Stapleton v. Harris Teeter, Inc., 2004-CAA-3 (ALJ Mar. 3, 2004)

U.S. Department of Labor

Office of Administrative Law Judges 11870 Merchants Walk, Suite 204 Newport News, Virginia 23606 (757) 591=5140 (757) 591-5150 (FAX)

Issue Date: 03 March 2004
Case No: 2004-CAA-0003

In the Matter of

CHARLES E. STAPLETON,
    Complainant,

    v.

HARRIS TEETER, INC.
    Respondent.

   This proceeding arises under the Clean Air Act, 42 U.S.C.A. Section 7622 (hereinafter "the Act"), and implementing regulations at Title 29 Code of Federal Regulations Part 24. The Act states in pertinent part:

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

    (1) commenced, caused to be commenced, or is about to commence or cause to be commenced a proceeding under this chapter or a proceeding for the administration or enforcement of any requirement imposed under this chapter or under any applicable implementation plan,

    (2) testified or is about to testify in any such proceeding, or

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

42 U.S.C.A § 7622. The statute is implemented by regulations providing procedures for handling of discrimination complaints. 29 C.F.R. § 24. An employee who believes that he or she has been discriminated against in violation of the Act may file a written complaint within 30 days after the occurrence of the alleged violation. 29 C.F.R. § 24.3(b), (c).

   Harris Teeter, Inc., (hereinafter "Respondent") moves for summary decision of a complaint filed by Charles E. Stapleton, (hereinafter "Complainant"), based on the grounds that the complaint is time barred. Complainant concedes that the complaint was untimely filed, but argues that equitable tolling should be applied. For the reasons stated below, the Court finds no adequate basis in the record for tolling the 30-day filing period. Therefore, the undersigned finds that summary judgment for Respondent is appropriate.

   Whether Respondent's motion for summary decision to dismiss the complaint as untimely should be granted, or, alternatively, whether the Court should apply the doctrine of equitable tolling, and therefore find the complaint timely filed.

   Charles E. Stapleton, (hereinafter "Complainant"), was terminated from his employment with Harris Teeter, Inc., (hereinafter "Respondent") on September 1, 2003. Complainant alleges that Employer terminated him in retaliation for Complainant's voicing concerns regarding a Freon leak in a cooling system.

   On October 15, 2003 Complainant transmitted a letter to the United States Department of Labor, Occupational Safety and Health Administration (hereinafter "OSHA"). In that letter, dated October 9, 2003, Complainant articulated his complaint and alleged a violation of the Act. On November 4, 2003, OSHA responded to Complainant's complaint under the Act, and indicated that Complainant had not filed a timely written complaint.

   Complainant appealed this determination and requested a formal hearing on November 12, 2003. The complaint was then referred to this Court on November 19, 2003.

   On December 12, 2003, a telephone conference between the Court and the parties was held to discuss the status of the appeal. During the telephone conference, the issue of Complainant's failure to file a timely complaint was discussed by the parties. The undersigned instructed both parties to file legal briefs regarding this issue. Complainant, who is pro se, filed a brief in the form of a letter on January, 16, 2004. Employer filed a reply brief on January 30, 2004.

   Complainant alleges in his brief that on the day following his termination he contacted the North Carolina Department of Labor. Complainant stated that he was informed that the North Carolina Retaliatory Employment Discrimination Act did not cover his particular whistleblower complaint.

   Complainant alleges that on September 4, 2003 he contacted the Environmental Protection Agency (hereinafter "EPA") by phone and inquired into whether he would be afforded any protection as a whistleblower. The EPA returned Complainant's call on September 18, 2003, and Complainant alleges that EPA personnel alluded that Complainant should again contact the North Carolina Department of Labor.

   On September 19, 2003, Complainant called the North Carolina Department of Labor again, and was informed that North Carolina whistleblower provisions would not protect Complainant.

   Complainant contends that he again contacted the EPA and was informed that Respondent's environmental actions would be investigated. Complainant also contends that an employee at the EPA recommended that Complaint seek legal advice regarding his termination.

   Complainant also alleges to have spoken with a North Carolina discrimination investigator on September 30, 2003. Complainant attached to his brief a letter from the North Carolina Department of Labor Employment Discrimination Bureau stating that there was no record of a phone call to Complainant from the investigator in the month of September, but that the investigator did recall speaking to Complainant on October 8, 2003. (Complainant's Exhibit 2). Once again, the North Carolina Department of Labor informed Complainant that his complaint did not fall within the protected activities for whistleblowers under the North Carolina Retaliatory Employment Discrimination Act. Complainant states that at this point the state investigator recommended seeking protection under federal whistleblower laws. Complainant also attached phone records noting calls to Raleigh, North Carolina as evidence of such calls to the North Carolina Department of Labor.

