School Dist. of Allentown v. Marshall, 657 F.2d 16
(3d Cir. 1981).
The Court of Appeals held that the 30 day time limitation for
filing a complaint imposed by 15 U.S.C. § 2622(b) of the
Toxic Substances Control Act is not jurisdictional in the sense
that noncompliance is an absolute bar to administrative action.
The court looked at other remedial statutes such as the Age
Discrimination in Employment Act and Title VII as examples of
statutes that treat filing periods like statutes of limitations.
Nevertheless, the court rejected the Secretary's decision
overlooking the late filing of the complaint and found in favor
of the School District. It found unpersuasive arguments excusing
the late filing because (1) the statute is new, (2) no
regulations had been adopted, and (3) the EPA was confused as to
where to file a complaint. The statute was two years old at the
time and very explicit as to filing with the Secretary of
Labor.
[Nuclear & Environmental Digest IV A]
TIMELINESS; ALLEGATIONS OF REASONABLE RELIANCE ON PROMISE TO FIND
ALTERNATIVE EMPLOYMENT AND ESTOPPEL RAISE TRIABLE ISSUES
In Whitaker v. CTI-Alaska,
Inc., ARB No. 98-036, ALJ No. 1997-CAA-15 (ARB May 28, 1999), the ALJ
recommended a grant of summary decision based on lack of timeliness of the complaint. The ALJ
based this recommendation on the conclusion that there was no genuine issue of material fact that
Complainant knew that he had not been offered his position as General Manager/Quality Control
Supervisor after a new inspection company had gotten the inspection services contract, but had not
filed his complaint until more than 30 days after that date. The ARB, however, reviewing the grant of
summary decision de novo, concluded that, viewing the evidence in the light most favorable to
Complainant and in view of Respondent's failure to present plausible rebuttal evidence, there were
triable issues of fact concerning two valid theories: (1) reasonable reliance on a promise to find
alternative employment and (2) estoppel. Complainant alleged that he was repeatedly assured that he
would be placed with the new contractor and that he had nothing to fear in terms of supervisory or
financial loss; he had been called for an interview with the new contractor; the interview with the new
contractor had focused entirely upon supervisory and managerial issues; both officials of the new
contractor who interviewed Complainant told him that the interview had gone extremely well;
Complainant was never told that the two positions that were offered him (one not supervisory and one
half-time and one level below his current position) were final offers.
[Editor's note: In his recommended decision, the ALJ had concluded that "Complainant
knew of facts which would support the discrimination complaint such that a reasonably prudent person
would have been placed on notice.... If, as alleged, [the new contractror] discriminated against
Complainant by not hiring him on that date, [the new contractor's] hiring of him for a similar position in a
different locality would not have negated the earlier, allegedly retaliatory decision not to hire him."
The ALJ noted that Complainant had written to an attorney shortly after not being offered the General
Manager position indicating knowledge of the possibility that he had been discriminated against. Whitaker v. CTI-Alaska, Inc., ARB
No. 98-036, ALJ No. 1997-CAA-15 (ALJ Nov. 17, 1997).]
TIMELINESS; ALTHOUGH TIME-FRAME FOR FILING IS SHORT, IT MUST BE
SCRUPULOUSLY OBSERVED
[N/E Digest IV A]
In Prybys v. Seminole Tribe of
Florida, 1995-CAA-15 (ARB Nov. 27, 1996), the Board observed that the 30-day
statutory limitations period for filing of environmental employee protection complaints is
extremely brief, but that the filing period was the mandate of Congress. The equitable tolling
doctrine does not permit an agency to disregard a
limitations period merely because it bars what may otherwise be a meritorious cause; restrictions
on equitable tolling must be scrupulously observed. Citing School Dist. of City of
Allentown
v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981).
TIMELINESS; DISTINCTION BETWEEN PURPOSES OF EQUITABLE TOLLING
AND EQUITABLE ESTOPPEL
[N/E Digest IV A]
The doctrine of equitable tolling focuses on whether a duly diligent complainant was
excusably ignorant of his or her rights. Equitable estoppel focuses on whether the employer
misled the complainant and thereby caused the delay in filing the complaint. Prybys v.
Seminole Tribe of Florida, 1995-CAA-15 (ARB Nov. 27, 1996).
IV A Equitable tolling; actual or constructive notice of
filing requirement
The time period for administrative filings of ERA whistleblower
complaint filings begins running on the date that the employee is
given definite notice of the challenged employment decision.
In Roberts v. Tennessee Valley Authority, 94-ERA-15
(Sec'y Aug. 18, 1995), the Complainant was discharged in March of
1993. In October of 1993, he discovered what he viewed as proof
that his position had not been eliminated.
Although the ALJ had thoroughly analyzed the theory of equitable
tolling as set out in the Secretary's decision in Hill and
Ottney v. TVA, 87-ERA-23, 24 (Sec'y Apr. 21, 1994), on review
by the Secretary the Complainant's attorney pointed out that the
Sixth Circuit case of Rose v. Dole, 945 F.2d 1331 (6th
Cir. 1991) was not considered by the ALJ. The Secretary noted
Rose v. Dole's five factor test, but still concluded that
equitable tolling was not applicable.
The Complainant maintained that he lacked actual or constructive
notice of the filing requirement, which is part of the Rose v.
Dole test. The Secretary found that the Complainant could
not rely on lack of constructive notice based on his attorney's
knowledge where he did not engaged an attorney until after the
deadline had passed. Although the Complainant maintained that
there was a failure of posting, or at least adequate posting, of
the filing requirement at the work site, the Secretary noted that
the Complainant had worked in the nuclear industry for about 25
years and therefore knew or should have known about the filing
requirements.
In regard to the Complainant's assertion that he did not know he
had a claim of wrongful discharge until he found the proof in
October 1993, the Secretary noted that the Complainant had
testified that he had noted evidence of discrimination shortly
after being placed in the employee transition program thereupon
not being able to successfully apply for a job within the
Respondent's organization although those jobs were well below his
capabilities. The Secretary noted that if these rejections were
discriminatory, they should have triggered the Complainant to
file his complaint within the filing period.
Finally, the Secretary noted that Rose v. Dole had a fifth
factor--the reasonableness of the complainant's remaining
ignorant of his rights. Again, the extensiveness of the
Complainant's experience in the nuclear industry lead the
Secretary to conclude that it was unreasonable for the
Complainant to be ignorant of his rights under the ERA.
IV A Remand to Wage & Hour where no investigation of
merits and equitable tolling applied by ALJ
In Biddle v. Department of the Army, 93-WPC-9 (ALJ
July 20, 1993), the Employment Standards Administration (ESA)
found that Complainant's complaint was not timely filed, and
dismissed the complaint without an investigation of the merits.
The ALJ found that equitable tolling must be applied because
Complainant timely filed a complaint that raises issues that
would be sufficient to state a cause of action under the WPCA,
except that complaint was filed with the Merit Systems Protection
Board (MSPB). Respondent did not dispute having knowledge of the
MSPB complaint. Compare Sawyers v. Baldwin Free School
District, 85-TSC-1 (Sec'y Oct. 5, 1988) (complaint filed with
EPA).
Because ESA had not conducted an investigation of the merits of
the complaint, the ALJ remanded the case for further
investigation.
IV A Equitable tolling; 6th Circuit
In Howard v. Tennessee Valley Auth., 90-ERA-24
(Sec'y July 3, 1991), the Secretary indicated that the ALJ should
have applied the criteria provided by the court in Andrews v.
Orr, 851 F.2d 146, 151 (6th Cir. 1988) (Title VII case), to
determine whether to apply equitable tolling in an ERA case
arising within the Sixth Circuit.
IV.A. Relationship between equitable tolling and
continuing violation theory
The principles of equitable tolling operate independently of the
continuing violation doctrine. Egenrieder v. Metropolitan
Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 7.
Simmons v. Florida Power Corp., 89-ERA-28 and 29
(ALJ Dec. 13, 1989) (supplemental decision ALJ Apr. 11, 1990),
dismissed on review by the Secretary based on settlement
agreement in decision consolidated with 88-ERA-28 and 30, Simmons
v. Fluor Constructors, Inc., 88-ERA-28 and 30 and 89-ERA-28
and 29 (Sec'y June 28, 1991).
IV A Period for filing a complaint is a non-
jurisdictional statute of limitations
The statutory period for filing a complaint under the ERA is a
statute of limitations and is not jurisdictional. Lastre
v. Veterans Administration Lakeside Medical Center, 87-
ERA-42 (Sec'y Mar. 31, 1988) (citing analogous STAA and TSCA
cases; this is apparently the first ERA case in which the
Secretary made this holding).
IV A Orr in Sixth Circuit
In a case arising in the Sixth Circuit, the Secretary indicated
that the criteria provided in Andrews v. Orr, 851 F.2d
146, 151 (6th Cir. 1988), should be considered in determining
whether to apply equitable tolling of the time for filing an ERA
complaint. Andrews was a Title VII case.
Howard v. Tennessee Valley Authority, 90-ERA-24
(Sec'y July 3, 1991), aff'd sub nom., Howard v. United States
Department of Labor, 959 F.2d 234 (6th Cir. 1992).
To the same effect: Rainey v. Wayne State
University, 89-ERA-8 (Sec'y May 9, 1991).
Five factors to be considered in determining whether equitable
tolling is appropriate in a given case are:
whether the plaintiff lacked actual notice of the
filing requirements;
whether the plaintiff lacked constructive notice,
i.e., his attorney should have known;
the diligence with which the plaintiff pursued
his rights;
whether there would be prejudice to the defendant
if the statute were tolled; and
the reasonableness 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 whistleblowing 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).
TIMELINESS; EQUITABLE ESTOPPEL; INDUCING COMPLAINANT TO DELAY
FILING
[N/E Digest IV B]
In Prybys v. Seminole Tribe of
Florida, 1995-CAA-15 (ARB Nov.
27, 1996), Complainant alleged that a misrepresentation was made to management, prior to the
termination decision, indicating Complainant was prepared to resign. This alleged
misrepresentation, however, did not invoke equitable estoppel regarding the timeliness of
Complainant's complaint to DOL because Complainant did not allege any statements that misled
him regarding the fact that his employment was terminated.
Similarly, Complainant alleged that statements by tribal officials lead him to believe that
his termination would be reviewed at the next tribal council meeting. Such statements, however,
did not invoke equitable estoppel because they do not indicate that tribal officials suggested that
the termination decision would be reversed if he refrained from filing a federal complaint.
The Board noted that within the context of employee protection legislation, equitable
estoppel "concerns whether the employer 'misrepresented or fraudulently concealed from
[complainant] facts necessary to support his complaint(s) or induce[d] him to delay filing' a
complaint." Id., slip op. at 7, quoting In Re Kent, 84-WPC-2,
slip op. at 4 (Sec'y Apr. 6, 1987).
IV B Equitable tolling
The time period for filing a complaint under the Toxic Substances
Control Act, 15 U.S.C. § 2522(b) may be likened to a statute
of limitations rather than a jurisdictional bar. Therefore,
equitable tolling may be appropriate, but only when
The defendant has actively mislead the plaintiff
respecting the cause of action;
The plaintiff has in some extraordinary way been
prevented from asserting his rights; or
The plaintiff has raised the precise statutory
claim in issue but has mistakenly done so in the wrong
forum.
The filing of a claim in the wrong forum must also be timely
before it will toll the appropriate limitations period. Prejudice
to the defendant is irrelevant. Ignorance of the law is not
enough to invoke equitable tolling.
School Dist. of Allentown v. Marshall, 657 F.2d 16
(3d Cir. 1981).
IV B Equitable estoppel
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).
IV B Equitable estoppel to avoid untimely filing
Invocation of equitable estoppel as a means of avoiding the bar
of untimely filing under EPS requires a showing that an
employee's failure to file in a 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 or her charge. An employee's hope
for a continuing employment relationship cannot toll the statute
absent some employer conduct likely to mislead an employee
sleeping on his or her rights. Absent 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, the employer will not be equitably
estopped to plead the bar of untimely filing. Even an employer's
confirmation of that hope could not estop the employer absent
some indication that the promise was a quid-pro-quo for the
employee's forbearance in filing a claim. Thus, where an
employer repeated assured that permanent placement was being
sought elsewhere in the company pending placement on layoff
status following a temporary assignment, it was not equitably
estopped to plead untimely filing since the employee was not lead
to believe that the relocation efforts somehow depended on her
forebearance from filing a claim of discrimination against it.
English v. Whitfield, 858 F2d 957 (4th Cir. 1988).
IV B Equitable tolling, generally
From: Bonanno v. Northeast Nuclear Energy Co., 92-
ERA-40 and 41 (Sec'y Aug. 25, 1993).
The ERA filing period commences on the date that a complainant is
informed of the challenged actions rather than at the time the
effects of the actions are ultimately felt. See Ballentine v.
Tennessee Valley Authority, 91-ERA-23 (Sec'y Sept. 23, 1992);
Howard v. Tennessee Valley Authority, 90-ERA-24 (Sec'y
July 3, 1991), aff'd sub nom. Howard v. United States Dept. of
Labor, 959 F.2d 234 (6th Cir. 1992).
Where Complainant learned of the issuance of a disciplinary
letter, a layoff, dunning notices about unpaid medical bills, and
a neurologist's "pre-existing condition" report, all
more than 30 days prior to the filing of the complaint, his
subjective belief that these actions might not be permanent (a
correct belief in the case of the disciplinary letter, layoff,
and dunning notices) did not alter the triggering of the filing
period. [citations omitted]
[Editor's note: Complainant's complaint was based on his
treatment following an industrial accident in which he was cited
for not wearing a hard hat; the complaint was filed prior to the
change from 30 to 180 days for filing]
Cases under the ERA recognize that the 30-day limit is not
jurisdictional, and may be subject to equitable tolling. See
Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989),
aff'd sub nom. Doyle v. Secretary of Labor, No. 89-7863
(11th Cir. 1989); School District of City of Allentown v.
Marshall, 657 F.2d 16 (3d Cir. 1981). However, restrictions
on equitable tolling are to be scrupulously observed. City of
Allentown, 657 F.2d at 19. There are three circumstances in
which tolling may be appropriate:
the defendant has actively mislead the plaintiff
respecting the cause of action,
the plaintiff has in some extraordinary way been
prevented from asserting his rights, or
the plaintiff has raised the precise statutory claim in
issue but has mistakenly done son in the wrong forum.
Id. at 20. If the equitable ground is filing in the wrong
forum, the filing must also be timely before it will toll the
appropriate limitations period. Id.
The Secretary found that none of the three grounds for equitable
tolling existed in this case, even construing the pro se
complaint and supporting documents as liberally as possible.
