6. Attachment 3 was in effect from 1984 to 1989 and the reduction of Long-Term Disability Benefits by amounts received from social security has remained unchanged to present (see Attachment 2 and 4).

7. In 1990, Combustion Engineering, Inc. was acquired by Asea Brown Boveri Inc. and Asea Brown Boveri Inc. continued the Long-Term Disability Benefits unchanged.

8. On April 24, 1987, Complainant was sent a Long-Term Disability Benefits application along with a cover letter (see Attachment 5) specifically stating that the Long-Term Disability Plan provided that Company-paid Benefits would be reduced by any Social Security Disability Benefits received (note the year on Attachment 5 is incorrectly typed in as 1986).

9. On April 29, 1987, Complainant returned the competed Long-Term Disability application (see Attachment 6) sent with Attachment 5 to the Company requesting Long-Term Disability Benefits. On Attachment 6, Question 28 asks whether the claimant is entitled to disability Benefits from a variety of sources, including specifically the Social Security Administration. On Attachment 6, in the Authorization and Assignment section directly above the Complainant's signature, the application states, "I hereby agree to refund any monies due the Plan as a result of payment of disability Benefits from any source listed in Item 28 above." Complainant completed and signed Attachment 6 and, thus, had additional knowledge on April 29, 1987 that his Long-Term Disability Plan provided that Company-paid Benefits would be reduced by any Social Security Disability Benefits he received.

10. On or about June 2, 1987, Complainant received notice that his application for Long-Term Disability from the Company had been approved (see Attachment 7). The letter of approval states that Social security Disability Benefits, if received, are to be deducted from the Long-Term Disability Benefits and that overpayment of Long-Term Disability Benefits due to retroactive awards of Social Security Disability Benefits must be refunded. Thus, Complainant had additional knowledge on or about June 2, 1987 that the Long-Term Disability Plan provided that Benefits would be reduced by any Social Security Disability Benefits he received.

11. Complainant's initial claim for Social Security Disability was denied (see Attachment 8), and the Respondent's insurance company became aware of this denial several years later (see Attachment 9).

12. On May 13, 1991, its insurance carrier, who administered the Long-Term Disability plan, wrote to Complainant offering to assist in his appeal or reapplication for Social Security Disability Benefits (see Attachment 9). In that letter it was stated to Complainant:

Although Benefits under our plan are normally offset by Social Security Benefits, the Social Security benefit amount which we deduct in most cases is usually at the level of the initial award. Subsequent periodic Social Security benefit increases do not result in an increase in the offset amount. This allows you to receive the full advantage of periodic increases in the Social Security benefit.

    Thus, on or about May 13, 1991, Complainant was again informed that his Long-Term Disability Plan provided that Company-paid Benefits would be reduced by and Social Security Disability benefit he received.

13. On May 17, 1991, Complainant wrote to the Travelers Insurance Company acknowledging receipt of the May 13, 1991 (see Attachment 9) letter and declined to reapply for Social Security Disability Benefits at that time (see Attachment 10).

14. On May 26, 1993, Complainant wrote to the Travelers Insurance Company with several questions relative to his status and benefits (see Attachment 11), specifically: whether he was required to perform volunteer work as a prerequisite to beginning rehabilitation processes; whether the Company was required to provide him employment upon completion of a rehabilitation program; and whether or not his Long-Term Disability Benefits would be reduced by an award of Social Security Disability Benefits related to his disability and rendered subsequent to his initial receipt of Long-Term Disability Benefits. Complainant included with that letter, a copy of the cover and page 10 of Attachment 3 and quoted a small portion of the benefits section page, which is quoted in its entirety in Paragraph 5 herein.

