Clifford v. Conoco Phillips (agency decision, September 6, 2019)

Plain-English summary

Conoco Phillips notified regulatory supervisor Judith Clifford on April 7, 2016, that her employment would end on April 27. She filed a Water Pollution Control Act retaliation complaint 46 days after receiving that notice, beyond the statute's 30-day deadline. The Board held that the filing period began with the final, definite, and unequivocal termination notice, not with the later effective date or discovery of the alleged retaliatory motive. Calling the action a layoff and keeping Clifford employed through April 27 did not make the notice ambiguous. The Board also found no grounds for equitable tolling, estoppel, or waiver and affirmed dismissal.

Decision snapshot

• Cited authorities: 33 U.S.C. § 1367; 29 C.F.R. §§ 24.103(d)(1) and 18.72(a); 5 U.S.C. § 557(b)
• Outcome: Summary dismissal of the complaint as untimely affirmed.
• Key point: The 30-day filing period began when the employee received unequivocal notice of the future termination, not on her last day of employment.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:



  JUDITH CLIFFORD,                                  ARB CASE NO.   2017-0064

                  COMPLAINANT,                      ALJ CASE NO.   2017-WPC-00002

         v.                                         DATE: September 6, 2019

  CONOCO PHILLIPS,

                  RESPONDENT.



  Appearances:

  For the Complainant:
        Alfonso Kennard, Jr., Esq.; Davina Bloom, Esq.; Kennard Richard, P.C.,
        Houston, Texas

  For the Respondent:
        Shauna Johnson Clark, Esq.; Norton Rose Fulbright US LLP, Houston, Texas

  Before: William T. Barto, Chief Administrative Appeals Judge; James A. Haynes
  and Thomas H. Burrell, Administrative Appeals Judges.



                          FINAL DECISION AND ORDER

        THOMAS H. BURRELL, Administrative Appeals Judge: This case arises under
  the Federal Water Pollution Control Act (WPCA) and its implementing regulations.
  33 U.S.C. § 1367 (1972); 29 C.F.R. Part 24 (2017). Judith Clifford filed a complaint
  with the United States Department of Labor alleging that her former employer,
  Conoco Phillips, violated the WPCA by terminating her employment. A Labor



  Department Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.)
  granting Conoco’s motion for summary decision because Clifford’s complaint was
  not filed within the WPCA’s limitations period. Clifford appealed the ALJ’s order to
  the Administrative Review Board (ARB or the Board). We affirm the ALJ’s Order
  and deny Clifford’s complaint.

                                       BACKGROUND

         Conoco hired Clifford as a regulatory supervisor in July 2014. Clifford’s job
  duties included managing compliance with oil and gas regulations and ensuring
  uninterrupted drilling and production operations by overseeing the plugging and
  abandoning of wells. In October 2015, Clifford reported to a new manager. Clifford
  claims that her new manager did not have concern for her compliance efforts. In
  March 2016, Clifford was cited for poor performance. Clifford in turn reported the
  new manager’s noninterest in her safety and compliance efforts to human resources.
  On April 7, 2016, Clifford’s manager informed her that she would be terminated
  effective April 27, 2016. The April 7 notifying letter states the following:

                  As a result of recent business decisions, this letter
                  constitutes notification regarding your layoff from the
                  company. Your employment will end by layoff on April 27,
                  2016. Please review the “Leaving Company Summary” for
                  information on your pay and participation in employee
                  benefit plans.

  Conoco Mot. for Summ. Dec. Ex. B.

         On May 23, 2016, Clifford filed a complaint with the Occupational Safety and
  Health Administration (OSHA). On September 29, 2016, OSHA issued its findings,
  concluding that Conoco provided clear and convincing evidence that it had
  terminated Clifford for non-retaliatory reasons. Clifford objected and the case was
  assigned to an ALJ for hearing. Before the ALJ, Conoco filed a motion for summary
  decision on the ground that Clifford’s complaint was barred by WPCA’s thirty-day
  statute of limitations. Clifford responded, arguing that the effective date of the
  termination began the thirty-day clock, not the date of notice. On July 24, 2017, the
  ALJ granted Conoco’s motion. The ALJ found that Clifford did not timely file her
  WPCA claim and concluded that equitable considerations did not toll the statutory



  limitations period or estop Conoco from asserting timeliness as a bar to Clifford’s
  claim.