Neither did Complainant allege a continuing violation, wherein
Respondents engaged in a series of related discriminatory acts
and the complaint is filed within 30 days of the last
discriminatory act. See Garn v. Benchmark Technologies,
88-ERA-21 (Sec'y Sept. 25, 1990); Egenrieder v. Metropolitan
Edison Co./G.P.U., 85-ERA-23 (Sec'y Apr. 20, 1987).
Complainant did not file within 30 days of the last event, and
other than an allegation of a broad conspiracy involving
Respondents, labor union members, and the insurance carrier, the
alleged discriminatory acts were distinct and not of a continuing
nature. See Eisner v. United States Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992); Green v. Los
Angeles County Superintendent of Schools, 883 F.2d 1472,
1480-81 (9th Cir. 1989).
Complainant argued that he is still subjected to the effects of a
false or incomplete medical report because, should he need
further treatment, workers' compensation insurance will not cover
the cost. The Secretary found this speculative because
Claimant's testimony was that he no longer has any medical
problems related to his injury. Further, "the courts have
ruled consistently that plaintiff in discrimination cases may not
avoid the consequences of filing limitations by alleging that
they are victims of the present effects of past
discrimination." United Air Lines v. Evans, 431 U.S.
533 (1977); Goldman v. Sears, Roebuck & Co., 607 F.2d
1014 (1st Cir. 1979), cert. denied, 445 U.S. 929 (1980).
Where the Complainant and not the Respondent instigated
discussions to permit the Complainant to replace a termination
letter with a letter of resignation, the Respondent's willingness
to discuss this matter was not a basis for tolling the thirty-day
period within which the Complainant was required to file a
complaint for unlawful termination. The Respondent's role was
passive, and there was nothing to demonstrate affirmative
misleading or deceptive conduct by the Respondent. Eisner
v. United States Environmental Protection Agency, 90-SDW-
2 (Sec'y Dec. 8, 1992) (Secretary also took into consideration
evidence that the Complainant believed that neither termination
nor forced resignation were appropriate, but were retaliatory).
[Nuclear & Environmental Whistleblower Digest IV B 1] TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; RESPONDENT'S LULLING COMPLAINANT INTO BELIEF THAT HE WAS BEING TRANSFERRED TO AN EQUALLY DESIRABLE AND SECURE JOB
In Tennessee Valley Authority v. U.S. Secretary of Labor, 2003 WL 932433 (6th Cir. Mar. 6, 2003) (unpublished) (case below Overall v. Tennessee Valley Authority, ARB Nos. 98 111, 98 128, ALJ No. 1997 ERA 53), the Sixth Circuit affirmed the DOL's decision to toll the statute of limitations for filing an ERA complaint where "DOL reasonably inferred from the evidence that, by guaranteeing [Complainant] an equally desirable and secure job with [another component] TVA lulled [Complainant] into refraining from filing a [timely] retaliation claim."
[Nuclear & Environmental Digest IV B 1]
TIMELINESS OF COMPLAINT; EQUITABLE MODIFICATION; CONCEALMENT OF OPERATIVE FACT FORMING BASIS OF CAUSE OF ACTION
In Overall v. Tennessee Valley Authority, ARB No. 98-111, ALJ No. 1997-ERA-53 (ARB Apr. 30, 2001), the ARB applied equitable modification of the ERA limitations period for filing a complaint, finding that Respondent had concealed an operative fact that formed the basis of the cause of action. The ARB made a distinction between equitable estoppel and equitable tolling:
The first doctrine is equitable estoppel, sometimes denominated fraudulent concealment, which operates when a respondent has acted affirmatively to prevent a complainant from suing in time, for example by promising not to plead the limitations defense or by presenting fabricated evidence to negate any basis for a claim. Equitable estoppel "presupposes that the plaintiff has discovered, or, as required by the discovery rule, should have discovered, that the defendant injured him, and denotes efforts by the defendant -- beyond the wrongdoing upon which the claim is grounded -- to prevent the plaintiff from filing a timely complaint." Cada v. Baxter Healthcare Corp., 920 F.2d at 451. At least one federal circuit has articulated the burden of proof assumed by the party invoking the doctrine as follows: "(1) wrongful concealment of their actions by the defendants; (2) failure of the plaintiff to discover the operative facts that are the basis of the cause of action within the limitations period; and (3) plaintiff's due diligence until discovery of the facts." Hill v. U.S. Dep't of Labor, 65 F.3d at 1335, quoting Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir. 1975). Application of the doctrine of equitable estoppel subtracts from the limitations period the entire period during which the modifying condition is extant so as to prevent a respondent from benefitting as the result of its concealment. Cada v. Baxter Healthcare Corp., 920 F.2d at 452.
The second doctrine arguably germane is equitable tolling. It applies where a complainant, despite due diligence, is unable to secure information supporting the existence of a claim. Unlike equitable estoppel it does not assume any effort by a respondent to prevent the complainant from suing. The complainant knows that he has suffered an injury but is unable to ascertain whether that injury is due to wrongdoing or, if cognizant of wrongdoing, whether the respondent perpetrated the wrongdoing. An employer, for example, may discharge an employee who is protected under laws prohibiting age discrimination and replace him several months later with a young and inexperienced employee. The discharged employee knows that he has suffered injury inflicted by his employer but is unaware of possible wrongdoing until he discovers the fact and identity of his replacement which would suggest that age may have motivated the discharge. The doctrine of equitable tolling suspends the running of the statute of limitations only until such time as is reasonably necessary to conduct an inquiry to ascertain the existence of a claim.
Slip op. at 42-43 (footnote omitted). The ARB held that Respondent in the instant case concealed operative facts forming the basis of a cause of action when it offered Complainant what he believed to be a secure position but concealed funding limitations for the new division. The ARB found that equitable estoppel tolled the period from the date Complainant applied for the "permanent" position to avoid an at-risk transfer until he was notified of layoff from the "permanent" position.
[Nuclear & Environmental Digest IV B 1]
EQUITABLE TOLLING; COMPLAINANT CANNOT AVAIL HERSELF OF
"MISLEADING" ACTIONS BY RESPONDENT AS GROUNDS FOR TOLLING
WHERE SHE HAD ALREADY CHARGED IN WRITING THAT SHE HAD BEEN
TERMINATED IN RETALIATION FOR PROTECTED ACTIVITY
In his recommended decision in Pastor v. Veterans Affairs Medical
Center, 1999-ERA-11 (ALJ Apr. 28, 1999), the ALJ concluded that the complaint
should be dismissed for lack of timeliness. Complainant sought to invoke equitable tolling on
the ground that she did not learn of several circumstances surrounding her termination until the
time of the discovery deposition of her supervisor in a MSPB proceeding, and therefore was
entitled to tolling of her ERA whistleblower complaint based on Respondent's alleged actively
misleading her regarding the reason for her dismissal. The ALJ, however, reviewed Third
Circuit law, and concluded that because Complainant's letter to the U.S. Office of Special
Counsel laying the foundation for her MSPB proceeding explicitly detailed her charge that she
was terminated from employment by Respondent in retaliation for her disclosure of violations of
NRC rules and regulations, it was inconsistent for Complainant to claim that it was not until the
discovery deposition of her supervisor that facts that would support her cause of action became
apparent, or should have become apparent to a person with a reasonably prudent regard for her
rights.
IV.B.1. Equitable tolling; misleading of
complainant
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
deliberately 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 op. 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 claim 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
submitted an affidavit alleging that post-suspension, and the
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. EG & 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 v. Consolidated Edison Co. of New York, Inc.,
89-CAA-1 (Sec'y July 8, 1992).
IV B 1 Employer's misleading of employee
Under the ERA, employees who believe that they have been
discriminated against must file their complaint "within
thirty days after such a violation occurs...." 42 U.S.C.
§ 5851 (b). The ERA 30-day limitations period runs from the
date the employee receives final, definitive, and unequivocal
notice of the adverse decision. However, charging periods are
subject to equitable modification. Respondents may be estopped
under certain circumstances from claiming a statute of
limitations defense. 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 a claim, an employer's failure to
provide agreed upon information, and an employer's
misrepresentation as to the reasons for its employment action or
misinformation as to employee rights.
Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June
28, 1991).
IV B 1 Respondent's actions not important where
counsel informed complainant of time limits
Summary judgment was appropriate where it was undisputed that the
complainant filed his ERA whistleblower complaint more than
thirty days after the effective date of his discharge, and the
record did not support his allegations that he was actively
mislead by the respondent or of having filed the exact claim in
the wrong forum.
Howard v. Tennessee Valley Authority, 90-ERA-24
(Sec'y July 3, 1991), aff'd sub nom., Howard v. United States
Department of Labor, 959 F.2d 234 (6th Cir. 1992). In its
unpublished decision, reported at 1992 U.S. App. LEXIS 6570, the
Sixth Circuit noted that although Howard had alleged that TVA
misled him as to his remedies, he admitted by affidavit that his
counsel had informed him of the ERA time limits.
IV B 1 Agreement to reconsider employment decision
does not toll filing period
In Eisner v. U.S. Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), the ALJ made a
recommendation of dismissal based on the untimeliness of the
complaint. A summary of the circumstances follows:
The complainant was put on leave-without-pay status on
August 2, 1989.
According to the respondent, the complainant was given
an ultimatum of termination or resignation in December
1989.
The complainant was terminated effective January 18,
1990, by notice dated and admittedly received by the
complainant on January 12. The notice stated:
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.
On January 25, 1990, the complainant was mailed a
"Notification of Personnel Action" showing
her "involuntary termination" effective
January 18, and a "Notice of Change in Health
Benefits Enrollment".
On January 31, 1990, one of respondent's personnel
indicated to the program attorney that he agreed that
the termination letter was "inappropriately
issued" (procedurally and semantically) and that
he would rescind it if the complainant would instead
submit a resignation letter. The complainant had no
knowledge of this remark.
Sometime in February 1990, respondent's program
attorney indicated to the complainant that if she would
submit a letter of resignation, the termination letter
would be rescinded.
The complainant testified that in light of her December
1989 and February 1990 conversations with respondent's
personnel, she did not consider the respondent's
decision final until March 7, 1990, when she learned
that the respondent was no longer willing to consider a
resignation letter or any action other than
termination.
The respondent conceded, for purposes of a summary
judgment motion on the timeliness issue, that
complainant filed her complaint on March 22, 1990.
The Secretary first considered when the complainant received
unequivocal, final notice. She agreed with the ALJ that the
termination letter and the government forms clearly indicated a
discharge on January 18, and "vividly reflect a final
discharge of a permanent nature." [quoting ALJ's
Recommended Decision and Order at 2]. The Secretary noted that
generally speaking, a cause of action for unlawful termination
accrues when the employee receives an unequivocal, final notice
of the decision. English v. Whitfield, 858 F.2d 957, 962
(4th Cir. 1988).
The facts of the case did not demonstrate affirmative misleading
or deceptive conduct by the respondent that would 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., 89-CAA-1 (Sec'y July 8, 1992), slip op. at
6-7 and cases cited therein.
Even if an employer agrees to reconsider a termination decision,
such reconsideration alone is legally insufficient to toll a
limitations period. Delaware State College v. Ricks, 449
U.S. 250, 261 n.15 (1980); Electrical Workers v. Robbins and
Myers, Inc., 429 U.S. 229 (1976). The respondent's
willingness to ameliorate the effects of the complainant's
termination by accepting a resignation letter did not constitute
grounds for equitable estoppel in the instant case.
Dillman, 784 F.2d at 61; see English, 858 F.2d at
963; Naton v. Bank of California, 649 F.2d 691, 696 (9th
Cir. 1981). There was no allegation that the respondent's
willingness to accept a resignation letter was contingent on the
complainant's agreeing not to file a complaint, or that the
subsequent unwillingness to accept the complaint was based on
lapsing the filing period.
The complainant's admission that after receiving the termination
notice in January she contacted the respondent's Program Attorney
for help because she believed that the reasons for her
termination were pretextual, that her discharge was retaliatory,
and that neither termination nor forced resignation were
appropriate, also indicated that tolling was not appropriate.
See Kale v. Combined Insurance Co. of America, 861 F.2d
746, 753 (1st Cir. 1988); Nation, 649 F.2d at 696.
[Editor's note: The Secretary did, however, remand the case for
the ALJ to consider a separate allegation of discrimination based
on the refusal to accept the resignation letter.]
IV B 1 Tolling based on misleading conduct by
respondent
In Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988), the Sixth
Circuit identified five factors to consider in determining
whether a filing period should be equitably tolled:
(1) lack of actual notice of the filing requirement;
(2) lack of constructive knowledge of the filing
requirement;
(3) diligence in pursuing one's rights;
(4) absence of prejudice to the defendant; and
(5) a plaintiff's reasonableness in remaining ignorant of
the notice requirement.
Id. at 151. In The Detroit Edison Co. v. Secretary, United
States Dept. of Labor, No. 91-3737, slip op. (6th Cir.
Apr. 17, 1992) (per curiam) (unpublished) (available at 1992 U.S.
App. LEXIS 8280), the Sixth Circuit found that the Secretary's
determination that misleading conduct by the Respondent caused
the Complainant to delay filing her complaint was supported by
substantial evidence. See Larry v. The Detroit Edison
Co., 86-ERA-32 (Sec'y June 29, 1991). Specifically, an EEO
Specialist whom the Complainant visited in regard to her
employment concerns, told the Complainant that she had come to
"right place." That Specialist mislead the Complainant
by concealing her role as a representative of the Respondent's
interests in employment and retaliation cases, by making false
promises to keep the Complainant's disclosures in confidence and
to purse the matter diligently, and by allowing the Complainant
to labor under a confusion as to the proper timing of a
complaint.
IV B 1 Equitable estoppel
The Secretary imposed equitable tolling on the ground that the
employer's EEO process misled and diverted Complainant in filing
her ETA complaint. The circumstances cited by the Secretary
included:
The employer maintained a company Equal Employment
Opportunity office, and posted noticed advised employees
that "whistleblower" discrimination complaints
should be directed to the EEO office;
the EEO specialist, upon meeting with complaining
employees, explained that she functioned as a mediator
between employees and management and did not disclose that
she was actually responsible for representing the company
and preparing the company's position at any fact findings or
resolution conferences;
the EEO specialist assured Complainant that "she
was in the right place" if she wished to pursue "a
mediation process" but made it clear that the filing of
a formal complaint she (the specialist) immediately would
cease mediation efforts;
the specialist never contacted a manager regarding
conciliation of the matter but instead meet with the
employer's legal department to discuss the complaint and
then "turned over" Complainant's documentation to
the legal department;
the employer's EEO process clearly distracted
Complainant in pursuing other recourse (had Complainant not
been occupied with the specialist, she could have focused on
ERA procedure including verifying the limitations period);
the employer should have understood that its deliberate
design to delude Complainant and to divert his attention and
energies would cause delay.