15. On July 15, 1993, Complainant's May 26, 1993 letter was answered by the Travelers Insurance Company (see Attachment 12), stating that: Rehabilitation and expenses were voluntary and that volunteer work was, as its term states, voluntary'; that the Travelers had no opinion as to his re-employment; that the receipt of Social Security Disability Benefits was taken into consideration in determining the Long-Term Disability Benefits due; and that the portion of the disability language he had referred to in his letter meant that subsequent cost-of-living increases to monthly Social Security Disability Benefits were not deducted from Company-paid benefits. Thus, on or about July 15, 1993, Complainant was again informed that his Long-Term Disability Plan provided that company-paid benefits would be reduced by any Social Security Disability Benefit he received (cost-of-living increases excepted).

16. On August 16, 1993, the Complainant's case manager at Travelers Insurance Company sent the Complainant additional correspondence (see Attachment 13) explaining in detail why and how his Long-Term Disability Plan provided that Social Security Disability awarded to him would be offset against his Long-Term Disability Benefits and quoted the applicable sections of the same Summary Plan Description Complainant had referred to in his letter (see Attachment 11). Thus, on or about August 16, 1993, Complainant was again informed that his Long-Term disability Plan provided that company-paid benefits would be reduced by any Social Security Disability Benefits he received.

17. On September 27, 1993, Complainant wrote to Ms. R. Da Silva (Attachment 14) at Asea Brown Boveri, Inc., reiterating the questions of his May 26, 1993 letter (Attachment 11).

18. Ms. Da Silva replied on October 15, 1993, (Attachment 15), again informing complainant that the rehabilitation plan was voluntary, that voluntary work is not mandatory, that the Americans with Disabilities Act was applicable to him and that the Long-Term Disability Plan provided that Social Security Disability Benefits (but not cost-of-living increases) would be an offset against his Company-paid Long-Term Disability Plan provided that his Company-paid Benefits would be reduced by any Social Security Disability Benefit he received.

19. On October 7, 1993, Travelers wrote to Complainant notifying him that they were aware that Social Security Disability Benefits had been awarded to him retroactive to August, 1992 and that those Benefits were being credited as an offset against the Long-Term Disability Benefits he had received from the Company pursuant to the Long-Term Disability Plan (see Attachment 16). Thus, Complainant was again informed that his Long-Term Disability Plan provided for such reduction and that his Benefits would be reduced by and Social Security Disability benefit he had received.

1. Offset his Long-Term Disability Benefits by the amount of his Social Security Disability Benefits, and

2. Notified him that he was required to perform volunteer work.

21. On June 26, 1996, the District Director dismissed Complainant's charge as untimely. (ALJ EX 1)

22. The Complainant timely appealed the District Director's dismissal by telegram. (CX 2)

    On the basis of the totality of this closed record, especially Respondent's affidavits, I make the following:

    The employee protection provision of the Act provides that:

(a) Discrimination against employee. (1) No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or person acting pursuant to a request of the employee)-

(A) notified his employer of an alleged violation of the Act . . .;

(B) refused to engage in any practice made unlawful by this Act . . . if the employee has identified the alleged illegality to the employer;

(C) testified before Congress or at any Federal or State proceeding regarding any provision (or proposed provision) of this Act . . .;

(D) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this Act . . . or a proceeding for the administration or

---

[Page 10]

enforcement of any requirement imposed under this Act. .. .;

(E) testified or is about to testify in any such proceeding or;

(F) assisted or participated or is about to assist or participate in any manner in such a proceeding or in any other manner in such a proceeding or in any other action to carry out the purposes of this Act . . . .

42 U.S.C.S. § 5851 (Supp. May, 1993).

A. The Complaint Was Not Filed Within 180 Days of the Alleged Violation.

6. If the Complainant's allegations that the insurance companies used Social Security Disability Benefits to offset his Long-Term Disaiblity benefit and required him to perform volunteer work in retaliation for his having attempted to issue a 10 C.F.R. 21 were true (and Respondent denies that they are true), those alleged violations occurred several years before he filed him complaint in June, 1996.

B.

The Long-Term Disability Benefit Plan Specifies the Reduction of Company-Paid Benefits by the Amount of Social Security Disaiblity Benefits.

