
University. The intern/resident program of Lafayette was part of
the graduate medical education program of WSU requiring rotations
through the entire WSU Psychiatry Graduate Medical Education
System. The written understanding also provided that
"contractual commitments will be worked out annually, based on
Department of Mental Health resources and numbers of psychiatric
residents..." The understanding also provided that research at
Lafayette would be conducted under the direction of the
individual who was the Chairman of the Department of Psychiatry
at WSU and also the Director of Lafayette. Initially, that
individual was the same person pursuant to this agreement.
However, during the year 1986, the two positions were separated
and filled by two individuals. (Tr. 34) Dr. Thomas M. Sullivan
became Acting Director of Lafayette in 1986 and during the latter
part of 1987, Dr. Norman Rosenzweig became Acting Chairman of the
WSU Department of Psychiatry. (Tr. 240) Rainey was subject to
the authority of both of these individuals. Since Rosenzweig was
the chair of the Department of Psychiatry, Rainey was clearly
subject to his direction and he acknowledged this fact. (Tr.
200, 201)
The contracts which Dr. Rainey had with DMH between 1978 and
1988 provided for him to render the services of a "teacher of
residents" and during the fiscal year extending between October
1, 1967 through September 30, 1988, he was to perform "research
services." This latter item was his last contract with
Lafayette. The compensation provided in each instance was
$20,800.00 per year or $50.00 per hour.
Prior to Rosenzweig assuming his responsibility as Chairman
of WSU School of Medicine, Department of Psychiatry, his
predecessor had apparently considered the need to strengthen the
teaching staff at Harper Hospital (hereinafter Harper), which is
another facility associated with WSU. On November 18, 1987,
Rosenzweig changed Rainey's primary assignment from Lafayette to
Harper. That reassignment was to be effective January 1, 1988.
(JX 6) On December 17, 1987, Rosenzweig directed a memorandum to
the Chief of Psychiatry at Harper in which he requested
clarification of Dr. Rainey's schedule once he begins work at the
hospital on January 4, 1988. (JX 7) On December 21, 1987,
Rosenzweig directed a memorandum to Sullivan requesting that
Rainey "be relieved of all administrative and other duties at
Lafayette Clinic since he will be spending thirty hours per week
at Harper Hospital working with Dr. Eliott Luby." The memorandum
indicated that Rainey's only remaining activity at Lafayette
would be the conduct of his own research. The memorandum also
suggests a replacement for Rainey as the co-chair of the
Lafayette Clinic Institutional Review Board. (DX 8)
Rainey was apparently not interested in moving to Harper and
he sought to contest that move with Rosenzweig. On January 6,
1988, Rosenzweig directed another memorandum to Rainey in which
he attempted to clarify the need for his transfer and also to
clarify his responsibilities. (JX 10) The memorandum also
endorses Rainey's continued independent research activity at
Lafayette. Rainey subsequently appealed these determinations of
Rosenzweig to the dean of the medical school by way of
memorandums dated January 19 and January 20, 1988. (JX 11, 12)
The medical school dean subsequently endorsed the transfer,
although some variation in his time schedule was suggested. (JX
13) The record seems to indicate that the reassignment of Rainey
to Harper had the effect of preventing Rainey from performing his
contract duties at Lafayette during his regular university hours
of nine to five. (Tr. 240)
Even though Rainey was under an express directive from
Rosenzweig to sever his relationship with Lafayette with the
exception of his research work, he continued to perform
administrative responsibilities in clear violation of
Rosenzweig's directive. During this same period, Rainey was
having problems with one or more of his co-workers at Lafayette
concerning the nature of their research work and on March 25,
1988, one of his associates filed complaints with both Sullivan
and Rosenzweig concerning the removal of certain research data
from a Lafayette office. (JX 14, 16) Rainey also continued to
resist the transfer to Harper and as a result, the Dean of the
Medical School at WSU advised him in writing that his salary
payments had been stopped. (RX 91, 92) The payments recommenced
5 days later. It was at approximately this time that Rainey
initially retained an attorney to represent him. (Tr. 211)
Haggling continued during this period into the month of May
concerning Rainey's consulting time spent at Lafayette. (JX 20,
21) Rainey's problems with his research associates continued and
on May 20, 1988, sixteen of his associates directed a letter to
Sullivan seeking Rainey's removal from any role in the research
administration of Lafayette. (JX 23)
Following a meeting between Rainey, Rosenzweig, and the
Director of Harper, another written statement was directed to
Rainey by Rosenzweig on May 25, 1988. That directive outlined
his full responsibility at Harper. The next day, Rosenzweig
authorized Rainey to supervise Lafayette residents who may have
been rotating through Harper. (JX 26) On June 28, 1988,
Rosenzweig directed a memorandum to Rainey which reads as
follows:
Your contract with Lafayette Clinic is to be terminated as
of August 1, 1988. It will not be renewed for the following
year.
