DOL Home > OALJ > Whistleblower > Hall v. EG & G Defense Materials, Inc., 97-SDW-9 (ALJ Feb. 6, 1998) |
DATE: February 6, 1998
CASE NO: 97-SDW-9
In the Matter of:
JOHN RUSSELL HALL,
v.
EG&G DEFENSE MATERIALS, INC.,
Complainant,
Respondent.
This matter arises under the employee protection provisions of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §2622; the Resource, Conservation and Recovery Act ("RCRA"), 42 U.S.C. §6971; the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §300j-o(i); the Clean Water Act ("CWA"), 33 U.S.C. §1376; the Clean Air Act ("CAA"), 42 U.S.C. §7622; and the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §9610, and the regulations promulgated thereunder and contained at 29 C.F.R. Part 24. It arises from numerous complaints filed by John R. Hall, Complainant, against EG&G Defense Materials Inc., Respondent.
Complainant filed his complaint against Respondent on January 7, 1997, alleging that Respondent had violated the employee protection provisions of the above-mentioned Acts.
On June 26, 1997, the District Director notified Complainant's Counsel via letter that the complaint was not timely filed, as the last alleged violation occurred on November 14, 1996. Complainant appealed this determination on July 9, 1997, to the Office of Administrative Law Judges (the "OALJ").
On July 18, 1997, Chief Administrative Law Judge John Vittone issued a Notice of Hearing and Prehearing Order Number One, wherein a hearing in this matter was tentatively scheduled to commence the week of August 25, 1997.
On July 22, 1997, the OALJ received, via facsimile, a Joint Stipulation for
Rescheduling of Hearing and Issues to be Argued.1 Counsel for both parties jointly moved for an extension of the hearing until
November of 1997, and requested that such hearing be held in Salt Lake City, Utah. Furthermore,
the parties requested that the hearing be limited to the issue of whether the complaint in this matter
was timely filed, and agreed to a briefing schedule as to this issue.
Judge Vittone issued a Prehearing Order Number Two on July 31, 1997,
wherein he granted the parties' request for a continuance, the limitation of the hearing to the issue
of timeliness, and the briefing schedule. Judge Vittone ordered that discovery in this case would be
limited to the timeliness issue, and that a subsequent order would establish revised dates for
prehearing exchanges and oral hearing.
On August 19, 1997, the OALJ received Respondent's Motion to Dismiss
Based on Untimeliness. Respondent's Memorandum in support of said Motion was received on
August 20, 1997.
On September 16, 1997, the OALJ received Complainant's Memorandum in
Opposition to Motion to Dismiss. A psychiatric evaluation, Claimant's affidavit, and an affidavit
of Kelly Brinkerhoff were attached in support of said Memorandum. The OALJ received
Respondent's Reply Memorandum in Support of Motion to Dismiss on September 24, 1997.
On October 7, 1997, the OALJ received Complainant's Responsive
emorandum in Opposition to Respondent's Motion to Dismiss. On October 14, 1997, the OALJ
received Respondent's Objections to Additional Response by Complainant. In a letter received by
the OALJ on October 21, 1997, Complainant responded to said objections.
On November 25, 1997, the undersigned administrative law judges issued a
Notice of Case Assignment. Pursuant to this Notice, the undersigned requested that the parties
forward to him all pertinent case materials created since the inception of the complaint in this matter.
Respondent's documents were received by this office on December 8, 1997; and Complainant's
documents were received on December 22, 1997.
Respondent's Motion to Dismiss Based on Untimeliness
Respondent moves to dismiss the complaint in this matter because it is
untimely. Respondent states that Complainant's last day of work was on January 5, 1996, and on
November 14, 1996, Complainant was notified that his employment was administratively terminated
because he had been on disability leave for a total of one year.
Respondent notes that the complaint is dated January 7, 1997; one year after
his last day of work and almost two months after Complainant was notified of his termination. Thus,
Complainant failed to file this action within thirty days as required by the applicable statutes, and
his claim must be dismissed.
