12. On June 10, 1998, Complainant's counsel filed a notice of appeal with the Office of Administrative Law Judges. In this letter, Complainant's counsel stated: "Please note Mr. Mastrianna has not received official notice of the Department of Labor decision." (emphasis in original).

13. Complainant signed for the certified letter of determination on June 12, 1998.

   The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d). This section, which is derived from Fed. R. Civ. P. 56, permits an Administrative Law Judge to recommend summary decision for either party where "there is no genuine issue as to any material fact." 29 C.F.R. § 18.40(d). The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Gillilian v. Tennessee Valley Authority, 91-ERA-31 (Sec'y Aug. 28, 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The determination of whether a genuine issue of material fact exists must be made viewing all the evidence and factual inferences in the light most favorable to the non-movant. Id. (citing OFCCP v. CSX Transp., Inc., 88-OFC-24 (Asst. Sec'y Oct. 13, 1994)).

   This Judge, acknowledging that summary decision is rarely granted, has applied this standard to the case at hand and concludes that Respondent's Motion must be GRANTED. I find and conclude that Complainant failed to file a timely complaint in this case and that none of the circumstances warrant equitable tolling of the filing requirements.

   Respondent's Motion for Summary Decision alleges three grounds for summary decision: First, Respondent argues that Complainant failed to timely file a complaint and that no grounds for equitable tolling apply. Second, Respondent argues that Complainant failed to file a timely appeal of OSHA's determination, and third, that Complainant failed to allege facts sufficient to establish a prima facie case of retaliation under the Act.

   Complainant, on the other hand, argues that the facts and circumstance of this case justify the equitable tolling of the time in which Complainant had to file a complaint. Further, Complainant argues that he has both filed a timely appeal of OSHA's denial with the Office of Administrative Law Judges (OALJ) and has alleged facts sufficient to establish a prima facie case of discrimination.

   I will begin my discussion by focusing on the second issue raised by the parties, namely, whether or not the Complainant filed a timely appeal of the OSHA denial. I

begin with this issue because it is really the threshold question of whether or not this Court has jurisdiction over this matter. I find and conclude that, based upon my review of the statutory authority, relevant case law, and undisputed facts of this case, Complaint has filed a timely appeal to this Office and that I have jurisdiction over this matter.

   Under the ERA and its implementing regulations, a decision of the administrative agency will become final, unless a timely appeal is taken. The recently amended 29 C.F.R. § 24.4(d) provides that a notice of determination shall become the final order of the Secretary denying the complaint unless within five business days of its receipt the complainant files with the Chief Administrative Law Judge by facsimile, telegram, hand delivery, or next-day delivery service, a request for a hearing on the complaint. 29 C.F.R. § 24.4(d)(2)-(3). The Administrative Review Board, in discussing this provision, has noted that the time limitations are to be strictly construed. Backen v. Entergy Operations, Inc., 95-ERA-46 (ARB June 7, 1996) (citing Gunderson v. Nuclear Energy Services, Inc., 92-ERA-48 (Sec'y Jan. 19, 1993)). This is in accordance with the tight time-line established for so-called whistleblower cases, imposed by both statute and implementing regulations. For instance, the regulations provide strict timing requirements for the investigation of the complaint by the administrative agency. See 29 C.F.R. § 24.4(d)(1) (requiring that the investigation be completed within thirty days of filing of the complaint). Such a tight schedule, imposed by Congress, provides for a timely and efficient handling of these complaints.

   The facts indicate that while the original certified letter of determination was sent to the Complainant on May 26, 1998, it was not signed for by the Complainant until June 12, 1998. Complainant's counsel has expressly acknowledged that he and Complainant only received notice of OSHA's denial on June 5, 1998 when Attorney MacKay, Senior Counsel for Northeast Utilities, forwarded a copy to Complainant's counsel. A letter of appeal was faxed to the OALJ on June 10, 1998. Therefore, Complainant argues that because he filed a complaint within five business days of actual receipt, the appeal is valid. Respondent, however, argues that Complainant was negligent in not retrieving his mail in a timely fashion, and therefore requests that this Judge find that Complainant had constructive receipt of the determination letter five days after it was sent out, or June 1, 1998, pursuant to 29 C.F.R. § 18.4. Under that scenario, Respondent argues that Complainant's appeal letter was filed beyond the five day limitation, and therefore is untimely.

   I also reject Respondent's arguments that Complainant was somehow negligent or irresponsible in his receipt of mail. Respondent makes a lengthy argument, citing numerous actions Complainant could have or should have taken to ensure a more timely receipt of the letter of determination. I, however, conclude that those arguments fail to acknowledge that the record clearly indicates when Complainant received receipt of the actual letter of determination, and that, as previously noted, the ARB has clearly held that a Administrative Law Judge should not concern themselves with the issue of constructive receipt, where a date for actual receipt is present in the record.

   Accordingly, I find and conclude, in light of Staskelunas, that Complaint had actual receipt of the letter of determination on June 5, 1998 when he received of a copy from Attorney MacKay. Thereafter, he timely filed a notice of appeal with the OALJ on June 10, 1998, within five business days, and therefore the request for a hearing is timely and this Court has jurisdiction over this matter. As such, I shall now address the two remaining arguments raised by the Respondent's Motion for Summary Decision.