                           JURISDICTION AND STANDARD OF REVIEW

        The WPCA’s employee-protection provision authorizes the Secretary of Labor
  to hear complaints of alleged discrimination because of protected activity and, upon
  finding a violation, to order abatement and other remedies. 33 U.S.C. § 1367. The
  Secretary has delegated authority to the Administrative Review Board (ARB or the
  Board) to review an ALJ’s decision. Secretary’s Order No. 01-2019 (Delegation of
  Authority and Assignment of Responsibility to the Administrative Review Board),
  84 Fed. Reg. 13,072 (Apr. 3, 2019).

         Under the Administrative Procedure Act, the ARB, as the Secretary’s
  designee, acts with all the powers the Secretary would possess in rendering a
  decision under the whistleblower statutes. The ARB engages in de novo review of
  the ALJ’s decision granting summary decision. See 5 U.S.C. § 557(b) (1976); Griffo
  v. Book Dog Books, LLC, ARB No. 18-029, ALJ No. 2016-SOX-041 (ARB May 2,
  2019). Summary decision is permitted where “there is no genuine dispute as to any
  material fact and the movant is entitled to decision as a matter of law.” 29 C.F.R. §
  18.72(a) (2017). On summary decision, the ALJ, in the first instance and the Board
  on appeal must review the record in the light most favorable to the nonmoving
  party. Micallef v. Harrah’s Rincon Casino & Resort, ARB No. 16-095, ALJ No. 2015-
  SOX-025, slip op. at 3 (ARB July 5, 2018).

                                            DISCUSSION

     1. Clifford had Final, Definitive, and Unequivocal Notice of Termination on
        April 7

         An employee alleging a violation of the WPCA’s employee-protection
  provision must file his complaint no later than thirty days after the alleged
  violation. 1 In cases arising under environmental whistleblower statutes like

  1 33 U.S.C. § 1367(b). Under the WPCA:


                  Any employee or a representative of employees who believes that he
                  has been fired or otherwise discriminated against by any person in



  WPCA, the limitation period for filing a complaint begins to run from the date the
  employee receives “final, definitive, and unequivocal notice” of an adverse
  employment decision. McManus v. Tetra Tech Constr. Inc., ARB No. 16-063, ALJ
  No. 2016-SOX-012 (ARB Dec. 19, 2017). The date that an employer communicates to
  the employee its intent to implement an adverse employment decision marks the
  occurrence of a violation and not the date that the employee experiences the
  consequences. Overall v. Tennessee Valley Auth., ARB Nos. 98-111, -128, ALJ No.
  1997-ERA-053, slip op. at 36 (ARB Apr. 30, 2001); see also Chardon v. Fernandez,
  454 U.S. 6, 8 (1981). In cases addressing equitable modification of statutes of
  limitations, we have been guided by the discussion of modification in School Dist. of
  City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981). In that case, which arose
  under a different whistleblower provision, the court articulated three principal
  situations in which equitable modification may apply: when the defendant has
  actively misled the plaintiff regarding the cause of action; when the plaintiff has in
  some extraordinary way been prevented from filing his action; and when the
  plaintiff has raised the precise statutory claim in issue but has done so in the wrong
  forum. Allentown, 657 F.2d at 20 (internal quotations omitted).

         Parties do not dispute that Clifford received notice of her termination on
  April 7 to be effective on April 27, 2016. D. & O. at 8. She filed her complaint on
  May 23, 2016—46 days after she had notice of her termination. On appeal, Clifford
  claims that Conoco’s April 7 notice was neither definitive nor unequivocal because
  Clifford continued to be an employee after the notice. Further, Clifford argues that
  the termination letter and severance documents use April 27, 2016, as the date of
  termination. We concur with the ALJ. 2 The fact that Clifford’s termination did not
  become effective until April 27, 2016, does not extend the notice of termination to
  that date. Halpern v. XL Capital, Ltd., ARB No. 04-120, ALJ No. 2004-SOX-054
  (ARB Aug. 31, 2005). We further deny Clifford’s claim that her discovery of Conoco’s
  allegedly retaliatory motive several days after her April 7 extends the start date.
  The Supreme Court has repeatedly stated that “discovery of the injury, not


                  violation of subsection (a) of this section may, within thirty days after
                  such alleged violation occurs, apply to the Secretary of Labor for a
                  review of such firing or alleged discrimination.
  Id.; see 29 C.F.R. 24.103(d)(1).
  2 In response to Clifford’s observation that OSHA did not find the complaint untimely, the ALJ

  correctly answered that proceedings before the ALJ are de novo.




  discovery of the other elements of a claim, is what starts the clock.” Rotella v.
  Wood, 528 U.S. 549, 555 (2000). Here, the injury is Clifford’s termination, and she
  became aware of that decision on April 7.

