DOL Home > OALJ > Whistleblower > Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992) |
DATE: December 8, 1992 CASE NO. 90-SDW-2 IN THE MATTER OF GAYLE EISNER, COMPLAINANT, v. U.S. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT. BEFORE: THE SECRETARY OF LABOR DECISION AND ORDER OF REMAND This case is before me for review of the [Recommended] Decision and Order of Dismissal (R.D. and O.) issued by the Administrative Law Judge (ALJ) on March 27, 1991, pursuant to the whistleblower provision of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-9(i) (1988). On November 1, 1989, prior to hearing, Respondent filed a otion to Dismiss and/or For Summary Judgment based on three grounds: that the complaint was untimely filed; that the issues raised by Complainant do not fall within any environmental statute containing a whistleblower provision; and substantively, that the requisite finding of causation is precluded. On November 27, 1989, the ALJ issued an Order to Show Cause why the complaint should not be summarily dismissed as untimely. The parties agreed to brief that limited issue, and after reviewing their submissions, the ALJ dismissed the complaint as untimely filed. Both parties have filed responses to the ALJ's decision. 1/ BACKGROUND Complainant was hired by Respondent in January 1989, under the S.C.O.P.E. part-time employment program, a cooperative program between the University of California at Berkeley and Respondent. In her complaint, dated March 22, 1990, Complainant alleged that she was wrongfully terminated on March 7, 1990, in retaliation for her having taken a position contrary to Respondent's official position on a proposed sewage plant expansion, and because of her subsequent responses to various
[PAGE 2] press inquiries concerning the matter. The Wage and Hour Division of the Department of Labor (WH) issued a preliminary finding that Respondent violated the SDWA by placing Complainant on leave-without-pay status and then terminating her in retaliation for protected conduct. The decision did not address the question of whether the complaint was timely filed. In moving for dismissal before the ALJ, Respondent argued that Complainant's March 22 complaint 2/ is time-barred because the environmental whistleblower statutes require that complaints be filed within thirty days of the action complained of, and it is undisputed that Complainant was put on leave-without-pay status on August 2, 1989, and was terminated effective January 18, 1990, by notice dated and admittedly received by Complainant on January 12. Respondent further argued that the arch 7 incident referred to by Complainant in her complaint -- Respondent's alleged refusal of a resignation letter -- is a distinctly different issue which does not prolong the period for filing a complaint about the termination. In support of its position, Respondent submitted copies of the January 12 termination notice and government Standard Form 50 (SF-50), Notification of Personnel Action, which shows Complainant's "involuntary termination" effective January 18. Respondent also submitted declarations from John Ong, who averred that he issued the termination notice after first giving Complainant an ultimatum of termination or resignation in December, and Keith Takata, who declared that after being contacted by Jennifer Sugiyama, the S.C.O.P.E program attorney, in approximately February 1990, his only suggestion was that if Complainant would submit a letter of resignation, Respondent could rescind the termination letter. Takata further declared that he never received a resignation letter. In opposition to Respondent's motion, Complainant submitted
[PAGE 3] declarations by herself and Sugiyama. Complainant declared that she did not "understand" Respondent's January 12 termination notice to be final in light of her December 1989, conversation with Ong and Takata's later statement that the termination letter would be removed if Complainant agreed to resign. Rather, she did not consider Respondent's decision to be final until March 7, when she learned from Sugiyama that Respondent was no longer willing to consider a resignation letter or any other action other than termination. Sugiyama declared that on January 31, Takata agreed that the termination letter was inappropriately issued and that he would rescind it if Complainant would instead submit a resignation letter. Respondent replied by submitting a supplemental declaration from Sugiyama in which Sugiyama clarified her discussions with Takata. She further added