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| September 23, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter
Office of Administrative Law Judges 304A U.S. Post Office and Courthouse Cincinnati, Ohio 45202 (513) 684-3252 Date Issued: JAN 24 1986 In the Matters of:
Case No. 85-ERA-27
Case No. 85-ERA-29
Case No. 85-ERA-30
Case No. 85-ERA-31
Case No. 85-ERA-32
[Page 2] Plaintiffs, v. GEORGIA POWER COMPANY Respondent
Statement of the Case This is a proceeding under the Energy Reorganization Act of 1974, as amended (42 U.S.C. § 5851), (hereafter called the Act), and implementing regulations at 20 C.F.R. 24. The Act, in § 5851(a), generally, prohibits a Nuclear Regulatory Commission (NRC) licensee from discharging or discriminating against an employee who has or is about to commence a proceeding to carry out the purposes of the Act. The plaintiffs jointly filed a Complaint on May 13, 1985, with the Office of the Administrator, Wage and Hour Division, Employment Standards Administration (ESA), U.S. Department of Labor against Georgia Power Company. Plaintiffs allege that they were each dismissed as employees of Georgia Power Company because of their protected activities in reporting complaints to quality assurance personnel and the NRC. On July 10, 1985, the plaintiffs were notified by Mr. Milton R. Halbert, Area Director, ESA, Wage and Hour Division, that their Complaint had been investigated, but that a determination had been made that the Complaint was not timely filed in accordance with the 30 day time limitation set by 29 C.F.R. 24. The plaintiffs, by telegram, on July 17, 1985, requested a hearing before the Office of Administrative Law Judges to appeal the determination of ESA on their Complaint. Pursuant to a notice of hearing issued on July 26, 1985, a hearing was held on August 20, 1985, in Augusta, Georgia. All parties were afforded full opportunity to be heard, to adduce evidence and to examine and cross-examine witnesses. Testimony from witnesses called by both the plaintiffs and the respondent were produced. The plaintiffs offered 7 exhibits which were admitted into the record as Plaintiffs' Exhibits 1 through 7 [Page 3] (PX 1-7). The respondent offered 23 exhibits which were admitted into the record as RX 1-23. At the close of the hearing, all parties, including the plaintiffs, agreed to waive the 90 day time limitation for a decision under the Act, and post-hearing, submitted briefs and proposed findings of fact and conclusions of law. Counsel for the plaintiffs submitted on September 27, 1985, an exhibit which is marked for identification as PX 8. The Respondent objected to PX 8 as the record was not left open for post hearing submission of this evidence, and further moved to have the Administrative Law Judge request a supplemental affidavit from NRC investigator Mr. Bruno Uryc. The plaintiffs have objected to the request for Mr. Uryc's affidavit. The exhibit which has been offered as PX 8 is a letter from Richard C. DeYoung, Office of Inspection and Enforcement, NRC, dated September 17, 1984, transmitting a revised NRC form 3 to NRC licensees. I find that the document is relevant to the issue of whether the time limit for filing a complaint in these cases should be tolled, and the document is admitted into the record post-hearing. Therefore, PX 8 is admitted into the record of this case. A telephone conference call was completed on November 11, 1985, at 2:30, during which the parties were advised of this ruling, that PX 8 should be admitted. The parties were further advised that because of the admission of this newly discovered evidence, I find that the Respondent should be allowed to reply. Counsel for the Respondent advised that it was his desire to offer the testimony of Mr. Bruno Uryc for that purpose. The plaintiffs objected to submission of Mr. uryc's testimony, which objection is overruled. In view of this ruling, the parties agreed that in lieu of a supplemental hearing, Mr. Uryc's testimony could be submitted by deposition. The deposition of Bruno Uryc was taken on December 18, 1985, was submitted on December 26, 1986, and is admitted into the record. The hearing conducted in this case was a consolidated hearing of each of the five complaints filed herein. All of the plaintiffs were present, with the exception of Steve McNally, and all were represented by counsel, including Steve McNally. Mr. McNally, by counsel, agreed to the bearing being conducted in [Page 4] Augusta, Georgia, in lieu of u hearing closer to his residence in the state of Connecticut. The respondent agreed to waive any objection to Mr. McNally's failure to attend the hearing. The decision in this case will, therefore, be a joint decision affecting all five complaints.
1. Did the plaintiffs in this action timely file a complaint under the Energy Reorganization Act within 30 days of their discharge as employees of Georgia Power Company? 2. Was the 30 day limitation for filing of complaints under the Energy Reorganization Act equitably tolled due to: a. Failure of Georgia Power to post NRC Form 3 in either a form or manner calculated to inform employees of its content; b. Plaintiff's oral communications to officials of the Nuclear Regulatory Commission? The following findings of fact and conclusions of law are based upon my observation of the appearance and demeanor of the witnesses who testified, and upon an analysis of the record, including all documentary evidence provided, statutory provisions, regulations, case law and arguments of the parties.
