Date: December 18, 1996

Case No.: 96-ERA-24

In the Matter of:

LINDA ROBERTS,
    Complainant,

    v.

BATTELLE MEMORIAL INSTITUTE; ROBERT W. SMITH, JR.;
ROBERT E. LINCOLN; KATHY OLSON;
K.C. BROG; AND V.E. CASTLEBERRY,
    Respondents.

    This matter arises under the employee protection provision of the Energy Reorganization Act (ERA), 42 U.S.C. § 5851, and the regulations issued thereunder at 29 C.F.R. Part 24. Following a determination by the Wage and Hour Division that her complaint was not timely filed, Complainant appealed to this Office via telegram on May 24, 1996. By Order dated October 3, 1996, I ordered the parties to show cause why this matter should not be dismissed for the failure to timely file a complaint.

    The Energy Reorganization Act provides that "[a]ny employee who believes that he has been discharged or otherwise discriminated against by any person in violation of [the antidiscrimination provision of the statute] may, within 180 days after such 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. § 5851(b)(1). The District Director of the Wage and Hour Division determined that the alleged discrimination against Complainant occurred on July 18, 1994 and that the complaint with the Department of Labor was filed on January 27, 1995. The District Director calculated this to be 193 days and indicated that no further action would be taken due to the untimely filing.

    The operative facts, as alleged by Complainant, are as follows:¹

    Complainant complained, verbally and in writing, to Respondents' ethics committee and to management from 1990 through July 18, 1994. On March 7, 1994, Complainant filed sex discrimination and equal pay charges against Respondents with the Ohio

Civil Rights Commission and the Equal Employment Opportunity Commission. Complainant states that she filed additional charges, including health and safety issues, in these forums on June 6 and 23, 1994.² Respondents suspended Complainant without pay from June 21 through June 23, 1994 and terminated her employment on July 18, 1994. By letter dated January 9, 1995, Respondents rejected Complainant's appeal of the "suspension."

    Complainant filed a complaint with the U.S. Department of Energy by letter dated January 27, 1995. The Department of Energy forwarded the complaint to the U.S. Department of Labor, which acknowledged receiving that complaint on February 6, 1995. On March 22, 1996, the U.S. Department of Energy informed Complainant that it was without jurisdiction and suggested that she file with the U.S. Nuclear Regulatory Commission and the U.S. Department of Labor. By letter dated May 17, 1996, the Department of Labor advised Complainant that her January 27, 1995 complaint with the Department of Energy had been considered by the Wage and Hour Division of the Department of Labor and was denied because it exceeded the 180-day filing deadline.

    In response to my October 3, 1996 Order to show cause, Complainant suggests that her complaint should be considered timely because:

a) At least one complaint, by pure luck, was filed within the 180 day limit.

b) It is not common knowledge that the U.S. Department of Labor handles safety and health related complaints. Had I known, all complaints would have been to the Labor Department first.

c) Since the Equal Employment Opportunity Commission and the U.S. Department of Labor have dual jurisdiction over these types of cases, one of these agencies should have recognized the need for the U.S. Department of Labor to be involved.

d) Since the U.S. Department of Energy realized their own lack of jurisdiction, their lack of timely referral to the U.S. Department of Labor and the U.S. Nuclear Regulatory Commission is inexcusable.

e) I'm confused as to why a date on a correspondence I sent to the Department of Energy is the only date being considered in a case with the Department of Labor.

f) The issues in this case are important and should be considered. To quibble over a time period of less than two weeks leeway is not in the best interests of health and safety or discriminatory issues.

    The Sixth Circuit, wherein jurisdiction of this case lies, has designated five factors to be considered in determining whether equitable tolling is appropriate in a given situation. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991)(citing Wright v. State of Tennessee, 628 F.2d 949 (6th Cir. 1980)). These factors are: (1) whether the complainant lacked actual notice of the filing requirements; (2) whether the complainant lacked constructive notice, i.e., her attorney should have known; (3) the diligence with which the complainant pursued her rights; (4) whether there would be prejudice to the respondents if the statute were tolled; and (5) the reasonableness of the complainant remaining ignorant of her rights. The clearest circumstances calling for equitable tolling arise when an employer either deliberately causes, or should have known that its actions would cause, the employee to delay filing a charge.³ See English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988). It has also been recognized that a filing in the wrong forum can toll the filing period if it was made within the appropriate limitations period. See School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981). The courts addressing equitable tolling agree that it is a doctrine that should be carefully applied in limited circumstances, though consideration should be given to the remedial purposes of the statute at issue. Andrews, 851 F.2d at 151; School Dist. of City of Allentown v. Marshall, 657 F.2d 16, 19 (3d Cir. 1981).