      2. Clifford is not Entitled to Equitable Estoppel, Equitable Tolling, or Waiver

         The ALJ analyzed Clifford’s claims under both equitable tolling and equitable
  estoppel theories of relief and found that Clifford had not demonstrated that she
  was entitled to either. 3 On appeal, Clifford argues that Conoco should be prohibited
  from asserting untimeliness because Conoco misled her as to the reason why she
  was terminated and also misled her by not using more assertive termination
  language such as “fired” and “terminated” over “layoff” and “let go.” “Lay off,”
  Clifford claims, connotes that the termination was not for performance reasons.
  Clifford additionally claims that the termination letter indicated she was let go for
  “business reasons” and did not say “effective immediately.”

         We affirm the ALJ’s findings of fact and conclusions of law. In emphasizing
  the difference between “layoff” and “termination,” Clifford cites to Donovan v.
  Hahner, Foreman, and Harness, Inc., 736 F.2d 1421, 1427-28 (10th Cir. 1984). The
  employee in Hahner, et al. complained about scaffolding and the employer informed
  the employee that he was fired. The employee was later told that he was not fired
  but was laid off until the scaffolding was repaired. Id. at 1422, 1427. Upon learning
  that he had in fact been terminated, the employee filed a complaint under Section
  11(c) of the Occupational Safety and Health Act, which has a thirty-day statute of
  limitations. The employer argued that the date that the employee had been told
  that he was laid off started the thirty-day statute of limitations and that the
  employee’s complaint was untimely. Applying equitable considerations, the trial
  court found that the complaint was timely filed because the employer had misled
  the employee and that the employee had attempted to discover his true status as to
  whether he had been fired.




  3 D. & O. at 7, 10-11. Equitable estoppel refers to those cases where the employer has actively misled

  the complainant and thus contributed to his or her inability to timely file a complaint. Equitable
  tolling refers to set of circumstances equitably excusing the complainant’s inability to timely file, for
  example, timely filed but in the wrong forum. Hyman v. KD Res., ARB No. 09-076, ALJ No. 2009-
  SOX-020 (ARB Mar. 31, 2010).




         In Hahner, et al., the use of “laid off” was part of a statement the employee
  had received indicating that he was not fired. Here, Clifford was on notice when she
  received the April 7 notice of termination. Conoco’s April 7 notice was unequivocal
  and definitive notwithstanding the use of “layoff” language or when Clifford
  suspected or discovered Conoco’s retaliatory motive. Statutes of limitation would
  not serve their purpose of promoting timely litigation if an employer, to start the
  limitations period, had to acknowledge that it fired an employee for unlawful
  reasons. Olson v. Mobil Oil Corp., 904 F.2d 198, 203 (4th Cir. 1990). Clifford’s April
  7 notice was unequivocal and Conoco did not attempt to mislead Clifford into
  believing that she was not fired. Clifford’s last day in the office was April 7, and she
  turned in her badge and keys that same day. D. & O. at 2.

         Responding to Clifford’s waiver argument, the ALJ found that waiver of a
  timeliness requirement was discretionary and that Clifford had not demonstrated
  grounds for such waiver. On appeal, Clifford claimed that the ALJ erred in finding
  that Clifford provided no legal authority in support of her claim. In support of that
  claim, Clifford claims that Conoco will not be prejudiced by the late filing. We affirm
  the ALJ’s findings and conclusions. While the absence of prejudice to the nonmoving
  party may be considered in determining whether to toll the limitations period, it
  alone is not sufficient justification for doing so. Prince v. Westinghouse Savannah
  River Co., ARB No. 10-079, ALJ No. 2006-ERA-001 (ARB Nov. 17, 2010); see also
  Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). Clifford has failed
  to persuade us that the ALJ abused his discretion not to waive the thirty-day filing
  requirement.

                                       CONCLUSION

         In conclusion, viewing the evidence in the light most favorable to Clifford, she
  has failed to establish a genuine issue of material fact that she timely filed her
  complaint or was entitled to equitable modification of the limitations period. The
  ALJ did not err in granting Conoco’s motion for summary decision on the ground
  that Clifford’s complaint was untimely filed. Accordingly, we AFFIRM the ALJ’s
  order dismissing the complaint.

         SO ORDERED.