DATE:  December 8, 1992
CASE NO. 90-SDW-2


IN THE MATTER OF
GAYLE EISNER,
          COMPLAINANT,
      v.      
U.S. ENVIRONMENTAL PROTECTION
AGENCY,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                  DECISION AND ORDER OF REMAND
    This case is before me for review of the [Recommended]
Decision and Order of Dismissal (R.D. and O.) issued by the
Administrative Law Judge (ALJ) on March 27, 1991, pursuant to the
whistleblower provision of the Safe Drinking Water Act (SDWA), 42
U.S.C. § 300j-9(i) (1988).
    On November 1, 1989, prior to hearing, Respondent filed a
Motion to Dismiss and/or For Summary Judgment based on three
grounds:  that the complaint was untimely filed; that the issues
raised by Complainant do not fall within any environmental
statute containing a whistleblower provision; and substantively,
that the requisite finding of causation is precluded.  On
November 27, 1989, the ALJ issued an Order to Show Cause why the
complaint should not be summarily dismissed as untimely.  The 
parties agreed to brief that limited issue, and after reviewing
their submissions, the ALJ dismissed the complaint as untimely
filed.  Both parties have filed responses to the ALJ's
decision. 1/

                           BACKGROUND
Complainant was hired by Respondent in January 1989, under
the S.C.O.P.E. part-time employment program, a cooperative
program between the University of California at Berkeley and
Respondent.  In her complaint, dated March 22, 1990, Complainant
alleged that she was wrongfully terminated on March 7, 1990, in
retaliation for her having taken a position contrary to
Respondent's official position on a proposed sewage plant
expansion, and because of her subsequent responses to various

[PAGE 2]
press inquiries concerning the matter.
    The Wage and Hour Division of the Department of Labor (WH)
issued a preliminary finding that Respondent violated the SDWA by
placing Complainant on leave-without-pay status and then
terminating her in retaliation for protected conduct.  The
decision did not address the question of whether the complaint
was timely filed.
    In moving for dismissal before the ALJ, Respondent argued
that Complainant's March 22 complaint 2/ is time-barred
because the environmental whistleblower statutes require that complaints
be filed within thirty days of the action complained of, and it
is undisputed that Complainant was put on leave-without-pay
status on August 2, 1989, and was terminated effective
January 18, 1990, by notice dated and admittedly received by
Complainant on January 12.  Respondent further argued that the
March 7 incident referred to by Complainant in her complaint --
Respondent's alleged refusal of a resignation letter -- is a
distinctly different issue which does not prolong the period for
filing a complaint about the termination.  In support of its
position, Respondent submitted copies of the January 12
termination notice and government Standard Form 50 (SF-50),
Notification of Personnel Action, which shows Complainant's
"involuntary termination" effective January 18.  Respondent also
submitted declarations from John Ong, who averred that he issued
the termination notice after first giving Complainant an
ultimatum of termination or resignation in December, and Keith
Takata, who declared that after being contacted by Jennifer
Sugiyama, the S.C.O.P.E program attorney, in approximately
February 1990, his only suggestion was that if Complainant would
submit a letter of resignation, Respondent could rescind the
termination letter.  Takata further declared that he never
received a resignation letter.
    In opposition to Respondent's motion, Complainant submitted

[PAGE 3]
declarations by herself and Sugiyama.  Complainant declared that
she did not "understand" Respondent's January 12 termination
notice to be final in light of her December 1989, conversation
with Ong and Takata's later statement that the termination letter
would be removed if Complainant agreed to resign.  Rather, she
did not consider Respondent's decision to be final until March 7,
when she learned from Sugiyama that Respondent was no longer
willing to consider a resignation letter or any other action
other than termination.
    Sugiyama declared that on January 31, Takata agreed that the
termination letter was inappropriately issued and that he would
rescind it if Complainant would instead submit a resignation
letter.  Respondent replied by submitting a supplemental
declaration from Sugiyama in which Sugiyama clarified her
discussions with Takata.  She further added that although
Complainant made an appointment to bring in a draft resignation
letter, Complainant did not keep the appointment or call
concerning the missed appointment, and Complainant never brought
Sugiyama a letter of resignation.  Respondent also submitted the
declaration of Karen Toole, who testified that on January 25,
1990, she mailed to Complainant the SF-50 referred to previously
and Standard Form 2810, Notice of Change in Health Benefits
Enrollment, both of which show Complainant's involuntary
termination on January 18, 1990.
                             DISCUSSION
    Because the ALJ considered declarations and other submitted
materials in granting Respondent's motion, his ruling is treated
as a recommendation for summary decision, even though he did not
expressly characterize it as such.  29 C.F.R. § 18.40(d).
3/
After reviewing the parties' submissions and the applicable law,
I agree with the ALJ's ruling that the allegation of unlawful
termination must be summarily dismissed as time barred because on
that question, there is no genuine issue as to any material fact
and Respondent is entitled to prevail as a matter of law.
4/ Id.; Gore v. CDI Corp., Sec. Fin. Dec. and Ord.,
Jul. 8, 1992, slip op. at 5; Nunn v. Duke Power Co. Case No. 84-ERA-27,
Dep. Sec. Dec. and Ord. of Rem., Jul. 30, 1987, slip op. at 8; see
also Anderson v. Liberty Lobby. Inc., 477 U.S. 242,
256-57 (1986). 5/