The Secretary indicated that the ERA's sharply abbreviated
limitations period may militate in favor of equitable tolling.
Hicks v. Colonial Motor Freight Lines, 84-STA-20 (Sec'y
Dec. 10, 1985). Also considered by the Secretary in imposing
equitable estoppel was her finding that the primary objective in
imposing an expeditious time frame had been met, i.e., prompt
notice to Federal regulators and the employer of safety
violations and retaliatory behavior.
Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June
28, 1991).
IV B 1 Respondent not shown to have mislead
employee
In Eisner v. United States Environmental Protection
Agency, 90-SDW-2 (Sec'y Dec. 8, 1992), the Respondent's
willingness to ameliorate the effects of the Complainant's
termination by accepting a resignation letter did not constitute
grounds for equitable estoppel to assert the lack of timeliness
of the filing of the complaint. The Complainant did not assert
that the Respondent's willingness to accept a resignation letter
was contingent on the Complainant's agreement not to file a
complaint. There was no allegation that the Respondent's
subsequent unwillingness to accept a resignation letter was
because the thirty-day time period had lapsed.
IV B 1 Requirement that restrictions on equitable
tolling be scrupulously observed
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 official about his right to file a
complaint.
In some circumstances, where there is a complicated
administrative procedure, and an unrepresented, unsophisticated
complaint 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 complaint --
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.
IV B 1 Fraudulent concealment; misrepresentation must
have been directed to the complainant
[Editor's note: Hill v. Tennessee Valley
Authority, 87-ERA-23 (ALJ July 24, 1991), contains an
analysis of the Sixth Circuit's case law on the question of
equitable tolling. The facts of the case are complex and the
analysis is detailed. The foregoing is a very brief overview of
the ALJ's recommended opinion, which is worth reading if you are
faced with the same issue.]
In Hill v. Tennessee Valley
Authority, 87-ERA-23 (ALJ July 24, 1991), the
complainants asserted that the respondent had misled them,
through its public pronouncements, to believe that the respondent
fired their employer for other than discriminatory reasons. The
complainants were employees of a nuclear safety consulting
company that had contracted with the respondent. The ALJ,
focusing on the case of Dayco Corp. v. Firestone Tire &
Rubber Co., 386 F. Supp. 546, 548 (N.D. Ohio 1974), aff'd
sub nom., Dayco Corp. v. Goodyear Tire & Rubber Co., 523
F.2d 389 (6th Cir. 1975), found that the complainants had not
brought their case within the equitable tolling doctrine of
fraudulent concealment, because this doctrine relates to
concealment of conduct, not intent. He also found that the
complainants had failed to satisfy the Dayco standard's
element of due diligence.
In addition, the complainants were found to have failed to make a
convincing case that they were misled by the respondent to delay
the filing of their complaints. The ALJ concluded that the case
law required that the asserted misrepresentation must have been
intended for, and directed to, the party who claims the benefit
of equitable estoppel. The complainants argued that the
respondent had engaged in aggressive media campaign to convince
the complainants, among others, of its reasons for firing their
employer; that the respondent's statements to the press and to
Congress were false and made in order to conceal its
discriminatory motive from the complainants. The ALJ, however,
concluded that the record did not support this argument, but that
the aim of the respondent's media campaign and representations to
Congressmen and NRC was to secure public and official support for
its decisions; it was not evident that the respondents were
concerned with the complainants.
In addition, the ALJ found that the complainants could not prove
detrimental reliance.
[Editor's note: The ALJ recommended dismissal of the complaint
in Ottney v. Tennessee Valley Authority, 87-ERA-24
(ALJ July 24, 1991) in large part for the same reasons stated in
Hill]
IV B 1 Misleading of employee by employer
In Scott v. Alyeska Pipeline Service Co., 92-TSC-2
(ALJ Jan. 29, 1993), Complainant asserted that the doctrine of
equitable tolling should be used to find his complaint timely.
The ALJ found, however, that there was no evidence that
Respondent actively mislead Complainant respecting the cause of
action. In regard to whether Respondent actively misled
Complainant, the ALJ wrote:
[Complainant] contends that Alyeska's notice of
termination did not disclose the discriminatory reason for
the termination, stating instead that the termination was
for cause. But since employers rarely if ever tell
employees they are being subjected to adverse action for
reasons which are in violation of the law, holding that
there is equitable tolling because an employer informs the
employee of a different reason for an adverse action would
virtually eliminate the periods of limitation in the various
environmental statutes at issue in this case. Congress
could not have intended such a result.
* * *
The cases that have applied equitable tolling to a
statute of limitations in discrimination cases have been
cases in which the employer was found to have misled the
employee into believing he or she has no cause of action.
For example, in McConnell v. General Telephone Co.,
814 F.2d 1311 (9th Cir. 1987), cert. denied sub nom.,
General Telephone Co. v. Addy, 484 U.S. 1059, 108 S. Ct.
1013 (1988), the employer misled the employee into believing
he had been temporarily laid off rather than terminated.
Similarly, in Charles A. Kent, 84-WPC-2, 1 O.A.A. 2,
at 442 (Remand Decision and Order of Secretary of Labor,
april 6, 1987), and Reeb v. Economic Opportunity Atlanta
Inc., 516 F.2d 924 (5th Cir. 1975), the employees were
misled by the employers into believing they had not been
terminated. In all these cases, since the employees were
misled into believing that no adverse action had been taken
against them, they could not have been aware that a cause of
action existed.
* * *
Therefore, Alyeska's failure to inform [Complainant]
that he was being terminated for leaking company documents
to Hamel [a well-known critic of Alyeska] is not evidence
that Alyeska actively misled [Complainant] respecting the
cause of action.
Slip op. at 34-36.
The ALJ also addressed Complainant's contention that even if he
was not misled, equitable tolling is appropriate until he become
aware, or reasonably should have become aware, that he was a
victim of discrimination. The ALJ, however, found that the
castile indicates that equitable tolling is appropriate only
until a complainant becomes aware, or reasonable should have
become aware, of the discriminatory act -- not to the
knowledge of the employer's illegal motive for the act.See McGough v. United States Navy, ROICC, 86-ERA-18, 19,
20 (Sec'y June 30, 1988).
IV B 1 Equitable estoppel
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).
IV B 1 Discussion with Complainant of options not
ground for tolling where they would not have
mislead the employee
Where the Complainant was given a final and unequivocal notice of
termination on November 6, 1991, the termination to be effective
on November 29, 1991, the Complainant's December 24, 1991
complaint was not timely. Furthermore, where there was no
evidence that the employer somehow deceived, misled or coerced
the employee into delaying filing a complaint, the time period
for filing a whistleblower complaint was not tolled. Although
there had been some further discussion with the Complainant about
his options, apparently including possibly resigning rather than
being fired, or an extension, the ALJ found that there was not
sufficient evidence to conclude that the Complainant "was
lead into a false sense of security that would justifiably excuse
the requirement of filing a complaint within thirty days. ...
There is no evidence that either [of the Complainant's superiors]
engaged in false negotiations regarding options to the professed
reasons for his termination, or that they acted in such a manner
as to ensure his forbearance from filing a timely
complaint."
Kang v. Dept. of Veterans Affairs Medical Center,
92-ERA-31 (ALJ Mar. 31, 1993) (ALJ had earlier denied a motion
for summary judgment where there was a question of fact of
whether the November 6, 1991 notice of termination was final and
unequivocal, see Order dated May 29, 1992).
IV B 1 Equitable tolling when respondent's
complainant handling process causes
confusion
In Holden v. Gulf States Utilities, 92-ERA-44
(Sec'y Apr. 14, 1995), the Complainant
alleged that personnel in Respondent's Quality Concerns Program
affirmatively lied to him when he
asked about possible recourse concerning his discharge and two
subsequent instances of alleged
blacklisting, and thus the limitations period was equitably
tolled.
The Secretary noted that "[i]gnorance of the law is not
sufficient to warrant equitable tolling of the
limitations period", but that "equitable tolling is
justified when an employer's complaint
handling process causes confusion that deters a complainant from
timely filing a complaint." Slip
op. at 14-15 (citations omitted).
The Secretary remanded the complaint for a hearing on equitable
tolling, noting that if the complaint
department had told the Complainant that the QCP "either was
the sole or best means to report
safety concerns" equitable tolling may apply because of the
confusing nature of the employer's
process. If, however, "workers were told that the QCP
program was one means to address safety
issues in addition to other avenues of redress, it would be
difficult to show that [the Respondent]
mislead [the Complainant] simply by not informing him of his
rights under the ERA."
IV B 1 Fraudulent concealment/actions v.
motives
Elements of fraudulent concealment/equitable tolling
The elements that must be shown to prove fraudulent concealment
to establish equitable tolling of the ERA time limit for filing a
complaint are: (1) wrongful concealment of its action by the
respondent, (2) failure of the complainant to discover the
operative facts that are the basis of the cause of action within
the limitations period, and (3) the complainant's due diligence
until discovery of the facts. Hill v. TVA, 87-ERA-
23 and 24 (Sec'y Apr. 21, 1994) (citing Dayco Corp. v.
Goodyear Tire & Rubber Co., 523 F.2d 389, 394 (6th Cir.
1975)).
In Hill, the Secretary found that the ALJ properly
interpreted and applied the law of equitable tolling through
fraudulent concealment, and explicitly adopted parts V, VI and
VII of his recommended decision and order. Hill v. Tennessee
Valley Authority, 87-ERA-23 (ALJ July 24, 1991). In
Hill, 23 employees of a quality insurance
contractor brought a whistleblower complaint against Respondent,
TVA, after Respondent "fired" the contractor.
Complainants' theory was that Respondent had engaged in an
aggressive media campaign and in testimony before Congress, to
convince Complainants, among others, that its reasons for firing
their employer were not related to retaliation for reporting
safety violations. The ALJ concluded that the media campaign and
the representations to Congressmen was to secure public and
official support for its decisions -- not with concern about
Complainants' potential whistleblower complaint. The ALJ
questioned whether there was concealment, found that
Complainants did not exercise due diligence, found that
Complainants did not establish that Respondent had misled they to
delay the filing of their complaint, and that Complainants did
not show that they had reasonably relied on any statements of
Respondent. See ALJ slip op. at 15-22.
Although adopting the ALJ's legal analysis and findings of fact,
the Secretary commented on his position regarding the equities
involved in considering a claim of equitable tolling, and to cite
additional authorities to bolster the ALJ's conclusion.
Requirement that time limitations not be applied so strictly
as to frustrate the underlying purposes of the whistleblower
law
The Secretary noted that equitable modification of filing
deadlines had traditionally been recognized only in exceptional
circumstances. Nonetheless, in an ERA whistleblower case
"this general rule must not be applied in such a way that
the underlying purposes of that law are frustrated. Thus, it is
exceedingly important that an appropriate balance be struck
between fidelity to the statutory directive that complaints be
pursed and investigated in a timely manner on the one hand and
fairness to whistleblowing complainants on the other."
Sec'y's slip op. at 5.
Equitable tolling applies only when a respondent conceals its
actions, as opposed to its motives
Complainants urged the Secretary to reject the ALJ's conclusion
that equitable tolling applies only when a respondent has
concealed its actions which give rise to a cause of action, and
not when it conceals its motives. Rather, Complainants argued
that equitable tolling applies when the respondent has concealed
the motives for its actions, even though the essential elements
of a claim are know to a complainant. The Secretary affirmed the
ALJ's conclusion, noting that "Complainants' position would
require a Respondent either to confess violation of the ERA or be
subject to suit for an indefinite period until the Complainant
obtains evidence of Respondent's illegal motive." Sec'y's
slip op. at 6-7. The Secretary also stated that "[o]nly
concealment of the fact that a cause of action exists, not
concealment of evidence proving violation of the statute,
justifies equitable tolling." Slip op. at 15-16 (citations
omitted)
Time period for filing commences when complainant knows enough
to justify a charge of discrimination, as opposed to knowing
enough to make out a prima facie case
The Secretary then proceeded to detail much of the federal case
law concerning what an employee must know to commence a statute
of limitations in a discrimination case. In sum, the Secretary
adopted the position that the limitations period begins to run
when the complainant possesses facts sufficient to make out a
charge of discrimination. This is not the same as facts
sufficient to make out a prima facie case -- it is only that
level of information necessary to initiate a Wage and Hour
investigation. The Secretary noted that an attorney who filed
such a complaint is not subject to Rule 11 sanctions for failure
to make a precomplaint investigation. There is a distinction
between a judicial complaint and an administrative complaint. In
essence, the Secretary held that there is no duty of precomplaint
inquiry in a DOL ERA proceeding. See Sec'y's slip op. at 11-12
and n.6.
IV B 1 Actual reason for termination does not need to
be known if the complainant suspects illegal
motives
In Sisk v. Transco Products, Inc., 87-ERA-34 (ALJ
Nov. 12, 1987), aff'd, (Sec'y May 2, 1990), the
administrative law judge concluded that the complainant had
failed to establish ground for equitable tolling of the period
for filing an ERA whistleblower complaint. Shortly after her
termination, the complainant's attorney wrote to the respondent's
president expressing concern that the stated reason for her
termination (absence without permission) was not the actual
reason for her termination. The ALJ held that "the fact
that [the complainant] did not know the actual stated reason for
her dismissal had no detrimental effect on her ability to file an
action within the allotted time, and thus did not in any
extraordinary way prevent her from asserting her rights. . . .
At the time of her dismissal, Complainant suspected that she was
fired illegally."
IV B 1 Unsuccessful settlement negotiations
In Yap v. Bay Area Environmental, Inc., 90-SWD-4
(ALJ Oct. 30, 1990), aff'd (Sec'y Aug. 30, 1991), the ALJ found
that the Complainant had not established equitable grounds for
tolling of the limitations period based on misleading conduct by
the Respondent, where the Complainant had contacted the
Respondent for the purpose of opening settlement negotiations,
but the Respondent refused to discuss settlement until certain
documents were returned, which documents were not in fact
returned.
In addition, assuming arguendo that equitable tolling was
invoked, the ALJ reasoned that equitable tolling only lasts as
long as the period it would not be equitable to count. The ALJ
found that the Complainant waited 63 days after the last day that
any conceivably deterring effect of behavior by the Respondent
had ended (the date the Complainant filed a State action for
wrongful discharge).
