DOL Home > OALJ > Whistleblower > Majors v. Asea Brown Boveri, Inc., 96-ERA-33 (ALJ Oct. 1, 1996) |
Date: October 1, 1996
Case No.: 96-ERA-33
DOUGLAS N. MAJORS
COMPLAINANT
against
ASEA BROWN BOVERI, INC.
RESPONDENT
Appearances:
Pro Se
For Complainant
Michael T. Noble, Esq.
Assistant Chief Counsel
For the Respondent
Before: DAVID W. DI NARDI
Administrative Law Judge
This case arises under the Energy Reorganization Act of 1974 as amended, 42 U.S.C. § 5851 ("Act" or "ERA"), and the
implementing regulations found in 29 C.F.R. Part 24, whereby employees of licensees of or applicants for a license from the Nuclear Regulatory Commission 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. The undersigned scheduled a hearing in New London, Connecticut to begin on September 30, 1996 (ALJ EX 2), and the hearing was CANCELLED by ORDER issued on September 13, 1996. (ALJ EX) The following abbreviations shall be used herein: "ALJ"-Administrative Law Judge Exhibits, "CX"-Complainant Exhibits "RX"-Respondent Exhibits.
Douglas N. Majors ("Complainant" herein) has filed his complaint seeking the so-called whistle blower protection of the Energy Reorganization Act ("ERA"or the "Act") because he was fired for having engaged in protected activity (i.e., raising safety concerns) at Combustion Engineering Company, now a part of Asea Brown Boveri, Inc. ("ABB").
In his May 30, 1996 Complaint, Complainant states as follows (CX 1):
"I work for Asea Brown Boveri, formerly Combustion Engineering. I have been on long term disability and come to realize that the Company is discriminating against me because of nuclear safety issues I raised while working as a principal nuclear engineer for the Company.
"In 1984, I tried to issue a 10 CFR 21 for safety concerns with operating nuclear power plants. I was not allowed to complete the issuance of this document and was directed to issue info-bulletins instead which later I was also prevented from issuing.
"My evaluation went from exceptional and exceeding requirements in all areas of my job to one of being totally unsatisfactory. I was reassigned to a non-nuclear position where personnel problems continued to mount against me.
"I dissociated in 1985, as a result of these problems with my job, during a neighborhood conflict and was left with post traumatic stress disorder. This resulted in my going on long term disability starting in 1986.
"As shown in Enclosure (a), the Company cut my long term disability Benefits to offset my Social Security award which came six years after I became disabled. As shown in Enclosure (b), my attorney informed the Company this is in violation of the insurance policy in effect at the time I went on disability. As shown in enclosure (c), my attorney requested the Company to provide the plan-document for the insurance policy in effect when I went on disability and the Company has failed to do so to date.
"The Company has made no effort to return me to work. I asked to return to work under the disability status but the Company has stated through its agent that it has no intention of taking me back. Instead, as may be seen in Enclosure (d), the Company has placed a stipulation on me stating I must do volunteer work before I pursue competitive work anywhere and makes no mention whether this would lead to my returning to work at ABB. The only motive the Company has is for me to do volunteer work so I return to work elsewhere and lose my disability status. It is not willing to accept responsibility for the fact that it was its nuclear safety issues that caused my disability to start with. This volunteer work' has been made a condition for me to return to work and is not part of the insurance policy in effect when I went on disability.
"In addition, I am a Vietnam Era Veteran. I feel many of the personal problems I experienced in the workplace and my neighborhood as well as the lack of justice that was afforded me to clear my name over the neighborhood incident is because I am a Vietnam Vet. For the Company to stipulate that I do this volunteer work so that I now lose the disability status and the use of my doctor is being irresponsible and reckless. Proof to that is that I had to go back under medication, after being off for six months, just so I could cope with writing this very paragraph. Where would I be without a doctor to fall back on?
"I would appreciate anything your office can do to resolve this problem. The insurance policy states I can file suit in federal court over this matter but I don't have the resources to fight companies like ABB and Travelers and most attorneys will not take the case for that reason." (CX 1)
On the other hand, the Respondent submits that the complaint must be denied because Complainant has failed to file a timely complaint and Respondent has filed a Motion for Summary Judgment, pursuant to 20 C.F.R. Part 18 of our Rules of Practice. In support of the motion, Respondent states as follows, (RX 1):
1. The Complainant, Douglas N. Majors, became a salaried employee of Combustion Engineering, Inc. in 1978.
2. Complainant notified Respondent that he was mentally disabled from performing his job effective October 15, 1986 (see Attachment 1 to RX 1).