[PAGE 4]

    The ALJ found that the January 12 termination letter and the
government forms, all indisputably received by Complainant,
clearly indicate that Complainant's termination was effective
January 18, 1990, and "vividly reflect a final discharge of a
permanent nature."  R.D. and 0. at 2.  I agree.  The January 12
termination notice states:

     Upon reviewing your work performance, and as we
     discussed on December 20, 1989, I have decided to
     separate you from your position as an EPS Student
     Trainee, effective January 18, 1990.
Exhibit D attached Ong Declaration (Decl.).  Generally speaking,
a cause of action for unlawful termination accrues when the
employee receives such an unequivocal, final notice of the


[PAGE 5]

decision, English v. Whitfield, 858 F.2d 957, 962 (4th
Cir. 1988), citing Chardon v. Fernandez, 454 U.S. 6 (1981), and
Delaware State College v. Ricks, 449 U.S. 250 (1980). 
This case is no exception.
    Complainant argues that the filing period should be
equitably tolled because she was misled and unaware of her cause
of action until March 7.  As the ALJ concluded, however, the mere
fact that Respondent was willing to replace the termination
letter with a letter of resignation provides no basis for tolling
the thirty-day period within which Complainant was required to
file a complaint for unlawful termination.  See R.D. and O. at 1-
2. 6/  It is undisputed that Complainant (or Sugiyama on
Complainant's behalf), not Respondent, instigated the discussions
to permit the resignation letter.  At that point, Respondent's
role was passive; the onus was on Complainant, but she took no
action to submit a resignation letter.  These facts cannot be
viewed as demonstrating affirmative misleading or deceptive
conduct by Respondent which could justify tolling.  See
Dillman v. Combustion Engineering. Inc., 784 F.2d 57, 60 (2d Cir.
1986); Tracy v. Consolidated Edison Co.. of New York. Inc., Case
No. 89-CAA-l, Sec. Fin. Dec. and Ord., Jul. 8, 1992, slip op. 6-7,
and cases cited therein.  Furthermore, Takata's statement that


[PAGE 6]