IV B 1 Summary judgment granted
Summary judgment was granted where the complainant failed to show
that a genuine issue of material fact exists with respect to the
issue of timeliness and equitable tolling. 29 C.F.R.
§§ 18.40, 18.41. The complainant failed to show that
the respondents had misled him as to his cause of action or
prevented him from timely filing under the ERA, or that he timely
filed the exact claim in the wrong forum. His assertion that
tolling is appropriate because he was not aware of his rights
under the ERA was unavailing. Lahoti v. Brown &
Root, 90-ERA-3 (Sec'y Oct. 26, 1992).
In Gillilan v. Tennessee Valley Authority, 91-ERA-
31 and 34 (Sec'y Aug. 28, 1995), the Secretary relied on
School Dist. of Allentown v. Marshall, 657 F.2d 16, 19-20
(3d Cir. 1981), as "[t]he leading case on the issue of
timeliness under the whistleblower provisions at 29 C.F.R. Part
24." Noting that one of the situations in which tolling of
the time frame for filing a whistleblower complaint might be
appropriate is where the complainant has in some extraordinary
way been prevented from asserting his or her rights, the
Secretary examined whether the Complainant's assertion that his
attorney's mental incapacity was responsible for a missed
deadline was sufficient to withstand a motion for summary
decision based on lack of timeliness. The Secretary found that a
recent Sixth Circuit decision, Cantrell v. Knoxville Community
Dev. Corp., Nos. 94-5033 and 94-5379, 1995 U.S. App. LEXIS
17458, *3 (6th Cir. July 19, 1995), was controlling. In
Cantrell, a Title VII case, the court held that if a
plaintiff pursued his claim diligently, yet was abandoned by his
attorney due to his attorney's mental illness, equitable tolling
of the limitations period may be appropriate.
Although the ALJ stated that the record contained no evidence of
the attorney's mental state at the time the filing was presented,
the Secretary concluded that the record raised issues of material
fact regarding the attorney's capacity and the Complainant's
diligence. In a footnote, the Secretary observed that the
Complainant alleged that he raised the complaint with his
attorney, and then called a few days later to make sure the
complaint had been filed. The Complainant alleged that the
attorney was a manic-depressive, causing him to miss the
deadline. The Secretary found some support for the attorney's
incapacity in that several months later, on the first date set
for hearing, the attorney suddenly abandoned the Complainant, and
about one week later the attorney was hospitalized for
depression. The following month the attorney withdrew from the
practice of law.
[Nuclear & Environmental Digest IV B 2]
TIMELINESS; EQUITABLE TOLLING
In Ricketts v. Northeast Utilities
Corp., 1998-ERA-30 (ALJ Oct. 29,
1998), the ALJ found that exceptional circumstances existed to toll the limitations period for
filing a whistleblower complaint for the period between when the employee's surviving spouse
filed with the state probate court to be appointed administratrix of the employee's estate, and the
probate court's order appointing her as such.
[Nuclear & Environmental Digest IV B 2]
TIMELINESS; EQUITABLE TOLLING BASED ON COMPLAINANT'S MENTAL
ILLNESS
In Hall v. EG&G Defense Materials,
Inc., 1997-SDW-9 (ARB Sept.
30, 1998), Complainant sought to invoke equitable tolling of the time period for filing his
environmental whistleblower complaints based on a claim that prior to and continuing through
the filing period he suffered from severe depression. The ARB recognized that arguably this
ground fits the "in some extraordinary way prevented from asserting rights" ground
for equitable tolling, see School District of City of Allentown v. Marshall, 657 F.2d 16,
19-20 (3rd Cir. 1981), but held that Complainant must make a particularly strong showing -- that
the illness in fact prevents the sufferer from managing his affairs, understanding his or
her legal rights, and acting on them -- or, under and even more stringent test -- that the sufferer
has been adjudged mentally incompetent or was institutionalized during the filing period.
Complainant filed a report by a psychiatrist, but the ARB found that nothing in the report
indicated that Complainant was not capable of handling his affairs or understanding his legal
rights. Complainant's own affidavit likewise failed to assert that he was unable to understand his
legal rights. Moreover, other evidence of record indicated that Complainant in fact was capable
of understanding and addressing his legal rights during this period of time: signing a settlement
agreement in a divorce action, and testifying in a workers' compensation proceedings. The ARB
also noted that even if Complainant's mental condition was a basis for equitable tolling, he would
still face an additional hurtle in that he was represented by counsel during the relevant period.
TIMELINESS; APPLICATION OF EQUITABLE PRINCIPLES; FRAUDULENT
CONCEALMENT [N/E Digest IV B 2]
In Hill v. United States Dept. of Labor, 65
F.3d 1331
(6th Cir. 1995), the court held that the limitations period
in Section 210 of the Energy Reorganization Act (now Section
211), is not jurisdictional, and may be extended when
fairness requires. Equitable principles may be applied when
a defendant fraudulently conceals its actions, misleading
the plaintiff respecting his or her cause of action. To
establish a fraudulent concealment to avoid a statute of
limitations, the plaintiff must prove (1) wrongful
concealment by the defendants of their actions; (2) failure
of the plaintiff to discover the operative facts that are
the basis of the cause of action within the limitations
period; and (3) the plaintiff's due diligence until
discovery of the facts. The party relying on equitable
tolling through fraudulent concealment has the burden of
demonstrating its applicability; such an equitable remedy is
narrowly applied because statutes of limitation are vital to
society's welfare and are favored in the law.
The court noted that a claim of fraudulent concealment is
technically not for equitable tolling but of equitable
estoppel.
Concealment of motives versus concealment of
actions
In Hill, the Complainants asserted that, as a
matter
of law, equitable tolling applies where the defendant
concealed the motives for its actions, even though the
essential elements of a claim are known. The Secretary had
concluded otherwise -- that equitable tolling applies only
when a respondent concealed its actions giving rise to a
cause of action, and not to concealment of motives. The
court agreed with the Secretary, holding that "[a]
deception
regarding motive supports application of equitable tolling
only where the deception conceals the very fact of
discrimination. . . . Equitable tolling through fraudulent
concealment is not warranted where a petitioner is aware of
all the essential facts constituting discriminatory
treatment but lacks direct knowledge or evidence of the
defendant's subjective discriminatory motive."
Hill,
65 F.3d at 1337 (citations omitted).
Discovery of operative facts within limitations
period.
In Hill, the court found that the Complainants
failed
to establish that they had failed to discover the operative
facts upon which they based their claim within the
limitations period. The Complainants were employed by the
Respondent (TVA) to investigate and report nuclear safety
concerns. Thus, they knew they had been engaged in
protected activity, that the Respondent was aware of the
protected activity, and that the Respondent had taken
adverse action against them in terminating their contract.
The court held that this information alone was sufficient to
cause a reasonable mind (much less an expert on § 210
which Complainants held themselves out to be), to suspect
that the Respondent's adverse actions might be in
retaliation for the protected activity. Additional factors,
inter alia, were the circumstances surrounding the
Respondent's employment of the Complainant's employer as an
intermediary between the Respondent and the NRC (which
included a concern that the Respondent might retaliate
against employees for reporting safety concerns), the
economic impact of Complainant's employers's reports of
preventing the opening of Respondent's Watts Bar facility,
and knowledge that the Respondent had complained about the
Complainant's employer's reporting of safety concerns to
Congress.
The court repeated an earlier holding that "To hold
that a
tolling or suspension of the limitation of actions must
continue unless or until proof positive existed of a wrong
(which might never be established in fact) would abort the
policy of the law of repose in statutes of limitations of
diligence in the equitable principles permitting suspension
of them."" Hill, 65 F.3d at 1338, quoting
Pinney
Dock & Transp. Co. v. Penn Central Corp., 838 F.2d
1445, 1478 (6th Cir. 19xx), cert. denied, 488 U.S.
880 (1988).
Due diligence
The court found that the Complainants failed to demonstrate
due diligence, there being evidence that the Complainants
were in fact, or should have been, suspicious of retaliatory
motive. The court wrote that [i]n order for a fraudulent
concealment claim to prevail, a plaintiff must prove that
the defendant's attempts to mislead the plaintiff actually
succeeded. Hill, 65 F.3d at 1338 (citation
omitted).
The Complainants argued that just because they disagreed
with the Respondent's reasons for terminating their
employer's contract does not mean they were aware that the
reasons were pretextual. The court found that this argument
missed the point: they had sufficient facts at the time to
evaluate the propriety of the reasons, and had a legal duty
to investigate whether the Respondent acted on illegal
motivations.
In Schafermeyer v. Blue Grass Army Depot, ARB No. 07-082, ALJ No. 2007-CAA-1 (ARB Sept. 30, 2008), the Complainant filed a complaint with the MSPB 36 days after he was notified that he would be discharged. The MSPB ALJ informed the Complainant that his MSPB complaint would be dismissed because he was a probationary employee, and that he should have filed his complaint under OSHA's whistleblower protection program. Thereafter, the Complainant voluntarily dismissed his MSPB complaint and filed a whistleblower complaint with OSHA under the SWDA and the CAA. By that time, 105 days had passed since he had been discharged.
The ARB held that the Complainant was not entitled to equitable tolling under the "wrong forum" tolling element of School Dist. of Allentown 657 F.2d 16, 20 (3d Cir. 1981), because that tolling provision required that the filing in the wrong forum itself be timely. In the instant case, the complaint was filed with the MSPB 36 days after the discharge. The limitations period for the SWDA and the CAA was only 30 days.
Moreover, even if the complaint had been timely filed at the MSPB, the ARB found that it did not raise the precise statutory claim in the wrong forum. The Complainant did not know that he had a potential cause of action under the environmental statutes until the MSPB ALJ so informed him, so this was not a case in which the Complainant intended to file an environmental whistleblower complaint but merely did so in the wrong forum. The ARB was not persuaded by the Complainant's argument that even though he did not intentionally file a CAA or SWDA complaint, the MSPB complaint nonetheless raised such a precise claim. The ARB found nothing in the MSPB complaint presenting a simple statement that he was entitled to relief because of protected activity under the environmental whistleblower statutes, that the Respondent knew of those activities, and consequently terminated his employment. The ARB held that the MSPB complaint was insufficient to put the Respondent on notice that the Complainant was asserting a claim of whistleblower discrimination against it under the environmental protection acts.
The ARB rejected the Complainant's claim that equitable tolling should be applied because he was diligent in the absence of actual or constructive knowledge of the limitations period, and because the Respondent had only notified him of the right to file a MSPB complaint. The ARB found that ignorance of the law is not sufficient, standing alone, to warrant equitable tolling; that there was no argument that the Respondent actively misled the Complainant from seeking legal advice; and that the Respondent was under no legal obligation to inform the Complainant of any environmental whistleblower rights.
[Nuclear and Environmental Whistleblower Digest IV B 3]
EQUITABLE TOLLING; PRECISE CLAIM IN WRONG FORUM; LENGTH OF TIME TO FILE IN CORRECT FORUM AFTER DISMISSAL IN WRONG FORUM
In Immanuel v. The Railway Market, ARB No. 04-062. 2002-CAA-20 (ARB Dec. 30, 2005), it was assumed, for purposes of disposing of the case, that the Complainant's state agency filing raised the precise statutory claim in issue, but was mistakenly filed in the wrong forum � therefore tolling the 30-day limitations period of the environmental whistleblower acts. The issue decided on appeal was how much time a complainant has to file in the correct forum once a complaint that has been filed in the wrong forum is dismissed. Citing Burnett v. New York Cent. R.R. Co., 380 U.S. 424 (1965) and Crown Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983), the Board held that the Complainant had no more than 30 days within which to file his environmental whistleblower complaint with OSHA after the state agency dismissed his claim. Since the Complainant did not do so for 73 days, the OSHA complaint was
untimely.
IV B 3 No documentation of timely filing with other agency
In Gabbrielli v. Enertech, 92-ERA-51 (Sec'y July
13, 1993), Complainant contended that because of his personal
problems and Respondent's misleading behavior, he did not realize
until October 1991 that Respondent had a retaliatory motive for
his "layoff."
According to Complainant, when he was terminated in January 1989,
Complainant believed that it was because of the lack of work; he
contacted Respondent several times each year about new contract
opportunities and was cordially told that he would be welcome to
any work that became available; in October 1991, however, he was
told that Respondent's president would not rehire Complainant.
Only then did he realize that protected activity was the actual
reason for his termination.
The Secretary held that it was clear that Complainant's divorce
and personal problems could not justify his delay in filing, but
that it was less clear whether assurances of new work when
available would modify the limitations period (noting that this
was not a quid-pro-quo forbearance or deliberate misleading
situation). The Secretary found that by August 1990 Complainant
knew or should have discovered the falsity of the misstatements
or the concealment that he alleges caused him to delay. In
August 1990, Complainant learned that his vacant job had been
filed almost immediately. This fact, together with "the
assertive letter Complainant wrote to Respondent prior to his
termination," convinced the Secretary that Complainant,
perhaps distracted by his personal problems, "did not act
diligently to evaluate the propriety of the reason for his
termination upon obtaining sufficient information to question
it."
[Editor's note: This finding was contrary to the ALJ's finding
that Respondent lulled Complainant with false assurances until
October 10, 1991].
Regardless of whether the filing period was tolled until October
1991, the complaint was time barred. Although Complainant
claimed that he contacted the resident inspector of the NRC
within a week of realizing Respondent's motive, and thought he
had initiated the process, the Secretary held that this did not
fall with the narrow category of cases that permit tolling
because the employee raised the precise statutory claim in issue
mistakenly in the wrong forum." The Secretary distinguished
the case of Sawyers v. Baldwin Union Free School District,
85-TSC-1 (Sec'y Oct. 5, 1988), on the ground that in
Sawyers the filing period was tolled because the record
showed that a timely complaint, sufficient under the
whistleblower statute and regulations at 29 C.F.R. § 24.3
had been filed with the wrong agency, while there was no such
documentation in evidence in the instant proceeding. In
addition, the Secretary noted that Respondent received timely
notice of the specific statutory claim that was subsequently
asserted by Complainant. Thus, Respondent was denied the
protection which the expeditious time frame was intended to
provide.
[Nuclear & Environmental Whistleblower Digest IV B 3]
TIMELINESS OF COMPLAINT; WRONG FORUM GROUND FOR EQUITABLE TOLLING; ABSENCE OF WRITTEN COMPLAINT
In Stapleton v. Harris Teeter, Inc., 2004 CAA 3 (ALJ Mar. 3, 2004), the ALJ recommended against invocation of equitable tolling where the only timely contact the Complainant made was a telephone call to either the North Carolina Department of Labor or the EPA, with no filing of any form of written complaint. The only evidence of a written complaint was a filing with OSHA 14 days beyond the limitations period.