3. In October, 1986, Respondent had a disability plan in effect which was composed of two types of disability coverage:
The details of these Benefits were set forth in the Combustion Engineering - Life, Disability and Medical plan for Salaried Employees Summary Plan Description, pp. 9-11 (see Attachments 2 and 3). Copies of Attachment 3 were distributed to all salaried employees on or about July, 1984 (see back cover of Attachment 3).
5. In attachment 3, the Long-Term Disability Benefits are as follows:
6. Attachment 3 was in effect from 1984 to 1989 and the reduction of Long-Term Disability Benefits by amounts received from social security has remained unchanged to present (see Attachment 2 and 4).
7. In 1990, Combustion Engineering, Inc. was acquired by Asea Brown Boveri Inc. and Asea Brown Boveri Inc. continued the Long-Term Disability Benefits unchanged.
8. On April 24, 1987, Complainant was sent a Long-Term Disability Benefits application along with a cover letter (see Attachment 5) specifically stating that the Long-Term Disability Plan provided that Company-paid Benefits would be reduced by any Social Security Disability Benefits received (note the year on Attachment 5 is incorrectly typed in as 1986).
9. On April 29, 1987, Complainant returned the competed Long-Term Disability application (see Attachment 6) sent with Attachment 5 to the Company requesting Long-Term Disability Benefits. On Attachment 6, Question 28 asks whether the claimant is entitled to disability Benefits from a variety of sources, including specifically the Social Security Administration. On Attachment 6, in the Authorization and Assignment section directly above the Complainant's signature, the application states, "I hereby agree to refund any monies due the Plan as a result of payment of disability Benefits from any source listed in Item 28 above." Complainant completed and signed Attachment 6 and, thus, had additional knowledge on April 29, 1987 that his Long-Term Disability Plan provided that Company-paid Benefits would be reduced by any Social Security Disability Benefits he received.
10. On or about June 2, 1987, Complainant received notice that his application for Long-Term Disability from the Company had been approved (see Attachment 7). The letter of approval states that Social security Disability Benefits, if received, are to be deducted from the Long-Term Disability Benefits and that overpayment of Long-Term Disability Benefits due to retroactive awards of Social Security Disability Benefits must be refunded. Thus, Complainant had additional knowledge on or about June 2, 1987 that the Long-Term Disability Plan provided that Benefits would be reduced by any Social Security Disability Benefits he received.
11. Complainant's initial claim for Social Security Disability was denied (see Attachment 8), and the Respondent's insurance company became aware of this denial several years later (see Attachment 9).
12. On May 13, 1991, its insurance carrier, who administered the Long-Term Disability plan, wrote to Complainant offering to assist in his appeal or reapplication for Social Security Disability Benefits (see Attachment 9). In that letter it was stated to Complainant:
Thus, on or about May 13, 1991, Complainant was again informed that his Long-Term Disability Plan provided that Company-paid Benefits would be reduced by and Social Security Disability benefit he received.
13. On May 17, 1991, Complainant wrote to the Travelers Insurance Company acknowledging receipt of the May 13, 1991 (see Attachment 9) letter and declined to reapply for Social Security Disability Benefits at that time (see Attachment 10).
14. On May 26, 1993, Complainant wrote to the Travelers Insurance Company with several questions relative to his status and benefits (see Attachment 11), specifically: whether he was required to perform volunteer work as a prerequisite to beginning rehabilitation processes; whether the Company was required to provide him employment upon completion of a rehabilitation program; and whether or not his Long-Term Disability Benefits would be reduced by an award of Social Security Disability Benefits related to his disability and rendered subsequent to his initial receipt of Long-Term Disability Benefits. Complainant included with that letter, a copy of the cover and page 10 of Attachment 3 and quoted a small portion of the benefits section page, which is quoted in its entirety in Paragraph 5 herein.
15. On July 15, 1993, Complainant's May 26, 1993 letter was answered by the Travelers Insurance Company (see Attachment 12), stating that: Rehabilitation and expenses were voluntary and that volunteer work was, as its term states, voluntary'; that the Travelers had no opinion as to his re-employment; that the receipt of Social Security Disability Benefits was taken into consideration in determining the Long-Term Disability Benefits due; and that the portion of the disability language he had referred to in his letter meant that subsequent cost-of-living increases to monthly Social Security Disability Benefits were not deducted from Company-paid benefits. Thus, on or about July 15, 1993, Complainant was again informed that his Long-Term Disability Plan provided that company-paid benefits would be reduced by any Social Security Disability Benefit he received (cost-of-living increases excepted).
