Date: AUG 12 1997
Case No. 97-ERA-37
File No. 01-0160-97-01

IN THE MATTER OF:

Gary Nason,
    Pro Se Complainant

    v.

Maine Yankee Atomic Power Co.,
    Respondent

    This case arises under the Energy Reorganization Act of 1974 as amended, 42 U.S.C. §5851 (hereinafter "the Act" or "the ERA"), and the implementing regulations found at 29 C.F.R. Part 24. Pursuant to the Act, employees of licensees of or applicants for a license from the Nuclear Regulatory Commission (hereinafter "the NRC") and their contractors and subcontractors may file complaints and receive certain redress upon a showing of being subjected to discriminatory action for engaging in a protected activity. Complainant Gary Nason (hereinafter Complainant) has alleged Respondent Maine Yankee Atomic Power Company (hereinafter Respondent) retaliated against him when it gave a bad reference in regards to Complainant's employability.

    By document filed June 4, 1997, Respondent has submitted a Motion for Summary Decision. In support thereof, Respondent argues summary decision is warranted because Complainant untimely filed his ERA complaint. In addition, Respondent has argued that Complainant has failed to establish facts sufficient to equitably toll the filing requirement based on what is typically referred to as extraordinary circumstances.

    Only those facts pertinent to the timeliness issue are germane to the pending motion and, therefore, this Judge shall not delve into the details of the underlying alleged retaliatory

conduct at this time. Accordingly, I shall render this decision based on those facts which are established by the attested to materials submitted in conjunction with the Motion for Summary Decision and which are relevant to the question of timeliness.

    The documents submitted in support of and in opposition to the Motion for Summary Decision support the following uncontroverted facts:

1. On March 24, 1995 a radiological incident occurred at Maine Yankee, the underlying facts of which are not material to the question of whether Complainant's complaint has been timely filed. Suffice it to say, Respondent has previously taken the position that Complainant contributed to the event and Complainant has vehemently denied this.

2. Respondent conducted an investigation of the incident and the Maine Yankee Event Review Board issued ERB-010, a report of the incident, which report is dated April 27, 1995.

3. Complainant sought permanent employment at Yankee Atomic and alleges he was verbally hired pending a physical examination in April of 1995.

4. The physical was scheduled and just prior to that date Complainant was informed by telephone that his position was canceled due to restructuring.

5. Complainant voluntarily left Maine Yankee on April 15, 1995 to go to Millstone Unit 2, where he began employment on April 17, 1995.

6. In a letter dated July 20, 1995 from David J. Vito, Senior Allegation Coordinator, NRC, Region I, to Complainant, Complainant was advised that his allegations appeared to raise a personnel issue because of Complainant's failure to indicate that naming him in ERB-010 was an intentional adverse action taken to discredit Complainant in any way and, therefore, were not within whistleblower protection.

7. On August 2, 1995, Complainant was interviewed by the NRC Office of Investigations (hereinafter OI) regarding his allegation that his career was damaged because he applied, but was not hired, for a permanent position at Yankee Atomic. Complainant "believed, but could not substantiate, that the bad reference was tied to Maine Yankee's implication of him in the unplanned worker exposure." See NRC OI Report of Investigation, at p. 8. See Also August 2, 1995 NRC OI Interview Report (hereinafter Interview Report). Complainant had a copy of the ERB-010 at the time of his OI interview. Interview Report, at p. 5. Complainant states he obtained the report from a public library, but fails to specify the date. Complainant's Affidavit (hereinafter Aff.), p. 19. Cf. Interview Report, at p. 5 (which indicates Complainant obtained copy of ERB-010 from the NRC).

8. On October 13, 1995 Complainant telephoned the NRC OI and advised that Office that he had recently applied for a permanent position at Yankee Atomic and that he was allegedly not hired because of a bad reference. Interview Report, at p.6.

9. On July 11, 1996 Complainant filed a Notice of Concern with Yankee Atomic concerning his employability and the fact that he was "told not to go to his physical - 'restructuring.'"

