U.S. DEPARTMENT OF LABOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
Suite 700-1111 20th Street, N.W.
Washington, D.C. 20036
Dated: February 12, 1988
Case No. 84 WPC-2
IN THE MATTER OF:
CHARLES A. KENT,
Complainant
v.
BARTON PROTECTIVE SERVICES,
Respondent
For the Claimant:
TEDDY RAY PRICE, Esquire
TIMOTHY W. STORM, Esquire
For the Respondent:
DARA L. DE HAVEN, Esquire
MARILYN FISH, Esquire
Before: RENO E. BONFANTI
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This matter arises pursuant to the employee
"whistleblower" protection provisions under the Water
Pollution Control Act, 33 U.S.C. §1367 (1982), the Safe
Drinking Water Act, 42 U.S.C. §300j-9(i) (1982), and the
implementing regulations thereto at 29 C.F.R. Part 24
(1986).
HISTORY OF CASE
The Complainant, Charles A. Kent, charges discrimination
in his employment as a security guard with Barton Protective
Services, Inc. (hereinafter referred to as Barton), in
retaliation for filing an "oil spill" report on October 7, 1981
[Page 2]
with the federal Environmental Protection Agency
(hereinafter referred to as EPA).
Charles A. Kent's first complaint, filed on December 7,
1982, was dismissed by the Assistant Wage and Hour
Administrator (DOL) James L. Valin on April 20, 1983. The
Wage and Hour Division declined to c
under 29 C.F.R. 24.4, and dismissed the complaint
because of the failure to file within 30 days of the alleged
violation. Kent filed another complaint on February 10,
1984 concerning job discrimination by Barton, urging
reconsideration based upon equitable tolling arguments. The Wage
and Hour Division again refused to investigate the matter.
On June 24, 1984, the second complaint was dismissed because
of the failure to file a complaint within 30 days of the
discriminations. Mr. Kent pursued his case and was afforded
a hearing before the undersigned judge on October 18, 1984.
Barton was not a named party in that complaint, and, the
limited issue entertained was only: Whether the complaint
was timely filed? A finding in the affirmative would have
necessitated further litigation, while a negative finding
would have resulted in dismissal of the complaint without
further legal proceedings. The complainant was represented
by able counsel, offered documents, his own testimony,
testimony of subpoenaed Gus Dixon and James E. Sims of
Barton, the DOL Area Director Mr. Gilbert, and subpoenaed
documents from the Environmental Protection Agency and the
Georgia State Examining Board. After careful consideration
of all of claimant's evidence, on February 14, 1985, the
undersigned issued a Recommended Decision and Order
dismissing the complaints because not timely. On February
25, 1985, Kent submitted a Motion for Reconsideration
requesting that the case be reopened to allow him the
opportunity to prove timeliness by a new allegation - that he
contacted (but did not file a written complaint) the Equal
Employment Opportunity Commission within 30 days of the
termination letter of June 1982. The Motion was denied on
March 15, 1985 because Kent, with able counsel, was already
given a full opportunity to prove his case and the new
allegation did not warrant any further action. Pursuant to 20
C.F.R. 24.6 the Recommended Decision/Orders, together with
the record, were forwarded to the Secretary of Labor for a
final order. On April 10, 1987 the Secretary of Labor
issued a Remand Decision and Order, remanding the case to
[Page 3]
the undersigned judge for a new hearing consistent with
expressed due process guidelines. A de novo hearing was
held on August 19 and 20, 1987 and the record was closed
following the receipt of briefs on october 22, 1987. The
Remand Decision of the Secretary of Labor has been
diligently followed both procedurally and as to the substantive
law enunciated therein. After careful evaluation of this
record, I make the following summary, evaluation, findings
and conclusions of law.