Complainant's Memorandum in Opposition to Motion to Dismiss
Complainant asserts that Mr. Hall "lost it" after he was allegedly
retaliated against for his whistleblowing activities, and could no longer continue working. As a
result, Complainant suffered severe depression and has never been able to return to work.
Complainant notes that the thirty day filing requirement is subject to equitable
modification, and contends that Complainant's mental condition prevented him from properly
responding at the time he received the termination notice.
Furthermore, Complainant asserts that at no time did Respondent's plant post
notice to inform him of his rights as a whistleblower. Complainant attached the psychiatric
evaluation authored by Dr. Weitzel, Claimant's affidavit, and the affidavit of Kelly Brinkerhoff in
support of his position.
Reply Memorandum in Support of Motion to Dismiss
Respondent contends that Complainant has failed to carry his burden to set
forth specific facts showing a genuine issue of material fact, and thus this case should be dismissed
without a hearing on the equitable tolling issue. First, Respondent asserts that a review of the
statutes and their implementing regulations reveal that it was under no obligation to post notice of
whistleblower rights.
Respondent further states that Complainant cites no direct authority for the
argument that his alleged mental condition justifies tolling in this case, and that in Biester v.
idwest Health Services, Inc., 77 F.3d 1264 (10th Cir. 1996), the Tenth Circuit noted
that it has "never held that mental incapacity tolls the statute of limitations."
Respondent also asserts that Complainant has been actively and consistently
assisting in and pursuing his various legal claims since early 1996, and there is no evidence that
Complainant was either institutionalized or adjudicated incompetent during the limitations period.
Finally, Respondent notes that Complainant was represented by counsel during
the thirty-day filing period, and the fact that Complainant had counsel during the filing period
negates his equitable tolling arguments. Therefore, Respondent asserts that Complainant has made
no showing of "active deception" by EG&G nor showed "extraordinary"
circumstances which precluded him from filing on time, so the limitations period should not be
tolled, and this case should be dismissed without a hearing.
I. Complainant's Mental Condition
The first issue is whether Complainant has presented sufficient evidence to
raise a genuine issue of material fact concerning equitable tolling of the thirty day period, such that
a hearing is warranted in this case. See generally School District
of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3rd Cir. 1981)(providing the three
principal situations where application of the equitable tolling doctrine is appropriate).
In order to defeat Respondent's motion for summary decision, Complainant
must set forth specific facts showing that there is a genuine issue of material fact for the hearing
concerning equitable tolling. 29 C.F.R. §18.40(c); see generally
Colgan v. Fisher Scientific Co., 935 F.2d 1407, 1413 (3rd Cir. 1991); Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1476-1481 (6th Cir. 1989); Radobenko v. Automated
Equipment Corp., 520 F.2d 540, 543-544 (5th Cir. 1975); Grizzard v.
Tennessee Valley Authority, Case No. 90-ERA-52, Sec. Final Dec. and Order of Remand,
slip op. at 4-6.
The facts material to the undersigned's resolution of this issue are not in
dispute. Both parties agree that Complainant's notification of termination was dated November 14,
1996, and that Complainant received said letter on November 15, 1996. Complainant has also
submitted his psychiatric evaluation by Dr. Weitzel, who diagnosed Complainant with stress and
severe depression, and its attendant symptoms. Respondent has not submitted any competent
evidence disputing this diagnosis, and therefore, the undersigned accepts this diagnosis as true.
Based on a review of the submissions of both parties on this issue and
pertinent case law, it is determined that summary judgment dismissing this complaint as untimely
is appropriate. Complainant has failed to raise a genuine issue of material fact concerning his
allegation that equitable tolling is warranted in this case due to his mental incapacity. Even taking
Complainant's evidence in the light most favorable to Complainant, it is insufficient to warrant a
hearing on the issue of equitable tolling. Tracy v. Consolidation Edison Co., 89-CAA-1
(Sec'y July 8, 1992).