    Addressing each of Complainant's contentions in turn, it is clear that this is not an appropriate case for equitable tolling. First, Complainant alleges that at least one of her complaints was filed within the 180-day deadline. By Order dated November 25, 1996, I ordered the parties to submit copies of Complainant's charges filed on June 6 and June 23, 1996 with the Ohio Civil Rights Commission and with the Equal Employment Opportunity Commission. Review of these filings reveals that Complainant alleged only sex discrimination and equal pay charges in the June 1994 complaints. The complaints do indicate that Complainant alleged that she was retaliated against, but this alleged retaliation was apparently in connection with her internal complaint of sex discrimination.⁴ However, in the June 6, 1994 charge filed with the Ohio Civil Rights Commission, Complainant stated that, "I am forced to report directly to a Sub-Contractor rather than Respondent, and this has created a hostile and unsafe environment." This is the first instance of record in which Complainant raises the issue of a health or safety concern. Thus, it is this action which is considered Complainant's protected activity under the ERA. 29 C.F.R. § 2.2(b). After the filing of the June 6, 1994, Complainant was suspended without pay and subsequently terminated from employment. This obviously constitutes adverse action under the ERA. 29 C.F.R. § 24.2(a). However, the first complaint in which Complainant raises the issue of retaliation or discrimination related to her protected activity is the January 1995 filing with the Department of Energy. Because that

complaint was filed more than 180 days from the date of the adverse action, it cannot be considered timely.⁵

    Complaint also asserts that she was not aware that her safety and health related complaints should have been filed with the Department of Labor, and she suggests that such a requirement is not common knowledge. It is well settled that ignorance of the law alone is insufficient to invoke equitable tolling. Rose, 945 F.2d at 1335; Akron Presform Mold Co. v. McNeil Corp., 496 F.2d 230, 234 (6th Cir.), cert. denied, 419 U.S. 997 (1974). The court in Rose dismissed this same argument, noting that the ERA makes it clear that complaints are to be filed with the Department of Labor within thirty days. Because there was no requirement that employees be notified of their rights and because there was no malfeasance of the part of the employer, the court rejected this argument. Therefore, Complainant's ignorance cannot be a justification for her untimely filing.

    The complainant in Rose also asserted that he did not have constructive knowledge of the filing requirement because he did not retain the services of an attorney until fifty-four days after his termination. Although Complainant has not raised this issue, it is a factor to consider in equitable tolling and should be addressed. The court ruled that Rose's delay in seeking an attorney was not excusable; he was waiting to hear about his unemployment application and had gone on a vacation with his son. Complainant has presented no rationale for her failure to obtain an attorney at that time, and thus, she has no excuse for the lack of constructive knowledge.⁶

    Combining Complainant's third and fourth contentions, that the Equal Employment Opportunity Commission also had jurisdiction in this matter and that the Department of Energy's untimely referral is inexcusable, Complainant's justifications here also fall flat. The Department of Labor has considered Complainant's complaint as filed on the day it was received by the Department of Energy, January 27, 1995. Therefore, the timing of its referral to the Department of Labor is irrelevant. In addition, the Equal Employment Opportunity Commission does not have equal jurisdiction over this matter. That agency may have jurisdiction over other claims of discrimination raised by Complainant, but as for health and safety matters arising under the ERA, this Department has the sole authority to process those claims. Furthermore, a complainant cannot rely on another agency's actions as grounds for equitable tolling. In Bailey v. Redman, 657 F.2d 16, 21 (3d Cir. 1981), a case arising under the Toxic Substances Control Act, 15 U.S.C. § 2622 (TSC), the complainant mistakenly lodged a complaint with the Environmental Protection Agency (EPA). The court rejected the argument that EPA should have reacted more promptly and adequately in referring the complaint to this Department and blamed the complainant's own lack of knowledge for the delay. The court noted that the statutory language is "plain and direct and leaves no basis for reliance upon the EPA in any respect." Id. The same holds true in this case. The ERA's 180-day limit is equally clear, and Complainant's purported reliance on other agencies is immaterial.