Summary and Evaluation of Evidence
Charles A. Kent, complainant, is an articulate and
intelligent 34 year old gentleman. He has at least 3 years
of college education. He began working for Barton
Protective Services, Inc. (hereinafter Barton) in Atlanta,
Georgia as a security guard in March 1978. He was full-time
for several months, and then was assigned to a part-time (24
hours) security guard post at the United Parcel Service
(hereinafter United). He requested part-time because he had
another job full time with the City of Atlanta (Water
Works). On October 11-12, 1980, a diesel oil spill of about
4600 gallons occurred and Mr. Kent was blamed for it because
he did not make the hourly security rounds required on his
post. United Parcel Service asked for his permanent removal
from their facilities and Barton complied. Mr. Kent was
told an entry would be made on his personnel card that he
was negligent at his post. Mr. Kent was reassigned to a
security guard part-time post in January 1981 to Cudahay
Foods, where he continued until September 1, 1981, at which
time Cudahay Food went bankrupt. He was then offered a full
time job at BAR-S-Foods which he declined because of his
other employment. Near the end of October 1981 Mr. Kent
contacted Barton concerning the shift promised him a month
earlier. Mr. Kent stated that Gus Dixon's (manager at
Barton) "attitude... changed remarkably ... cool and
indifferent as he told me there were no openings". He also spoke
to Mr. Guvera, manager, who abruptly affirmed no job
openings but said he would be assigned whenever a new post
became available near his home. In December 1981 or January
1982 he was assigned to a weekend shift at BAR-S-Foods,
reported for duty, found that someone else had taken the
job, was sent home, and received 2 hours show-up pay. Mr.
Kent war, again told he had priority for another weekend post
[Page 4]
closer to his home in 4 to 6 weeks. No further assignment
was tendered to Kent. The record indicates that during the
first 6 months of 1982 Mr. Kent frequently called Barton
about getting a post assignment, but was always told that
the supervisors were "in conference". He received a letter
dated June 8, 1982 from James E. Sims, Jr., Vice-President
of Operations for Barton, requesting that he turn in the
uniforms and equipment because he no longer works for
Barton. Repeated phone calls by Kent for an explanation and
exit interview were wasted effort. "I was given the
bureaucratic runaround" and unable to get a conference with
them. Mr. Kent stated that under state law he was entitled
to know the reasons for termination and also to receive an
official notification. He received neither. In July 1982
Mr. Kent wrote a certified letter to Mr. Sims stating that
he will not return the uniforms and equipment until he
receives official notice and reasons for the separation. He
did not receive any reply to this letter, nor were his phone
calls responded to.
On December 7, 1982 Mr. Kent filed a discrimination
complaint with Department of Labor. He contended that
Barton engaged in retaliatory discrimination against him
because he reported the oil spill to Environmental
Protection Agency (EPA). This was dismissed on April 20,
1983 because not filed within 30 days of the alleged
violation. The June 1982 letter was deemed to be the termination
of employment action. A few days later in April 1983 Mr.
Kent demanded a meeting with management at Barton. At the
alleged meeting Mr. Kent offered to return the uniform and
equipment for an official separation notice. The offer was
declined. Mr. Sims and Mr. Dixon allegedly told him the
letter of June 8, 1982 was in error, he was not terminated,
blamed everything on a misunderstanding, told him to hang on
to the uniforms, and he would be reassigned a post when
available. Barton also told him the security license would
be sent to him as soon as the State Board takes action. The
record shows that on April 25, 1983 Kent wrote to the State
Board of Licensing stating that he was employed as a
security officer but did not get the necessary registration
application from his employer. He asked the Board to
correct and bring up to date his license to perform security
work. (Joint Exh. 5) In December 1983, Mr. Kent filed for
unemployment compensation based upon the part-time work with
[Page 5]
Barton. His claim was denied. At this time Mr. Kent
discovered that Barton reported that he failed to accept
reassignment in late 1980 so he was shown as abandoning his
job, while work was available. Contrary thereto, this
record clearly establishes that Kent did in fact work from
January to September 1981, in addition to receiving 2 hours
show up pay in December 1981 or January 1982. On January
17, 1984 Mr. Kent filed his second complaint with
the Department of Labor. He again alleged job discrimination
on the part of Barton because he reported the oil spill
to EPA in October 1981. Mr. Kent contends that Barton
misled him as to the termination of employment, and still
considered himself an employee until officially notified of
termination. The alleged discrimination is the failure of
the employer to assign him a work post since 1981 and
continuing, because of the oil spill he reported to the EPA in
October 1981.
The evidence in this case shows that Mr. Kent did not
believe that he was responsible for the oil spill of 4600
gallons in October 1980 for which he was blamed. He
undertook inquiries in order to exonerate himself and protect his
security license. He ascertained that neither Barton nor
United Parcel took any action to investigate the oil spill,
and found out that all such spillage reports are to be
reported to the federal and state environmental agencies.
Mr. Kent inquired repeatedly at the Federal Environmental
Protection Agency (EPA) office over the period of the next
10 months whether the spillage was reported. He also
discussed this matter with his attorney-friend, Jim White.