It is well established that the thirty day limitations period for filing an
administrative whistleblower complaint may be subject to equitable tolling. Recognized bases for
equitable tolling in the filing limitation in whistleblower cases include when: (1) the defendant has
actively misled the plaintiff respecting 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 in issue but has mistakenly done so in the wrong forum. School District of City of
Allentown v. Marshall, 657 F.2d 16, 19-20 (3rd Cir. 1981), quoting Smith v.
American President Lines, Ltc., 571 F.2d 102, 109 (2nd Cir. 1978); Ellis v.
Ray A. Schoppert Trucking, 92-STA-28 (Sec'y Sept. 23, 1992).
In the present case, Complainant has not alleged any of these recognized bases
for equitable tolling, but rather seeks tolling due to mental incapacity, alleging that his mental
condition has in some extraordinary way prevented him from asserting his rights in a timely manner.
In analogous cases under Title VII and the Age Discrimination in Employment
Act (hereinafter, the "ADEA"), see School District of City of Allentown
v. Marshall, 657 F.2d 16, 19 (3rd. Cir. 1981), the courts have declined to allow equitable tolling
for reasons of ill health unless the plaintiff had actually been adjudicated or institutionalized as
mentally incompetent. Steward v. Holiday Inn, Inc., 609 F.Supp. 1468, 40 FEP Cases 191,
192 (E.D. La. 1985)(physical and mental incapacity are not an additional category for tolling time
limitation); Kerver v. Exxon Prod. Research Co., 40 FEP cases 1567, 1568 (S.D. Tex.
1986)(no tolling due to plaintiff's psychological impairment resulting from job loss), aff'd,
810 F.2d 196 (5th Cir. 1987).
In the Tenth Circuit case of Biester v. Midwest Health Services,
Inc.,77 F.3d 1264 (10th Cir. 1996)2 , the
plaintiff brought a claim under Title VII of the Civil Rights Act of 1964. Plaintiff received a right
to sue letter from the Equal Employment Opportunity Commission (the "EEOC") on
October 22, 1993, and filed his lawsuit on January 26, 1994, five days after the expiration of the 90
day period prescribed by Title VII. Plaintiff appealed the district court's grant of summary judgment
for failure to bring suit within the 90 day time limit, and argued that his mental incapacity of major
depression tolled the statute of limitations.
In its opinion, the Tenth Circuit noted that it has "never held that mental
incapacity tolls the statute of limitations." Id. at 1268. The Tenth Circuit further
found it unnecessary to reach that issue, because even if mental incapacity could toll the period,
plaintiff had failed to present facts to justify equitable tolling based on mental incapacity.
The Tenth Circuit noted that the few courts which have recognized an
exception for mental incapacity have limited its application to exceptional circumstances. Under the
circumstances in Biester, the Tenth Circuit declined to toll the statute based on plaintiff's
claim of mental illness. First, plaintiff did not allege "exceptional circumstances" such
as being adjudged incompetent or institutionalized. Second, the evidence demonstrated that plaintiff
was quite capable of pursuing his own claim. Thus, the Tenth Circuit found that plaintiff's mental
condition did rise to level of the mental incapacity contemplated by the courts that have tolled the
90 day limitation period, and summary judgment was affirmed.
In the present case, Complainant has not been adjudicated incompetent nor
institutionalized during the 30 day limitation period. The report of Dr. Weitzel states that
Complainant was hospitalized at the University of Utah Psychiatric Institute sometime after March
27, 1997, but that Dr. Weitzel did not have a discharge summary from that hospitalization.3 However, such hospitalization did not occur
during, or even prior to, the limitations period in this matter, and thus has no probative evidentiary
value on the issue of Complainant's mental state during the thirty day filing period.
The undersigned has also reviewed the report of Dr. Robert Weitzel, dated
ay 1, 1997, regarding his ongoing treatment and psychiatric evaluation of Complainant. Dr.
Weitzel states that he has seen Complainant approximately thirty times in his office since November
10, 1995. Dr. Weitzel diagnosed Complainant with major depression, single episode, with the
exacerbator being work stress from October of 1995.