Your sole responsibility at Lafayette Clinic, as I have
previously advised you, is to conduct the research project
for which you have received an NIMH grant.
(JX 29)
Dr. Thomas M. Sullivan, who is the Acting Director,
Lafayette Clinic, also testified at length. He is an employee of
the State of Michigan and has served Lafayette for about
twenty-eight and one-half years. (Tr. 232) He has held a series
of positions at Lafayette which culminated in his being named
Acting Director. Dr. Sullivan had an awareness of the problem of
Dr. Rainey with his transfer to Harper. Rosenzweig directed a
copy of his memorandum dated June 28, 1988 to Sullivan so that he
understood that the chair of the Psychiatry Department had
ordered Rainey to terminate his consulting arrangement with
Lafayette effective August 1, 1988. Sullivan had previously been
told by DMH to coordinate the personal services contract
arrangements with Rosenzweig and Rosenzweig obviously said that
Rainey was not to receive a contract. He discussed the matter
with Rainey at least twice subsequent to June 28, 1988, but since
he had no decision-making authority on the contracts, he was not
in a position to grant Rainey any relief. Sullivan's testimony
was that Rainey was abundantly aware after the June 28, 1988
memorandum that his contract would not be renewed.
On June 30, 1988, Rainey and Rosenzweig met concerning the
June 28, 1988 directive. In a memorandum dated July 13, 1988,
Rosenzweig provided specific reasons for the actions mentioned in
his June 28, 1988 memorandum. (JX 31) This latter memorandum
once again directed Rainey to refrain from entering into any
contract with the Lafayette Clinic and further advised him that
any action contrary to the directive contained within the
memorandum would subject Rainey to disciplinary action. (JX 31)
The dispute continued between the parties through July and August
of 1988. On August 5, 1988, Rainey carried his appeal under
Article XXIV of the American Association of University Professors
(AAUP) Contract to the interim dean of the School of Medicine.
On August 29, 1988, Rosenzweig once again directed a memorandum
to Rainey in which he outlined the authority for his reassignment
action. (JX 46) Sullivan, on August 30, 1988, directed a
memorandum to Rainey on the subject of his Personal Services
Contract which reads as follows:
As stated in Item No. 14 of the above, this is to give you
30 days notice that we will not be renewing your contract
for the next fiscal year.
(JX 47)
Sullivan testified that this notice was given as a matter
courtesy. (Tr. 291)
The dean of the medical school refused to offer redress under
Article XXIV of the contract between WSU and the AAUP, and on
September 16, 1988, Rainey appealed that determination. (JX 48)
On September 23, 1988, he filed, complaint with the Wage and
Hour Division, U.S. Department of Labor, which gave rise to this
matter. (JX 49) In his complaint, Rainey alleges:
My contract, which represents more than 20 percent of my
income, is to terminate as of October 1, 1988. It is clear
that the decision to terminate my contract was related to my
involvement with the radiation safety violations and an
ongoing effort to conceal these violations from the Nuclear
Regulatory Commission. I was notified of this decision on
August 26, 1988.