1. The enclosed documentation including the Long-Term Disability Benefits Summary Plan Description and voluminous documentation both to and from the Complainant over the ten years since the onset of his disability, clearly establishes that the amount of Long-Term Disability Benefits are to be reduced by any award of Social Security Disability Benefits. This reduction has occurred in every instance where a Long-Term Disability recipient has received Social Security Disability benfits.

2. It is equally clear from the absence of evidence to the contrary that Complainant never raised any allegation of retaliation with either of the two national insurance companies administering the Long-Term Disability Benefits over the last ten years, or with the Company Benefits personnel, or at any time prior to May 30, 1996 did he ever attribute any decision of John Hancock Insurance Company personnel, Travelers Insurance Company (Attachment 14) and was again informed in October, 1993 that no volunteer work was required of him (Attachment 15). He has never been required to perform any volunteer work.

3. If the Complainat's allegations that the insurance companies used Social Security Disability Benefits to offset his Long-Term Disability benefit and required him to perform volunteer work in retaliation for his having attempted to issue a 10 C.F.R. 21 were true (and Respondent denies that they are true), those alleged violations occurred several years before he filed his complaint in June, 1996.

C.

The Long-Term Disability Benefit Plan Specifies the Reduction of Company-Paid Benefits by the Amount of Social Security Disaiblity Benefits.

1. The enclosed documentation including the Long-Term Disability Benefits Summary Plan Description and voluminous documentation both to and from the Complainant over the ten years since the onset of his disability, clearly establishes that the amount of Long-Term Disability Benefits are to be reduced by any award of Social Security Disability Benefits. This reduction has occurred in every instance where a Long-Term Disability recipient has received Social Security Disability Benefits.

2. It is equally clear from the absence of evidence to the contrary that Complainant never raised any allegation of retaliation with either of the two national insurance companies administering the Long-Term Disability Benefits over the last ten years, or with the Company Benefits personnel, or at any time prior to May 30, 1996 did he ever attribute any decision of John Hancock Insurance Company personnel, Travelers Insurance Company personnel or the Company employees regarding his Long-Term Disability Benefits to any alleged retaliation.

3. The amount of Complainant's Company-paid Long-Term Disability Benefits is determined by the Long-Term Disability Benefits Plan. The Plan specifies that the Company paid Benefits be reduced by Social Security Disability Benefits received and the plan has been consistently administered in that manner with regard to all the employees who have received Benefits pursuant to it. The reduction of Complainant's benfits by the amount received from Social Secruity was not due to any alleged protected activity.

D. While summary judgment may seem, at first blush, an unusually harsh result, the undersigned is not empowered to ignore the congressionally imposed limitation period for filing a whistleblower complaint. School District of Allentown v. Marshall, 657 F.2d 16,30 (3d Cir. 1981)(the choice of the appropriate time for filing such claims is not entrusted to the undersigned. It is the result of legislative determinations made after weighing the various interests at stake. Obviously, Congress intended that complaints be made and resolved within a very short time after the alleged violation occurred). See also Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).

    Complainant cannot avoid the time constraints for filing his complaint by attempting to submit new allegations on a time-barred claim of discriminatory discharge. Howard v. TWA, 91-ERA-36 9Sec'y Jan. 13, 1993). The time limitations commence on the date that the complainant is informed of the challenged employment decision rather than at the time the effects of the decision were ultimately felt. See Howard v. TWA, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. U.S. Department of Labor, 959 F.2d 234 (6th Cir. 1992); English v. Whitfiled, 858 F.2d 957, 961-962 (4th Cir. 1988); Janikowski v. Bendix Corp., 823 F.2d 945, 947 (6th Cir. 1987); Ray v. TWA, 88-ERA-14 (Sec'y Jan. 25, 1991).