10. On March 11, 1997 at 5:01 p.m., Complainant filed a handwritten complaint with the U.S. Department of Labor, Region I Occupational Safety and Health Administration.

11. At the top of this handwritten complaint, there is handwritten notation which reflects "Note: this rough draft given to N.R.C. on 812/95."

12. The complaint alleges retaliatory conduct, specifically a bad professional reference given by Respondent to Yankee Atomic and which Complainant alleges was based upon Respondent's implication of Complainant in the March 24, 1995 incident.¹

13. Complainant has attested to conversations with Sandra Willette, employee relations manager at Yankee Atomic; Rick Warnick Complainant's former supervisor at Maine Yankee² ; and Bill Riethal, whom Complainant describes as the person who hired him at Yankee Atomic, during which Complainant allegedly learned he did not get the job at Yankee Atomic because of his involvement in the March incident. Aff., p. 16.³

14. Complainant maintains he did not receive 'proof' to substantiate his claim until August 1996. In this regard, Complainant refers to the August 21, 1996 letter from Yankee Atomic to Complainant, which letter refers to an offer of employment extended by Yankee Atomic and subsequently withdrawn for legitimate business reasons.

   An employee who believes that he 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. The time limits, however, are in the nature of a statute of limitations and are subject to equitable tolling.⁴ This Judge herein embarks upon the mission of striking an appropriate balance between "fidelity to the 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 p. 3 (Sec'y 4121/94), aff'd, 65 F.3d 1331 (6th Cir. 1995).

    Generally, the doctrine of equitable tolling is narrowly applied and focuses on complainant's excusable ignorance of his statutory rights as a reason to modifier the limitations period.⁵ Harrison v. Stone & Webster Engineering Corp., 91-ERA-2, at p. 2 (Sec'y 10/6/92). 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. Prybys v. Seminole Tribe of Florida, 95-CAA-15, at p. 4 (ARB 11/27196). See Also Smith v. American President Lines, Ltd., 751 F.2d 102, 109 (2d Cir. 1978). In considering the application ofthe 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." E.g. Prybys, supra, at p. 8 (Citing School Dist. of City of Allentown v. Marshall, 657 F.2d 16 (ad Cir. 1981).

    For purposes of this Motion for Summary Decision, this Judge finds and concludes that the 180 day period within which the complaint must have been filed began to run, at the latest, on August 2, 1995.⁶ I base this ending on the NRC OI Interview Report, which clearly indicates "NASON also alleged that

    The respective filings by each of the parties focus on a theory of equitable tolling where the complainant was prevented in some extraordinary way from asserting his rights. This Judge shall, therefore, specifically address this argument for equitable tolling and articulate those reasons why I decline to toll the limitations period on this ground. It is my ultimate conclusion, however, that the pro se Complainant in this matter has sufficiently articulated facts⁷ which provide the basis for equitable tolling based on a timely filing of the precise statutory claim, albeit in the wrong forum.

   This Complainant argues that he failed to file within the 180 day filing limitation because he needed to compile evidence, compilation of which was delayed by fear of retribution and additional evidence developed at later dates; he contacted other governmental agencies to no avail; and he was assured that the matter would be looked into. Furthermore, Complainant stresses that he did in fact contact the Department of Labor, which informed him he was not covered by the ERA due to his contractor status.⁸ Complainant also stresses the fact that he contacted various state and federal labor organizations on "numerous occasions," among which he was informed that his statements were an NRC problem not handled by the DOL, that he could not be helped, that he