[Nuclear & Environmental Digest IV B 3]
TIMELINESS; WRONG FORUM
In Amato v. Assured Transportation &
Delivery, Inc., 1998-TSC-6
(ALJ Sept. 16, 1998), the ALJ recommended a finding that, although Complainant's complaint
was not filed with OSHA within 30 days after his termination from employment by Respondent,
it was filed within 30 days with the State of California Department of Industrial Relations, and
therefore must be considered as sufficient to equitably toll the 30-day time limitations of the
TSCA as a complaint filed within 30 days but in the wrong forum.
[Nuclear & Environmental Digest IV B 3]
TIMELINESS; FILING WITH MSPB INSTEAD OF DOL DOES NOT FIT WITHIN
WRONG FORUM EQUITABLE TOLLING EXCEPTION
Where Complainant filed an appeal with the Merit Systems Protection Board (MSPB) of a
notice of proposed removal, the ALJ, in a recommended decision on Respondent's motion for
summary decision, rejected Complainant's contention that the "wrong forum"
equitable tolling exception was invoked to toll the CAA limitations period for filing a
whistleblower complaint. The ALJ found that "[t]he MSPB is not a 'wrong forum' but
merely a different remedial forum." Slip op. at 4. Rockefeller v. U.S. Dept. of
Energy,1998-CAA-10 and 11 (ALJ Sept. 28, 1998).
[N/E Digest IV B 3]
EQUITABLE TOLLING; COMPLAINANT DID NOT "MISTAKENLY"
FILE IN THE WRONG FORUM
In Wood v. Lockheed Martin Energy
Systems, 97-ERA-58 (ARB May 14, 1998), the ALJ had concluded that the
complaint filed with DOL was untimely, and then considered whether equitable tolling applied
because Complainant had filed a timely complaint with DOE. Since there was no evidence that
Complainant filed with DOE by mistake, he concluded that equitable tolling was not applicable.
Rather, it appeared that Complainant had become dissatisfied with the DOE process and
therefore decided to file with DOL. The ARB quoted this portion of the ALJ's recommended
decision; however, Complainant had petitioned for voluntary dismissal of the DOL complaint
before the ARB so that he could pursue his DOE complaint. Thus, the ARB granted
Complainant's motion for voluntary dismissal and did not rule expressly on the ALJ's holding on
the timeliness issue.
[N/E Digest IV B 3]
TIMELINESS; TOLLING BASED ON PRECISE STATUTORY CLAIM IN ISSUE IN
WRONG FORUM
In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May
28, 1997), Complainant had distributed leaflets at a company picnic containing various
grievances and seeking to unionize. Following his discharge, he sent a letter to a state agency as
follows:
I am enclosing a copy of the letter I distributed on
7-25-93 (Sunday), later that week 7-30-93 (Friday) I was terminated from job.
#1 listed in the letter pertains to certain environmental
problems relating to the Blades Plant.
But a major one at all plants would be of drum cleanout
after cement delivery.
Any Question Please Call
Thanks
Henry Immanuel
The ALJ found that this did not "raise the precise statutory claim that section 507 of the
WPCA had been violated, even though a lawyer may see in them the basis for filing a
complaint." The ALJ interpreted the letter as merely having "the appearance of a
citizen's report of a possible law violation."
The Board disagreed, finding that the letter sufficiently connected Complainant's termination of
employment with whistleblowing activity. The Board held that the letter was "not
rendered defective as a complaint because it does not allege a violation of the employee
protection provisions of any statute, state or federal, and does not seek any relief.'" Slip op.
at 5, quoting ALJ's recommended decision at 5. The Board concluded that complainants who file
without assistance of legal counsel should be afforded broad latitude in framing the contents of
their complaints.
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; WRONG FORUM
[N/E Digest IV B 3]
In Lawrence v. City of Andalusia Waste
Water Treatment Facility, 95-WPC-6 (ARB Sept. 23, 1996), Complainants, prior
to filing a FWPCA complaint with the Wage and Hour Division of the USDOL, pursued an
internal Pre-Determination hearing and appeal regarding Respondent's intention to terminate
their employment. The Wage and Hour filing was outside the 30-day limitations period of the
FWPCA, but Complainants asserted that equitable tolling should be applied pursuant to
School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981). The Board held that
summary decision was properly granted against Complainants where they offered no proof that
they pursued their FWPCA claims before the City Commission, and they did not allege that they
thought they were in the correct forum to make a claim for discrimination under the FWPCA.
The Board also noted that Complainants had been represented by counsel in the
Pre-Determination hearing, and that where a plaintiff is represented by counsel, equitable tolling
is
generally not applied. The Board found "no reason to stray from the general rule in this
matter." Slip op. at 2.
TIMELINESS OF COMPLAINT; INTERPRETATION OF "PRECISE
STATUTORY CLAIM" FOR EQUITABLE TOLLING
[N/E Digest IV B 3]
Where the Complainant contacted a state environmental agency
and a local OSHA office rather than the Wage and Hour Division
within the statutory period for filing of a whistleblower
complaint and gave them an account of what was going on, the ALJ
concluded that these contacts did not constitute a ground for
equitable tolling because the accounts did not raise the precise
statutory claim, even though a lawyer might have seen in them the
basis for filing a FWPCA complaint. Immanuel v. Wyoming Concrete
Industries, Inc., 95-WPC-3 (ALJ Oct. 24, 1995).
To the same effect >Lawrence v. City of Andalusia
Waste Water Treatment Facility, 95-WPC-6 (ALJ Dec.
13, 1995)(mere raising of factual circumstances is not the same
as raising the precise statutory claim).
IV B 3 Filing in wrong forum; MSPB
In Biddle v. Department of the Army, 93-WPC-9 (ALJ
July 20, 1993), the Employment Standards Administration (ESA)
found that Complainant's complaint was not timely filed, and
dismissed the complaint without an investigation of the merits.
The ALJ found that equitable tolling must be applied because
Complainant timely filed a complaint that raises issues that
would be sufficient to state a cause of action under the WPCA,
except that complaint was filed with the Merit Systems Protection
Board (MSPB). Respondent did not dispute having knowledge of the
MSPB complaint. Compare Sawyers v. Baldwin Free School
District, 85-TSC-1 (Sec'y Oct. 5, 1988) (complaint filed with
EPA).
IV B 3 Wrong forum; complaint must relate to alleged
discriminatory retaliation
In Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y
Sept. 25, 1990), the ALJ allowed the complainant to amend his
complaint to substantiate whether he had filed the exact
statutory claim in issue, albeit in the wrong forum (the NRC).
Slip op. at 4. In the amended complaint, the complainant
attached the full report of the NRC and stated that he recalled
telling the inspector of each "Concern" listed, except
Concern No. 12. The Secretary on review held that since the
remaining concerns listed in the report focus on technical
violations by the respondent and did not in any way address the
alleged discriminatory acts at issue in the case before DOL, the
complainant had failed to establish that he had raised the
precise statutory claim. Slip op. at 7-8.
IV B 3 Precise statutory claim in wrong forum
Where the complainant stated in an affidavit that "[t]he
reason I complained to the U.S. Nuclear Regulatory Commission was
because of my duty as a professional nuclear engineer. . . .I did
not raise concerns with the NRC to obtain protection for my
employment," he failed to establish that he filed the
precise statutory claim in the wrong forum for purposes of
equitable tolling of the ERA period for filing a whistleblower
complaint. The complaint filed with the NRC was also outside of
the ERA filing period. See Rose v. Nuclear Fuel Services,
Inc., 87-ERA-19 (Sec'y June 29, 1990), slip op. at 2-3,
aff'd sub nom. Rose v. Dole, 945 F.2d 1331 (6th Cir.
1991); Lastre v. Veterans Administration Lakeside Medical
Center, 87-ERA-42 (Sec'y Mar. 31, 1988), slip op. at 4.
Harrison v. Stone & Webster Engineering Corp.,
91-ERA-21 (Sec'y Oct. 6, 1992).
IV B 3 Relief through alternative measures
In Cox v. Radiology Consulting Associates, 86-ERA-17 (ALJ
Aug. 22, 1986), the ALJ found that the complaint had not been
timely filed. The Complainant argued that the statute of
limitations should be tolled for equitable considerations because
he first sought redress by requesting a hearing with the
executive staff of the Respondent. The ALJ found, however, that
the Complainant did not allege that he mistakenly went to the
wrong forum for relief. Rather, the ALJ held that the fact that
relief was sought through alternative measures did not justify
the application of equitable tolling. The Secretary adopted the
ALJ's findings. See Cox v. Radiology Consulting Associates,
Inc., 86-ERA-17 (Sec'y Nov. 6, 1986).
IV B 3 Filing in wrong forum does not toll where the
filing was untimely in any case
The timely filing of a complaint raising the precise statutory
claim in the wrong forum, i.e., with the wrong government agency,
may toll the ERA limitations period for filing a complaint. See
Hicks v. Colonial Motor Freight Lines, 84-STA-20 (Sec'y
Dec. 10, 1985), slip op. at 8; Dartey v. Zack Company of
Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 6 n.1.
In Lastre v. Veterans Administration Lakeside Medical
Center, 87-ERA-42 (Sec'y Mar. 31, 1988), the complainant
filed a standard form entitled "Complaint of Discrimination
in the Federal Government" with the respondent's Equal
Employment Opportunity complaint processing system, which
included a narrative that included the complainant's claim of
retaliation for reporting misuse of radioactive materials -- a
description which would be sufficient as a complaint under the
ERA. The wrong forum tolling exception, however, was not
applicable because the record indicated that the complainant's
narrative was filed eight days after the end of the ERA filing
period. Thus, the complaint was simply untimely, even if filing
a legally sufficient complaint with the wrong agency would toll
the statute: the time for filing had already expired.
IV B 3 Wrong forum
In Dartey v. Zack Co. of Chicago, 82-ERA-2 (ALJ
Jan. 29, 1982), (prehearing order denying motion to dismiss),
adopted (Sec'y Apr. 25, 1983), the ALJ in denying a motion
to dismiss concluded that the purpose of the employee protection
provision of the ERA's very short time limitations was primarily
"not to prevent the prosecution of stale claims, but rather
to provide a quick and efficacious remedy for an employee who may
have been wrongfully thrown out of a job." Hence, the ALJ
found that Complainant's filing with OSHA rather than Wage &
Hour was a timely filing and that OSHA's memorandum of the
complaint satisfied the "in writing" requirement.
Moreover, the ALJ noted that the OSHA whistleblower section
Complainant did file under is, for all practical purposes, much
the same as section 5851, and that Respondent was fully apprised
of that filing within 30 days of Complainant's suspension.
In addition, although the DOL did not comply with the 90-day
provision for disposition of the claim, he ruled that "[t]he
expedited procedure is designed to minimize the hardship that
might result to the employee, not to provide a technical
"out" for the employer." The ALJ dismissed
Respondent's contention that it was prejudiced by the resignation
of a material witness because no showing had been made that he
was no longer available.
The Secretary, in approving and adopting this ruling, added that
in addition to the ALJ's conclusion that filing in the wrong
office of the right agency is not fatal, the filing with the
wrong agency by a layman who has not slept on his rights can also
toll a statute of limitations. Dartey v. Zack Co. of
Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at n.1.
IV B 3 Wrong forum; complainant must have been
raising retaliation complaint
In Hannel v. Midwest Industries, Inc., 85-TSC-3
(ALJ Sept. 27, 1985), Complainant's wife contacted the Iowa
Department of Water, Air and Waste Management (IDWAWM) on
November 30, 1984 regarding fears of contamination of drinking
water by Complainant's employer, the Respondent. IDWAWM
investigated, and on December 11, 1984, Respondent admitted that
it had been dumping acetone in the county landfill for two years.
On January 11, 1985, Complainant was laid off, allegedly for lack
of work. Complainant filed his complaint on March 29, 1985.
Complainant's wife had contacted IDWAWM by telephone concerning
the lay off on January 1, 1985.
Complainant maintained that he raised the precise issue in the
wrong forum and was entitled to equitable tolling of the TSCA
employee protection filing period. The ALJ ruled, however, that
since Complainant testified that he was not aware of legal
protection for retaliatory actions taken against employees who
report violations of the TSCA by their employers, Complainant
could not have raised the precise issue in the wrong forum.
Hence, the complaint was time barred.
IV B 3 Equitable tolling based on contact with NRC
within 30 days of adverse action
Where the complainants contacted NRC within 30 days of the
adverse action, but filed no written complaints, the principle
that permits equitable tolling where an employee files the
precise claim in the wrong forum was not applicable. See
generally, Kelly v. Flav-O_Rich, Inc., 90-STA-14 (Sec'y May
22, 1991), slip op. at 2; 29 C.F.R. § 24.3.(c). The
Secretary noted that the complainants did not allege that they
were mislead by the respondent or the DOL. She agreed with the
ALJ's finding that the NRC investigator did not actively mislead
or lull the complainants into inaction. McNally v. Georgia
Power Co., 85-ERA-27, 29-32 (Sec'y Sept. 8, 1992).
IV B 3 Wrong forum
In Sawyers v. Baldwin Union Free School District,
88-TSC-1 (Sec'y Oct. 5, 1988), the Secretary held that a
Complainant who had filed his whistleblower complaint with the
EPA was entitled to the doctrine of equitable tolling as
specifically applied in School District of the City of
Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981).
IV B 3 Inappropriate to invoke equitable
tolling where letter to wrong forum
did not invoke a safety concern
Where the Complainant mailed a copy of his resignation letter to
the NRC alleging racial discrimination,
and the NRC had responded informing the Complainant that he had
30 days from the date of the
alleged discriminatory act to file a written complaint under the
ERA with the DOL, the Secretary of Labor
found that equitable tolling based on mistakenly filing the
precise statutory claim in the wrong forum was
not appropriate because quality concerns were not raised in the
resignation letter. Grover v.
Houston Lighting & Power, 93-ERA-4 (Sec'y Mar.
16, 1995).
In Scott v. Alyeska Pipeline Service Co., 92-TSC-2
(ALJ Jan. 29, 1993), Complainant asserted that the doctrine of
equitable tolling should be used to find his complaint timely.
The ALJ found, however, that there was no evidence that
Respondent actively mislead Complainant respecting the cause of
action. In regard to whether Respondent actively misled
Complainant, the ALJ wrote:
[Complainant] contends that Alyeska's notice of
termination did not disclose the discriminatory reason for
the termination, stating instead that the termination was
for cause. But since employers rarely if ever tell
employees they are being subjected to adverse action for
reasons which are in violation of the law, holding that
there is equitable tolling because an employer informs the
employee of a different reason for an adverse action would
virtually eliminate the periods of limitation in the various
environmental statutes at issue in this case. Congress
could not have intended such a result.
