[Page 5]
DISCUSSION
Complainants continue to argue that the thirty-day filing
rules in the statutory provisions invoked supra are merely
permissive, rather than mandatory. Under Complainants'
theory, if the thirty-day limitations were mandatory, the word
"must" would have been used in the statutes. However,
substitution of "must" for "may" in the pertinent statutory
provisions would mean that alleged discriminatees are required
to file complaints, regardless of their personal inclinations.
Contrary to Complainants' assertion, the United States Court
of Appeals for the Third Circuit in School District of the
City of Allentown v. Marshall , 657 F.2d 16 (1981), did not
leave this question open. In reversing a Secretary of Labor's
decision holding, inter alia , that the filing language was
permissive, rather than mandatory, under the Toxic Substances
Control Act, the Third Circuit stated: "[B]ecause we conclude
that there was no adequate basis for disregarding the time
limit set out in the statute's clear language, the Secretary
acted in excess of statutory limitations." 657 F.2d at 21.
Moreover, the implementing regulation at 29 C.F.R. § 24.3(b)
(1987) states clearly: "Any complaint shall be filed within
30 days after the occurrence of the alleged violation."
(emphasis added). Thus "the proper focus is on the time of
the discriminatory act , not the point at which the
consequences of the act become painful." Chardon v.
Fernandez , 454 U.S. 6, 8 (1981) (emphasis in original).
Moreover, "'[m]ere continuity of employment, without more, is
insufficient to prolong the life of a cause of action for
employment discrimination." Id . (quoting Delaware State
College v. Ricks , 449 U.S. 250, 257 (1980)). See also
Janikowski v. Bendix Corporation , 823 F.2d 945, 947-48 (6th
Cir. 1987); Nunn v. Duke Power Company , Case No. 84-ERA-27,
Deputy Secretary's Decision and order of Remand, July 30,
1987, slip op. at 13-17; English v. General Electric Company ,
Case No. 85-ERA-2, Deputy Secretary's Final Decision and
Order, January 13, 1987, slip op. at 4-11, appeal docketed ,
No. 87-3520 (4th Cir. February 17, 1987).
Complainants continue to press the issue of equitable
tolling in order to prevent dismissal of their complaints as
untimely filed.
"It must be remembered that the Complainants were
[Page 6]
terminated from the project at the end of October
1985, at which time J.R. Roberts assumed the project
for and on behalf of Covington Constructors, the
employer of Complainants, After the termination
from the project, Complainants did not become fully
and completely aware that they had been terminated
from the project because the DEPARTMENT OF NAVY and
the ROICC interferences with their contract with
Covington Constructors and their later interference
with their prospective contract with J.R. Roberts.
Complainants were mainly employed by Covington
Constructors for some period of time into early
December at which TOTH and MCGOUGH were terminated
because of Covington Constructions loss of the Camp
Pendleton Project. Complainant SYLVESTER was not
terminated until June of 1986, therefore, the filing
of the three Complaints with TOTH, SYLVESTER and
MCGOUGH were all timely filed within thirty
(30) days of their termination from Covington
Constructors or within thirty (30) days from when
they became aware the DEPARTMENT OF NAVY and the
ROICC had wrongfully interfered with their contract
with Covington Connectors and J.R. Roberts. It
would be wrong to interpret the date of the
termination of Complainants from the project as
being the date that the violation or occurrence took
place. The occurrence took place when Complainants
were later terminated from Covington Constructors or
when they became aware the DEPARTMENT OF NAVY and
the ROICC had interfered with their contracts with
Covington Constructors and J.R. Roberts, which would
have been in the late part of November or early part
of December 1985. The theory of equitable tolling
also applies in this case in that the DEPARTMENT OF
NAVY and the ROICC have actively interfered and
mislead [sic] Complainants in respect to their
contract rights in the matters before the Department
of Labor, and that the Complainants have in some
extraordinary way been prevented from asserting
their right because of their inability to determine
until such time in late November or early December
in 1985 the discrimination precipitated upon them
by the DEPARTMENT OF NAVY and ROICC by their
interference with their employment contracts with
[Page 7]
Covington Constructors and J.R. Roberts. The
theories of Smith vs. American President Lines, Ltd.
supra and Bonham vs. Dresser Industries, Inc. , 569
F.2d 187 (3rd Cir. 1977), and Burnett vs. New York
Central Railroad , 380 U.S.C. (sic) 424, (1965)
apply to this case, if the Department of Labor is
disinclined to find that the Complaints were filed
within the thirty (30) day time-period."