   Assuming this Complainant did make these telephone calls and was advised as he contends, an assumption which this Judge notes is compelled by the standard for summary decision, it is clear that the Complainant's claim is nevertheless insufficient as a matter of law. The Secretary has declined to toll the complaint filing period where "cryptic and inarticulate" telephone calls were made to "low-level employees" and a complainant thereby exhibited a lack of diligence in undertaking reasonable measures to perfect his claim. Mitchell v. EG&G, 87-ERA-22, at p. 10 (Sec'y 7/22/93). In Mitchell, the complainant argued, among other things, that the filing period should be extended or waived on the basis of equitable estoppel⁹ in view of the misinformation he received from various Wage and Hour offices during the filing period. The Secretary, however, rejected this argument, citing the virtual impossibility of rebutting an unsupported allegation by a complainant that he received incomplete information in a telephone conversation and the resultant great potential for abuse. Mitchell, supra, at p. 9 (Citing Conway v. Control Data Corp., 955 F.2d 358, 363 (5. Cir. 1992), cert. denied, 121 L.Ed. 2d 131 (1992)). Such testimony cannot, by its very nature, be either verified or disputed and therefore cannot justify a tolling of the limitation period.

    This Judge issued an Order dated July 11, 1997, providing Complainant with the opportunity of specifying and substantiating his alleged telephone conversations that provided him with misinformation. Complainant's document filed in response to this Court's Order and dated July 24, 1997, establishes the following: Complainant attached telephone bills from July 1995, October 1995, and February 1997 with a total of eighteen telephone calls underlined. Nine calls were one minute in duration, two calls were two minutes, one call was three minutes, two calls were four minutes, one call was four minutes, one call was five minutes, one call was seven minutes, one call was nine minutes, and one call was forty five minutes.¹⁰ Complainant also supplied a chart specifying in as much detail as Complainant could supply, the identity of the agency to which the call was made and the skeletal substance of the conversation.

    It is clear that to successfully argue equitable tolling based on misleading information, the misinformation must have caused the untimely filing, i.e., it must have been misinformation obtained within the filing period. For this reason, any information obtained in the alleged February 1997 telephone calls is irrelevant and immaterial to the issue at hand. It is factually impossible for any information obtained in a February 1997 telephone call to have caused Complainant s untimely filing in this matter because the 180 day statutory period, which I have found to have begun running, at the latest, by August 2, 1995, had clearly expired by February 1997. Accordingly, Complainant's attestations as to the information he allegedly obtained from DOL on, for example, January 23, 1997, camot serve as grounds to justify equitable tolling.

    In regard to the remainder of the telephone calls, the evidence reflects eight

of the telephone calls were placed to the NRC in King of Prussia, Pennsylvania and consist of most of the lengthy telephone calls.¹¹ Complainant has left blank the results from these communications with the NRC despite the fact that they are the more lengthy of telephone calls.¹² This Judge construes this conspicuous absence of results to indicate that Complainant does not allege any misinformation was obtained during these telephone calls and, therefore, I shall not consider them as grounds to justify equitable tolling.

    Accordingly, this Judge is left with a number of telephone calls to the Department of Labor and/or ASHY substantiating telephone records, however, indicate that the calls to these entities within the relevant time period lasted no more than one to four minutes, the length of which hardly provides sufficient time to explain an individual's situation and obtain reliable information. For Complainant to have relied on information obtained in such short amounts of time exhibits, to this Judge, a lack of due diligence on Complainant's behalf. See Robinson v. Dalton, 107 F.3d 1018 (3d Cir. 1997) (wherein the Court refused to apply the doctrine of equitable tolling where plaintiff offered nothing more than one alleged telephone conversation which he failed to confirm by written conversation or even another telephone call). Cf. Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir. 1976), aff'd, 434 U.S. 99, 98 S. Ct. 600 (1977) (wherein the Court equitably tolled the timely filing requirement based on the facts that plaintiff had contacted the Assistant Area Director (hereinafter ADA) of the Wage and Hour Division; telephoned the ADA at least once a month to check progress of case; was not informed of a timely filing requirement, even though it was the ADA's usual practice to do so, until after the period had run; the ADA did not inform plaintiff of the timely filing requirement because he was awaiting the filing of documents by defendant, and defendant's failure to provide those papers indirectly contributed to plaintiffs untimely filing; and the plaintiff twice sought legal advice and twice promptly followed that advice).