With regard to specific office visits, on September 13, 1996, Complainant was
depressed but said he was better overall. Dr. Weitzel noted that he seemed a bit agitated, but
appeared to be in improved spirits, and his Wellbutrin medication was discontinued. On November
5, 1996, Dr. Weitzel received a phone call from Complainant, requesting that he be put back on
Wellbutrin.
Complainant's next visit with Dr. Weitzel was on January 28, 1997. He told
Dr. Weitzel that he continued to be occupied by his problems and previous employment, but stated
that he was somewhat better.
After carefully reviewing the report of Dr. Weitzel, and examining its contents
in the light most favorable to Complainant, the undersigned can find no exceptional circumstances
that justify tolling the limitations period in this case.
Dr. Weitzel did not observe Complainant during the thirty day limitations
period. The office visits reported by Dr. Weitzel either pre-date or post-date the filing of the
complaint, and thus are of little probative value on the issue of Complainant's mental state during
the limitations period.
However, even when considered, those visits surrounding the limitations
period do not demonstrate that Complainant was incapable of pursuing his claim. In September of
1996, Complainant was still depressed and a bit agitated, but also found to be "better
overall" and "in improved spirits." Complainant's visit in January of 1997 is
hardly "extremely negative", as characterized by Complainant's Counsel. As previously
noted, Dr. Weitzel found Complainant still occuppied with his problems, but that he considered
himself "somewhat better."
Dr. Weitzel found that Complainant suffered from significant stress and
depression, and indeed it is apparent from his report that Complainant was very worried about his
marriage, finances, and job. Complainant also experienced numerous symptoms, including
irritability, migrane headaches, and sleeplessness. However, nothing in this report demonstrates that
because of Complainant's mental condition he was prevented in some extraordinary way from timely
asserting his rights.
In Complainant's Affidavit (CX-C), Complainant states that at the time he
received his termination notice, he was suffering from a particularly difficult time of depression, and
could not do anything beyond his basic needs. Complainant states that as a result, he failed to file
a complaint with the thirty day limitations period.
In regards to Complainant's statements in his affidavit, Complainant's Counsel
asserts that "nothing has been introduced by way of evidence to indicate anything to the
contrary." However, as will be discussed further below, such contrary evidence has been
presented. Two weeks after receiving his termination notice, and during the thirty day limitations
period, Complainant was in fact capable of negotiating and signing a settlement agreement in his
divorce action.
Secondly, the facts in the present matter further indicate how Complainant was
able to pursue his legal rights, and has been doing so since early 1996. On January 17, 1996,
Complainant filed a religion and disability discrimination suit against EG&G. (RX-A)4 Complainant also filed a workers' compensation
claim against EG&G, which was received by the Industrial Commission of Utah on February 2,
1996, (RX-B) and was deposed by Counsel for EG&G in this matter on May 17, 1996. (RX-C)
On August 5, 1996, John Preston Creer, Esq., entered a formal appearance on
behalf of Complainant in the workers' compensation matter.5
(RX-D) Mr. Creer also represents Complainant in the present matter.
In the fall of 1996, Complainant was going through a divorce. His then-wife,
Teresa L. Hall, signed the Verified Complaint for Divorce on September 12, 1996. (RX-E) On
November 29, 1996, during the 30 day limitations period in this case, Complainant and Ms. Hall
signed a Settlement Agreement. (RX-F)
Complainant's workers' compensation hearing was held on December 19,
1996, four days after the 30 day limitations period expired. Mr. Creer represented Complainant at
this hearing, and Complainant provided testimony in that matter. (RX-G) Specifically, Mr. Creer
questioned Complainant regarding his termination:
Most notably, during the thirty day limitations period in this whistleblower
action, Complainant completed negotiations in his divorce and signed a settlement agreement. This
alone provides conclusive, undisputed evidence that Complainant was capable of pursuing his legal
rights during the limitations period. Furthermore, Complainant's hearing testimony in his workers'
compensation suit illustrates that he did in fact understand the contents of Respondent's termination
letter, and further understood the consequences of such termination regarding his health benefits.