   On October 9, 2003, Complainant wrote a letter to Mr. Matt Robinson at the Occupational Safety and Health Administration (hereinafter "OSHA"). The complaint was postmarked October 15, 2003. In this letter, Complainant noted that he had just become aware of the 30-day filing period, which had since passed. (Respondent's Exhibit 4). Complainant also recounted the events following his termination, and noted that the 30-day filing deadline should be tolled based on his repeated attempts to receive assistance prior to the filing deadline.

   On November 4, 2003, Ms. Cindy Coe Laseter, the Regional Administrator of OSHA in Atlanta, Georgia replied to Complainant's complaint. Noting that Complainant's first written complaint was postmarked October 15, 2003, Ms. Laseter determined that Complainant's complaint under the Clean Air Act was not timely filed, and that there existed no justification for a waiver of the 30-day filing deadline. Complainant then appealed this decision on November 12, 2003 and the complaint was referred to this Court for a formal hearing.

   Respondent filed a reply brief with this Court on January 30, 2004. Respondent argued that the majority of Complainant's assertions for the alleged phone calls to several agencies were self-serving statements, for which Complainant could not submit corroborating evidence. In addition, Respondent recounted the events following Complainant's termination and noted that accepting all of Complainant's statements as true still reveal a failure to file any written complaint in any forum within the 30-day time limit of the Act.

   On February 5, 2004, Complainant filed a response to Respondent's brief in an attempt to clarify the events that occurred after his termination. Complaint also attached a copy of an investigation of Respondent by the EPA, dated December 22, 2003.

   As stated supra, the Act requires that a written complaint be filed within 30 days of the discrimination or termination. Section 24.3(b) of the regulations clearly state,

    Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purpose of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

29 C.F.R. § 24.3(b). The regulations further state,

No particular form of complaint is required, except that a complaint must be in writing and should include a complete a full statement of the acts and omissions, with the pertinent dates, which are believed to constitute the violation.

29 C.F.R. § 24.3(c).

   Since it is undisputed that Complainant's complaint was not filed until the 30 days had passed from the date of his September 1, 2003 termination, summary judgment for the Respondent should be granted unless the Act's 30-day filing period is tolled.

   Under the Rules for Practice and Procedure for Administrative Hearings, any party may "move with or without supporting affidavits for a summary decision on all or any part of the proceeding." 29 C.F.R. §18.40(a). A party opposing the motion may not rest on the mere allegations or denials of the motion but must "set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. §18.40(c); Peppers v. Coats, 887 F. 2d 1493, 1498 (11th Cir. 1989) (stating that when "a nonmoving party's response to the summary judgment motion consists of nothing more than mere conclusory allegations then the court must enter judgment in the moving party's favor."). The court must view the facts, and all reasonable inferences drawn from those facts, in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Summary decision is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317 (1986). While the court will not weigh the evidence, a mere scintilla of evidence will not suffice to defeat the motion. Johnson v. Fleet Fin., Inc., 4 F.3d 946, 949 (11th Cir. 1993).

   The Court's consideration of Respondent's request for summary judgment revolves around whether equitable tolling should toll the Act's filing deadline. If equitable tolling is an appropriate doctrine to be applied by the Court, then the complaint would be considered timely filed and summary judgment would be inappropriate.

    The United States Supreme Court has recognized that a failure to comply with a short employment discrimination filing period if not a jurisdictional bar to maintaining a claim, and that the time limits by such statutes are subject to equitable modification. Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393 (1982) (holding that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling). Thus, the doctrine of equitable tolling of a statute of limitations can be applied under the whistleblower protection laws.

   Equitable tolling applies in three principal situations: 1.) plaintiff has been misled by defendant regarding the cause of the action; 2.) plaintiff has been prevented in some way from asserting his or her rights; or 3.) plaintiff previously raised the precise statutory claim in issue but has mistakenly done so in an incorrect forum. See e.g., City of Allentown v. Marsh, 657 F.2d 16, 18 (3d Cir. 1981); Smith v. American President Lines Ltd. 571 F.2d 102, 109 (2d Cir. 1978). There is no evidence or argument that Respondent misled Complainant or that Complainant was in some extraordinary way prevented from filing his complaint. Therefore, only the latter triggering condition may be a basis in this case for considering the applicability of equitable tolling.