He sought advice on filing a slander lawsuit against Barton
or United; he was advised that he would need a written
report charging him with negligence which resulted in the
oil spill. (Joint Exh. 4) White was his attorney from 1980
until November 1982, at which time he sought other counsel.
The record shows Kent told the interviewer, Mr. Gilbert,
after filing the complaint in 1982, that he did not call the
EPA initially to "blow the whistle" but rather to get the
hoped for report with the truth in it to clear me. (Joint
Exh. 2) In December 1980, Mr. Kent asked to see his personnel
file at Barton and was told that no report of negligence
was ever placed in his file and that they were satisfied
with the way the incident was handled. Barton told Kent
that someone had to be blamed for the oil spill. After a
[Page 6]
year of waiting, Mr. Kent concluded that neither Barton nor
United planned to report the oil spill, and conspired to
cover-up the incident. He found out from the Georgia State
Security Licensing Board that any misconduct by Barton or a
security guard could lead to de-certification. Also, EPA
told Kent that serious legal consequences could result from
the failure to report and that in order to protect himself
Kent should submit a written report of the incidence to
clear his name. Kent expressed his attitude at that time by
stating that "if I were to remain passive thinking that this
whole incident would eventually be forgotten, the fact that
I knew of the diesel oil spillage and made no attempt to
prove my innocence or expose this incident makes me just as
guilty of any infraction of Federal and State law."
Consequently to protect himself, Mr. Kent submitted a written
report of the oil spill to the federal Environmental
Protection Agency on October 7, 1981. He added, "In view of
all of this, I strongly feel that no one is above the law
and this cover-up must be exposed despite the fact that
Barton Protective Services will probably ask for my
resignation". (C. Exh. 1) Mr. Kent was concerned about the
status of his security license. In February 1982, Mr. Kent
made a report of the oil spill to Georgia State Board of
Private Detective and Security agencies asking them to
investigate the oil spill. Mr. Kent stated that a security
license is needed to be a security guard in George and it
can be revoked for a dishonest act, so he decided to protect
himself by filing the report with the Board. The state
board informed Mr. Kent in March and May 1982 that no action
was warranted to investigate the oil spill. No reference
was made to the status of Kent's security license.
The record shows that the Environmental Protection
Agency contacted United Parcel Service by telephone on
October 8, 1981 inquiring about an oil spillage that may
have occurred in october 1980. On November 10, 1981, EPA
requested United to file a written report of the spill. In
January and April 1982 United responded with reports of the
incident. Essentially United acknowledged the oil spill but
maintained that it was de-minimus, did not discharge into
public waters and therefore did not constitute any violation
of environmental laws. The EPA records show that shortly
after Kent's report to EPA he expressed some doubts about
the status of his employment and asked how to clarify his
[Page 7]
record. EPA suggested he contact the Georgia State Board
which regulates security firms. As noted previously, Kent
took the suggestion and wrote to said Board, in February
1982. Kent continued making numerous telephone contacts
with EPA during 1982. Kent asked EPA for a copy of United
report, and it was denied. On August 9, 1982 Kent mentioned
in a phone call to EPA that Barton wanted the uniforms
returned because he no longer works there. Another phone
call on October 1, 1982 referred to EPA and United contacts
to an unnamed individual in connection with the spill; he
requested a copy of the United's response under the Freedom
of Information Act but it was denied because the matter was
pending.
The evidence Mr. Kent submitted shows that he discussed
his early contacts with EPA in 1980 and 1981 with attorney
Jim White, and told him when he made the written report.
Kent believed that Barton became aware of his reporting to
EPA through contacts with White, his investigator, or law
clerk. Kent recalls that at a social affair in December
1980, White told him that the owner of Barton was a personal
friend as well as former business associate. Mr. Kent at
the hearing was quite clear in testifying that Barton knew
that Kent reported the oil spill to EPA as early as
October-December 1981. (Tr. 1984, pages 52 through 57) Mr.
Kent testified he reported the oil spill to EPA and the
State Board because not to do so would make him an
asscessory to a criminal act. He testified that Barton knew
in October 1981 that he filed the written report of the oil
spill to EPA. He testified that the job offer in December
1981 or January 1982 (sending him 15 miles to a post) which
did not materialize and for which he received 2 hours show-up
time, and then promised an assignment nearby home,
following which he received the June 1982 letter was all
sheer "harrassment" because he reported the oil spill incident.
