ARB CASE NO. 96-178
ALJ CASE NO. 96-ERA-8
DATE: November 20, 1997

In the Matter of:

DONNA FRED,
   Complainant,

   v.

THE WACKENHUT CORPORATION

   and

OMAHA PUBLIC POWER DISTRICT,
   Respondents.

BEFORE: THE ADMINISTRATIVE REVIEW BOARD

   This case arises pursuant to the whistleblower provisions of the Energy Reorganization Act (ERA), 42 U.S.C. §5851 (1988) and 29 C.F.R. Part 24 (1997). The decision of the Administrative Law Judge (ALJ) issued July 19, 1996, recommending dismissal of the complaint is accepted for the reasons stated below.

   The Complainant, Fred, appearing pro se, had been employed by Respondent, Wackenhut, as a security guard at the Fort Calhoun Nuclear Power Station in Nebraska. Wackenhut was the security subcontractor to Omaha Public Power District (OPPD), the plant operator. Wackenhut fired Fred on June 8, 1989, after she had been found unfit for duty. Fred filed charges against Wackenhut and OPPD alleging discrimination, sexual harassment and retaliation. In July 1994, a trial on these allegations was held in U.S. District Court, which found against Fred. The U.S. Court of Appeals for the Eighth Circuit upheld the District Court judgment, and the U.S. Supreme Court denied certiorari. See Fred v. Wackenhut Corp., 860 F.Supp. 1401 (D. Neb. 1994); aff'd, 53 F.3d 335 (8th Cir. 1995), cert. denied, __ U.S.__, 116 S. Ct. 190 (1995).

   Three years after Fred had been fired, on July 3, 1992, Fred wrote to the Office of the Solicitor, U.S. Department of Labor, Washington, D.C., outlining a litany of allegations of mistreatment, but nothing specifically related to any complaint which she may have made to the Omaha Wage and Hour District Office concerning a violation of the ERA. Nevertheless, Fred alleges that she filed a complaint with Wage and Hour in 1989. An investigation at the Wage and Hour District Office was initiated in response to the letter, but no documentation substantiating Fred's allegations was found, nor did any of the pertinent Department of Labor staff persons, who handled all of the office's whistleblower complaints for the State of Nebraska during the time in question, recall any communication with Fred. Subsequent personal contact with Fred by a Wage and Hour investigator did not reveal any additional support for her allegations.

   Fred was advised that the law required that a written complaint alleging a violation of the ERA whistleblower provisions had to be filed within 30 days of the last complained of discriminatory act.¹ In light of that filing requirement and because Fred has not credibly explained why she waited three years after she allegedly notified the Secretary of Labor of her ERA complaint to follow up on that complaint, we cannot accept Fred's complaint for review.

   In 1995, three years after her initial communication with the Omaha District Office, Fred again contacted that office inquiring as to the status of her whistleblower complaint. We note that Fred submitted a photocopy of a letter dated June 15, 1989, addressed to the Secretary of Labor, indexed 1A, as part of the documentation she sent to the Office of Administrative Law Judges (OALJ) on August 23, 1996. There is no evidence to substantiate that this letter was ever sent.

¹The statute, at 42 U.S.C. §5851 et seq., was amended in 1992 to provide a 180-day filing period, but that amendment does not apply to this case.