1. The Respondent, Georgia Power Company, is a licensee of the Nuclear Regulatory Commission, licensed by the Federal Government to build nuclear power plants. 2. Steve McNally was employed by Georgia Power Company as an electrical quality control inspector at Plant Vogtle near Augusta, Georgia. He was discharged from employment on January 16, 1985, due to his refusal to submit to a drug urinalysis. Mr. McNally filed a written complaint with the United States Department of Labor alleging retaliation by Georgia Power Company which is prohibited under 42 U.S.C. 5851 on May 13, 1985. 3. Billy Weatherford was employed by Georgia Power Company in the survey and mechanical sections at Plant Vogtle near Augusta, Georgia. He was discharged from employment on March 1, 1985, due to his refusal to submit to a drug urinalysis. Mr. Weatherford [Page 5] filed a written complaint with the United States Department of Labor alleging retaliation by Georgia Power Company which is prohibited under 42 U.S.C. 5851 on May 13, 1985. 4. James Register was employed by Georgia Power Company in the survey department at Plant Vogtle near Augusta, Georgia. He was discharged from employment on February 27, 1985, due to his failure to pass a drug urinalysis. Mr. Register filed a written complaint with the United States Department of Labor alleging retaliation by Georgia Power Company which is prohibited under 42 U.S.C. 5851 on May 13, 1985. 5. Susan Tiller Register was employed by Georgia Power Company in the Mechanical Division at Plant Vogtle near Augusta, Georgia. She was discharged from employment on January 24, 1985, due to insubordination, excessive absenteeism and unsatisfactory job performance. Mrs. Register filed a written complaint with the United States Department of Labor alleging retaliation by Georgia Power Company which is prohibited under 42 U .S.C. 5851 on May 13, 1985. 6. Leslie Price was employed by Georgia Power Company as a civil quality control inspector at Plant Vogtle near Augusta, Georgia. She was discharged from employment on February 5, 1985, due to misconduct and violation of work rules. Ms. Price filed a written complaint with the United States Department of Labor alleging retaliation by Georgia Power Company which is prohibited under 42 U.S.C. 5851 on May 13, 1985. 7. None of the five plaintiffs have filed written complaints under the Energy Reorganization Act within 30 days of their being discharged from employment. 8. The complaints were dismissed by the Department of Labor on July 10, 1995, on the basis that they were not timely filed within 30 days of the discharge of each of the plaintiffs by Georgia Power Company. 9. Each of the plaintiffs have timely filed a request for hearing on appeal from the decision of the Department of Labor, by telegram issued to the Chief Administrative Law Judge within 5 calendar days of receipt of the dismissal of their complaints. 10. The sole issue to be decided in each of these cases is [Page 6] whether the plaintiffs have timely filed a complaint under the provisions of the Energy Reorganization Act and its implementing regulations. No investigation has been conducted into the actual merits of the complaint filed by the plaintiffs, and thus, this decision is limited only to the timeliness issue. 11. The evidence establishes that NRC Form 3, version dated 8/82, was posted at appropriate places at Plant Vogtle, in accordance with NRC Regulations, but that NRC Form 3, version 9/84, was not posted at Plant Vogtle until after the plaintiffs were discharged from employment. 12. Plaintiffs Steve McNally, Billy Weatherford and James Register had no contact with officials of the Nuclear Regulatory Commission within 30 days of their discharge from employment. Thus, there can be no equitable tolling of the time limitation for filing a complaint on that basis for these Plaintiffs.
It is uncontroverted in the evidence that neither of the Plaintiffs filed a written complaint alleging discrimination on the basis of a protected activity under the Energy Reorganization Act until May 13, 1985. All five of the Plaintiffs were terminated in excess of 30 days prior to May 13, 1985. Thus, it is uncontroverted in the evidence that none of these Plaintiffs have timely filed a written complaint under the Energy Reorganization Act. Therefore, the decision of the Area Director, Wage and Hour Division, U.S. Department of Labor dismissing these complaints on the basis that no written complaint was timely filed was proper, and should be upheld. Thus, it remains to be determined whether the time limitation for filing complaints should be equitably tolled. The Plaintiffs have argued that although their complaints were not filed within 30 calendar days of their discharge from employment, Respondent's failure to post notice of employee's rights under § 210 of the Energy Reorganization Act violates NRC regulations and equitably tolls the statutory filing period. The plaintiffs testified that they had never seen Form 3, posted and did not believe that it was in fact posted. However, witnesses [Page 7] for the Respondent testified credibly that the notice was at all times posted on numerous bulletin boards within the plant and at bulletin boards in all places of ingress and egress. Upon consideration of all the evidence which has been produced, including the testimony of the witnesses for both parties, I find that NRC Form 3 (Version 8/82) was in fact posted at such places as was calculated to inform the plaintiffs of its content, should they have chosen to read the form. Thus, I find that the plaintiffs have failed to establish by a preponderance of the evidence that NRC Form 3 (Version 8/82) was not physically posted at Plant Vogtle. Therefore, I find that there can be no equitable tolling of the limitation of actions on the basis that NRC Form 3 (Version 8/82) was not properly posted at Plant Vogtle. The plaintiffs further argue that even if it is found that the notice