Rainey's reference in the complaint was to the loss of his
Personal Services Contract with Lafayette which was in the amount
of $20,800.00 per year. Rainey contends that Rosenzweig's
directive to terminate his Personal Services Contract and DMH's
failure to extend the same Personal Services Contract constitutes
a discriminatory act under 42 U.S.C. § 5851.
CONCLUSIONS OF LAW
All of the federal whistleblower protection laws have
thirty-day statutes of limitation. The Energy Reorganization
Act provides for an appeal period as follows:
Any employee who believes that he has been discharged or
otherwise discriminated against by any person in violation
of subsection (a) may, within thirty days after such alleged
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. Section 5851(b)(1).
All of the federal protection statutes are either identical to
this provision or are drafted in a very similar fashion. The
Regulations provide that any complaint under this section shall
be filed within thirty days after the occurrence of the alleged
violation. 29 C.F.R. Section 24.3(b). These statutes commence
running on the day that the employee becomes aware, or reasonably
should have been aware, that he was the victim of a
discriminatory act, Pulliam v. Worthington Service Corp. ,
81-WPCA-1, slip op. of ALJ at 2 (May 15, 1981), or the day that
the employee becomes aware that a decision was made to terminate
him or otherwise discriminate against him and not when the
employee is warned that a decision might be made. Conley v.
McClellan Airforce Base , 84-WPCA-1, slip op. of ALJ at 4
(September 12, 1984). The thirty-day Statute of Limitations
period has been strictly enforced by the courts and by other
Administrative Law Judges. School District of Allentown v.
Marshall , 657 F.2d 16 (3rd Cir. 1981); Stokes v. Pacific Gas and
Electric Co. , 84-ERA-6, slip op. of ALJ (July 27, 1984); Symmes
v. Purdue University , 8,-TSC-5, slip. op. of ALJ (February 17,
1988).
Based upon these considerations, I must now decide initially
at what point in time the alleged unlawful employment practice
occurred and secondly, whether the Complainant filed his charge
within thirty days after the alleged violation occurred. As was
noted earlier in this Decision, the complaint of Dr. Rainey
alleges discrimination with respect to both WSU and Lafayette. I
will address the allegations separately and with respect to both
individual entities.
Concerning WSU, it is clear that the problems with respect
to Dr. Rainey commenced following the installation of Rosenzweig
as the chairman of the WSU Department of Psychiatry. The record
shows that Rosenzweig, following his installation in the latter
part of 1987, apparently implemented a policy of re-enforcing the
faculty at Harper at the expense of Rainey's comfortable
arrangement at Lafayette. As early as November of 1987,
Rosenzweig advised Rainey that his primary assignment was to be
changed to Harper from Lafayette. That reassignment was not to
become effective until January 1 of 1988. It was that change in
duty station which certainly was responsible at least in part for
Rosenzweig's later directive to Rainey that he terminate his
relationship with Lafayette with the exception of his research
work. The record is clear that from November of 1987 when
Rosenzweig first altered Rainey's primary duty assignment until
June 28, 1988, that the question of the reassignment of Rainey
was being hotly contested. However, on June 28, 1988, Rosenzweig
directed a clear, unequivocal memorandum to Rainey which advised
him that his Lafayette contract must be terminated effective
August 1, 1988 and that the contract would not be renewed for the
following year. The memorandum also advised Rainey that his only
activity at Lafayette was to be his continued research project.
The directive of Rosenzweig in this regard is clear and
unequivocal. Rosenzweig's authority is not contested. I find
that it was on June 28, 1988 that the alleged unlawful employment
practice concerning the termination of Dr. Rainey's contract with
DMH occurred with respect to WSU.
I believe that an argument can be made that the alleged
discrimination occurred as early as November of 1987 when
Rosenzweig changed Rainey's primary duty station to Harper from
Lafayette. However, in view of subsequent alterations and
clarifications which resulted from Rainey's contest of that
assignment, I believe that the ultimate action with respect to
the contract with DMH did not occur until June 28, 1988, as noted
above. Since the complaint of Dr. Rainey was not mailed until
September 23, 1988, and not received until September 30, 1988 by
DOL, it clearly was not filed within the thirty-day period
provided by the statute. Therefore, I conclude that the
complaint filed by Dr. Rainey against WSU was untimely and in
clear violation of the applicable statutes.