16. On August 16, 1993, the Complainant's case manager at Travelers Insurance Company sent the Complainant additional correspondence (see Attachment 13) explaining in detail why and how his Long-Term Disability Plan provided that Social Security Disability awarded to him would be offset against his Long-Term Disability Benefits and quoted the applicable sections of the same Summary Plan Description Complainant had referred to in his letter (see Attachment 11). Thus, on or about August 16, 1993, Complainant was again informed that his Long-Term disability Plan provided that company-paid benefits would be reduced by any Social Security Disability Benefits he received.
17. On September 27, 1993, Complainant wrote to Ms. R. Da Silva (Attachment 14) at Asea Brown Boveri, Inc., reiterating the questions of his May 26, 1993 letter (Attachment 11).
18. Ms. Da Silva replied on October 15, 1993, (Attachment 15), again informing complainant that the rehabilitation plan was voluntary, that voluntary work is not mandatory, that the Americans with Disabilities Act was applicable to him and that the Long-Term Disability Plan provided that Social Security Disability Benefits (but not cost-of-living increases) would be an offset against his Company-paid Long-Term Disability Plan provided that his Company-paid Benefits would be reduced by any Social Security Disability Benefit he received.
19. On October 7, 1993, Travelers wrote to Complainant notifying him that they were aware that Social Security Disability Benefits had been awarded to him retroactive to August, 1992 and that those Benefits were being credited as an offset against the Long-Term Disability Benefits he had received from the Company pursuant to the Long-Term Disability Plan (see Attachment 16). Thus, Complainant was again informed that his Long-Term Disability Plan provided for such reduction and that his Benefits would be reduced by and Social Security Disability benefit he had received.
20. Over two and one-half years later, on June 20, 1996, Complainant, by letter dated May 30, 1996, filed a complaint in letter form alleging violations of the Energy Reorganization Act (ERA). In that letter Complainant alleges that in 1984, he was prevented from issuing a 10 CFR 21 regarding nuclear safety.2 His complaint is that in retaliation for his actions in 1984 that Respondent did the following in 1993:
21. On June 26, 1996, the District Director dismissed Complainant's charge as untimely. (ALJ EX 1)
22. The Complainant timely appealed the District Director's dismissal by telegram. (CX 2)
On the basis of the totality of this closed record, especially Respondent's affidavits, I make the following:
The employee protection provision of the Act provides that:
42 U.S.C.S. § 5851 (Supp. May, 1993).
A. The Complaint Was Not Filed Within 180 Days of the Alleged Violation.
2. Complainant first had knowledge that any Long-Term Disability Benefits would be
reduced by an award of Social Security Disability Benefits when, as a salaried employee, he
received a copy of the Summary Plan Description (Attachment 3) in 1984. The Long-Term
Disability plan specifically provides for the reduction.4
3. Over a period of ten years (1986-1996) Complainant was repeatedly apprised of the
terms of the Long-Term Disability plan regarding the reduction of Compnay-paid Long-Term
Disability Benefits by any amount received from Social Security.
4. On October 7, 1993, Complainant was notified that an offset of Long-Term disability
Benefits was being put into effect based on his award of Social Security Disability Benefits
(see Attachment 16).
5. In May, 1993, Complainant alleged that he was being required to perform volunteer
work (Attachment 11). In July, 1993, he was informed that volunteer work was not
mandatory (Attachment 12). Nonetheless, in September, 1993, he reiterated that allegation
(see Attachment 14) and was again informed in October, 1993 that no volunteer work was
required of him (Attachment 15). He has never been required to perform any volunteer work.
6. If the Complainant's allegations that the insurance companies used Social Security
Disability Benefits to offset his Long-Term Disaiblity benefit and required him to perform
volunteer work in retaliation for his having attempted to issue a 10 C.F.R. 21 were true (and
Respondent denies that they are true), those alleged violations occurred several years before
he filed him complaint in June, 1996.
B.
2. It is equally clear from the absence of evidence to the contrary that Complainant never
raised any allegation of retaliation with either of the two national insurance companies
administering the Long-Term Disability Benefits over the last ten years, or with the Company
Benefits personnel, or at any time prior to May 30, 1996 did he ever attribute any decision
of John Hancock Insurance Company personnel, Travelers Insurance Company (Attachment
14) and was again informed in October, 1993 that no volunteer work was required of him
(Attachment 15). He has never been required to perform any volunteer work.
3. If the Complainat's allegations that the insurance companies used Social Security
Disability Benefits to offset his Long-Term Disability benefit and required him to perform
volunteer work in retaliation for his having attempted to issue a 10 C.F.R. 21 were true (and
Respondent denies that they are true), those alleged violations occurred several years before
he filed his complaint in June, 1996.