    I would add that I have struggled with my conclusion not to equitably toll the filing requirement in this case based on extraordinary circumstances because of Complainant's pro se status. This is not a situation, however, where a layman is unwittingly entangled in an unwieldy, complicated administrative procedure. The requirements for filing a complaint and the time limit under the ERA are straightforward. Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y 9/29/89), aff'd without opinion, 949 F.2d 1161 (11th Cir. 1991), cert. denied, 506 U.S. 878, 113 S. Ct. 225 (1992) (dismissing pro se complainant's complaint as untimely filed and declining to apply equitable tolling). Therefore, I cannot allow this pro se Complainant to escape the timely filing requirement based on his pro se status alone and without additional equitable considerations.

    Complainant Nason filed the document which would later become his ERA complaint with the NRC on August 2, 1995. The facts of his claim that Respondent retaliated against him for raising safety concerns are carefully laid out in the complaint at pp. 1-2, 9-12. Cf. Garn, supra, (dismissing, in part, the complaint on the grounds that the complainant did not file the precise statutory claim in the wrong forum because the document submitted to the NRC focused on technical violations and in no way did they address the alleged discriminatory acts at issue in the ERA case). Moreover, this filing with the NRC is within the 180 day filing period, which I have previously found to have begun on August 2, 1995.¹³ Cf. Roberts, supra (wherein the Board declined to apply equitable tolling because complainant's complaint was not filed within the statutory period).

    It is not of fatal consequence to Complainant's action that he did not cite to the whistleblower statute in his filing with the NRC. Both the regulations applicable to a whistleblower proceeding and recent case law indicate that while an ERA complaint must be in writing, it does not have to specifically allege a violation of the employee protection provisions of any statute, state or federal. See 29 C.F.R. Part 24.3(c) (which regulation states "No particular form of a complaint is required, except that a complaint must be in writing and should include a full statement of the acts and omissions..."); Immanuel, supra (wherein the Board cited 29 C.F.R. Part 24.3 and concluded that the regulation recognizes that some complainants file their complaints without the assistance of legal counsel and therefore should be accorded broad latitude in framing the contents of their complaint).

    Accordingly, this Judge concludes that the limitations period in this case shall be equitably tolled based upon Complainant's filing with the NRC on August 2, 1995, a filing which sufficiently detailed his allegation of retaliatory conduct by Respondent based on Complainant's engagement in protected activity.

¹In his Opposition, Complainant sets forth certain facts which pertain to what apparently may be separate alleged acts of retaliation. See p. 5, last five paragraphs. These are not, however, a part of the complaint presently before this Judge. In this regard, see generally Harrison v. Stone & Webster Engineering Corp., 91-ERA-21, at p. 4 (Sec'y 10/6/92).

²There is some discrepancy in the material before this Judge as to whether Mr. Warnick was employed by Maine Yankee or Yankee Atomic. Cf. Aff., at p. 16; Interview Report, at p. 4.

³Complainant does not supply any specific dates on which these conversations took place. Viewing the materials submitted to this Judge as a whole, however, it is evident that the conversations occurred sometime between the date on which Complainant was informed not to report for the physical examination and the August 2, 1995 NRC OI interview.

⁴I pause to note that the timeliness of a claim may also be preserved under the continuing violation theory. I hasten to add, however, that I discern nothing from the set of facts presented to me by Complainant which would warrant discussion of this legal theory.

⁵In comparison, the principle of equitable estoppel focuses on the issue of whether the employer misled the complainant and thereby caused the delay in filing of a complaint. There is nothing in the evidence presented to this Administrative Law Judge that suggests a discussion of equitable estoppel is warranted.