that although Complainant made an appointment to bring in a draft resignation letter, Complainant did not keep the appointment or call concerning the missed appointment, and Complainant never brought Sugiyama a letter of resignation. Respondent also submitted the declaration of Karen Toole, who testified that on January 25, 1990, she mailed to Complainant the SF-50 referred to previously and Standard Form 2810, Notice of Change in Health Benefits Enrollment, both of which show Complainant's involuntary termination on January 18, 1990. DISCUSSION Because the ALJ considered declarations and other submitted materials in granting Respondent's motion, his ruling is treated as a recommendation for summary decision, even though he did not expressly characterize it as such. 29 C.F.R. § 18.40(d). 3/ After reviewing the parties' submissions and the applicable law, I agree with the ALJ's ruling that the allegation of unlawful termination must be summarily dismissed as time barred because on that question, there is no genuine issue as to any material fact and Respondent is entitled to prevail as a matter of law. 4/ Id.; Gore v. CDI Corp., Sec. Fin. Dec. and Ord., Jul. 8, 1992, slip op. at 5; Nunn v. Duke Power Co. Case No. 84-ERA-27, Dep. Sec. Dec. and Ord. of Rem., Jul. 30, 1987, slip op. at 8; see also Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256-57 (1986). 5/
[PAGE 4] The ALJ found that the January 12 termination letter and the government forms, all indisputably received by Complainant, clearly indicate that Complainant's termination was effective January 18, 1990, and "vividly reflect a final discharge of a permanent nature." R.D. and 0. at 2. I agree. The January 12 termination notice states: Upon reviewing your work performance, and as we discussed on December 20, 1989, I have decided to separate you from your position as an EPS Student Trainee, effective January 18, 1990. Exhibit D attached Ong Declaration (Decl.). Generally speaking, a cause of action for unlawful termination accrues when the employee receives such an unequivocal, final notice of the
[PAGE 5] decision, English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988), citing Chardon v. Fernandez, 454 U.S. 6 (1981), and Delaware State College v. Ricks, 449 U.S. 250 (1980). This case is no exception. Complainant argues that the filing period should be equitably tolled because she was misled and unaware of her cause of action until March 7. As the ALJ concluded, however, the mere fact that Respondent was willing to replace the termination letter with a letter of resignation provides no basis for tolling the thirty-day period within which Complainant was required to file a complaint for unlawful termination. See R.D. and O. at 1- 2. 6/ It is undisputed that Complainant (or Sugiyama on Complainant's behalf), not Respondent, instigated the discussions to permit the resignation letter. At that point, Respondent's role was passive; the onus was on Complainant, but she took no action to submit a resignation letter. These facts cannot be viewed as demonstrating affirmative misleading or deceptive conduct by Respondent which could justify tolling. See Dillman v. Combustion Engineering. Inc., 784 F.2d 57, 60 (2d Cir. 1986); Tracy v. Consolidated Edison Co.. of New York. Inc., Case No. 89-CAA-l, Sec. Fin. Dec. and Ord., Jul. 8, 1992, slip op. 6-7, and cases cited therein. Furthermore, Takata's statement that
[PAGE 6] the January 12 termination letter was "inappropriately" issued could not have misled Complainant into believing that the termination decision had been revoked because it is undisputed that Complainant had no knowledge of this remark. 7/ Finally, tolling is inappropriate here because in her declaration, Complainant admits that after receiving the termination notice in January, she contacted Sugiyama for help because she believed that the reasons given for her termination were pretextual, that her discharge was retaliatory, and that neither termination nor forced resignation were appropriate. Eisner Decl. at 4, p. 11. See Kale v. Combined Insurance Co. of America, 861 F.2d 746, 753 (lst Cir. 1988); Naton v. Bank of California, 649 F.2d 691, 696 (9th Cir. 1981). 8/ Nor does Respondent's willingness to ameliorate the effects of Complainant's termination by accepting a resignation letter constitute grounds for equitable estoppel in this case. Dillman, 784 F.2d at 61; see English, 858 F.2d at 963; Naton, 649 F.2d at 696. Complainant's argument that Respondent engaged in "bad faith negotiations" is post-hoc, based solely on conjecture, and insufficient to raise a genuine issue. See Kohler v. Ericsson, Inc., 847 F.2d 499, 501 (9th Cir. 1988); Rockland County Sheriff's Deputies v. Grant, 670 F. Supp. 566, 568 (S.D.N.Y. 1987). There is no allegation that Respondent's willingness to accept a resignation letter was contingent on Complainant's agreement not to file a complaint. There is no allegation that