* * *
The cases that have applied equitable tolling to a
statute of limitations in discrimination cases have been
cases in which the employer was found to have misled the
employee into believing he or she has no cause of action.
For example, in McConnell v. General Telephone Co.,
814 F.2d 1311 (9th Cir. 1987), cert. denied sub nom.,
General Telephone Co. v. Addy, 484 U.S. 1059, 108 S. Ct.
1013 (1988), the employer misled the employee into believing
he had been temporarily laid off rather than terminated.
Similarly, in Charles A. Kent, 84-WPC-2, 1 O.A.A. 2,
at 442 (Remand Decision and Order of Secretary of Labor,
april 6, 1987), and Reeb v. Economic Opportunity Atlanta
Inc., 516 F.2d 924 (5th Cir. 1975), the employees were
misled by the employers into believing they had not been
terminated. In all these cases, since the employees were
misled into believing that no adverse action had been taken
against them, they could not have been aware that a cause of
action existed.
* * *
Therefore, Alyeska's failure to inform [Complainant]
that he was being terminated for leaking company documents
to Hamel [a well-known critic of Alyeska] is not evidence
that Alyeska actively misled [Complainant] respecting the
cause of action.
Slip op. at 34-36.
The ALJ also addressed Complainant's contention that even if he
was not misled, equitable tolling is appropriate until he become
aware, or reasonably should have become aware, that he was a
victim of discrimination. The ALJ, however, found that the
castile indicates that equitable tolling is appropriate only
until a complainant becomes aware, or reasonable should have
become aware, of the discriminatory act -- not to the
knowledge of the employer's illegal motive for the act.See McGough v. United States Navy, ROICC, 86-ERA-18, 19,
20 (Sec'y June 30, 1988).
4 c 1
IV C 1 Interest of justice
Where the Complainant argued for a waiver of the ERA's statute of
limitations "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).
IV C 1 Ends of justice
Justice does not require the tolling of limitations period based
on the policy of not discouraging reporting of safety violations
In response to a complainant's argument that justice requires the
tolling of the limitations period because he was fired for
engaging in protected activity, and not allowing him his day in
court will function to discourage others from reporting safety
violations to the NRC, the court expressed sympathy, but found
that the Secretary did not err in relying upon School District
of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981). In
that case the court stated:
The choice of the appropriate time [for filing
actions] is not entrusted to the administrative agency
or to the courts. 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. It is not
for us or the Secretary to casually ignore the
statutory limitation.
School District at 20.
Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per
curiam).
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 July 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).
IV C 2 Relevance of amendment of posting of
notice regulations to Employer's prior
behavior
In 1982, 10 CFR Part 19 and NRC Form 3, were amended to add
information about an employee's right to protection against
certain forms of discrimination and telephone numbers for
employees to call in order to contact the DOL. Where a
complainant argued that the addition of the notice requirement in
1982 was an "implicit admission" that the prior notice
required under the regulations was inadequate, the very fact that
no such notice was required cannot result in an indictment of the
employer's behavior. The fact that the regulations now provide
for more effective notice to employees through posting the
revised regulations does not have any legal bearing on whether
prior notice was inadequate. Rose v. Dole, 945
F.2d 1331 (6th Cir. 1991) (per curiam).
IV C 2 Equitable tolling based on respondent's failure
to post notice of ERA whistleblower rights
In McNally v. Georgia Power Co., 85-ERA-27, 29-32
(Sec'y Sept. 8, 1992), the complainants cited Charlier v. S.C.
Johnson and Son, Inc., 556 F.2d 761 (5th Cir. 1977), reh'g
denied, 559 F.2d 1217 (5th Cir. 1911), and other cases
arising under the Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. §§ 621-634, in support of their
argument that their late filings should be tolled until they
first learned of their rights under the ERA, because the
respondent allegedly failed to post adequate notice of employees'
rights under section 210 of the ERA. The Secretary rejected the
argument, and found the complaints not to be timely. She
held:
The ADEA cases cited were based on a posting obligation
imposed by the statute itself; an obligation not imposed by
the ERA. Even assuming failure to post in compliance with
NRC regulations is a basis for equitable tolling, the
complainants failed to show that the respondents failed to
comply with those regulations.
In addition, several of the complainants had general
knowledge of the right not to be discriminated against,
which under ADEA case law prevents the tolling of the filing
period even where the employer failed to post the requisite
notice. See Kale v. Combined Insurance Co. of
America, 861 F.2d 746, 753 (1st Cir. 1988); McClinton
v. Alabama By-Products Corp., 743 F.2d 1483, 1486-87
(11th Cir. 1984).
IV C 2 At best, lack of posting tolls only until
actual or constructive knowledge of rights
In Gabbrielli v. Enertech, 92-ERA-51 (Sec'y July
13, 1993), Complainant contended that he was entitled to
equitable tolling because Respondent never posted an NRC Form 3
notice of his whistleblower rights.
Declining to rule on whether there was a legal duty to post the
form, the Secretary held that under the circumstances the failure
to post could not provide a basis for equitable modification
considering the Secretary's position on posting issues that is
based on cases arising under the Age Discrimination in Employment
Act (ADEA), 29 U.S.C. §§ 621-634 (1982). See
Harrison v. Stone & Webster Engineering Corp., 91-ERA-21
(Sec'y Oct. 6, 1992); McNally v. Georgia Power Co., 85-
ERA-27 (Sec'y Sept. 8, 1992). Under the ADEA, the courts have
held that an employer's failure to comply with posting
requirements tolls the limitations period only unless or until
the employee acquires actual or constructive knowledge of his
ADEA rights, e.g., until the employee acquires general knowledge
of his right not to be discriminated against on account of age,
or until he has the means of obtaining that knowledge, such as by
viewing the informational poster somewhere outside the place of
employment. [citations omitted].
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 July 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).
EQUITABLE TOLLING; DUE DILIGENCE REQUIREMENT; REASONABLE
PERSON TEST [N/E Digest IV C 3]
The ERA limitations period is not jurisdictional and is
subject to modification, for example by equitable tolling which
"permits a plaintiff to avoid the bar of the statute of
limitations if despite all due diligence he is unable to obtain
vital information bearing on the existence of his claim."
Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th
Cir. 1990), cert. denied, 501 U.S. 1261 (1991) (Age
Discrimination in Employment Act of 1967). Where the Complainant
was injured in July 1990 to the extent that he had not been
offered a job, but he did not necessarily know that the injury
was due to wrongdoing on the part of the Respondent until he,
with due diligence, proceeded to obtain information suggesting
that he had not received impartial consideration, equitable
tolling was applied. The Secretary applied a reasonable person
test in regard to whether a person in the complainant's position
would have known that the injury was related to retaliation,
noted that equitable tolling can suspend the running of the
statute of limitations for such time as was reasonable necessary
to conduct an inquiry, and observed that a complainant only need
be aware of a possible violation. Bausemer v. TU
Electric, 91-ERA-20 (Sec'y Oct. 31, 1995).
IV C 3 Ignorance of the law not an excuse
Ignorance of legal rights, or failure to seek legal advice, does
not toll a statute of limitations. [Citations omitted]
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).
IV C 3 Ignorance of filing period
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.
IV C 3 Ignorance of the law
Kang v. Department of Veterans Affairs Medical
Center, 1992-ERA-31 (Sec'y Feb. 14, 1994)
The Secretary issued a final decision and order dismissing
the complaint as untimely.
The ERA filing period commences on the date that a
complainant is notified of the challenged employment decision
rather than at the time the effects are untimely felt. Here, the
evidence supported that complainant was well aware of the adverse
action at the time it was communicated to him.
The Secretary also failed to find an issue of equitable
tolling. Although complainant's counsel may not have been aware
of the specific time allowed for filing a complaint under the
ERA, ignorance of the law alone is not sufficient to warrant
equitable tolling of the limitations period. There is no
evidence to support any alternate theory of equitable tolling of
the limitations period. There is no evidence to support any
alternate theory of equitable tolling in this case, such as if
the Respondent deliberately misled the Complainant as to the
Existence of the complaint or attempted to coerce the complainant
into not filing a complaint.
IV C 3 Ignorance of limitations period
Ignorance of the ERA time limits for filing a whistleblower
complaint does not toll the limitations period.
Gabbrielli v. Enertech, 92-ERA-51 (Sec'y July 13,
1993).
IV C 3 Equitable tolling
School Dist. of Allentown v. Marshall, 657 F.2d 16
(3d Cir. 1981).
The Secretary of Labor relied upon the theory of equitable
tolling to excuse the late filing which the court recognized may
be appropriate when the defendant has actively misled the
plaintiff or the plaintiff has been prevented from asserting his
rights or the plaintiff has raised the precise statutory claim
but has done so in the wrong forum. Since the "naked
reason" for the late filing was a lack of knowledge about
the remedy, equitable tolling cannot be invoked. The court held
that making the lack of prejudice to the School District
determinative in permitting the late filing, as the Secretary
did, was error because the choice of time limits is a legislative
determination which agency's are not empowered to change.
IV C 3 Ignorance of the law
Ignorance of the law and administrative delay by the NRC are not
grounds for equitable tolling the ERA limitations period for
filing a complaint. Garn v. Benchmark
Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op.
at 8.
InMitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y
July 22, 1993), Complainant asserted that equitable estoppel
should be employed to extend or waive the filing period for his
ERA complaint in view of misinformation he received from various
Wage and Hour offices during the filing period.
The Secretary found that Complainant's testimony about purported
telephone conversations with various unknown agency employees was
not "admissible" because such it can neither be
verified nor disputed. [Citations omitted]
Even assuming arguendo that such testimony was admissible, it
reflected a lack of diligence on the part of Complainant. The
evidence failed to indicate that his telephone call were
sufficiently clear and understandable so as to elicit a correct
and proper response for the processing of his complaint. The
Secretary explained:
These short, obscure calls were probably answered in the
normal course of business by secretaries, clerks,
receptionists or other clerical employees . . . who cannot
be faulted for not understanding the meaning of
"quality concerns" in the context of this case and
their relationship to discrimination and whistleblowing
under the ERA in general.
In addition, Complainant made no efforts to reach
agency staff professionals or others with greater knowledge,
authority, or expertise who would understand or decipher
what he was talking about. . . . At no time did he visit a
Wage and Hour Division office to seek out someone in
authority to present his problem and request assistance in
preparing and filing a written complaint. * * *
Further, even assuming arguendo that Wage and Hour's conduct was
negligent or substandard, estoppel generally cannot be applied
against the Government except in cases of affirmative misconduct
-- not mere negligence. [citations omitted] Complainant did not
demonstrate affirmative misconduct.
[Nuclear & Environmental Digest IV C 4]
TIMELINESS OF FILING; ARGUMENT THAT NRC FAILED TO INVESTIGATE PROMPTLY AND INFORM COMPLAINANT OF DOL COMPLAINT PROCEDURE
In Foley v. Boston Edison Co., ARB No. 99-022, ALJ No. 1997-ERA-56 (ARB Jan. 31, 2001), Complainant argued that he had informed the NRC of his safety concerns in 1995 and, that if the NRC had conducted a prompt investigation, it might have assisted him in filing a timely complaint with DOL. The ARB held that absent a showing that the NRC's actions somehow prevented Complainant from exercising his right to file a complaint, it would not equitably toll the limitations period.
[Nuclear & Environmental Digest IV C 4]
TIMELINESS; ORAL COMMENT IN MEETING WITH EPA EMPLOYEE
In Rockefeller v. U.S. Dept. of
Energy, 1998-CAA-10 and 11 (ALJ Sept.
28, 1998), Complainant asserted that he was entitled to equitable tolling of the limitations period
because he had made a comment at a public meeting being conducted by an EPA agent, and the
EPA should have told him to file a complaint with DOL. The ALJ found this contention to be
without merit.
IV C 4 TVA's late notification of lack of
jurisdiction
InMitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y
July 22, 1993), TVA's late notification after the filing period
had elapsed that it lacked jurisdiction of his termination
allegations and therefore it would be in Complainant's best
interests to contact Wage and Hour for potential relief did not
justify equitable tolling of the filing period because negligence
cannot establish a basis for estoppel against the Government.
Further, the record indicated that Complainant had earlier
suspected that the Department of Labor was the proper forum for
asserting his claim; thus, he was not misled or lulled into
inaction by TVA.
IV C 4 Negligence of representative
In a footnote in Wilkinson v. Texas Utilities, 92-
ERA-16 (ALJ Oct. 1992), the ALJ found, in considering whether
equitable grounds existed for tolling the limitations period for
filing an ERA complaint, that whether Complainant's non-attorney
representative "was negligent in not filing Complainant's
complaint in a timely fashion is beyond the scope of this
proceeding." The Secretary adopted the ALJ's recommended
decision, finding that Complainant had "not alleged or
established any basis to claim that the statutory filing limit
should be equitably tolled in this case." Wilkinson
v. Texas Utilities, 92-ERA-16 (Sec'y July 13, 1993)
IV C 4 Consultation with attorney precludes
application of equitable tolling
In Kent v. Barton Protective Service, 84-WPC-1
(Sec'y Sept. 28, 1990) the Complainant was dismissed from his
employment following his filing of an "oil spill"
report with the EPA. Complainant's first complaint was dismissed
by the Wage and Hour Division for failure to file within 30 days
of the alleged violation. He filed a second complaint urging
reconsideration based upon equitable tolling arguments.
According to Complainant, he had met with Barton and was told
that his termination was not final and that he might be placed in
another position. Complainant also stated that he contacted the
EEOC about the violation within thirty days of its occurence.
Complainant was represented by counsel at that time.
Citing Smith v. American President Lines, Ltd., 571 F.2d
102, 109 (2d Cir. 1978) the Secretary held that once a
complainant consults an attorney he has access to a means of
acquiring knowlege of his rights and responsibilities, precluding
application of equitable tolling considerations.
Affirmed by Eleventh Circuit Court of Appeals without comment.
946 F.2d 904 (11th Cir. 1991).
IV C 4 Misinformation provided by government
official
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 official about his right to file a
complaint.
In some circumstances, where there is a complicated
administrative procedure, and an unrepresented, unsophisticated
complaint 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 complaint --
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.
IV C 4 Administrative delay by NRC
Ignorance of the law and administrative delay by the NRC are not
grounds for equitable tolling the ERA limitations period for
filing a complaint. Garn v. Benchmark
Technologies, 88-ERA-21 (Sec'y Sept. 25, 1990), slip op.
at 8.
InMitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y
July 22, 1993), the Secretary held that an attorney's ignorance
of ERA complaint filing requirements precluded equitable tolling,
quoting Hay v. Wells Cargo, Inc., 596 F. Supp. 635, 640
(D. Nev. 1984), aff'd, 796 F.2d 478 (9th Cir. 1986)
("Equitable tolling is inappropriate when plaintiff has
consulted counsel during the statutory period. Counsel are
presumptively aware of whatever legal recourse may be available
to their client, and this constructive knowledge of the law's
requirements is imputed to [plaintiff]."), and citing
numerous other cases. [citations omitted]
Although Complainant never actually employed the attorney, the
Secretary found that because of an office visit and a subsequent
series of telephone conversations, an attorney-client
relationship existed during the filing period.
[Editor's note: the Secretary cites additional cases in the last
paragraph of the decision]
[Nuclear and Environmental Whistleblower Digest IV C 5]
TIMELINESS OF APPEAL TO ARB; EQUITABLE TOLLING; USE OF FEDERAL EXPRESS RATHER THAN FAX WHEN FILING ON THE LAST DAY OF THE LIMITATIONS PERIOD IS NOT DUE DILIGENCE
In Cook v. U.S. Environmental Protection Agency, ARB No. 06-036, ALJ No. 2005-CER-1 (ARB Feb. 22, 2006), the Complainant had hesitated to take an appeal of the ALJ's recommended decision based on the expense of litigation, and had not decided until the afternoon of the last day of the period in which to file an appeal to go forward. Her attorney located the ARB's fax number on its website, but unsure of whether it was the correct number and unable to verify the number by telephone, he sent the appeal by Federal Express, thereby guaranteeing that appeal would be one day late.
The fax number on the website had been correct, and the ARB found the attorney's decision not to use it "inexplicable" especially given that he and the Complainant knew that the time for filing was short. The ARB found lack of diligence and lack of grounds justifying equitable tolling.
[Nuclear and Environmental Whistleblower Digest IV C 5] TIMELINESS OF COMPLAINT; INEFFECTIVE ASSISTANCE OF COUNSEL IS NOT AN EXTRAORDINARY FACTOR SUPPORTING EQUITABLE TOLLING
In Higgins v. Glen Raven Mills, Inc., ARB No. 05-143, ALJ No. 2005-SDW-7 (ARB Sept. 29, 2006),
PDF |
HTM
the Complainant argued on appeal that he should be entitled to equitable tolling based on his original counsel's "severely ineffective assistance." The ARB, however, noted that it had consistently held that attorney error does not constitute an extraordinary factor for tolling purposes because "[u]ltimately, clients are accountable for the acts and omissions of their attorneys." Because the Complainant had neither addressed the Board's precedent, nor cited to any case law in support of his argument, it held that he was not entitled to equitable tolling of the limitations period.
[Nuclear and Environmental Whistleblower Digest IV C 5]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING IS NOT AVAILABLE BASED ON ATTORNEY ERROR
In Howell v. PPL Services, Inc., ARB No. 05-094, ALJ No. 2005-ERA-14 (ARB Feb. 28, 2007), PDF |
HTM the Complainant argued that he was entitled to equitable tolling of the limitations period for filing and ERA whistleblower complaint based on his first attorney's "inadequate representation." The ARB, however, affirmed the ALJ finding that equitable tolling did not apply: "We have consistently held � that attorney error does not constitute an extraordinary factor because "[u]ltimately, clients are accountable for the acts and omissions of their attorneys." Slip op. at 5 (footnote omitted).
[Nuclear and Environmental Digest IV C 5]
TIMELINESS OF REQUEST FOR HEARING; EQUITABLE TOLLING NOT
AVAILABLE WHERE LACK OF DUE DILIGENCE
In Howlett v. Northeast Utilities, 1999-ERA-1 (ALJ Dec. 28, 1998),
Complainant and his attorney were both sent copies of a Letter of Determination by OSHA via
certified mail, and both received the letter shortly thereafter. Neither Complainant nor his
attorney timely exercised the right to appeal. Complainant's explanation was that he that
understood his attorney would respond appropriately to any correspondence. Complainant's
attorney, however, did not appeal because one of his employees misfiled the certified letter. The
ALJ held in his recommended decision that "[w]hile this is regretful, it is not sufficient
grounds to invoke the rarely exercised concept of equitable tolling. As the Second Circuit has
opined, lack of due diligence on the part of a complainant or the complainant's attorney is
insufficient to justify application of equitable tolling. South v. Saab Cars USA, Inc., 28
F.3d 9 (2d Cir. 1994) (dismissing the complaint where plaintiff's counsel mistakenly relied on
state procedure for filing of a federal complaint)."
TIMELINESS; EQUITABLE TOLLING; CONSULTATION WITH ATTORNEY
[N/E Digest IV C 5]
Although not reaching the issue in the case sub judice squarely, the Board in
Prybys v. Seminole Tribe of Florida,
95-CAA-15 (ARB Nov. 27, 1996), noted a distinction in the caselaw between merely consulting
with an attorney and with retaining an attorney for purposes of imputing counsel's presumptive
knowledge of a statute of limitations to the prospective client for
purposes of equitable tolling analysis. The Board concluded that the cases of Mitchell v. EG
& G (Idaho), 87-ERA-22 (Sec'y July 22, 1993) and Kent v. Barton Protective
Services, 84-WPC-2 (Sec'y Sept. 28, 1990), aff'd 946 F.2d 904 (11th Cir. 1991),
cert. denied, 112 S.Ct. 1284 (1992), involved more than preliminary contact with an
attorney, and therefore were "consistent with the principle that 'not all contacts with an
attorney are sufficient to impute constructive knowledge.' Bass v. Burleigh and
Associates, 727 F.Supp. 1030, 1032 and n.5 (M.D. La. 1989)(imputation of constructive
knowledge appropriate 'only when the attorney-client relationship is of some significant
duration.' [citing Jacobson v. Pitman-Moore, Inc., 573 F.Supp. 565, 569 (D. Minn.
1983)])." Slip op. at 8 n.5.
In Carl W. Rady, WPC-3 (Sec'y Aug. 26, 1977), the
Complainant was discharged from his employment with the Division
of Highways, Department of Transportation of the State of
Wisconsin on June 25, 1973. He appealed his discharge to the
Wisconsin Personnel Board which found that he was discharged for
just cause on June 29, 1974. Thereafter, the Complainant
requested review by the Department of Labor on July 25, 1974.
The Secretary found that the ALJ had properly determined that
the limitation period had not been tolled by the Complainant's
pursuit of a remedy before the Wisconsin Personnel Board. In
making his finding, the ALJ correctly relied upon
International U. of Elec. Workers v. Robbins & Myer,
___ U.S.___ (1976), in which the Court held that the statute of
limitations contained in Title VII of the Civil Rights Act of
1964 was not tolled by earlier greivance proceedings.
[N/E Digest IV C 6]
TIMELINESS OF COMPLAINT; TOLLING CANNOT BE BASED ON SETTLEMENT
NEGOTIATIONS OR USE OF INTERNAL GRIEVANCE PROCEDURE
Neither employer participation in settlement discussions nor use of an internal grievance
procedure tolls the statute of limitations in a whistleblower case. Beckmann v. Alyeska
Pipeline Service Co., 95-TSC-16 (ARB Sept. 16, 1997), citing Tracy v.
Consolidated Edison Co. of New York, Inc., 89-CAA-1, slip op. at 8 (Sec'y July 8, 1992).
TIMELINESS; INTERNAL GRIEVANCE PROCEDURE OR OTHER COLLATERAL
REVIEW DOES NOT TOLL FILING PERIOD
[N/E Digest IV C 6]
Pursuit of a remedy within an employer's organization or by means of some other
collateral review does not toll the filing periods provided for by employee protection provisions.
SeePrybys v. Seminole Tribe of
Florida, 95-CAA-15 (ARB Nov. 27,
1996), citing International Union of Electrical, Radio & Machine Workers v. Robbins &
Myers, Inc., 429 U.S. 229 (1976) and Greenwald v. The City of North Miami Beach,
587 F.2d 779 (5th Cir. 1979).
IV C 6 Internal grievance procedure
The ERA thirty-day filing period is not tolled by the
complainant's utilization of internal grievance procedures.
See Delaware State College v. Ricks, 449 U.S. 250, 258-261
(1980); Electrical Workers v. Robbins & Myers, Inc.,
429 U.S. 229, 236-240 (1976); School District of the City of
Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981);
English v. General Electric Co., 85-ERA-2 (Sec'y Jan. 13,
1987), slip op. at 4-11, aff'd sub nom. English v.
Whitfield, 858 F.2d 957 (4th Cir. 1988).
Ackison v. Detroit Edison Co., 90-ERA-38 (Sec'y
Aug. 2, 1990).
IV C 6 Grievance procedure
The 30 day time limitation for filing a complaint under the
employee protection provision of the Safe Drinking Water Act is
not tolled by the pursuit of a grievance procedure.
Ray v. Harrington, 79-SDW-2 (Sec'y July 13, 1979)
(adopting decision of ALJ).
IV C 6 Filing of complaint; Timeliness
Employee filed complaint with the Secretary of Labor alleging he
was discharged in violation of the SDWA. He was discharged on
August 26, 1977, but did not file a complaint with the Secretary
until 115 days later. The complaint was only 20 days after the
local Civil Service board upheld the action of the City Manager
in terminating his employment. However, the Act does not require
the exhaustion of state or local remedies prior to the filing of
a complaint with the Secretary. Moreover, the remedy provided by
the Act is entirely independent of any local remedies. Thus, the
fact that employee sought local Civil Service Board review of his
discharge did not toll the 30 day time limitation for filing a
claim under the Act. Greenwald v. North Miami
Beach, 587 F.2d 779, 781 (5th Cir. 1979), cert.
denied, 444 U.S. 826, 62 L.Ed.2d 33, 100 S. Ct. 49
(1979).
Where the only reasons the complainant proffered for waiting to
file his ERA whistleblower complaint until after the 30-day
filing period were that he wanted to wait for a determination on
his eligibility for unemployment compensation and that he took a
one week vacation during the holidays to visit his son, equitable
tolling of the filing period was not invoked and the case was
summarily dismissed. Rose v. Nuclear Fuel Services,
Inc., 87-ERA-19 (ALJ Jan. 25, 1988), aff'd, (Sec'y
June 29, 1990), aff'd sub nom., Rose v. Dole, 945 F.2d
1331 (6th Cir. 1991) (per curiam).
In Gundersen v. Nuclear Energy Services, Inc., 92-
ERA-48 (Sec'y Jan. 19, 1993), the Complainant filed a second
complaint with the Wage and Hour Division alleging that
previously unavailable information had been uncovered that showed
that the respondent had been violating NRC rules at the time that
the complainant was terminated. The Wage and Hour Division had
found that the complainant's first complaint failed to establish
that the complainant had been terminated because of protected
activity. Rather than requesting a hearing before an
administrative law judge, the complainant filed a Petition for
Review in the United States Court of Appeals for the Second
Circuit. The Second Circuit dismissed the petition because of
the complainant's failure to comply with the court's briefing
schedule. A few days later, the respondent and the complainant
entered into a settlement agreement, which included provisions in
which the complainant waived his right to bring or pursue actions
respecting the subject matter of the complaint. The second
complaint was dismissed because:
the complainant failed to exhaust his administrative
remedies with regard to his original complaint;
See 42 U.S.C. § 5851(b)(2)(A), (C)(1)
(1988); 29 C.F.R. § 24.6, 24.7. These statutory
and regulatory requirements arise out of the
longstanding doctrine of American jurisprudence that
parties must first exhaust their administrative
remedies before resorting to the federal courts.
See, e.g., Myers v. Bethlehem Shipbuilding
Corp., 303 U.S. 41, 50-51 and n.9 (1938)
(discussing cases as far back as 1898). Exhaustion is
required because it promotes two significant purposes:
protecting administrative agency authority and
promoting judicial efficiency. McCarthy v.
Madigan, __ U.S. __, 112 S. Ct. 1081 (1992). No
exception to this doctrine was proffered in the instant
case.
the Wage and Hour Division's first determination therefore
became the final an unappealable order of the Secretary;
the complainant's request to reopen his original complaint
must be considered a second complaint, which was filed out of
time; and
The Secretary reached this conclusion on two
grounds: (a) that the ERA and the regulations do not
authorize the reopening of a final Secretary decision
almost two years after the fact, even if there was new
evidence to support reopening, and (b) that the alleged
new evidence was irrelevant to a determination whether
the complainant was illegally discharged: the discovery
of new evidence that the respondent actually violated
the law is not critical to the whistleblower
complaint.
the doctrine of equitable tolling does not excuse the
late filing of the second complaint.
Equitable tolling has been applied in whistleblower
cases where the complainant "has in some
extraordinary way been prevented from asserting his
rights, or . . . raised the precise statutory claim in
issue but has mistakenly done so in the wrong
forum." School District of City of Allentown
v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981),
quoting Smith v. American President Lines, Ltd.,
571 F.2d 102, 109 (2d Cir. 1978). In the instant case,
however, there was no evidence that the complainant was
not aware of the thirty day limitation, that he was
prevented from filing in a timely manner, or that did
filed in the wrong forum.
In Harrison v. Stone & Webster Engineering
Corp., 91-ERA-21 (Sec'y Oct. 6, 1992), the assertion that
the respondent recently gave the complainant a bad reference
failed to establish an act of discrimination within thirty days
prior to the filing of the complaint. Thus, the assertion did
not support invocation of equitable tolling of the ERA period for
filing a whistleblower complaint.
[Nuclear & Environmental Whistleblower Digest IV C 9]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; COMPLAINANT'S MENTAL CONDITION; COMPLAINANT REPRESENTED BY COUNSEL
In Day v. Oak Ridge Operations, ARB No. 02 032, ALJ No. 1999 CAA 23 (ARB July 25, 2003), the ARB affirmed and adopted the ALJ's recommendation that the complaint be dismissed as untimely. Complainant had proffered a number of reasons for equitable tolling, none of which were found to be valid by the ALJ. One of the grounds proffered was that Complainant's mental condition at the time prevented him from managing his affairs. The ALJ, however, noted caselaw to the effect that tolling for mental incapacity is permitted only for exceptional circumstances such as adjudication of incompetency or institutionalization B neither of which were relevant to the instant case. Moreover, the ALJ observed that Complainant had consulted with an attorney and had discussed a whistleblower law suit. The ALJ noted that the Secretary had previously held that equitable tolling is generally inapplicable where a plaintiff if represented by counsel. The ALJ noted that the question of the (former) attorney's mental state was also raised during the hearing, and that while applicable caselaw may have permitted equitable tolling in such a circumstance, there was insufficient evidence of record to show that Complainant's former attorney was so impaired. Day v. Oak Ridge Operations, 1999 CAA 23 (ALJ Dec. 31, 2001).