It should be pointed out that the Environmental
Employee Protection Statutes protect not only
from discharge by an employer but also as to any
discrimination against that employee with respect to
the employees [sic] compensation, terms, conditions
or privileges of employment. All five previously
mentioned Environmental Protection Statutes not only
preclude employees from being terminated but from
being discriminated. Discrimination against the
Appellants has continued beyond October 31, 1985
until such time that they approached J.R. Roberts
and inquired to be employed with them as members of
the Supervising Team and to such time although the
Appellants may have been terminated from the project
they were not necessarily terminated from Covington
Constructors until some later date. This does not
preclude THOMAS SYLVESTER from bringing an action
for this harassment. This does not preclude MCGOUGH
and TOTH from bringing an action from the point that
they were actually terminated from covington
Constructors. Upon reviewing all the facts and law
of the aforementioned case, it can be seen that the
thirty (30) day period has been relaxed by Case
Authority and that the thirty (30) day period should
run from the end of the continuing harassment or
from the date of termination by the employer,
whichever is later. on the basis of the foregoing,
the Order of Dismissal should be reversed and this
matter remanded for an Administrative Hearing.
Appellants' opening Brief at 8-11, quoting in part from their
Supplemental Opposition to Motion to Dismiss at 5-6.
Complainants' equitable arguments raise significant
factual issues which should have been decided through a
[Page 8]
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. Cocke v.
Merrill Lynch & Company , 817 F.2d 1559, 1561 (11th Cir. 1987);
Meyer v. Riegel Products Corporation , 720 F.2d 303, 307-09
(3rd Cir. 1983), cert. dismissed , 465 U.S. 1091 (1984);
Aronsen v. Crown Zellerbach , 662 F.2d 584, 595 (9th Cir.
1981), cert. denied , 459 U.S. 1200 (1983); Coke v. General
Adjustment Bureau, Inc. , 640 F.2d 584, 595 (5th Cir. 1981).
Accordingly, I am remanding this case to the ALJ for a
full hearing to determine the timeliness of each complaint.
In making these individual determinations, the ALJ shall
establish the commencement date of the limitations period for
each Complainant, which shall be the date when the facts which
would support the discrimination complaint were apparent or
should have been apparent to a person with a reasonably
prudent regard for his rights similarly situated to
Complainant. McConnell v. General Telephone Company of
California , 814 F.2d 1311, 1317-18 (9th Cir. 1987), cert.
denied sub nom. General Telephone Company of California v.
Addy , 108 S.Ct. 1013 (1988); Pruet Production Company v.
Ayles , 784 F.2d 1275, 1279-80 (5th Cir. 1986); Adkins v.
International Union of Electrical, Radio and Machine Workers ,
769 F.2d 330, 335 (6th Cir. 1985); Boyd v. United States
Postal Service . 752 F.2d 410, 414 (9th Cir. 1985); Vaught v.
R.R. Donnelley & Sons Company , 745 F 2d 407, 410-11 (7th Cir.
1984); Aronsen v. Crown Zellerbach , 662 F.2d at 593-94; Ortiz
v. Chicago Transit Authority , 639 F.Supp. 310, 312-13 (N.D.
Ill. 1986); In the Matter of Charles A. Kent , Case No. 84-WPC-2,
Secretary's Remand Decision and Order, April 6, 1987, slip
op. at 10-11.
If the ALJ determines that McGough's, Toth's and/or
Sylvester's complaint was timely filed, he should proceed to
decide the merits of that Complainant's case. This should
involve a determination of: (1) the applicability of the
statute(s) invoked by Complainant; (2) whether Respondent is
subject to the statute(s); (3) whether Respondent violated the
statute(s); and (4) remedial relief for any violations.
Charles A. Kent at 10.
[Page 9]
ORDER
It is ORDERED that this case is remanded to ALJ Joseph A.
Matera for a hearing consistent with this Remand Decision and
Order. The ALJ's findings and conclusions shall be submitted
to me in the form of a recommended decision and order.
SO ORDERED.
ANN
MCLAUGHLIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
1 Notwithstanding that these
consolidated cases have been
given "ERA" numbers, none of the three complaints was filed
under the Energy Reorganization Act. Instead, each complaint
lists the five statutes specified supra . See also Secretary's
Order Establishing Briefing Schedule, December 10, 1986, at 1. I have adhered to the erroneous
"ERA designation "[b]ecause
legal research catalogs and computers are governed by the
principle of consistency, not correctness." Ford Motor Credit Company
Company v. Milhollin , 444 U.S. 555 n.* (1980).
2 The ALJ also stated, in dicta:
Although the first issue, of timeliness,
is dispositive I note that the other two
bases for the Navy's motion would be
determined against it. only two of the
Acts refer to "employer" and the other
three Acts refer to "person;" therefore, a
strict employee/employer relationship is
not necessary. Additionally, contrary to
the Navy's arguments, under three of the
Acts covered activity includes providing
"information to a State or to the Federal
Government," 42 U.S.C. § 9610(a) or
assisting "in any other action to carry
out the purposes of this subchapter,"
22 U. S. C. § 300j -9 (i) (c) ; 15 U.S.C.
§ 2622(3).
Id . at 3 n.3.