He testified that his complainant of February 10,
1984 with Department of Labor was filed within 30 days of
the discriminatory act, or at least timely because of
Barton's misrepresentation. Kent made the same argument
with respect to the complaint of December 7, 1982. Kent
maintains that he continued to be an employee of Barton (at
least until October 1984) because he was not given an exit
interview nor the reasons for termination.
[Page 8]
At the de novo hearing in August 1987, additional
documentary evidence was introduced. Testifying were: Charles
A. Kent, complainant; Richard L. Gilbert, the area office
director (DOL) with whom the 2 complaints were filed; Gus
Dixon, James Sims, and Henry Guivara of Barton Management;
Robert May, III of the State of Georgia's Environmental
Protection Agency; and Thomas M. Mishow, the Chief
Administrative Officer of the Georgia Board of Private
Detective and Security Agencies.
Kent's case rests on two theories as to why the
complaint(s) should be considered timely filed. If not
timely and equitable tolling does not apply, then any
determination as to whether he was discriminated against becomes
moot since no relief can be granted. First theory: Kent
testified that he visited the federal Equal Employment
Opportunity Commission Office immediately after receiving
his June 1982 letter of termination from Barton, and
complained about discrimination because of filing an oil
spill report to EPA. Second theory: Kent met with Barton
in April 1983, Barton informed him that June 8, 1982 letter
was in error, he was still considered an employee, and he
should keep his uniforms. Kent filed an application for
state unemployment benefits in December 1983 based on his
belief that he was merely laid off due to lack of work,
until he read Barton's statement in the state file that he
was terminated in late 1980 for sleeping on the job and
failure to accept assignment. At that time he concluded
that Barton had misled him about the status of his
employment that Barton had discriminated against him since
he filed the oil spill report in October 1981, and that
Barton continues to discriminate against him. Kent filed
the second complaint with DOL on February 10, 1984,
maintaining that it should be deemed timely because of the
misrepresentations of Barton.
With reference to the contact with EEOC, I note that
this allegation was first raised by letter from Kent dated
February 25, 1985 and his testimony in August 1987. (HT
1987, p. 171-176) After receiving the June 8, 1982 letter
from Barton he telephoned EEOC in Atlanta, and the following
day visited and spoke to an interviewer who had 12 years of
experience involving employee-employer type of disputes.
Kent made it "perfectly clear that I felt very strongly that
I had been unjustly fired because of the report I filed with
[Page 9]
the EPA and requested help in seeking action against
Barton". Kent was shown a copy of the EEOC guidelines and
told they had no jurisdiction over his grievance. There is
no corroborating testimony or documentary evidence for this
allegation. The only contact with any federal agency, prior
to the claims filed with the federal Department of Labor,
named in his comprehensive "A Request for Help" and
testimony in October 1984 was the Environmental Protection
Agency. (Joint Exh. 1) Nowhere in Kent's considerable
writings and two complaints, or records obtained the Department
of Labor, EPA, and state Board of Licenses, (and EEOC) is
there any reference or assertion of any contact with EEOC to
complain of any discrimination or wrongful job actions.
(Exhibits R-6, R-8, R-12, C-1) Mr. Gilbert showed and
discussed the timeliness of the claim pursuant to the Field
Operations handbook which states a complaint is timely when
"the complainant has raised the precise statutory claim but
has done so in the wrong forum". FOH 52x52-2(b)(1) and (3)
(Exhibit R-5). Kent explored the timeliness issue with
Solicitor Office in the National Office (washington, D.C.)
according to a document in the file from Mr. Gilbert dated
April 5, 1983, (Exhibit R-9) with reference to the tolling
under (b)(1) where employer misleads employee to delay, and
(b)(2) where the precise claim is raised in the wrong forum.
Mr. Gilbert testified that Kent visited him 6 to 8 times
between December 1982 through April 1983, after the
dismissal of the complaint. Kent testified that at the
outset Mr. Gilbert explained the filing requirement of 30 days
from the date of discrimination. (HT 1987, p. 39) They
discussed the requirements of the law. Kent himself
investigated to see if there was any way of getting around
the 30 day time limitation and did find out about the
tolling considerations. The denial by Mr. Valin of Kent's
complaint by letter dated April 20, 1983 states that
subsequent to the termination notice in June 1982 and the
complaint filed in December 1982, "we are not aware of any
record which shows that you contacted a federal agency to
specifically register a complaint regarding your termination
or to seek recourse under any Federal law" (Exhibit R-11).