C.
2. It is equally clear from the absence of evidence to the contrary that Complainant never
raised any allegation of retaliation with either of the two national insurance companies
administering the Long-Term Disability Benefits over the last ten years, or with the Company
Benefits personnel, or at any time prior to May 30, 1996 did he ever attribute any decision
of John Hancock Insurance Company personnel, Travelers Insurance Company personnel or
the Company employees regarding his Long-Term Disability Benefits to any alleged
retaliation.
3. The amount of Complainant's Company-paid Long-Term Disability Benefits is
determined by the Long-Term Disability Benefits Plan. The Plan specifies that the Company
paid Benefits be reduced by Social Security Disability Benefits received and the plan has
been consistently administered in that manner with regard to all the employees who have
received Benefits pursuant to it. The reduction of Complainant's benfits by the amount
received from Social Secruity was not due to any alleged protected activity.
D. While summary judgment may seem, at first blush, an unusually harsh
result, the undersigned is not empowered to ignore the congressionally imposed limitation
period for filing a whistleblower complaint. School District of Allentown v. Marshall,
657 F.2d 16,30 (3d Cir. 1981)(the choice of the appropriate time for filing such claims
is not entrusted to the undersigned. It is the result of legislative determinations made after
weighing the various interests at stake. Obviously, Congress intended that complaints be
made and resolved within a very short time after the alleged violation occurred). See
also Rose v. Dole, 945 F.2d 1331 (6th Cir. 1991) (per curiam).
Complainant cannot avoid the time constraints for filing his
complaint by attempting to submit new allegations on a time-barred claim of discriminatory
discharge. Howard v. TWA, 91-ERA-36 9Sec'y Jan. 13, 1993). The time
limitations commence on the date that the complainant is informed of the challenged
employment decision rather than at the time the effects of the decision were ultimately felt.
See Howard v. TWA, 90-ERA-24 (Sec'y July 3, 1991), aff'd sub nom.,
Howard v. U.S. Department of Labor, 959 F.2d 234 (6th Cir. 1992); English v.
Whitfiled, 858 F.2d 957, 961-962 (4th Cir. 1988); Janikowski v. Bendix Corp.,
823 F.2d 945, 947 (6th Cir. 1987); Ray v. TWA, 88-ERA-14 (Sec'y Jan. 25,
1991).
The Ricks-Chardon rule has been applied to
whistleblower complaints and this rule states that the proper focus in assessing time-bar
defenses is the time of the challenged conduct and its notification rather than the time its
painful consequences are felt. Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28
(1981); Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498 (1980).
oreover, the period for filing a whistleblower complaint commences on the date the
complainant receives unequivocal notice of his or her suspension or termination from
employment. Tracy v. Consolidated Edison Co. of New York, Inc., 89-CAA-1
(Sec'y July 8, 1992).
An examination of Complainant's complaint (CX 1) does not
demonstrate affirmative misleading or deceptive conduct by Respondent that would justify
tolling of the time limits for filing his complaint. See Dillman v. Combustion
Engineering, Inc., 784 F.2d 57, 60 (2d Cir. 1986); Tracy, supra, slip op. at
607 and cases cited therein. Moreover, the principles of equitable tolling operate
independently of the continuing violation doctrine. Egenrieder v. Metropolitan Edison
Co., 85-ERA-23 (Sec'y apt. 20, 1987). Complainant does not allege, and the record
cannot establish, a pattern of continuing violations of the ERA, thereby allowing this
Administrative Law Judge to invoke the well-settled principle of equitable tolling.
Charging periods in whistleblower cases are subject to equitable
modification. For example, employers have been estopped from claiming the defense of
untimely filing where they have induced or lulled an employee into not filing promptly.
Estoppel also may be appropriate if failure to file timely results from a deliberate design by
the employer or from actions that the employer unmistakably should have understood would
cause the employee to delay filing. In such circumstances, an employee may be aware of his
or her statutory cause of action but fails to file timely due to his or her reasonable reliance
on the employer's misleading or confusing representations or conduct. Modification of the
filing period thus serves as a corrective mechanism. Some circumstances which have
precipitated estoppel are:
Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).
See also School Dist. of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981);
English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); Rose v. Dole, 945
F.2d 1331 (6th Cir. 1991)(per curiam).
The restrictions on equitable tolling must be scrupulously observed.
Equitable tolling is not an open-ended invitation to disregard limitations periods merely
because they bar what may otherwise be a meritorious cause. Doyle v. Alabama Power
Co., 87-ERA-43 (Sec'y Sept. 29, 1989) (citing School District of the City of
Allentown v. Marshall, 657 F.2d 16, 19-10 (3d Cir. 1981)).