⁶Indeed, there is indication in the materials supplied in support of and in opposition to the pending Motion that Complainant suspected the bad reference on a date earlier than August 2, 1995. Complainant, as previously mentioned, has attested to conversations with Ms. Willette and Messrs. Wamick and Riethal during which he reamed that he did not get the job at Yankee Atomic because of his alleged involvement in the March incident. These conversations prompted Complainant to obtain a copy of ERB-010, which report Complainant already had in his possession on August 2, along with a completed draft of the handwritten complaint. Furthermore, there is the letter from the NRC's Mr. Vito, supra para. no. 6, which indicates the ERA was at least discussed in relation to the facts as alleged, at that time, by Complainant.

⁷ While Complainant articulates those facts which support the legal theory of equitable tolling based on a timely filing in the wrong forum, he fails to articulate the argument or cite the law in support of such theory. This is, undoubtedly, a result of his pro se status which he attributes to his inability to pay for an attorney. Fortunately for Complainant and completely by chance, he has put this Judge on notice of sufficient Acts to save his claim from what could have been the dispositive effects of the present Motion. At this point, however, it is appropriate to note principles which shall guide this Judge in rendering a decision on this issue, as well as throughout the remainder of the resolution of this matter. Judge Selya of the First Circuit Court of Appeals eloquently summarized the standard to be applied where a party to a proceeding appears pro se. The Judge opined

A pro se litigant, like any litigant, is guaranteed a meaningful opportunity to be heard. While Courts have historically loosened the reins for pro se parties, the right of self-representation is not a license not to comply with relevant rules of procedural and substantive law. The Constitution does not require judges - or agencies, for that matter - to take up the slack when a party elects to represent himself. .....there is a long line of authority rejecting the notion that pro se litigants are entitled to extra procedural swaddling. Eagle Eye Fishing Corp. v. U.S. Dept. of Commerce, 20 F.3d 503 (lst Cir. 1994) (Citations and Quotations Omitted).

    My point to this aside is this: Complainant Nason has survived this Motion by chance. Whistleblower proceedings, in general, present complicated issues of law which are exacerbated by rules of practice and of procedure. I can do no more than reiterate my suggestion that Complainant retain counsel to assist him in this matter which is sure to become progressively complicated.

⁸Complainant would not have contacted OSHA or the DOL had it not been for the prompting from Dan Murphy of the NRC. Mr. Murphy wrote Complainant letter dated April 22, 1997, which letter states

I had recently spoke with another individual who told me basically the same story about going to DOL and being told that she was a contract employee and, as such, not covered by Section 211 of the E.R.A. In this particular case, the individual appealed her case to the Secretary of Labor and was granted a hearing before a DOL Administrative Law Judge. With this in mind, I suggested to you that you contact OSHA section of DOL which is currently handling DOL whistleblower complaints.

You had indicated that you had contacted DOL when you raised your initial concerns to the NRC and was informed by a DOL representative that due to your status as a contract employee, you were not covered under Section 2 11 of the Energy Reorganization Act (ERA). I told you that, in my view, contract employees were covered by Section 211 of the ERA and suggested that you might consider contacting DOL again even though there would be a possible timely filing issue that you would have to overcome.

⁹The Secretary uses the term equitable estoppel in summarizing Complainant's argument. It is apparent from the analysis in the decision, however, that the true concept referred to is equitable tolling.

¹⁰There are according to Complainant, a number of calls to 800 numbers that are not recorded on the phone bills.

¹¹For example, the forty-three minute call, the seven minute call, and the five minute call were all placed to the NRC. In addition, one of the two minute calls went to the NRC as well.

¹²It is noteworthy that Complainant cannot supply the identity or title of the individual to whom he spoke for forty-three minutes nor the substance of that lengthy conversation.

¹³Even assuming the filing period began to run at a date earlier than August 2, 1995, it is clear that it is logically impossible for it to have begun running at any time earlier than March 24, 1995, the date of the incident in which Complainant was implicated by Respondent and which allegedly gave rise to the bad reference. Thus, the filing with the NRC must be within the ERA's 180 day limitation even if it cannot, at this point, be pinpointed to an exact date.