   An employee who believes that he or she has been discharged or otherwise discriminated against in violation of 42 U.S.C. §5851(a) must file a complaint with the Secretary of Labor within 180 days after such discriminatory act. 42 U.S.C. § 5851(b)(1). The time period for administrative filings begins running on the date that the employee is given definite notice of the challenged employment decision. Bonanno v. Northeast Nuclear Energy Co., 92-ERA-40/41 (Sec'y Aug. 25, 1993). The time limits, however, are in the nature of a statute of limitations and are subject to equitable tolling. This Judge herein embarks upon the mission of striking an appropriate balance between "fidelity to statutory directive that complaints be pursued and investigated in a timely manner on the one hand and fairness to whistleblowing complainants on the other." Hill and Ottney v. TVA, 87-ERA-23/24, at 3 (Sec'y April 21, 1994), aff'd, 65 F.3d 1331 (6th Cir. 1995). I also note that summary decision is appropriate on the issue of equitable tolling where the Complainant fails to show a genuine issue of fact. Hall v. EG&G Defense Materials, Inc., 97-SDW-9 (ARB Sept. 30, 1998).

   Generally, the doctrine of equitable tolling is narrowly applied and focuses on complainant's excusable ignorance of his statutory rights as a reason to modify the limitations period. Harrison v. Stone & Webster Engineering Corp., 91-ERA-2, at 2 (Sec'y Oct. 6, 1992). The Secretary of Labor has uniformly held that equitable tolling of the statutorily imposed time period for filing an ERA complaint is possible only if: (1) the complainant was misled by the employer, (2) the complainant was prevented in some extraordinary way from asserting his rights, or (3) the complainant timely filed the precise statutory claim in the wrong forum. See, e.g., Bonanno v. Northeast Nuclear Energy Co., 92-ERA- 40/41 (Sec'y Aug. 25, 1993); Hall v. EG&G Defense Materials, Inc., 97-SDW-9 (ARB Sept. 30, 1998); Prybys v. Seminole Tribe of Florida, 95-CAA-15, at 4 (ARB Nov. 27, 1996); see also Smith v. American President Lines, Ltd., 751 F.2d 102, 109 (2d Cir. 1978). In considering the application of the doctrine of equitable tolling, this Administrative Law Judge is guided by the Administrative Review Board's decisions which recognize the restrictions on equitable tolling must be "scrupulously observed" and that the doctrine does not permit "disregard [of the] limitations periods simply because they bar what may be an otherwise meritorious cause." See Prybys, 95-CAA-15, at 8 (citing School Dist. of City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981)).

   First, I note that while one of the grounds for equitably tolling the filing period is when the Employer actively misleads the Complainant, there is no companion rule for those situations where the Complainant relies on incorrect information from third parties. See English v. Whitfield, 858 F.2d 957, 963 (4th Cir. 1988); Clark v. Resistoflex Co., 854 F.2d 762, 768-69 (5th Cir. 1988); Doyle v. Alabama Power Co., 87- ERA-43 (Sec'y Sept. 29, 1989). As such, the Complainant's beliefs and actions motivated by assertions of a union representative do not serve as grounds for tolling the time restriction in this matter. Further, there is no evidence or allegation that Respondent actively misled Complaint in this matter.

   The second grounds for tolling involves those situations where a complainant is prevented in some extraordinary way from filing a timely complaint. The Complainant argues that he suffers from Major Depressive Disorder and relied upon the misstatements of a union representative, as evidence of "extraordinary circumstances" that would warrant tolling.

   As I have previously noted, any reliance on a statement made by a union representative are insufficient grounds for equitably tolling of this matter. Further, while equitable tolling may be proper where a complainant suffers from a mental disorder, such tolling is only permitted in extreme situations. Tolling based on a mental condition is only permitted where the mental condition in fact prevents a complainant from managing his or her affairs and understanding his or her legal rights. See Hall v. EG&G Defense Materials, Inc., 97- SDW-9 (ARB Sept. 30, 1998) (citing Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.), cert. denied, 117 S. Ct. 316 (1996)). In the present case, there is neither evidence, nor allegations, that Complainant was or is unable to manage his affairs or comprehend his legal rights. As such, I find and conclude that his mental condition is not severe enough to warrant the equitable tolling under these circumstances.

Rights Act of 1964 was not tolled by the Complainant's initiative of a grievance procedure under a collective bargaining agreement. The Court reasoned that the federal statutes and grievance procedure provided independent remedies which could be pursued concurrently. Robbins & Myers, Inc., 429 U.S. at 233-38. This rule has been applied to cases arising under the Energy Reorganization Act where the Secretary has refused to toll the limitation period where a complainant requested tolling based on the timely filling of an internal grievance. See Ackison, 90-ERA-38. The relief sought in the union grievance is distinct from the statutory relief under the ERA. Further, the Complainant was not mistaken in filing the union grievance instead of the ERA claim. This is evidenced by the fact that the union grievance is still ongoing, having wrapped up investigation on or about September 8, 1998. If Complainant had mistakenly filed in the wrong forum, he would not elect to continue after discovering the correct forum. Rather, Complainant has continued to pursue both claims as the are separate and represent separate remedies. Therefore, I find and conclude that Complainant's filing of the union grievance, and reliance upon the advice of union representatives, is insufficient to toll the period for filing the ERA complaint in this matter.

Further, I find that Complainant has offered no persuasive evidence to justify the tolling of this limitation period until April of 1998, almost fourteen (14) months following the last alleged discriminatory action by Respondent. Accordingly, Respondent's Motion for Summary Decision is hereby GRANTED and this matter is DISMISSED WITH PREJUDICE.

       DAVID W. DI NARDI
       Administrative Law Judge

Boston, Massachusetts
DWD:pte

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).