Therefore, it is determined that the undisputed facts show that Complainant's
depression did not render him unable to comprehend and protect his legal rights. Complainant had
been actively pursuing his legal rights against EG&G since January of 1996, and the fact that he
completed negotiations and signed a settlement agreement on November 29, 1996, shows that he was
able to engage in deliberate decision making, even during the thirty day limitations period, sufficient
to pursue his instant claim alone or through counsel.
Furthermore, courts which do recognize mental illness as a reason for
equitable tolling have refused to toll the limitations period when the plaintiff is represented by
counsel during the limitations period. See Lopez v. Citibank, N.A., 808 F.2d 905
(1st Cir. 1987); Moody v. Bayline Marine Corp., 664 F.Supp. 232 (E.D.N.C. 1987).
See also Tracy v. Consolidated Edison Co., 89-CAA-1 (Sec'y
July 8, 1992)(undisputed fact that complainant was represented by counsel supports finding that
complainant cannot invoke equitable tolling); Mitchell v. EG&G, 87-ERA-22 (Sec'y July
22, 1993)(equitable tolling is inappropriate when plaintiff has counsel during the limitations period).
As previously noted, Complainant retained his current counsel in his workers'
compensation case no later than June 27, 1996, and Counsel entered a formal appearance in the
workers' compensation matter on August 5, 1996. Thus, Complainant has been represented by
counsel during his period of illness and the limitations period, and counsel has pursued
Complainant's worker's compensation claims.
Furthermore, it was Complainant's Counsel, and not Complainant, who filed
the complaint at issue in this matter. Therefore, the undersigned cannot find that Complainant's
depression should toll the limitations period when Complainant has presented no compelling reason
as to why, despite the active assistance of counsel, he was unable to timely file a complaint in this
matter.
Examining all the evidence presented in the light most favorable to
Complainant, Complainant has shown no exceptional circumstances to demonstrate that his mental
incapacity reached such a level that he was incapable of filing a complaint within the requisite time
period. Therefore, the undersigned determines the Complainant's mental incapacity was not such
that it prevented him from pursuing this claim against Respondent. Complainant has failed to raise
any genuine issue of material fact with respect to the tolling of the limitations period.
II. Posting of Whistleblower Rights
Complainant also contends that since he never saw any notice posted in the
EG&G plant informing of his rights and responsibilities as a whistleblower, the limitations period
should be tolled. Complainant cites Bonham v. Dresser Industries, Inc., 569 F.2d
187 (3rd. Cir. 1977), a case arising under the ADEA, in support of this argument.6 Respondent asserts that no statutory or
regulation provision in the statutes at issue require EG&G to post notice of whistleblower rights.
In McNally v. Georgia Power Co., 85-ERA-27, 29-32 (Sec'y Sept.
8, 1992), the complainants also cited cases arising under the ADEA in support of their argument that
their late filings should be tolled until they first learned of their rights under the ERA, because the
respondent had allegedly failed to post notice of the employee's whistleblower rights under the ERA.
The Secretary stated that: "Preliminarily, I emphasize that the posting
obligation which has given rise to equitable tolling in Charlier and other ADEA cases, is
imposed by the statute itself a Congressional mandate. See Posey v.
Skyline Corp., 702 F.2d 102, 104-105 (7th Cir. 1983); cert. denied, 464 U.S.
960 (1983). Unlike the ADEA, the ERA contains no requirement that the employer post notice of
employee's whistleblower rights."
Furthermore, under the ADEA, the courts have held that an employer's failure
to comply with posting requirements tolls the limitations period only unless or until the employee
acquires actual or constructive knowledge of his ADEA rights, e.g., until the employee acquires
general knowledge of his right not to be discriminated against on account of age, or until he has
means of obtaining that knowledge, such as by viewing the informational paper somewhere outside
of the place of employment. Gabbrielli v. Enertech, 92-ERA-51 (Sec'y July 13, 1993);
citing Clark v. Resistoflex Co., 854 F.2d 762, 768 (5th Cir. 1988);
McClinton v. Alabama By-Products Corp., 743 F.2d 1483, 1485-86, n. 4 (11th Cir. 1984).