was posted, the notice posted (NRC Form 3, version 8/82)) was not sufficient notice to inform plaintiffs of their rights under the Energy Reorganization Act, as the notice had been revised effective 9/84. In support of this position, plaintiffs have offered post hearing a memorandum dated September 17, 1984 of Mr. Richard C. DeYoung, Director, Office of Inspection and Enforcement, NRC (PX 8). This Memo, which is directed to "NRC Licensees, Permittees, and Applicants", indicates that a revised Form 3 is enclosed which is written in the form of simple questions and answers. The stated purpose of the revision is to make the form more readable and understandable, and to help all parties clearly understand their rights and responsibilities, and those of the NRC and Department of Labor, on matters relating to safety and employee protection from discrimination. The Memo directs that the current revision should be posted by January 1, 1985. The Respondent has agreed that the evidence establishes that the 9/84 revision of Form 3, which is referred to in Mr. DeYoung's Memo, was not in fact posted at Plant Vogtle until approximately June, 1985, which is well after all five of these plaintiffs were discharged from employment. Thus, the issue is raised whether the failure to post the current version of Form 3 is sufficient to invoke an equitable tolling. The Plaintiffs each have testified that they did not see Form 3 posted at any time at Plant Vogtle. Thus, whether the 8/82 or 9/84 versions of Form 3 were posted becomes irrelevant. [Page 8] Clearly, the evidence establishes that the Plaintiffs were not aware of either version of Form 3. It follows that none of the plaintiffs have relied to their detriment on the contents of Form 3, and the posting of an older version of the form did not in any manner relate to the Plaintiffs failure to timely file a written complaint. Therefore, I find that the failure to post the current version of NRC Form 3 does not serve to equitably toll the 30 day limitation. Because of the foregoing, no decision is made herein as to the sufficiency of the 8/82 Version of Form 3 under the Energy Reorganization Act and implementing regulations. Finally, the plaintiffs argue that their oral communications to Mr. Bruno Uryc, an official of the NRC, equitably tolls the time limitation. However, there is no evidence in the record which establishes that the Plaintiffs, Steve McNally, Billy Weatherford or James Register had any contact with Mr. Uryc, or any other official of the NRC within 30 days after their termination. Thus, I find that as to these 3 Plaintiffs there can be no equitable tolling on this grounds. The final issue to be resolved is whether the contacts between Leslie Price and Susan Register with Bruno Uryc constitute the "filing of a complaint" or are sufficient to cause a tolling of the 30 day time limit for filing a complaint under the Energy Reorganization Act. Counsel for the Plaintiffs has cited as authority for application of this doctrine the decision of the 11th Circuit Court of Appeals in Miller v. Marsh, 766 F. 2d 490, 493 (11th Cir. 1985). The Court of Appeals in Marsh held that equitable tolling applies where a plaintiff has been lulled into inaction by the past employer, state or federal agencies or the court, or where plaintiff has been actively misled. The deposition testimony of Mr. Bruno Uryc, a representative of the Nuclear Regulatory Commission, has been offered into evidence post hearing, by transcript and video recording, with leave of this court. After considering all the evidence, including Mr. Uryc's testimony, I find that there is absolutely no evidence that Mr. Uryc actively misled the plaintiffs. I find that Mr. Uryc simply did not hear the Plaintiffs making a complaint that they were being discriminated against for engaging in protected activity under the Energy Reorganization Act.
[Page 9] Thus, if equitable tolling is to occur under the facts in this case, it must be on the grounds that the Plaintiffs were lulled into inaction by Mr. Uryc. In support of this position, the Plaintiffs have offered into evidence a letter written by Mr. Uryc on February 26, 1985, to Susan Register (PX 6) and a letter dated February 26, 1985, from Mr. Uryc to Leslie Price (PX 4). The letters are identical with the exception of the list of concerns attached to each. Regarding the list of concerns, Mr. Uryc writes,
The statement of concerns attached to each of these letters (PX 4 and 6), does not contain any reference to a complaint by either of the Plaintiffs that they had been discriminated against due to their engaging in protected activities. There is no other evidence in this record that the Plaintiffs contacted Mr. Uryc to advise that he had not accurately summarized the concerns which had been expressed to him. It is clear from the evidence that Mr. Uryc did not understand the Plaintiffs to be complaining that they were the subjects of discrimination on the basis of engaging in protected activity. Thus, I find that although the Plaintiffs may have thought that Mr. Uryc was aware that they were reporting such discrimination, and may have thought that he was investigating such, they were not lulled into inaction by Mr. Uryc. To the contrary, Mr. Uryc concisely summarized what he understood to be their complaints, and advised them to contact him if that summary was not accurate. Thereafter, the Plaintiffs failed to respond. For the foregoing reasons, I find that there is no equitable tolling of the 30 day limitation on the basis of the Plaintiffs contacts with Mr. Uryc or the Nuclear Regulatory Commission.
[Page 10] It is, therefore, recommended that these complaints be dismissed as the 30 day time limitation for filing of the complaints had expired. Pursuant to 29 C.F.R. § 24.6 this recommended decision shall be forwarded to the Secretary of Labor for a final order.
RICHARD E.
HUDDLESTON |
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