[PAGE 7] Respondent's subsequent unwillingness to accept a resignation letter was because the thirty-day time period had lapsed. To the contrary, Complainant asserts that Respondent became unwilling because she spoke to reporters about the sewage plant project. Eisner. Decl. at 5, p. 14; see also Complainant's arch 22, 1990, complaint at 3. Complainant has not presented even colorable evidence showing any genuine issue of bad faith. Anderson, 477 U.S. at 250. I further agree with the ALJ that Complainant's claim for unlawful discharge can not be resurrected under a continuing violation theory. According to Complainant, Respondent committed, as part of an organized scheme, a series of continuing violations against her, culminating on March 7, 1990, within the thirty-day filing period. All the incidents recited by Complainant are 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., Case No. 86-SWD-2, Sec. Dec. and Ord. of Rem., June 15, 1989, slip op. at 8. The acts were sufficiently permanent to trigger Complainant's awareness of Respondent's alleged discrimination. Berry v. Board of Supervisors of LSU, 715 F.2d 971, 981 (5th Cir. 1983). Consequently, the continuing violation theory does not preserve the timeliness of Complainant's claim. 9/ I find, however, that Complainant sufficiently raised in her complaint a separate allegation of a discriminatory act accruing on March 7, 1990, which the ALJ did not address, and which requires remand. 10/ Since Respondent accepts, for purposes of its motion, that Complainant's complaint was filed on March 22, summary dismissal of this allegation as untimely would be improper. Complainant claims that she received notice on March 7 that Respondent was no longer willing to accept a reslgnation letter because she discussed the sewage plant project with reporters. In remanding the case, I reach no conclusions, nor should any be
[PAGE 8] inferred, as to whether this allegation is cognizable or meritorious. Specifically, I do not find or imply that Complainant's post-termination discussion with the press constitutes a protected activity or that Respondent's subsequent unwillingness to accept a resignation letter constitutes an adverse action. The ALJ must consider these issues in the first instance on remand. While the Secretary has held that former employees may be afforded protection under the whistleblower provisions at 29 C.F.R. Part 24, see Cowan v. Bechtel Construction. Inc., Case No. 87-ERA-29, Sec. Dec. and Ord. of Rem., Aug. 9, 1989, the question as presented in the posture of this case has not been addressed. In addition, the other two grounds pressed by Respondent in its Motion to Dismiss and/or For Summary Judgment have not been addressed and the motion, therefore, remains pending before the ALJ as a preliminary matter on remand. ORDER Accordingly, the complaint as it relates to Complainant's discharge and other allegations of discriminatory acts committed prior to discharge IS DENIED. The complaint as it relates to the allegation of a discriminatory act accruing on March 7, 1990, IS REMANDED for further consideration consistent with this decision. SO ORDERED. LYNNE MARTIN Secretary of Labor Washington, D.C. [ENDNOTES] [1] Respondent asserts that Complainant's initial brief, dated June 3, 1991, was untimely filed and should not be considered. The briefing schedule required initial briefs to be filed on ay 31, 1991. Upon consideration of the short delay, and in order to have the benefit of both parties' views on the case, I accept all briefs. [2] For purposes of its motion, Respondent has accepted the alleged March 22 filing date. Respondent's Rebuttal Brief at 5 n.5. [3] I reject Complainant's contention that the ALJ exceeded his authority under 29 C.F.R. Part 24 (1992), by dismissing the case. While the regulations at Part 24 do not specifically provide for summary decision or dismissal on the issue of timeliness, the ALJ is authorized to entertain and rule on appropriately filed motions pursuant to the regulations at 29 C.F.R. Part 18 (1992). 