    Complainant's last contention raises the question of balancing the strict filing requirements imposed by the ERA against the filing of health and safety issues it is designed to protect. Although this equitable argument may be appealing, where Congress has prescribed a statutory scheme with deadlines, the scheme should be followed. As noted by the Court in Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 240 (1976), a case arising under Title VII, "Congress has already spoken with respect to what it considers acceptable delay when it established a 90-day limitations period, and gave no indication that it considered a slight' delay followed by 90 days equally acceptable. . . . Congress did not leave to courts the decision as to which delays might or might not be slight.'" See City of Allentown, 657 F.2d at 20 (applying this rationale to case under the TSC).⁷ Thus, this balancing act has already been performed by Congress, and despite the proximity of Complainant's filing to the deadline, the lack of equitable factors justifying tolling preclude the application of that doctrine to this case.

    The remaining factors to be considered are the prejudice to Respondents by the late filing and the diligence of Complainant in pursuing her rights. Respondents cannot claim that they have been severely prejudiced because Complainant had already filed other claims in other forums, putting Respondents on notice. In addition, the deadline was only missed by thirteen days. However, lack of prejudice is not a determinative factor. In Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984), the Court stated that "[a]lthough absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply once a factor that might justify tolling is identified, it is not an independent basis for invoking the doctrine." Thus, the court in Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988), advised looking beyond the lack of prejudice where the other factors do not support the application of the doctrine. Similarly, because Complainant has not demonstrated a basis for equitable tolling through other factors, the lack of prejudice to Respondents is not a basis for such tolling. Based on the numerous filings by Complainant in numerous forums, it must be acknowledged that she has been diligent in pursuing her rights. As with the lack of prejudice to Respondents, however, I find that this factor is not a significant basis for invoking the doctrine of equitable tolling.

    Although there may be a marginal basis for understanding Complainant's late filing, i.e., her ignorance of the law and lack of prejudice, she has failed to establish sufficient justification for applying the doctrine of equitable tolling to remedy her untimely filing. As noted previously, equitable tolling is a principle to be employed in limited circumstances, and I find that the facts of this case do not warrant its application. The reasons against its application far outweigh those in favor. Accordingly, I hereby RECOMMEND that this claim be DISMISSED.

       JOHN M. VITTONE
      Chief Administrative Law Judge

JMV/cy

¹As Respondents did not challenge Complainant's version of the facts, I assume they are accurate for the purpose of deciding this issue and that they are in the most favorable light for Complainant. This obviates any need for a hearing on the timeliness matter.

²These charges were apparently refiled because of the inadvertent omission of the claim of equal pay violations.

³Complainant has presented no evidence or argument that Respondents' actions in any way affected the timing of her filing.

⁴Thus, the previous complaints are not relevant for the purposes of equitable tolling because they are not related to matters over which this Office has jurisdiction.

⁵This analysis also serves as an explanation to Complainant's item (e), questioning why the Department of Energy filing is the only complaint being considered by the Department of Labor. In addition, termination from employment is a discrete and separate violation, which triggers the filing requirement, and cannot be considered as an episode in a continuing violation, tolling the filing deadline. See English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988). Thus, Respondents' rejection of Complainant's appeal of her suspension, rendered on January 9, 1995, is irrelevant for this inquiry.

⁶For the record, Complainant did attempt to retain the services of an attorney after the case was transferred to this Office, but her attempts were unsuccessful.

⁷Congress granted a right of action to victims of reprisals for invoking the provisions of the [TSC]. The benefits to the claimant, however, were balanced by the limited time within which the defendant would be exposed to liability. It is not unfair to recognize both benefit and detriment to guarantee "evenhanded administration of the law." Id. at 21.