In Doyle, the complainant asserted that he was misled by federal government
officials about his right to file a complaint.
In some circumstances, where there is a complicated
administrative procedure, and an unrepresented, unsophisticated complainant receives
misleading information from the responsible government agency, a time limit may be tolled.
See, e.g., Page v. U.S. Industries, Inc., 556 F.2d 346, 351 (5th Cir. 1977);
Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 754 n.9 (3d Cir.
1983), cert. denied, 464 U.S. 852 (1983); Roberts v. Arizona Board of
Regents, 661 F.2d 796, 800 (9th Cir. 1981); White v. Dallas Independent School
District, 581 F.2d 556, 562 (5th Cir. 1978). However, in City of Allentown v.
arshall, (the only Court of Appeals decision on equitable tolling at that time under
an analogous 29 C.F.R. Part 24-type whistleblower provision), the complainant contacted the
Environmental Protection Agency, which first offered to advise him about filing a complaint
and then delayed doing so. The court held that "[t]he alleged confusion at the EPA is
. . . irrelevant." 657 F.2d at 21. The court distinguished situations in which "the
defendant has actively misled the plaintiff respecting the cause of action", 657 F.2d at
20, where the tolling may be justified, from cases where a government agency may have
given confusing information but the defendant "was in no way responsible for
[plaintiff's] failure to file a complaint within the statutory period." 657 F.2d at 20-21.
The Secretary found that the circumstances presented in
Doyle were insufficient to invoke equitable tolling. The requirements for filing a
complaint and the time limit under the ERA and 29 C.F.R. Part 24 are straightforward. The
record indicated that the complainant was aware of the 30 day time period for a number of
years, and had, at most, received some incorrect information from Department of Labor
officials about its applicability to a blacklisting ocmplaint -- information for which the
respondent was not responsible. Several times between 1983 and 1987 the complainant
believed he was being blacklisted, but did not file a complaint.
Five factors to be considered in determining whether equitable
tolling is appropriate in a given case are:
Where the complainant waited 54 days after discharge to consult
an attorney, purportedly because he was waiting to hear about his unemployment application
and because he went on vacation with his son, the delay was not excusable. Where there was
no evidence that the complainant was prevented from investigating his rights within the
statutory period, by his own admission he suspected that his firing was for shistleblowing
activity, and he was not later made aware of any new facts which he was not previously
aware of with regard to his firing, absent some evidence that he was somehow deterred from
seeking legal advise by his employer, equitable tolling is not warranted. Rose v. Dole,
945 F.2d 1331 (6th Cir. 1991) (per curiam).
Filing periods are subject to equitable modification. Zipes
v. Transworld Airlines, Inc., 455 U.S. 385, 393 (1982). Generally, the doctrines of
equitable estoppel and equitable tolling are mechanisms for modifying a limitations period.
See Clark v. Resistoflex Co., 854 F.2d 762, 768-769 (5th Cir. 1988); Kale
v. Combined Ins. Co. of America, 861 F.2d 746, 752 (1st Cir. 1988). Respondents
may be equitably estopped from claiming the time bar defense where they have induced or
deliberatley misled an employee into neglecting to file promptly. Clark at 769 n.4;
Felty v. Graves-Humphreys Co., 785 F.2d 516, 519 (4th Cir. 1986); Larry
v. The Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991), slip opl at 12-19,
aff'd sub nom. The Detroit Edison Co. v. Secretary, United States Dept. of Labor,
No. 91-3737 (6th Cir. Apr. 17, 1992) (unpublished) (available at 1992 U.S. App. LEXIS
8280). The doctrine of equitable tolling focuses on the complainant's excusable ignorance
as a reason to modify the limitations period. Clark at 769, n.4; Cf. Andrew
v. Orr, 851 F.2d 146, 150 (6th Cir. 1988) (doctrine of equitable tolling applies when
employee misses filing deadline because of affirmative misleading conduct by employer or
ineffective but diligent conduct by employee).
Courts generally have held that unless the employer has acted
deliberately to deceive, mislead or coerce the employee into not filing a cliam in a timely
manner, equitable estoppel will not apply. See English v. Whitfield, 858 F.2d 957,
963 (4th Cir. 1988); Clark v. Resistoflex Co., 854 F.2d at 768-769. Moreover, the
doctrine of equitable tolling is narrowly applied. See generally Electrical Workers v.
Robbins & Myers, Inc., 429 U.S. 229, 236-240 (1976); City of Allentown,
657 F.2d at 19-21; Symmes v. Purdue University, 87-TSC-5 (Sec'y Mar. 10,
1992), slip op. at 2-3; Garn v. Benchmark Technologies, 88-ERA-21 (Sec'y Sept.