Kent responded to Mr. Valin by letter stating that
Environmental Protection Agency and Barton Protective
Services "would contain all the information necessary to
determine if tolling is justified". In Kent's chronological
history of his case filed in 1984 he enclosed a copy of the
[Page 10]
court's decision in District of the City of Allentown v.
Ray Marshall and Hanna (Ct of Appeal, 3rd. Cir., 1981) with
reference to the tolling exception. (Joint Exh. 1) In June
1984, Kent received a letter from Mr. Gilbert of the
Department of Labor, stating that after consulting with the
National Office, the second complaint is denied because any
rights were precluded by the failure to meet the timeliness
requirement. No testimony was offered at the hearing before
the undersigned judge october 1984 about any contact with
any federal agency other than EPA. In my decision of
February 14, 1985, I held that the 30 day time limit must be
measured from receipt of the June 8, 1982 letter, that the
untimely filing was not occasioned by employer misrepresentations,
and cited Allentown, supra, holding that equitable
tolling may be applicable where plaintiff has raised the
precise claim in issue but in the wrong forum. I concluded
that Kent did not timely file his complaint(s) nor did he
meet any of the bases warranting equitable tolling. As
noted above, Kent's first assertion of contact with EEOC was
made on February 25, 1985. In August 1987, he testified
that he previously mentioned the EEOC contact to Mr. Gilbert
and his attorney. This is not corroborated. After due
regard for demeanor and credibility factors, in light of the
evidence of record, I find not credible that Kent made any
contact with the EEOC relative to employment discrimination
within 30 days of the termination of employment of June 8,
1982.
With reference to the second theory that the complaint
was timely filed in January 1984 because Barton misled
claimant as to the status of his employment, Kent relies on
an alleged meeting with Barton in April 1983, at which he
was told that the June 1982 letter was incorrect, he was
still an employee, hold onto the uniforms, and he would get
a post later. All three of Barton's witnesses (Dixon, Sims,
Guivara) deny any such meeting or information given to Kent.
Kent testified that this meeting took place after he received
the April 20, 1983 letter from Mr. Valin (DOL) rejecting the
complaint because it was not filed within 30 days of the
termination notice of June 8, 1982. Kent has maintained
throughout that he was not fired/terminated in June 1982
because: (1) he was not granted an exit interview (2) the
employer did not give him reasons for termination (3) the
employer did not respond to his letter of July 1982, and (4)
[Page 11]
he still has the uniforms. On April 25, 1983, after the
meeting with Barton, Kent complained to the Georgia State
Board of Examiners asking their help to get his security
license. The Board investigated the matter and took no
action. A memorandum of an interview (by telephone) dated
September 20, 1983 by the investigator contains this remark:
"In June 1982 he received a copy of a letter from Barton
that he should turn in his uniforms that he no longer worked
there, but he has never received official termination notice
and has been unable to get anyone from Barton to talk to him
about his termination". (Joint Exh. 5, p. 10-14) Kent's
evidence also shows that despite numerous and frequent
telephone calls from late in 1981 into 1983 to Barton, he
was unable to talk with management or schedule a meeting.
It was clear that Barton had knowledge in October 1981 that
Kent reported the oil spill to EPA. Also, clear in Kent's
mind is that he was being discriminated against because he
blew the whistle. He stated in his 'A Request for Help'
that he was aware that Barton probably would "ask for my
resignation" because of reporting it to EPA. The
non-response to numerous efforts to contact Barton principals
made it quite obvious as to why he was not assigned any post
after october 1981, in view of having worked regularly for
Barton since March 1978. The letter of June 8, 1982 was
clearly a termination notice,even if Kent refused to accept
it as such. Kent sought a more definitive notice of
termination so as to pursue other causes (unemployment,
slander, or exoneration of negligence), but Barton refused
to comply. The fact that Barton in 1983 mid-staled the
facts or dates of termination with reference to the
Unemployment claim does not avail Kent with respect to the
timeliness of his complaint filed in January 1984. Kent was
aware of all relevant facts at the appropriate times.
From my evaluation of the credible evidence, I find that
no meeting took place in 1983 at which Barton indicated that
he was still an employee. I find no action on the part of
Barton which misled Kent or caused him to delay filing
either the first or second complaint. It was clear to Kent,
long before he filed the complaint in December 1982, that he
believed that he was being discriminated against. The
doctrine of continuing discrimination is not applicable on
these facts. Moreover, there was no rehiring of Kent, nor
was he led to believe that he was still an employee of
[Page 12]
Barton. On this issue, I believe Barton's evidence that no
meeting occurred in 1983 as asserted by Kent. As late as
September 20, 1983, Kent indicated that Barton would not
talk to him about the termination in June 1982 (Joint Exhibit
5, page 14).