    The Ricks-Chardon rule has been applied to whistleblower complaints and this rule states that the proper focus in assessing time-bar

defenses is the time of the challenged conduct and its notification rather than the time its painful consequences are felt. Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28 (1981); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498 (1980). Moreover, the period for filing a whistleblower complaint commences on the date the complainant receives unequivocal notice of his or her suspension or termination from employment. Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992).

    An examination of Complainant's complaint (CX 1) does not demonstrate affirmative misleading or deceptive conduct by Respondent that would justify tolling of the time limits for filing his complaint. See Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 60 (2d Cir. 1986); Tracy, supra, slip op. at 607 and cases cited therein. Moreover, the principles of equitable tolling operate independently of the continuing violation doctrine. Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y apt. 20, 1987). Complainant does not allege, and the record cannot establish, a pattern of continuing violations of the ERA, thereby allowing this Administrative Law Judge to invoke the well-settled principle of equitable tolling.

    Charging periods in whistleblower cases are subject to equitable modification. For example, employers have been estopped from claiming the defense of untimely filing where they have induced or lulled an employee into not filing promptly. Estoppel also may be appropriate if failure to file timely results from a deliberate design by the employer or from actions that the employer unmistakably should have understood would cause the employee to delay filing. In such circumstances, an employee may be aware of his or her statutory cause of action but fails to file timely due to his or her reasonable reliance on the employer's misleading or confusing representations or conduct. Modification of the filing period thus serves as a corrective mechanism. Some circumstances which have precipitated estoppel are:

an employer's "positive signals" regarding amicable resolution,

false assurances by an employer that it intends to settle the claim,

an employer's failure to provide agreed upon information, and

an employer's misrepresentation as to reasons for its employment action or misinformation as to employee rights.

Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).

See also School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981); English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991)(per curiam).

    The restrictions on equitable tolling must be scrupulously observed. Equitable tolling is not an open-ended invitation to disregard limitations periods merely because they bar what may otherwise be a meritorious cause. Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989) (citing School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-10 (3d Cir. 1981)).

In Doyle, the complainant asserted that he was misled by federal government officials about his right to file a complaint.

    In some circumstances, where there is a complicated administrative procedure, and an unrepresented, unsophisticated complainant receives misleading information from the responsible government agency, a time limit may be tolled. See, e.g., Page v. U.S. Industries, Inc., 556 F.2d 346, 351 (5th Cir. 1977); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 754 n.9 (3d Cir. 1983), cert. denied, 464 U.S. 852 (1983); Roberts v. Arizona Board of Regents, 661 F.2d 796, 800 (9th Cir. 1981); White v. Dallas Independent School District, 581 F.2d 556, 562 (5th Cir. 1978). However, in City of Allentown v. Marshall, (the only Court of Appeals decision on equitable tolling at that time under an analogous 29 C.F.R. Part 24-type whistleblower provision), the complainant contacted the Environmental Protection Agency, which first offered to advise him about filing a complaint and then delayed doing so. The court held that "[t]he alleged confusion at the EPA is . . . irrelevant." 657 F.2d at 21. The court distinguished situations in which "the defendant has actively misled the plaintiff respecting the cause of action", 657 F.2d at 20, where the tolling may be justified, from cases where a government agency may have given confusing information but the defendant "was in no way responsible for [plaintiff's] failure to file a complaint within the statutory period." 657 F.2d at 20-21.

    The Secretary found that the circumstances presented in Doyle were insufficient to invoke equitable tolling. The requirements for filing a complaint and the time limit under the ERA and 29 C.F.R. Part 24 are straightforward. The record indicated that the complainant was aware of the 30 day time period for a number of years, and had, at most, received some incorrect information from Department of Labor officials about its applicability to a blacklisting ocmplaint -- information for which the

respondent was not responsible. Several times between 1983 and 1987 the complainant believed he was being blacklisted, but did not file a complaint.