25, 1990), slip op. at 7-8; Billings v. Tennessee Valley Authority, 86-ERA-38
(Sec'y June 28, 1990), slip op. at 9-10; Doyle v. Alabama Power Co., 87-ERA-43
(Sec'y Sept. 29, 1989), slip op. at 2-6, aff'd, Doyle v. Secretary, U.S. Dept. of Labor,
949 F.2d 1161 (11th Cir. 1991), cert. denied, 113 S. Ct. 225, 121 L. Ed. 2d
162 (1992) (unpublished 11th Cir. decision available at 1991 U.S. App. LEXIS 29326).
In Tracy v. Consolidated Edison Co. of New York, Inc.,
89-CAA-1 (Sec'y July 8, 1992), a summary decision dismissing the complaint as
untimely was appropriate where the complainant failed to raise a genuine issue of material
fact concerning his allegation that equitable tolling was warranted because he was misled by
the respondent, even taking the complainant's evidence in the light most favorable to the
complainant.
In response to the motion for summary decision, the complainant,
in another case, submitted an affidavit alleging that post-suspension, and after the union filed
a grievance to initiate arbitration, a union representative initiated a discussion with
management over the complainant's situation and that the management representative
indicated the Union should not take further action because the matter was being resolved.
This evidence did not indicate that the respondent deliberately sought to mislead or delay the
complainant from filing a CAA claim, but rather that the union approached the respondent
and was involved in negotiation and arbitration on the complainant's behalf. See
Electrical Workers v. Robbins, 429 U.S. at 236-240 (employee's pursuit of internal
grievance procedure set up in collective bargaining agreement does not toll filing
requirement); Ackison v. Detroit Edison Co., 90-ERA-38, slip op. at 2
(complainant's use of internal grievance procedures does not toll filing period); In
Pfister v. Allied Corp. 539 F. Supp. 224, 227 (S.D.N.Y. 1982) (employer's
participation in settlement discussions does not toll statute of limitations for filing action over
discharge because no evidence acted in bad faith or deceitfully lured plaintiff to miss
appropriate filing date).
Furthermore, the complainant was represented by counsel during
this period and immediately filed a grievance and an identical whistleblower complaint under
the OSHA, which further supported a finding that the complainant cannot invoke equitable
tolling under the circumstances. See generally Kent v. Barton Protective Services,
84-WPC-2 (Sec'y Sept. 28, 1990), slip op. at 11-12, aff'd Kent v. United States
Dept. of Labor, No. 90-9085 (11th Cir. Oct. 3, 1991); McGarvey v. E G & G
Idaho, Inc., 87-ERA-31 (Sec'y Sept. 10, 1990), slip op. at 3-4; Symmes, 87-TSC-5, at 2-3, and appended ALJ's R.D. & O. at 608.
Hence, the evidence established that the complainant was given
final and unequivocal notice of his immediate suspension and promptly proceeded to pursue
his remedies with the assistance of the union and his counsel -- not that the
respondent deliberately mislead the complainant. Tracy, supra.
Moreover, it is well settled that ignorance of the ERA filing
period alone is not sufficient to warrant equitable tolling. See Rose v. Dole, 945
F.2d 1331, 1335 (6th Cir. 1991); English v. Whitfield, 858 F.2d 957, 963 (4th Cir.
1988); School District of the City of Allentown v. Marshall, 657 F.2d 16, 21 (6th
Cir. 1981). Hancock v. Nuclear Assurance Corp., 91-ERA-33 (Sec'y Nov. 2,
1992), slip op. at n3. Ignorance of legal rights, or failure to seek legal advice, does not toll
a statute of limitations. Regardless of actual knowledge, "everyone is charged with
knowledge of the United States Statutes . . . ." Federal Crop Issuance Corp. v.
errill, 332 U.S. 380, 384-85 (1947). Billings v. Tennessee Valley Authority,
86-ERA-38 (Sec'y June 28, 1990).
The doctrine of equitable tolling is narrowly applied and focuses
on the complainant's excusable ignorance of his or her statutory rights as a reason to modify
the limitations period. See Kale v. Combined Insurance Company of America,
861 F.2d 746, 752 (1st Cir. 1988); Andrews v. Orr, 851 F.2d 146, 150-151
(6th Cir. 1988); School District of the City of Allentown v. Marshall, 657 F.2d
16, 19-20 (3d Cir. 1981); Tracy v. Consolidated Edison Co., 89-CAA-1 (Sec'y
Fuly 8, 1992), slip op. at 5-8. Ignorance of the filing requirements under the ERA and failure
to read the notice posted by the employer, are not sufficient to toll the filing period and
excuse the untimely filing of a complaint. See Kale at 753-754; School
District of Allentown at 19-20.
