CASE NO. 86-ERA-18 86-ERA-19 86-ERA-20

In the Matter of

THOMAS MC GOUGH, WILLIAM TOTH,
and THOMAS SYLVESTER
    Complainants

    v.

UNITED STATES NAVY, ROICC
    Respondent

    Counsel for Department of the Navy, respondent in these consolidated cases, filed a motion to dismiss these complaints under the "whistleblower" sections of the Toxic Substances Control Act, 33 U.S.C. § 1367; Safe Drinking Water Act, 42 U.S.C. § 300j-9(i); Solid Waste Disposal Act, 42 U.S.C. § 6971; Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9610 on June 18, 1986. After a conference call on July 2, 1986, the parties agreed to have all subsequent briefs filed by August 1, 1986. All the relevant briefs have been submitted and the motion is now ready for decision.

    The complainants herein, William Toth, Tom Sylvester, and Tom McGough were employed by Covington Constructors to work on four projects on the Camp Pendleton base. Allegedly, during construction it was discovered that there were underground fuel storage tanks which were leaking petroleum hydro-carbons.

    Complainants informed federal, state, and local environmental protection agencies. It is alleged that respondent, through the ROICC, attempted to supress the facts regarding possible environmental contamination. Moreover, it is alleged that respondent harassed complainants and discriminated against them and finally, prevented complainants from working on the projects.

    The Navy asserts three bases for dismissal: the complaints were untimely filed; the complainants did not have an employee,/ employer relationship with the Navy; and the complainants did not state any cognizable violations because they did not engage in protected activity.

    In opposition to the first issue, complainants have raised the doctrine of equitable tolling; alternatively, complainants assert that the complaints were filed within the 30 day period. I resolve the second argument against complainants because the evidence indicates that the alleged discriminatory conduct (i.e., complainants' termination from Navy project) occurred in the last week of October or the first week of November.¹ Complainants Toth and Sylvester filed their complaints on December 20, 1985; McGough filed his complaint on January 10, 1986. The 30 day period had certainly expired.²

    If certain fact situations are established, the doctrine of equitable tolling may be applicable to these cases because the time periods stated in the relevant Acts are analogous to statutes of limitation instead of jurisdictional bars. See, e.g., School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 18 (3d Cir. 1981). Equitable tolling applies in three principal situations: 1) plaintiff has been actively misled by defendant regarding the cause of action; or 2) plaintiff has been prevented in some extraordinary way from asserting his or her rights; or 3) plaintiff previously raised the exact claim but by mistake it was in an incorrect forum. See, e.g., City of Allentown, supra at 20; Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978).

    The evidence does not establish that any of these situations

apply to the instant claims. The facts do not show, nor have the complainants attempted to allege, that these claims were mistakenly raised in an erroneous forum. The facts do not support complaintants' conclusory assertions that they were prevented, in some extraordinary way, from asserting their rights, or that the Navy misled them regarding the cause of action. (See supplemental opposition brief, at page 6). Complainants have not asserted any tangible facts which support these allegations. Additionally, even assuming that the three situations set out above which allow for application of equitable tolling are not, exclusive, see, e.g., City of Allentown, supra at 20, complainants have not argued that an alternative extraordinary situation occurred which would justify equitable tolling. After careful consideration of all of the evidence, even construed liberally in favor of complainants as the non-moving parties, I find that equitable tolling is not justified in these cases.³ Although this might otherwise be a meritorious claim, "[t]he restrictions on equitable tolling...must be scrupulously observed." City of Allentown, supra at 19. See also Mohasco Corp. v. Silver, 447, U.S. 807, 826 (1980) ("Even if the interest of justice might be served...experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.").

¹ Complainants Toth and Sylvester were terminated from the Navy project on or about October 31, 1985; complainant McGough was terminated between October 31, 1985 and November 8, 1985. (See individual complaints and first opposition brief, at page 13.).

² I reject complainants argument that because Toth and McGough remained employed with Covington Constructors until "early December" and Sylvester worked for Covington until June of 1986 the complaints were timely. (See first opposition brief, at page 20.). The date which triggers the running of the 30 day period is when the alleged discrimination by the Navy occurred, not when complainants ended their employment with Covington.

³ Although the first issue, of timeliness, is dispositive I note That the other two bases for the Navy's motion would be determined against it. Only two of the Acts refer to "employer" and the other three Acts refer to "person;" therefore, a strict employee/employer relationship is not necessary. Additionally, contrary to the Navy's arguments, under three of the Acts covered activity includes providing "information to a State or to the Federal Government," 42 U.S.C. § 9610(a) or assisting "in any other action to carry out the purposes of this subchapter," 42 U.S.C. § 300j-9(i)(c); 15 U.S.C. § 2622(3).