I note that the alleged discriminatory act of WSU was
initiated by Rosenzweig against Rainey by way of the exercise of
his authority as a superior. WSU, as the record shows, had no
authority whatsoever to enter into the personal service contracts
with Rainey. No representative of WSU was the signatory to any
of those contracts. In fact, Sullivan also had no authority to
execute these agreements. The parties to the contracts were
Rainey and DMH. Therefore, Rosenzweig's alleged discriminatory
act related to his directive to Rainey that he refrain from
entering into another contract or his directive that Rainey
terminate the existing contract effective August 1, 1988. Rainey
argues on brief that the act of discrimination occurred when he
was notified that his contract would not be renewed for the
following fiscal year by Dr. Sullivan by way of letter dated
August 30, 1988. Concerning WSU, that contention has no
relevance.
I must next decide at what point in time the alleged
unlawful employment practice occurred with respect to DMH or
their representatives located at the Lafayette Clinic. Rainey
argues as noted above that Dr. Sullivan's letter dated August 30,
1988 in which Sullivan attempted to give Rainey thirty days
notice that his contract for the next fiscal year would not be
renewed. Sullivan's memorandum of that date makes reference to
Item No. 14 of Rainey's personal services contract which provides
as follows:
This contract may be terminated by either party with or
without cause upon 30 days notice in writing to the other
party. Such notice is effective upon mailing.
Dr. Sullivan's reference to Paragraph 14 is misplaced in that
that provision relates to a termination of a running contract and
has nothing to do with the execution of a new contract for a
later period. The record contains no evidence that during the
years of renewal of Rainey's contracts that he was given prior
written notification of that fact. There simply was no
obligation to provide this notice and Sullivan testified that it
was given as a courtesy. Sullivan also testified that DMH would
sometimes approve his request for additional personal service
contracts and on other occasions, his request would be denied.
As the last contract signed by Rainey discloses, the signatories
were Dr. Rainey and also a Betsy Marie Hill, whose title appears
to be acting personnel manager of DMH. No member of the WSU
staff is a signatory to these agreements.
Dr. Rainey contends that these personal services contracts
were an extension of his salary arrangement with WSU, but the
evidence in the record simply does not support that contention.
The recipients of the personal services contracts were nominated
cooperatively by the Director of the Lafayette Clinic and the
Chairman of the Department of Psychiatry of the School of
Medicine of WSU. Initially, a single individual held both
positions which simplified the mechanics for the extension of the
contracts to Rainey. However, in later years, two separate
physicians held those individual posts which would tend to
complicate the contractual arrangement since the concurrence of
both individuals would be required. The personal services
contracts do not define the nature of the physician's duties at
Lafayette and it was the Chairman of the Department of Psychiatry
at WSU who determined those responsibilities. (Tr. 240) Once
Rosenzweig was appointed as the chair for the Department of
Psychiatry, cooperation was required between Sullivan and
Rosenzweig in the recommendations for the recipients of the
personal services contracts. That cooperation resulted in
Sullivan's sending to Rosenzweig on August 24, 1988, numerous
contractual personal services requests for his approval. (JX 75)
Rosenzweig, at that time, noted on the request form for Rainey
that it was not to be renewed. That action was entirely
consistent with his prior determinations and instructions to
Rainey pertaining to his activity at Lafayette. The action here
was a mere formality of instruction to Sullivan prior to
Sullivan's forwarding these requests to DMH for final approval or
disapproval. Upon the basis of this factual scenario, I believe
that there exists such a confusion of identity between the
managerial activity of Sullivan and Rosenzweig with respect to
the operation of Lafayette and the professors at WSU that it was
clear to Rainey certainly no later than June 28, 1988 when
Rosenzweig directed his infamous memorandum that DMH would not
extend another personal services contract. The determination
letter of DOL makes no distinction between the activities of WSU
and those of Lafayette. As Dr. Sullivan testified, while Rainey
was performing services at Lafayette, it was almost impossible to
determine upon whose behalf his activity was being conducted.