Harrison v. Stone & Webster Engineering Corp., 91-ERA-21 (Sec'y Oct. 6,
1992).
The restrictions on equitable tolling must be scrupulously
observed. Equitable tolling is not an open-ended invitation to disregard limitations periods
merely because they bar what may otherwise be a meritorious cause. Doyle v. Alabama
Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989) (citing School District of the City
of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981)).
In Doyle, the complainant asserted that he was misled by federal government
officials about his right to file a complaint.
Where the complainant argued for a waiver of the ERA's statute
of limitaitons "in the interest of justice", the Secretary stated that such waiver or
equitable tolling is an extraordinary remedy and is not a method to preserve a claim
"out of a vague sympathy for particular litigants." "Billings v.
Tennessee Valley Authority, 86-ERA-38 (sEC'Y June 28, 1990), quoting
Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152 (1984), and also
citing Barnes v. Hillhaven Rehabilitation & Convalescent Center, 686 F. Supp.
311, 314 (N.D. Ga. 1988).
With reference to the existence of a continuing violation, the
cases are noteworthy for an inquiry as to whether the complaint involves a single, discrete
act or acts of a continuing nature. For example, the secretary, after first considering when
the complainant received unequivocal, final notice, and finding that it occurred on January
12, the Secretary considered whether the circumstance fit under a continuing violation theory.
The Secretary, after first considering when the complainant received unequivocal, final
notice, and finding that it occurred on January 12, considered whether the situation fit under
a continuing violation theory. The Secretary found that all of the incidents recited by the
complainant were clearly separate and distinct and not acts of a continuing nature. See
Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480-81
(9th cir. 1989); London v. Coopers & Lybrand, 644 F.2d 811, 816 (9th Cir.
1981); Helmstetter v. Pacific Gas & Electric Co., 595 F.2d 711 (D.C. Cir. 1979).
Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 19, 1989).
Courts generally recognize an equitable exception to statutory
limitations periods for continuing violations " [w]here the unlawful employment
practice manifests itself over time, rather than as series of discrete acts.'" The courts
in Malhotra v. Cotter & Co. 885 F.2d 1305, 1310 explained:
A compelling case might be made for the presence of a
continuing violation, however, where a respondent engages in a systematic practice of
denying promotion opportunities and other Benefits. See Tyson v. Sun Refining &
arketing Co., 599 F.Supp. 136, 138-140 (E.D. Pa. 1984), and cases discussed therein.
Evidence of discriminatory actions antedating the filing period but found not to be
"continuing" violations nevertheless may constitute relevant background
evidence, i.e., "[e]vidence of past practices may illuminate ... present patterns of
behavior." Malhotra v. Cotter & Co., supra at 1310. Accordingly, earlier
violations properly bear on questions of Respondent's later motivation, even if the associated
claims are untimely.
However, where incidents are clearly separate and sufficiently
permanent to trigger the complainant's awareness of the respondent's alleged discrimination,
the continuing violation theory does not preserve the timeliness of the complainant's claim.
Eisner v. United States Environmental Protection Agency, 90-SWD-2 (Sec'y
Dec. 8, 1992). to support a continuing violation theory, the complainant must allege a
separate discriminatory act occurring within the limitations period. See Egenrieder v.
etropolitan Edison Co., 85-ERA-23 (Sec'y Apr. 20, 1987), slip op. at 3-8. General
allegations of continuing discrimination are not sufficient to establish a continuing violation
and preserve the timeliness of a complaint.
Howard v. Tennessee Valley Authority, 91-ERA-36 (Sec'y Jan. 13, 1993).
A claim of continuing violation cannot be considered where the
complainant has not provided any factual evidence, through affidavits or otherwise, which
would indicate a factual issue precluding dismissal on the basis of the respondent's summary
judgment motion. Under the continuing violation doctrine, "[m]ere continuity of
employment, without more, is insufficient to prolong the life of a cause of action for
employment discrimination." Delaware State College v. Ricks, 449 U.S.
250, 257 (1980).
Thus, where a Complainant offers nothing besides the conclusory
phrase "continuing violation" in support of a tolling of the statute, and pertinent
factual information of a discriminatory act or acts during the limitations period had not been
submitted to buttress this theory, the Administrative Law Judge correctly dismissed the
Complainant's action on the basis of summary judgment. Billings v. Tennessee Valley
Authority, 86-ERA-38 (Sec'y June 28, 1990).