Title 33 USC 1367(b) provides that:
"Any employee ... who believes that he
has been fired or otherwise discriminated
against by any person in violation of
subsection (a) of this Section may, within 30
days after such alleged violation occurs,
apply to the Secretary of Labor for a review
of such firing or alleged discrimination."
The controlling case law is reflected in the following
Greenwald v. city of North Miami Beach (Ct. of Appeals 5th
Cir. 1979); The School District of the city of Allentown v.
Marshall 657 F.2d 16 (3rd. Cir. 1-981); Smith v. American
President Lines Ltd. 571 F.2d 102 (2nd. 1978); United
Van Lines v. Evans (4111 U.S. 553) 1977; Meyer v. Riegel
Products Corp. 720 F.2d 303 (3rd. Cir. 1983); and Hicks v.
Colonial Motor Freight Lines 84-STA-20 (1-985)(Secretary
of Labor, December 10, 1985).
In Allentown, supra, the appellate court, in denying
relief from the 30 day time limit for filing the complaint,
set out the principal grounds wherein the doctrine of
equitable tolling may be applied as, (1) where plaintiff has
been actively misled by the defendant, (2) plaintiff in some
extraordinary way was prevented from asserting his rights,
or (3) plaintiff raised the precise statutory claim but in
the wrong forum. In Greenwald, supra, the appellate court
refused to apply the doctrine of equitable tolling where
plaintiff timely filed a grievance under the civil service
rules but did not file a Whistleblower complaint within the
30 days time limit. In any event the courts uniformly held
that a complaint filed in the wrong forum must be timely as
well as identifying the precise statutory claim. The
Secretary of Labor in Hicks, supra, adopted the administrative
Law Judge's dismissal of the Whistleblower complaint
because it was not filed within the 30 day time limit not
was equitable tolling warranted. In that case a letter was
[Page 13]
sent to EEOC within the statutory time limitation referring
vaguely to a wrongful dismissal but the precise
Whistleblower claim was not filed until 5 days after the
expiration of the statutory period.
Although Smith, supra, Donovan, supra, and Meyer, supra
would acknowledge and grant relief from the time bar where
subsequent actions by on employer mislead or induce an
employee to delay filing a Whistleblower complaint, the
facts in the instant case do not establish those factors.
The applicability of equitable tolling considerations hinges
on the facts of each case. The complainant herein has not
proven facts warranting waiver, estoppel, or equitable tolling
in accordance with established principles of law.
Findings of Fact and Conclusions of Law
1. The complaints filed December 1982 and January 1964 are
in issue. The second complaint is a refiling of the first
complaint.
2. The complaints fall within the whistleblower provisions
of the Water Pollution Control Act and the Safe Drinking
Water Act. Barton was aware as early as October-November
1981 that Kent filed the oil spill report.
3. Kent was engaged in protected activity under the Act (33
U.S.C. 1367) when he filed the oil spill report with the
Environmental Protection Agency in October 1981.
4. The obvious facts sufficient to support a discrimination
complaint were apparent to Kent no later than receipt of the
letter dated June 8, 1982. There was no contact by Kent
with the EEOC or any other federal or state agency within 30
days to complain of discrimination because of 'blowing the
whistle'.
5. The evidence does not show that Barton misrepresented or
fraudulently concealed facts necessary to support his
complaints or induce him to delay filing the complaints(s).
6. The evidence does not support finding that any meeting
took place in 1983 between Barton and Kent from which Kent
could reasonably assume being rehired or recalled to a
[Page 14]
security post.
7. The evidence does not establish any conduct by Barton
which lulled Kent into delay or inaction regarding his
whistleblower cause or action.
8. Kent did not contact or file a complaint within 30 days
to any federal agency alleging discrimination by Barton
because of reporting the oil soil.
9. The evidence does not establish that either the 1982 or
1984 complaint meets any of the criteria for invoking the
equitable tolling provisions of the law. There are no
overriding equities to warrant extending the 30 day filing
provision of the Law.
10. The complainant has not met his burden of proof.
Recommended Order
It is hereby recommended that the discrimination
complaint(s) filed by Charles A. Kent be dismissed because
they were not timely filed.