U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
87-ERA-34
In the Matter of
DONNA SISK,
Complainant
v.
TRANSCO PRODUCTS, INC.,
Respondent
DECISION AND ORDER OF DISMISSAL
This matter arises pursuant to the employee "whistleblower"
protection provisions of the Energy Reorganization Act of 1974,
42 U.S.C. § 5851, as implemented by 29 C.F.R. § 24.1 et seq.
The issue to be decided is whether Complainant's claim is
barred by the thirty-day statutory period for filing a complaint
under the Act. 42 U.S.C. § 5851(b)(i).
Equitable tolling of the thirty-day statutory period for
filing a complaint under the Energy Reorganization Act is proper
only under very limited circumstances. In School Dist. of the
City of Allentown v. Marshall, 557 F.2d 16 (3rd Cir. 1981) the
Third Circuit, examining a similar provision under the Toxic
substances Control Act, 15 U.S.C. § 2622(b), noted three principal
situations where tolling is appropriate:
(1) where defendant has actively misled plaintiff,
or (2) plaintiff in some extraordinary way has been
prevented from asserting his rights, or (3) plaintiff
has timely raised the precise claim in issue
but in the wrong forum.
This analysis was applied to the Energy Reorganization Act in
Matter of Kent, 84-WPC-2.
The facts in this case are as follows: Complainant, Donna
[Page 2]
Sisk, was dismissed from her position as a Quality Control Manager
for Transco, Incorporated, on April 5, 1987. On April 20, 1987
Sisk's attorney sent a letter to Transco's president, Howard Goss.
The letter stated that Sisk understood that the alleged reason
for her termination was "absence from the job site without
permission" but that "any normal person would have to conclude that
there were other reasons involved in Miss Sisk's termination."
The purpose of the letter was to avoid "a serious court confrontation."
" On May 18, 1987, Sisk received notice from the Unemployment
Compensation Commission that Transco's actual stated reason
for her dismissal was "excessive unauthorized absences."
Sisk claims that the thirty-day statutory period for filing
a complaint should be tolled until May 18 and her complaint
considered timely. None of the three situations espoused in
Allentown v. Marshall, where tolling is appropriate, apply to
this case. Sisk did not raise her claim in an inappropriate
forum within the thirty-day period, nor has Transco actively
misled her in any meaningful fashion. Finally, Sisk has not
in some "extraordinary way" been prevented from asserting her
rights. The April 20, 1987 letter from Sisk's attorney
indicates that, at the time of her dismissal, Sisk suspected that
Transco had acted with illegal motivation in dismissing her.
Thus, the fact that Sisk 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.
Although the list of situations discussed in Allentown v.
Marshall where tolling is appropriate is not exhaustive, "[t]he
tolling exception is not an open-ended invitation to the Courts
to disregard limitations periods simply because they bar what may
be an otherwise meritorious cause." Allentown v. Marshall, 657
F.2d at 19. At the time of her dismissal, Complainant suspected
that she was fired illegally. I can find no reason why the
thirty-day statutory period to file a complaint should be tolled.
For the foregoing reasons, it is hereby RECOMMENDED that
the complaint filed by Donna Sisk, Complainant herein, be
DISMISSED.