the January 12 termination letter was "inappropriately" issued
could not have misled Complainant into believing that the
termination decision had been revoked because it is undisputed
that Complainant had no knowledge of this remark. 7/ 
Finally, tolling is inappropriate here because in her declaration,
Complainant admits that after receiving the termination notice in
January, she contacted Sugiyama for help because she believed
that the reasons given for her termination were pretextual, that
her discharge was retaliatory, and that neither termination nor
forced resignation were appropriate.  Eisner Decl. at 4, p. 11.
See Kale v. Combined Insurance Co. of America, 861
F.2d 746, 753 (lst Cir. 1988); Naton v. Bank of California, 649 F.2d
691, 696 (9th Cir. 1981). 8/
    Nor does Respondent's willingness to ameliorate the effects
of Complainant's termination by accepting a resignation letter
constitute grounds for equitable estoppel in this case. 
Dillman, 784 F.2d at 61; see English, 858 F.2d at 963;
Naton, 649 F.2d at 696.  Complainant's argument that Respondent
engaged in "bad faith negotiations" is post-hoc, based solely on conjecture,
and insufficient to raise a genuine issue.  See Kohler v.
Ericsson, Inc., 847 F.2d 499, 501 (9th Cir. 1988);
Rockland County Sheriff's Deputies v. Grant, 670 F. Supp.
566, 568 (S.D.N.Y. 1987).  There is no allegation that
Respondent's willingness to accept a resignation letter was
contingent on Complainant's agreement not to file a complaint. 
There is no allegation that 
[PAGE 7]
Respondent's subsequent unwillingness to accept a resignation
letter was because the thirty-day time period had lapsed.  To the
contrary, Complainant asserts that Respondent became unwilling
because she spoke to reporters about the sewage plant project. 
Eisner. Decl. at 5, p. 14; see also Complainant's
March 22, 1990, complaint at 3.  Complainant has not presented
even colorable evidence showing any genuine issue of bad faith. 
Anderson, 477 U.S. at 250.
     I further agree with the ALJ that Complainant's claim for
unlawful discharge can not be resurrected under a continuing
violation theory.  According to Complainant, Respondent
committed, as part of an organized scheme, a series of continuing
violations against her, culminating on March 7, 1990, within the
thirty-day filing period.  All the incidents recited by
Complainant are clearly separate and distinct and not acts of a
continuing nature.  See Green v. Los Angeles County
Superintendent of Schools, 883 F.2d 1472, 1480-81 (9th Cir.
1989); London v. Coopers & Lybrand, 644 F.2d 811, 816 (9th
Cir. 1981); Helmstetter v. Pacific Gas & Electric Co., Case No.
86-SWD-2, Sec. Dec. and Ord. of Rem., June 15, 1989, slip op. at
8.  The acts were sufficiently permanent to trigger Complainant's
awareness of Respondent's alleged discrimination.  Berry v.
Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir. 1983).
Consequently, the continuing violation theory does not preserve
the timeliness of Complainant's claim. 9/
    I find, however, that Complainant sufficiently raised in her
complaint a separate allegation of a discriminatory act accruing
on March 7, 1990, which the ALJ did not address, and which
requires remand. 10/  Since Respondent accepts, for
purposes of its motion, that Complainant's complaint was filed on March 22,
summary dismissal of this allegation as untimely would be
improper.
    Complainant claims that she received notice on March 7 that
Respondent was no longer willing to accept a reslgnation letter
because she discussed the sewage plant project with reporters.
In remanding the case, I reach no conclusions, nor should any be


[PAGE 8]


inferred, as to whether this allegation is cognizable or
meritorious.  Specifically, I do not find or imply that
Complainant's post-termination discussion with the press
constitutes a protected activity or that Respondent's subsequent
unwillingness to accept a resignation letter constitutes an
adverse action.  The ALJ must consider these issues in the first
instance on remand.  While the Secretary has held that former
employees may be afforded protection under the whistleblower
provisions at 29 C.F.R. Part 24, see Cowan v. Bechtel
Construction. Inc., Case No. 87-ERA-29, Sec. Dec. and Ord. of
Rem., Aug. 9, 1989, the question as presented in the posture of
this case has not been addressed.  In addition, the other two
grounds pressed by Respondent in its Motion to Dismiss and/or For
Summary Judgment have not been addressed and the motion,
therefore, remains pending before the ALJ as a preliminary matter
on remand.
                              ORDER
    Accordingly, the complaint as it relates to Complainant's
discharge and other allegations of discriminatory acts committed
prior to discharge IS DENIED.  The complaint as it relates to the
allegation of a discriminatory act accruing on March 7, 1990, IS
REMANDED for further consideration consistent with this decision.
    SO ORDERED.

                              LYNNE MARTIN        
                              Secretary of Labor

Washington, D.C.

[ENDNOTES]

[1] Respondent asserts that Complainant's initial brief,
dated June 3, 1991, was untimely filed and should not be considered.
The briefing schedule required initial briefs to be filed on
May 31, 1991.  Upon consideration of the short delay, and in
order to have the benefit of both parties' views on the case, I
accept all briefs.

[2] For purposes of its motion, Respondent has accepted the
alleged March 22 filing date.  Respondent's Rebuttal Brief at 5
n.5.

[3]  I reject Complainant's contention that the ALJ exceeded
his authority under 29 C.F.R. Part 24 (1992), by dismissing the case.

While the regulations at Part 24 do not specifically provide for
summary decision or dismissal on the issue of timeliness, the ALJ
is authorized to entertain and rule on appropriately filed
motions pursuant to the regulations at 29 C.F.R. Part 18 (1992).
29 C.F.R. §§ 18.1, 18.40, 18.41.  See,
e.g., Howard v. TVA, Case
No. 90-ERA-24, Sec. Fin. Dec. and Ord. of Dis., Jul. 3, 1991,
slip op. at 4.