    Five factors to be considered in determining whether equitable tolling is appropriate in a given case are:

(1) whether the plaintiff lacked actual notice of the filing requirements;

(2) whether the plaintiff lacked constructive notice, i.e., his attorney should have known;

(3) the diligence with which the plaintiff pursued his rights;

(4) whether there would be prejudice to the defendant if the statute were tolled; and

(5) the reasonable ness of the plaintiff remaining ignorant of his rights. Ignorance of the law alone is not sufficient to warrant equitable tolling.

    Where the complainant waited 54 days after discharge to consult an attorney, purportedly because he was waiting to hear about his unemployment application and because he went on vacation with his son, the delay was not excusable. Where there was no evidence that the complainant was prevented from investigating his rights within the statutory period, by his own admission he suspected that his firing was for shistleblowing activity, and he was not later made aware of any new facts which he was not previously aware of with regard to his firing, absent some evidence that he was somehow deterred from seeking legal advise by his employer, equitable tolling is not warranted. Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).

    Filing periods are subject to equitable modification. Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393 (1982). Generally, the doctrines of equitable estoppel and equitable tolling are mechanisms for modifying a limitations period. See Clark v. Resistoflex Co., 854 F.2d 762, 768-769 (5th Cir. 1988); Kale v. Combined Ins. Co. of America, 861 F.2d 746, 752 (1st Cir. 1988). Respondents may be equitably estopped from claiming the time bar defense where they have induced or deliberatley misled an employee into neglecting to file promptly. Clark at 769 n.4; Felty v. Graves-Humphreys Co., 785 F.2d 516, 519 (4th Cir. 1986); Larry v. The Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991), slip opl at 12-19, aff'd sub nom. The Detroit Edison Co. v. Secretary, United States Dept. of Labor, No. 91-3737 (6th Cir. Apr. 17, 1992) (unpublished) (available at 1992 U.S. App. LEXIS 8280). The doctrine of equitable tolling focuses on the complainant's excusable ignorance

as a reason to modify the limitations period. Clark at 769, n.4; Cf. Andrew v. Orr, 851 F.2d 146, 150 (6th Cir. 1988) (doctrine of equitable tolling applies when employee misses filing deadline because of affirmative misleading conduct by employer or ineffective but diligent conduct by employee).

    Courts generally have held that unless the employer has acted deliberately to deceive, mislead or coerce the employee into not filing a cliam in a timely manner, equitable estoppel will not apply. See English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); Clark v. Resistoflex Co., 854 F.2d at 768-769. Moreover, the doctrine of equitable tolling is narrowly applied. See generally Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236-240 (1976); City of Allentown, 657 F.2d at 19-21; Symmes v. Purdue University, 87-TSC-5 (Sec'y Mar. 10, 1992), slip op. at 2-3; Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op. at 7-8; Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990), slip op. at 9-10; Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989), slip op. at 2-6, aff'd, Doyle v. Secretary, U.S. Dept. of Labor, 949 F.2d 1161 (11th Cir. 1991), cert. denied, 113 S. Ct. 225, 121 L. Ed. 2d 162 (1992) (unpublished 11th Cir. decision available at 1991 U.S. App. LEXIS 29326).

    In Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1 (Sec'y July 8, 1992), a summary decision dismissing the complaint as untimely was appropriate where the complainant failed to raise a genuine issue of material fact concerning his allegation that equitable tolling was warranted because he was misled by the respondent, even taking the complainant's evidence in the light most favorable to the complainant.

    In response to the motion for summary decision, the complainant, in another case, submitted an affidavit alleging that post-suspension, and after the union filed a grievance to initiate arbitration, a union representative initiated a discussion with management over the complainant's situation and that the management representative indicated the Union should not take further action because the matter was being resolved. This evidence did not indicate that the respondent deliberately sought to mislead or delay the complainant from filing a CAA claim, but rather that the union approached the respondent and was involved in negotiation and arbitration on the complainant's behalf. See Electrical Workers v. Robbins, 429 U.S. at 236-240 (employee's pursuit of internal grievance procedure set up in collective bargaining agreement does not toll filing requirement); Ackison v. Detroit Edison Co., 90-ERA-38, slip op. at 2 (complainant's use of internal grievance procedures does not toll filing period); In Pfister v. Allied Corp. 539 F. Supp. 224, 227 (S.D.N.Y. 1982) (employer's participation in settlement discussions does not toll statute of limitations for filing action over

discharge because no evidence acted in bad faith or deceitfully lured plaintiff to miss appropriate filing date).

