Administrative Law Judge (ALJ) A.A. Simpson, Jr., submitted
a Recommended Decision and Order (R.D. and O.) to the Secretary
on April 8, 1988, in this case arising under the employee
protection provision of the Energy Reorganization Act of 1974,
as amended (.ERA), 42 U.S.C. § 5851 (1982). The ALJ recommended
that the case be dismissed because the complaint was untimely.
Complainant resigned his position with Respondent on
March 17, 1983, and filed a complaint with the Department of
Labor on May 27, 1987. Complainant, who proceeded pro se in this
case, opposed Respondent's Motion to Dismiss on two grounds:
that his complaint raised a claim of blacklisting, which is a
continuing violation, and therefore is not barred by the 30 day
statute of limitations in the ERA, 42 U.S.C. § 5851(b)(1); and
that the time limit should be tolled under the doctrine of
equitable tolling.
The record in this case has been reviewed and it fully
supports the ALJ's recommendation, which I adopt, that
Complainant's complaint was untimely even under a continuing
violation theory. See Shehadeh v. Chesapeake and Potomac
Telephone Co., 595 F.2d 711 (D.C. Cir. 1979). The timeliness of
a claim of blacklisting or discriminatory referencing is measured
from the last occurrence of discrimination. 595 F.2d at 724.
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Complainant here did not allege that Respondent committed an act
of discrimination within 30 days prior to his filing the
complaint on May 27, 1987.
Complainant's claim that the time limit should be tolled for
equitable reasons must fail as well. The time limits in the ERA
are not jurisdictional and are subject to equitable tolling.
Lastre v. Veterans Administration Lakeside Medical Center, Case
No. 87-ERA-42, Final Decision and Order of the Secretary issued
March 31, 1988, slip op. at 3. See School District of the City
of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981); Hicks v.
Colonial Motor Freight Lines, Case No. 84-STA-20, Final Decision
and Order of the Secretary issued December 10, 1985. However, as
the court pointed out in City of Allentown v. Marshall "[t]he
restrictions on equitable tolling . . . must be scrupulously
observed." 657 F.2d at 19. The court explained that "[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." Id. at 20. The court set
out three of the circumstances in which tolling may be
appropriate when:
[1] the defendant has actively misled the
plaintiff regarding the cause of action;
[2] the plaintiff has in some extraordinary
way been prevented from asserting his rights;
or
[3] the plaintiff has raised the precise
statutory claim but has mistakenly done so in
the wrong forum.
Id.
Here, Complainant claims he was misled by federal government
officials about his right to file a complaint. Complainant
believed he was being blacklisted as early as January, 1984, and
he contacted the Nuclear Regulatory Commission (NRC) which
advised him to contact the Department of Labor. Deposition of
Shannon Doyle, January 19, 1988, at 61. Complainant did contact
the Department of Labor and testified he was told "there was
nothing they could do because I had left the plant more than
thirty days." Id. at 63. Complainant also suspected he was
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being blacklisted in 1984 when his claim for unemployment
compensation was denied based on the reason Respondent had given
for his discharge. Doyle Deposition at 68, 282. Complainant
again believed he was being blacklisted in 1985 when another
employer told him Respondent would not release information about
him. Doyle deposition at 290-299.