Moreover, in Wilkerson v. Siegfried Insurance Agency Inc., 683
F.2d 344, 347 (10th Cir. 1982), the Tenth Circuit held that the simple failure to post the notices
under the ADEA, without the intent to actively mislead the plaintiff respecting the cause of action,
does not extend the time within which a complainant must file his or her discrimination charge.
The undersigned agrees with Respondent that the environmental statutes at
issue, unlike the ADEA, do not impose a posting obligation on employers. A limitations period
cannot be tolled based on the alleged failure of an employer to post notices which are not required
to be posted. See Rose v. Dole, 945 F.2d 1331, 1334 n. 3 (6th Cir. 1991)(In
ERA case, complainant's attempt to indict NFS's behavior by asserting the company's failure to
comply with a non-existent notice requirement cannot succeed).
Even assuming that such an obligation was mandated, Complainant has
offered no evidence to indicate that the failure of Respondent to post such notice was done with the
intent to actively mislead Complainant regarding this cause of action, as required by
Wilkerson.
Furthermore, the facts in this case indicate that Complainant did have a general
knowledge of the right not to be discriminated against at his workplace. Complainant told Dr.
Weitzel that he had a history of being a "whistleblower" at work, having reported safety
violations, and as a result was being "hassled." Most notably, Complainant
demonstrated this right not to be discriminated against at work when he filed a charge of
discrimination against EG&G with the Utah Anti-Discrimination Division in January of 1996.
Complainant also testified that he understood the nature of his termination letter from Respondent,
which was received when Complainant was represented by counsel.
It is determined that Complainant had a general knowledge of his right not to
be discriminated or retaliated against, which under ADEA case law prevents the tolling of the filing
period even where the employer failed to post adequate notice. Thus, at the time Complainant
received his termination notice, he had notice of his whistleblower rights, and cannot rely on
Respondent's failure to post as an excuse for his untimely filing.
Based on the above discussion, IT IS ORDERED that Respondent's
otion for Summary Decision is HEREBY GRANTED. Accordingly, the complaint in
this matter is DISMISSED as untimely.
Entered this 6th day of February, 1998, at Long Beach, California.
SAMUEL J. SMITH
1The original Joint Stipulation was
subsequently received on July 25, 1997.
2The present complaint was filed by
Complainant in Salt Lake City, Utah. The Secretary applies the law of the federal circuit court
where the case was filed. See Gillian v. Tennessee Valley Authority,
91-ERA-31 (Sec'y Aug. 28, 19950.
3Presumably, Complainant was
released sometime before April 15, 1997, as he came to Dr. Weitzel's office on said date.
4The following abbreviations will be
utilized herein: "RX" for Respondent's Exhibits to Reply Memorandum in Support of
otion to Dismiss Based on Untimeliness of Complaint; and "CX" for Complainant's
Exhibits to Memorandum In Opposition to Respondent's Motion to Dismiss.
5According to page 4 of Dr. Weitzel's
report, Complainant hired Mr. Creer no later than June 27, 1996: "I did have a telephone call
from the patient on June 2, 1996 regarding patient's upcoming trial and then a call on June 27, 1996,
from John Creer, the patient's attorney."
6Attached to Complainant's
emorandum in Opposition to Motion to Dismiss is the affidavit of Complainant (CX-C) and the
affidavit of Kelly Brinkerhoff, an employee of EG&G, (CX-D) both stating that they never saw such
notice posted at the plant.
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Complainant has not disputed any of the above events in either its
emorandum or Reply Memorandum in Opposition to Motion to Dismiss. These undisputed facts
show that Complainant, who has been represented by counsel since at least August 5, 1996, has
been actively pursuing various legal claims.
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Administrative Law Judge