    Furthermore, the complainant was represented by counsel during this period and immediately filed a grievance and an identical whistleblower complaint under the OSHA, which further supported a finding that the complainant cannot invoke equitable tolling under the circumstances. See generally Kent v. Barton Protective Services, 84-WPC-2 (Sec'y Sept. 28, 1990), slip op. at 11-12, aff'd Kent v. United States Dept. of Labor, No. 90-9085 (11th Cir. Oct. 3, 1991); McGarvey v. E G & G Idaho, Inc., 87-ERA-31 (Sec'y Sept. 10, 1990), slip op. at 3-4; Symmes, 87-TSC-5, at 2-3, and appended ALJ's R.D. & O. at 608.

    Hence, the evidence established that the complainant was given final and unequivocal notice of his immediate suspension and promptly proceeded to pursue his remedies with the assistance of the union and his counsel -- not that the respondent deliberately mislead the complainant. Tracy, supra.

    Employee filed suit under Employee Protection section of ERA alleging she was unlawfully subjected to employment related discrimination because she registered and pursued safety complaints against her employer, GE, with the NRC. The Secretary dismissed her claim as untimely under Section 5851 (b)(1). Employee attempted to invoke equitable estoppel to avoid the bar of untimely filing. The court recognized the application of those principles in the appropriate case, but held that this was not such a case. The court cited the rule under the ADEA which was laid down in Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir. 1982). In Price, the court held that the invocation of equitable estoppel required a showing that an employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Id. at 965. Thus, "[a]bsent evidence that the employer acted to deceive the employee as to the existence of its claim or otherwise to mislead or coerce the employee into not filing a claim in a timely fashion, we will not find the employer equitably estopped to plead the bar of untimely filing." English, at 963. In the instant case, the employee pointed out GE's repeated reassurances that permanent placement was being sought elsewhere in the company, and that a GE executive assured her that GE did not intend to fire her in support of her claim of equitable estoppel. However, the court noted that there was no suggestion that it was a quid pro quo for forbearance from suit, and the quid pro quo is the critical element which gives rise to estoppel under their rule. English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988).

    Moreover, it is well settled that ignorance of the ERA filing period alone is not sufficient to warrant equitable tolling. See Rose v. Dole, 945 F.2d 1331, 1335 (6th Cir. 1991); English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); School District of the City of Allentown v. Marshall, 657 F.2d 16, 21 (6th Cir. 1981). Hancock v. Nuclear Assurance Corp., 91-ERA-33 (Sec'y Nov. 2, 1992), slip op. at n3. Ignorance of legal rights, or failure to seek legal advice, does not toll a statute of limitations. Regardless of actual knowledge, "everyone is charged with knowledge of the United States Statutes . . . ." Federal Crop Issuance Corp. v. Merrill, 332 U.S. 380, 384-85 (1947). Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990).

    The doctrine of equitable tolling is narrowly applied and focuses on the complainant's excusable ignorance of his or her statutory rights as a reason to modify the limitations period. See Kale v. Combined Insurance Company of America, 861 F.2d 746, 752 (1st Cir. 1988); Andrews v. Orr, 851 F.2d 146, 150-151 (6th Cir. 1988); School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981); Tracy v. Consolidated Edison Co., 89-CAA-1 (Sec'y Fuly 8, 1992), slip op. at 5-8. Ignorance of the filing requirements under the ERA and failure to read the notice posted by the employer, are not sufficient to toll the filing period and excuse the untimely filing of a complaint. See Kale at 753-754; School District of Allentown at 19-20.