On review, the ARB observed in a footnote:
For additional authority that equitable tolling is generally inapplicable when a plaintiff is represented by counsel, see, e.g., Hall v. E G & G Defense Materials, Inc., ARB No. 98 076, ALJ No. 97 SDW 9, slip op. at n.5 (ARB Sept. 30, 1998); Lawrence v. City of Andalusia Waste Water Treatment Facility, ARB No. 96 059, ALJ No. 95 WPC 6 (ARB Sept. 23, 1996); Tracy v. Consol. Edison Co. of New York, Inc., 89 CAA 1 (Sec'y July 8, 1992). The federal circuit courts support the general principle that "once a claimant retains counsel, tolling ceases because she has >gained the >means of knowledge' of her rights and can be charged with constructive knowledge of the law's requirements.' " Leorna v. United States Dep't of State, 105 F.3d 548, 551 (9th Cir. 1997), citing Stallcop v. Kaiser Found. Hosps., 820 F.2d 1044, 1050 (9th Cir. 1987); Mercado Garcia v. Ponce Fed. Bank, 979 F.2d 890, 896 (1st Cir. 1992); Daugherity v. Traylor Bros., Inc., 970 F.2d 348, 353 n.8 (7th Cir. 1992); Beshears v. Asbill, 930 F.2d 1348, 1351 (8th Cir. 1991); McClinton v. Alabama By Products Corp., 743 F.2d 1483, 1486 n.4 (11th Cir. 1984); Vance v. Whirlpool Corp., 716 F.2d 1010, 1012 13 (4th Cir. 1983); Kocian v. Getty Refining & Mktg. Co., 707 F.2d 748, 755 (3d Cir. 1983); Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195, 1200 n.8 (5th Cir. 1975).
Slip op. at n.2.
[Nuclear & Environmental Whistleblower Digest IV C 9] TIMELINESS OF COMPLAINT; GRIEVANCE PROCEDURES
In Jenkins v. United States Environmental Protection Agency, ARB No. 98 146, ALJ No. 1988 SWD 2 (ARB Feb. 28, 2003), Complainant argued that the filing and resolution of a grievance she filed concerning her performance rating should cause the 30 day filing period for an environmental whistleblower complaint to be extended. The ARB held that it was well established that the filing of a grievance does not operate to toll the limitations period for filing a whistleblower complaint. Likewise, the resolution of the grievance could not provide an extension of the filing period, even if the Complainant was dissatisfied with the outcome. Complainant essentially argued that the grievance procedure had not provided the full extent of the relief she had requested ("a unilateral imposition of inadequate remedies"). The ARB found an absence of authority, however, that would render the grievance resolution decision a
separate adverse action.
[Nuclear & Environmental Digest IV C 9]
TIMELINESS OF FILING; INCAPACITY
Where Complainant made a bald assertion that a medical condition prevented him from making a timely filing of his whistleblower complaint, the ARB declined to equitably toll the limitations period. The ARB noted that although Complainant submitted letters showing that he was under a doctor's care, his doctor does not state or even suggest the illness was so debilitating that it prevented Complainant from either understanding his legal rights or acting upon them. Foley v. Boston Edison Co., ARB No. 99-022, ALJ No. 1997-ERA-56 (ARB Jan. 31, 2001).
[Nuclear & Environmental Digest IV C 9]
EQUITABLE TOLLING FOR MENTAL INCAPACITY
In Hall v. USDOL, No. 98-9547
(10th Cir. Oct. 13, 1999) (unpublished) (case below 1997-SDW-9), Complainant asserted that the
ARB erred as a matter of law in granting summary against his claim that equitable tolling should be
applied to his untimely filing of environmental whistleblower complaints based on his mental illness
during the statutory time period. The court, reviewing the matter de novo, held that its
decision in Biester v. Midwest Health Servs., Inc., 77 F.3d 1264 (10th Cir. 1996), was
dispositive of the issue, i.e., that mental incapacity, if a ground for equitable tolling, will be
allowed only in "exceptional circumstances" such as adjudication of incompetency or
institutionalization. Since Complainant was neither adjudicated incompetent nor institutionalized during
the time period at issue, and the evidence showed instead that he handled, with counsel's assistance,
other legal matters which required action during or soon after the thirty-day statute of limitations period,
Complainant did not justify equitable tolling.
[N/E Digest IV C 9]
TIMELINESS; TOLLING DESPITE RESPONDENT'S LACK OF RECEIVE EARLY
NOTICE OF THE COMPLAINT
In Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May
28, 1997), Complainant submitted a letter to a state agency that was sufficient to raise a
cognizable complaint under the employee protection provision of the FWPCA. The ALJ,
however, concluded that equitable tolling was not appropriate because Respondent had not
received notice of this filing within the appropriate limitations period. The Board disagreed,
noting that neither the statute nor the regulations specified when a Respondent must be notified
of the complaint.
EQUITABLE TOLLING; COMPLAINT FILED WITH
GOVERNMENT AGENCY ASSERTING A SAFETY CONCERN WITHIN
FILING PERIOD FOR FILING AN ERA § 211 COMPLAINT DOES
NOT EQUITABLY TOLL PERIOD FOR ACTUALLY FILING A §
211 COMPLAINT
[N/E Digest IV C 9]
In Roberts v. Battelle Memorial Institute, 96-ERA-24 (ALJ Dec. 18, 1996),
Complainant had filed a series of sex discrimination
and equal pay charges with the EEOC and a state agency alleging retaliation in
connection with her charge of sex discrimination. In one such complaint, filed
with the state agency, Complainant also stated that she was "forced to
report directly to a Sub-Contractor rather than Respondent, and this has
created a hostile and unsafe environment." The ALJ found that this
statement was the first instance in which complaint raised an issue of health or
safety, i.e., this was the protected activity under the ERA. After the
filing of this complaint, Complainant was suspended without pay and
subsequently terminated from employment. Complainant, however, did not
raise the issue of retaliation or discrimination related to her ERA protected
activity to DOE until under after 180 days from the date of the adverse action.
The ALJ found that the filing of the safety complaint with the state agency did
not equitably toll the filing period.
UNDERLYING VIOLATION; FAILURE TO REINSTATE
[N/E Digest IV C 9]
In Lawrence v. City of Andalusia Waste
Water Treatment Facility, 95-WPC-6 (ARB Sept. 23, 1996), Complainants failed
to file a timely FWPCA complaint about a notice of a Pre-Determination hearing concerning
Respondent's intention to terminate their employment. Complainants were later terminated, and
lost a appeal to the City Commission. Complainants contended that Respondent's failure to
reinstate them after their administrative appeals constituted a separate act of discrimination under
the FWPCA.
[Editor's note: The "failure to reinstate" occurred within
the FWPCA time limit]
The Board held that since Respondent had no obligation to reinstate Complainants unless
they proved that Respondent violated the FWPCA, and Complainants' action on the original
termination notice was not timely filed, they lost the chance to prove such a violation.
IV C 9 Uncertainty about whether adverse action was
motivated by whistleblowing activity
In McKinney v. Tennessee Valley Authority, 92-ERA-
22 (Sec'y Nov. 16, 1993), the Secretary found the complaint to be
untimely where the complainant was discharged on July 15, 1991
and he did not file his ERA complaint until December 16, 1991.
Complainant argued that his suspected that his termination was
associated with whistleblowing, but did not fully realize it --
or was not able to substantiate it -- until December 10, 1992.
The Secretary found that the triggering date was July 15, 1991,
and that the general allegations made by Complainant were
insufficient to justify equitable tolling.
[Editor's note: The Complainant had filed a Merit Systems
Protection Board complaint within 30 days of the discharge with
the help of legal counsel, but apparently had decided not to
include (or dropped) a whistleblowing issue. The Secretary noted
that this was not a case of filing the exact claim in the wrong
forum, and referred to cases indicating that where a complainant
had legal counsel during the period in question the justification
for equitable tolling is weakened.]
IV C 9 Dismissal without prejudice does not toll time
limits for filing whistleblower
complaint
In
Howe v. Affrex, Ltd., 94-ERA-8 (Sec'y Dec. 12, 1994),
Complainant filed a written
request to withdraw his ERA complaint, indicating that he
intended to "seek a different [sic] case
against [one of the two Respondents] only at a later date."
The Respondent the Complainant
intended to sue later did not resist dismissal. The other
Respondent raised no objection to voluntary
dismissal without prejudice but requested the ALJ to note, as a
condition pursuant to Fed. R. Civ. P.
41(a)(2), that a grant of Complainant's motion effectively
precludes any future legal remedy against it
under the ERA.
The Secretary took the view, however, that the parties'
statements amount to a stipulation of dismissal
without prejudice as provided in Rule 41(a)(1)(ii). Nonetheless,
in a footnote the Secretary observed
"that the 'condition' requested by Martin Marietta occurs by
operation of law when a case is
dismissed without prejudice. A dismissal without prejudice does
not toll a statute of limitations --
expiration of the limitations period will bar a complainant from
filing another ERA complaint based on
the same facts." Slip op. at n.1 (citations omitted).
IV C 9 Miscellaneous
In Cox v. Radiology Consulting Associates, 86-ERA-17 (ALJ
Aug. 22, 1986), the ALJ found that the complaint had not been
timely filed. The Complainant argued that the statute of
limitations should be tolled for equitable considerations. The
Complainant first argued that the statute should be tolled
because he should have the time to gather evidence in support of
his claim. The ALJ rejected this argument and held that the
claim should be filed when the employee obtains information that
gives him "reasonable suspicion" that he had been the
victim of discrimination. The ALJ noted that the ERA empowers
the authorizing agency to investigate a claim and gather
evidence. He added that to allow the Complainant to wait until he
has gathered all of his evidence to file his complaint would
render the statute of limitations meaningless; the period could
remain open indefinitely.
Additionally, the Complainant argued that the statute should be
tolled based on principles of fairness. The ALJ rejected this
argument, citing to the City of Allentown v. Marshall, 657 F.2d
16 (3d Cir. 1981) that prejudice to the Respondent, or a lack
thereof, is irrelevant. He added that the staleness or newness
of a claim is irrelevant as well. He concluded that the
limitation was set by Congress and neither he nor the courts have
the authority to change it. The Secretary adopted his findings.
See Cox v. Radiology Consulting Associates, Inc., 86-ERA-
17 (Sec'y Nov. 6, 1986).
In Yap v. Bay Area Environmental, Inc., 90-SWD-4
(ALJ Oct. 30, 1990), aff'd (Sec'y Aug. 30, 1991), the ALJ found
that the Complainant had not established equitable grounds for
tolling of the limitations period based on misleading conduct by
the Respondent, where the Complainant had contacted the
Respondent for the purpose of opening settlement negotiations,
but the Respondent refused to discuss settlement until certain
documents were returned, which documents were not in fact
returned.
In addition, assuming arguendo that equitable tolling was
invoked, the ALJ reasoned that equitable tolling only lasts as
long as the period it would not be equitable to count. The ALJ
found that the Complainant waited 63 days after the last day that
any conceivably deterring effect of behavior by the Respondent
had ended (the date the Complainant filed a State action for
wrongful discharge).
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING ENDS ONCE COMPLAINANT LEARNS OF LIMITATIONS PERIOD; FAILURE TO ALLEGE SUBSEQUENT TIMELY FILING IS FATAL TO THE CLAIM
In Higgins v. Glen Raven Mills, Inc., ARB No. 05-143, ALJ No. 2005-SDW-7 (ARB Sept. 29, 2006),
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the Board had held that the Complainant was not entitled to equitable tolling of the limitations period for ineffective assistance of counsel, but noted that even if it had found equitable tolling to be applicable, the Complainant would only have been entitled to tolling until he was informed by an OSHA employee about the 30-day limitations period. Because the Complainant did not allege that he filed a timely complaint once the clock resumed running, the Board held that he failed to allege an essential element of his case.
IV D Tolling only until reasonably diligent person
would have realized violation
In Gabbrielli v. Enertech, 92-ERA-51 (Sec'y July
13, 1993), Complainant contended that because of his personal
problems and Respondent's misleading behavior, he did not realize
until October 1991 that Respondent had a retaliatory motive for
his "layoff."
According to Complainant, when he was terminated in January 1989,
Complainant believed that it was because of the lack of work; he
contacted Respondent several times each year about new contract
opportunities and was cordially told that he would be welcome to
any work that became available; in October 1991, however, he was
told that Respondent's president would not rehire Complainant.
Only then did he realize that protected activity was the actual
reason for his termination.
The Secretary held that it was clear that Complainant's divorce
and personal problems could not justify his delay in filing, but
that it was less clear whether assurances of new work when
available would modify the limitations period (noting that this
was not a quid-pro-quo forbearance or deliberate misleading
situation). The Secretary found that by August 1990 Complainant
knew or should have discovered the falsity of the misstatements
or the concealment that he alleges caused him to delay. In
August 1990, Complainant learned that his vacant job had been
filed almost immediately. This fact, together with "the
assertive letter Complainant wrote to Respondent prior to his
termination," convinced the Secretary that Complainant,
perhaps distracted by his personal problems, "did not act
diligently to evaluate the propriety of the reason for his
termination upon obtaining sufficient information to question
it."
[Editor's note: This finding was contrary to the ALJ's finding
that Respondent lulled Complainant with false assurances until
October 10, 1991].
Regardless of whether the filing period was tolled until October
1991, the complaint was time barred. Although Complainant
claimed that he contacted the resident inspector of the NRC
within a week of realizing Respondent's motive, and thought he
had initiated the process, the Secretary held that this did not
fall with the narrow category of cases that permit tolling
because the employee raised the precise statutory claim in issue
mistakenly in the wrong forum." The Secretary distinguished
the case of Sawyers v. Baldwin Union Free School District,
1985-TSC-1 (Sec'y Oct. 5, 1988), on the ground that in
Sawyers the filing period was tolled because the record
showed that a timely complaint, sufficient under the
whistleblower statute and regulations at 29 C.F.R. § 24.3
had been filed with the wrong agency, while there was no such
documentation in evidence in the instant proceeding. In
addition, the Secretary noted that Respondent received timely
notice of the specific statutory claim that was subsequently
asserted by Complainant. Thus, Respondent was denied the
protection which the expeditious time frame was intended to
provide.