The activities of WSU and DMH by way of Lafayette are so
intertwined that I concur in the area director's apparent
determination that their conduct was inseparable. Therefore, I
conclude that the alleged discriminatory act of DMH at Lafayette
was also made on June 28, 1988 in the form of Rosenzweig's
memorandum. Thus, also with respect to DMH, the thirty-day
period for filing had expired.
Complainant contends that the doctrine of equitable tolling
of the statute of limitations can be applied under these
whistleblower protection laws. I agree. These laws are remedial
in nature and they were passed to give broad protection to
employees. Both the Secretary of Labor and the Courts have
determined that the thirty-day filing requirement is not a
jurisdictional prerequisite for the maintenance of this type of
action. Dartey v. Zack Co. , 82-ERA-2, slip op. of SOL (April 25,
1983); School District of Allentown v. Marshall , supra; Zipes v.
Transworld Airlines, Inc. , 455 U.S. 385 (1982).
The doctrine of equitable modification or tolling is
extremely narrow and the restrictions on the applicability of the
doctrine must be scrupulously observed. School District of
Allentown v. Marshall, supra; Electrical Workers v. Robbins &
Myers, Inc ., 429 U.S. 229; 97 S.Ct. 441, 50 L.Ed.2d 427 (1976);
Smith v. American President Lines , 571 F.2d 102, 109 (2nd Cir.
1978); Hays v. Republic Steel Corp. , 531 F.2d 1307 (5th Cir.
1976). The doctrine equitable modification has been
recognized in this jurisdiction. Leake v. University of
Cincinnati , 605 F.2d 255, (6th Cir. 1979); Akron Presform Mold
Co. v. McNeil Corp . 496 F.2d 230 (6th Cir. 1974); Geromette v.
General Motors Corp. , 609 F.2d 1200 (1979). In order to gain
relief under this document, the Complainant must establish that:
1. The Defendant has actively misled the Plaintiff
respecting the cause of action;
2. The Plaintiff has in some extraordinary way been
prevented from asserting his or her rights; or
3. The Plaintiff has raised the precise statutory claim and
issue but has mistakenly done so in the wrong form.
School District of Allentown v. Marshall, supra.
Based upon the record in this case, there is no evidence
that Dr. Rainey was actively misled by either WSU or Lafayette
concerning his cause of action, nor is there any evidence that
Dr. Rainey was prevented from asserting his rights based upon
some extraordinary circumstances. Dr. Rainey argues on brief
that the limitation period was tolled as a result of the review
process provided by the university's collective bargaining
agreement which allowed him to seek reversal or amelioration of
Rosenzweig's decision. Rainey argues that he had previously
successfully sought review of a Rosenzweig decision and that even
his appeal of the dispute concerning his Lafayette contract was
still pending. As was noted above, the statute commences running
on the day that the employee becomes aware, or reasonably should
have been aware, that he was the victim of a discriminatory act,
and it is on that date, regardless of his appeal rights. There
is no evidence whatsoever in this file that Rainey was prevented
from asserting any of his rights. The record also contains no
evidence that he pursued his claim mistakenly in some other
forum. Based upon this record, I find that the doctrine of
equitable modification or tolling is inapplicable to the facts of
this case. Regardless of the above findings, equitable tolling
principles do not apply where a plaintiff engages in grievance
proceedings pursuant to a collective bargaining agreement.
International Union of Electrical Workers v. Robbins and Meyers,
Inc. , 429 U.S. 229 (1976). An agreement was operative here as to
WSU. (JX 85)
ORDER
For all of the reasons indicated, it is recommended that the
complaint filed by Dr. John M. Rainey, Jr., be dismissed as being
untimely.
RUDOLF L.
JANSEN
[ENDNOTES]
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