   Both administrative law judges and the Secretary of Labor have been reluctant in tolling the statute of limitations in whistleblower provisions. See e.g., Mitchell v. EG&G (Idaho), No. 87 ERA-22, recommended D & O of ALJ (April 20, 1987) (refusing to apply equitable tolling or constructive filing); Hicks v. Colonial Motor Freight Lines, No. 84-STA-20, D & O of SOL (Dec. 10, 1985). However, there have been instances where courts have found employees entitled to equitable tolling when they filed complaints in the wrong office of the Department of Labor or they mistakenly filed the complaint with the EPA. See, e.g. Thomas v. E.I. Dupont De Numours & Co., No. 81-TSC-1, Recommended D & O of ALJ (Dec. 17, 1980); Sawyers v. Baldwin Union Free Sch. Dist., No. 85-TSC-1, D & O of SOL (Oct. 5, 1988); Darty v. Zack Co. of Chicago, No. 82-ERA-2, D & O SOL (April 25, 1983).

   The above cases, however, are distinguishable from this case in that the complainants filed written complaints with the wrong agency. In this instance, there exists absolutely no evidence or argument on the part of Complainant that he filed a written complaint with any agency within the 30-day filing period allowed by the Act. All of his statements indicate that he telephoned either the North Carolina Department of Labor or the EPA during the 30-day filing period, yet no written complaint of any form was filed. The only evidence of a written complaint filed by Complainant is the letter postmarked October 15, 2003 to OSHA, 14 days past the filing period.

   In cases in which the doctrine of equitable tolling is an issue, frequently the credibility of witnesses requires a formal hearing. In such cases, the administrative law judge must hold an evidentiary hearing on the tolling question.

   In McGough, et al. v. U. S. Navy, ROICC, No. 86 ERA-18/19/20 remand D & O of SOL (June 30, 1988), the Secretary of Labor considered an administrative law judge's dismissal of complainants' claim based on their failure to file within the 30-day filing guidelines. In McGough, no hearing was held, and the administrative law judge based his decision on both parties' briefs and the attached exhibits. In her Remand Decision and Order, the Secretary considered the administrative law judge's decision to reject the complainants' arguments for equitable tolling to prevent dismissal of their claim. In McGough, however, the complainants' date of termination or discrimination was a contested issue, thereby putting into question when the 30-day filing deadline began. The Secretary stated,

    Complainants' equitable arguments raise significant factual issues which should have been decided through a hearing involving the testimony of witnesses and the presentation of evidence. Courts are reluctant to decide equitable tolling issues in the context of summary decision, such as the procedure used in this case, because these issues frequently involve the credibility of witnesses.

McGough, No. 86 ERA-18/19/20 remand D & O of SOL (June 30, 1988)(citations omitted). Therefore, it is necessary for this Court to determine whether summary decision without a formal hearing is appropriate, given the nature of most equitable tolling arguments and their bases in the credibility of witnesses.

   This case is distinguishable from McGough in that there exists no genuine issue of material fact. In McGough, the Secretary determined that there existed a genuine issue of material fact regarding the exact date the act of discrimination had occurred. Accordingly, the Secretary remanded the case to the administrative law judge for a full hearing to determine the timeliness of each complaint. McGough, No. 86 ERA-18/19/20 remand D & O of SOL (June 30, 1988). In this case, considering all Complainant's assertions as true, there exist no bases for tolling the filing deadline. Complainant does not allege that he filed a federal claim of any sort during the 30-day deadline, but rather argues that he attempted on several occasions to file a claim with the state department of labor. It has been well settled by the courts that filing a grievance under a union contract, a civil service complaint, or state grievance does not toll the statute of limitations.¹ Therefore, even assuming Complainant did file a complaint with the North Carolina Department of Labor, filing a state claim does not toll the Act's 30-day filing deadline.

¹ See generally International Union of Elec. Workers v. Robbins and Myers, Inc., 429 U.S. 229 (1976) (pursuit of collective bargaining grievance procedures does not toll running of the limitations period within which complaint of racial discrimination must be filed with the EEOC, as Title VII remedies are independent of other pre- existing remedies available to an aggrieved employee); Greenwald v. City of N. Miami Beach, 587 F.2d 779, 781 (5th Cir. 1970) (holding city employee's seeking local civil service board review of his discharge did not toll 30-day time limitation for filing claim with Secretary of Labor under the Safe Drinking Water Act); Rezac v. Roadway Express, Inc., No. 85-STA-4, D & O of SOL (June 5, 1985).