[4] In addition, contrary to Complainant's charge, the
ALJ's decision with respect to the discharge issue is not violative of
29 C.F.R. § 18.41(a)(2) or the Administrative Procedure Act,
5 U.S.C. § 557 (1988).  The ALJ identified the legal precedent
and facts on which he relied, such that no speculation as to the
basis of his ruling is required.  Lockert v. U.S. Dept. of
Labor, 867 F.2d 513, 517 (9th Cir. 1989).

[5] Complainant had a sufficient opportunity for discovery. 
In Respondent's letter formally appealing the preliminary
determination, Respondent requested that the hearing date be
delayed because it intended "to file a dispositive motion for
summary judgment and/or dismissal based on the untimeliness of
the complaint and on lack of jurisdiction."  Letter from
Suzette E. Leith to the Chief ALJ, dated July 25, 1990.  The
letter indicates service on Complainant.  While Complainant may
not have been formally represented by counsel at this time, she
declared that she had consulted an attorney regarding the case
shortly after March 7, 1990.  On October 16, l99O, the ALJ issued
a notice scheduling the hearing.  Respondent filed its motion for
dismissal on November 1, and Complainant filed a written response
on November 16.  The ALJ then issued the Order to Show Cause on
November 27.  By letter dated December 11, counsel for
Complainant appeared and confirmed that the parties had
stipulated to a continuance and had agreed to a briefing
schedule, following which the ALJ would decide the timeliness
issue.  Counsel did not indicate any efforts or make requests to
obtain discovery.  Rather, on January 22, 1991, Complainant
submitted a memorandum, with exhibits attached, in opposition to
Respondent's motion and did not claim the lack of opportunity to
discover essential information.  In view of Respondent's early
notice and the passage of considerable time and missed
opportunities for Complainant to effect discovery, Complainant's
belated argument is rejected.

Similarly, in view of Complainant's failure to advise the ALJ of
any difficulty she was having in attempting to obtain the WH
investigative file, I deny her motion requesting that I now
accept that file into the record.  See 29 C.F.R. §§
24.6(b)(1), 18.54(c), 18.55.  This ruling, however, does not preclude the ALJ
from considering whether to admit the investigative file as
relevant and probative evidence on remand, see
infra at 10-11.

[6] I reject Complainant's argument that the WH finding of
timeliness precludes summary dismissal here.  That finding is
based on no legal analysis; neither is it binding.  Respondent's
appeal entitled the parties to a de novo consideration of the
case and all extant issues.  Mosbaugh v. Georgia Power
Co., Case No. 90-ERA-58, Sec. Fin. Dec. and Ord., Sept. 23, 1992, slip op.
at 3-4.

[7] Sugiyama also clarified that although Takata stated
that the termination letter was procedurally and semantically
inappropriate, Takata did not state that the merits of the
decision were improper.  Sugiyama Supplemental (Supp.) Decl. at
2-3, paragraphs (p.) 7, 10.  Even if an employer agrees to
reconsider a termination decision, such reconsideration alone is
legally insufficient to toll a limitations period.  Ricks,
449 U.S. at 261 n.l5; Electrical Workers v. Robbins and Myers,
Inc., 429 U.S. 229 (1976).

[8] This case arises within the appellate jurisdiction of
the Ninth Judicial Circuit.

[9] I may not ignore the congressionally imposed, albeit
short, limitation period based on Complainant's "due process" arguments,
which as Respondent points out, are more in the nature of vague
fairness arguments.  After weighing the various interests at
stake, Congress determined that these complaints should be made
within a very short time after the alleged violation occurred.
School District of the City of Allentown v. Marshall, 657
F. 2d 16, 20 (3d Cir. 1981).  It is not unfair to recognize both
benefit and detriment to guarantee '"evenhanded administration of
the law. "'  Allentown, 657 F.2d at 21.

[10]  It is not fatal that Complainant's complaint did not
set forth this claim precisely.  Nunn, slip op. at 12 n.3. 
Nor is it determinative that Complainant's prior counsel did not press the
ALJ to consider the question of timeliness with respect to this
separate allegation.  I am not bound by the prior legal theories,
particularly at this early stage of the proceeding.  Chase v.
Buncombe County, Case No. 85-SWD-4, Sec. Dec. and Ord. of
Rem., Nov. 3, 1986, slip op. at 5.  See also
English, 858 F. 2d at 963.