Harrison v. Stone & Webster Engineering Corp., 91-ERA-21 (Sec'y Oct. 6, 1992).

    The restrictions on equitable tolling must be scrupulously observed. Equitable tolling is not an open-ended invitation to disregard limitations periods merely because they bar what may otherwise be a meritorious cause. Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989) (citing School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981)).

In Doyle, the complainant asserted that he was misled by federal government officials about his right to file a complaint.

    Where the complainant argued for a waiver of the ERA's statute of limitaitons "in the interest of justice", the Secretary stated that such waiver or equitable tolling is an extraordinary remedy and is not a method to preserve a claim

"out of a vague sympathy for particular litigants." "Billings v. Tennessee Valley Authority, 86-ERA-38 (sEC'Y June 28, 1990), quoting Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984), and also citing Barnes v. Hillhaven Rehabilitation & Convalescent Center, 686 F. Supp. 311, 314 (N.D. Ga. 1988).

    With reference to the existence of a continuing violation, the cases are noteworthy for an inquiry as to whether the complaint involves a single, discrete act or acts of a continuing nature. For example, the secretary, after first considering when the complainant received unequivocal, final notice, and finding that it occurred on January 12, the Secretary considered whether the circumstance fit under a continuing violation theory. The Secretary, after first considering when the complainant received unequivocal, final notice, and finding that it occurred on January 12, considered whether the situation fit under a continuing violation theory. The Secretary found that all of the incidents recited by the complainant were 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., 595 F.2d 711 (D.C. Cir. 1979). Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 19, 1989).

    Courts generally recognize an equitable exception to statutory limitations periods for continuing violations " [w]here the unlawful employment practice manifests itself over time, rather than as series of discrete acts.'" The courts in Malhotra v. Cotter & Co. 885 F.2d 1305, 1310 explained:

What justifies treating a series of separate violations as a single continuing violation? Only that it would have been unreasonable to require the plaintiff to sue separately on each one. In a setting of alleged discrimination, ordinarily this will be because the plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory mistreatment. See also Waltman v. Int'l Paper Co., 875 F.2d 468, 474 (5th Cir. 1989), quoting Abrams v. Baylor College of Medicine, 805 F.2d 528, 532 (5th cir. 1986).

    A compelling case might be made for the presence of a continuing violation, however, where a respondent engages in a systematic practice of denying promotion opportunities and other Benefits. See Tyson v. Sun Refining & Marketing Co., 599 F.Supp. 136, 138-140 (E.D. Pa. 1984), and cases discussed therein. Evidence of discriminatory actions antedating the filing period but found not to be "continuing" violations nevertheless may constitute relevant background evidence, i.e., "[e]vidence of past practices may illuminate ... present patterns of behavior." Malhotra v. Cotter & Co., supra at 1310. Accordingly, earlier violations properly bear on questions of Respondent's later motivation, even if the associated claims are untimely.

    However, where incidents are clearly separate and sufficiently permanent to trigger the complainant's awareness of the respondent's alleged discrimination, the continuing violation theory does not preserve the timeliness of the complainant's claim. Eisner v. United States Environmental Protection Agency, 90-SWD-2 (Sec'y Dec. 8, 1992). to support a continuing violation theory, the complainant must allege a separate discriminatory act occurring within the limitations period. See Egenrieder v. Metropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 3-8. General allegations of continuing discrimination are not sufficient to establish a continuing violation and preserve the timeliness of a complaint.

Howard v. Tennessee Valley Authority, 91-ERA-36 (Sec'y Jan. 13, 1993).

    A claim of continuing violation cannot be considered where the complainant has not provided any factual evidence, through affidavits or otherwise, which would indicate a factual issue precluding dismissal on the basis of the respondent's summary judgment motion. Under the continuing violation doctrine, "[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Delaware State College v. Ricks, 449 U.S. 250, 257 (1980).