29 C.F.R. §§ 18.1, 18.40, 18.41. See, e.g., Howard v. TVA, Case No. 90-ERA-24, Sec. Fin. Dec. and Ord. of Dis., Jul. 3, 1991, slip op. at 4. [4] In addition, contrary to Complainant's charge, the ALJ's decision with respect to the discharge issue is not violative of 29 C.F.R. § 18.41(a)(2) or the Administrative Procedure Act, 5 U.S.C. § 557 (1988). The ALJ identified the legal precedent and facts on which he relied, such that no speculation as to the basis of his ruling is required. Lockert v. U.S. Dept. of Labor, 867 F.2d 513, 517 (9th Cir. 1989). [5] Complainant had a sufficient opportunity for discovery. In Respondent's letter formally appealing the preliminary determination, Respondent requested that the hearing date be delayed because it intended "to file a dispositive motion for summary judgment and/or dismissal based on the untimeliness of the complaint and on lack of jurisdiction." Letter from Suzette E. Leith to the Chief ALJ, dated July 25, 1990. The letter indicates service on Complainant. While Complainant may not have been formally represented by counsel at this time, she declared that she had consulted an attorney regarding the case shortly after March 7, 1990. On October 16, l99O, the ALJ issued a notice scheduling the hearing. Respondent filed its motion for dismissal on November 1, and Complainant filed a written response on November 16. The ALJ then issued the Order to Show Cause on November 27. By letter dated December 11, counsel for Complainant appeared and confirmed that the parties had stipulated to a continuance and had agreed to a briefing schedule, following which the ALJ would decide the timeliness issue. Counsel did not indicate any efforts or make requests to obtain discovery. Rather, on January 22, 1991, Complainant submitted a memorandum, with exhibits attached, in opposition to Respondent's motion and did not claim the lack of opportunity to discover essential information. In view of Respondent's early notice and the passage of considerable time and missed opportunities for Complainant to effect discovery, Complainant's belated argument is rejected. Similarly, in view of Complainant's failure to advise the ALJ of any difficulty she was having in attempting to obtain the WH investigative file, I deny her motion requesting that I now accept that file into the record. See 29 C.F.R. §§ 24.6(b)(1), 18.54(c), 18.55. This ruling, however, does not preclude the ALJ from considering whether to admit the investigative file as relevant and probative evidence on remand, see infra at 10-11. [6] I reject Complainant's argument that the WH finding of timeliness precludes summary dismissal here. That finding is based on no legal analysis; neither is it binding. Respondent's appeal entitled the parties to a de novo consideration of the case and all extant issues. Mosbaugh v. Georgia Power Co., Case No. 90-ERA-58, Sec. Fin. Dec. and Ord., Sept. 23, 1992, slip op. at 3-4. [7] Sugiyama also clarified that although Takata stated that the termination letter was procedurally and semantically inappropriate, Takata did not state that the merits of the decision were improper. Sugiyama Supplemental (Supp.) Decl. at 2-3, paragraphs (p.) 7, 10. Even if an employer agrees to reconsider a termination decision, such reconsideration alone is legally insufficient to toll a limitations period. Ricks, 449 U.S. at 261 n.l5; Electrical Workers v. Robbins and Myers, Inc., 429 U.S. 229 (1976). [8] This case arises within the appellate jurisdiction of the Ninth Judicial Circuit. [9] I may not ignore the congressionally imposed, albeit short, limitation period based on Complainant's "due process" arguments, which as Respondent points out, are more in the nature of vague fairness arguments. After weighing the various interests at stake, Congress determined that these complaints should be made within a very short time after the alleged violation occurred. School District of the City of Allentown v. Marshall, 657 F. 2d 16, 20 (3d Cir. 1981). It is not unfair to recognize both benefit and detriment to guarantee '"evenhanded administration of the law. "' Allentown, 657 F.2d at 21. [10] It is not fatal that Complainant's complaint did not set forth this claim precisely. Nunn, slip op. at 12 n.3. Nor is it determinative that Complainant's prior counsel did not press the ALJ to consider the question of timeliness with respect to this separate allegation. I am not bound by the prior legal theories, particularly at this early stage of the proceeding. Chase v. Buncombe County, Case No. 85-SWD-4, Sec. Dec. and Ord. of Rem., Nov. 3, 1986, slip op. at 5. See also English, 858 F. 2d at 963.