In view of the foregoing, I am constrained to find and conclude
that the May 30, 1996 complaint filed by the Complainant must be DISMISSED
as untimely filed. Complainant, who began to work for Combustion Engineering (now ABB)
in 1978, ceased active employment on October 15, 1986 as he was mentally disabled from
performing his job. He then received his salary under the company's wage continuation plan
and such salary continued for 26 weeks and he then began to receive long-term disability
benefits. He was clearly on notice, as of October, 1986, that such benefits would be reduced
to offset the receipt of Benefits from any other source, such as the Social Security
Administration. (See Attachment 3) Complainant not only was aware of such
offset provision, he agreed in writing "to refund any monies due the Plan as a result of
payment of disability benefits from any source listed in Item 28 above." (See
Attachment 6) Complainant has periodically been advised by Respondent that the offset
provision was still in effect even though ABB acquired Combustion Engineering, Inc., in
1990.
Complainant, mindful of the potential offset, declined to apply
for SSA disability benefits in May of 1991. (See Attachment 6) Complainant has
periodically been advised by Respondent that the offset provision was still in effect even
though ABB acquired Combustion Engineering, Inc., in 1990.
Complainant, mindful of the potential offset, declined to apply
for SSA disability benefits in May of 1991. (See Attachment 10) He was again
told of the offset in July of 1993, at which time he was receiving SSA disability benefits
(See Attachment 12) and he was again told in August of 1993 about the offset.
(See Attachment 11) Complainant was again told about the offset by Ms. R. Da
Silva (Attachments 14, 15) and Travelers Insurance Company, on October 7, 1993, wrote
Complainant that they were aware that Social Security disability benefits had been awarded
to him retroactive to August, 1992 and that those Benefits were being credited as an offset
against the Long-Term Disability Benefits he was receiving from the company. (See
Attachment 16) Complainant did not file his complaint until May 30, 1996.
As can be seen, Complainant sat on his rights from 1984 to May 30, 1996. Thus, his
complaint clearly is untimely.
This Administrative Law Judge, viewing the evidence most
favorably toward Complainant, as I must as Respondent has filed a Motion for
Summary Judgment herein, finds and concludes that any discriminatory treatment or
retaliation began at least as of October 15, 1986, during which time the thirty day statute of
limitations was in effect, that even viewing the receipt of Long Term Disability Benefits as
a form of equitable estoppel, during which time he was "lulled" into not filing
a complaint, or viewing such receipt as a continuing violation, Complainant's cause of action
arose on or about July 15, 1993, at which time he was told, inter alia, about the
offset provision as affecting his Long Term Disability Benefits. As of that date, the statute
of limitation had been increased to 180 days and, nevertheless, Complainant waited until May
30, 1996 to file his complaint, clearly an untimely filing. I also note that complainant was
represented by an attorney until at least July 18, 1996, at which time the attorney advised Mr.
Noble that she "will not be representing Mr. Majors" at the hearing scheduled
for September 30, 1996 but she concluded her letter with the remark, "it might be
helpful if you could obtain the full disability plan in effect at the time he was first declared
disabled." (RX 3)
Although a pro se complainant cannot be held to the same
standard for pleadings as if he were represented by legal counsel, the complainant must
allege a set of facts which, if proven, could support his claim of entitlement to relief.
Doyle v. Bartlett Nuclear Services, 89-ERA-19 (Sec'y May 22, 1990); Riden
v. Tennessee Valley Authority, 89-ERA-49 (Sec'y July 18, 1990). As discussed above,
I find and conclude that Complainant has not alleged a set of facts which, if proven, could
support his claim of entitlement to relief.
On the basis of the foregoing, I recommend that the complaint
filed by Douglas N. Majors shall be, and the same hereby is DISMISSED.5
DAVID W. DI NARDI
Dated: October 1, 1996
Boston, Massachusetts
DWD:gcb
1 Italics are as they appear in
the Summary Plan Description.
2 Respondent does not admit
that this occurred, but for the limited purpose of this Motion, considers the allegation of its
occurrence in the light most favorable to him.
3 Prior to 1992, the period for
filing a complaint was thirty (30) days.
4 The plan in question and
the Benefits thereunder are governed by ERISA, and that law, besides pre-empting other laws
with regard to the determination of plan Benefits and their administration, requires that plan
Benefits must be determined and provided to employees in compliance with the terms of the
plan on penalty of substantial penalties for such non-compliance.
5 The Final Order herein shall
be issued by the Administrative Review Board and the Board will establish an appropriate
briefing schedule for the parties.
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Administrative Law
Judge