    Thus, where a Complainant offers nothing besides the conclusory phrase "continuing violation" in support of a tolling of the statute, and pertinent factual information of a discriminatory act or acts during the limitations period had not been submitted to buttress this theory, the Administrative Law Judge correctly dismissed the Complainant's action on the basis of summary judgment. Billings v. Tennessee Valley Authority, 86-ERA-38 (Sec'y June 28, 1990).

    In view of the foregoing, I am constrained to find and conclude that the May 30, 1996 complaint filed by the Complainant must be DISMISSED as untimely filed. Complainant, who began to work for Combustion Engineering (now ABB) in 1978, ceased active employment on October 15, 1986 as he was mentally disabled from performing his job. He then received his salary under the company's wage continuation plan and such salary continued for 26 weeks and he then began to receive long-term disability benefits. He was clearly on notice, as of October, 1986, that such benefits would be reduced to offset the receipt of Benefits from any other source, such as the Social Security Administration. (See Attachment 3) Complainant not only was aware of such offset provision, he agreed in writing "to refund any monies due the Plan as a result of payment of disability benefits from any source listed in Item 28 above." (See Attachment 6) Complainant has periodically been advised by Respondent that the offset provision was still in effect even though ABB acquired Combustion Engineering, Inc., in 1990.

    Complainant, mindful of the potential offset, declined to apply for SSA disability benefits in May of 1991. (See Attachment 6) Complainant has periodically been advised by Respondent that the offset provision was still in effect even though ABB acquired Combustion Engineering, Inc., in 1990.

    Complainant, mindful of the potential offset, declined to apply for SSA disability benefits in May of 1991. (See Attachment 10) He was again told of the offset in July of 1993, at which time he was receiving SSA disability benefits (See Attachment 12) and he was again told in August of 1993 about the offset. (See Attachment 11) Complainant was again told about the offset by Ms. R. Da Silva (Attachments 14, 15) and Travelers Insurance Company, on October 7, 1993, wrote Complainant that they were aware that Social Security disability benefits had been awarded to him retroactive to August, 1992 and that those Benefits were being credited as an offset against the Long-Term Disability Benefits he was receiving from the company. (See Attachment 16) Complainant did not file his complaint until May 30, 1996.

As can be seen, Complainant sat on his rights from 1984 to May 30, 1996. Thus, his complaint clearly is untimely.

    This Administrative Law Judge, viewing the evidence most favorably toward Complainant, as I must as Respondent has filed a Motion for Summary Judgment herein, finds and concludes that any discriminatory treatment or retaliation began at least as of October 15, 1986, during which time the thirty day statute of limitations was in effect, that even viewing the receipt of Long Term Disability Benefits as a form of equitable estoppel, during which time he was "lulled" into not filing

a complaint, or viewing such receipt as a continuing violation, Complainant's cause of action arose on or about July 15, 1993, at which time he was told, inter alia, about the offset provision as affecting his Long Term Disability Benefits. As of that date, the statute of limitation had been increased to 180 days and, nevertheless, Complainant waited until May 30, 1996 to file his complaint, clearly an untimely filing. I also note that complainant was represented by an attorney until at least July 18, 1996, at which time the attorney advised Mr. Noble that she "will not be representing Mr. Majors" at the hearing scheduled for September 30, 1996 but she concluded her letter with the remark, "it might be helpful if you could obtain the full disability plan in effect at the time he was first declared disabled." (RX 3)

    Although a pro se complainant cannot be held to the same standard for pleadings as if he were represented by legal counsel, the complainant must allege a set of facts which, if proven, could support his claim of entitlement to relief. Doyle v. Bartlett Nuclear Services, 89-ERA-19 (Sec'y May 22, 1990); Riden v. Tennessee Valley Authority, 89-ERA-49 (Sec'y July 18, 1990). As discussed above, I find and conclude that Complainant has not alleged a set of facts which, if proven, could support his claim of entitlement to relief.