This proceeding arises under the employee protection provision of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1982), which prohibits an employer from discriminating against an employee because the employee has engaged in a protected activity.

    Complainant Nunn alleges that, in October of 1983, he was discharged from his position as a welder at Duke Power Company's Catawba Nuclear Power Station because he engaged in the protected activity of complaining about safety and quality control problems

at the plant. Complainant also alleges that he was discriminated against in the conditions and terms of his employment. Respondent Duke Power Company denies these allegations, and contends that it discharged Complainant because of excessive absenteeism.

    Prior to a hearing on Complainant's allegations of discrimination, Duke Power moved to dismiss Complainant's complaint with prejudice and, in the alternative, for summary decision. The basis for the request for dismissal with prejudice was that the complaint in this case had not been timely filed in accordance with section 5851(b)(1) of the ERA. The grounds for the summary decision request were that there was no genuine issue of material fact as to the basis for Complainant's termination, and that Complainant could not, as a matter of law, prevail on his claim of discrimination because (1) Complainant had not engaged in a protected activity under Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (5th Cir. 1984), and (2) Complainant could not make out a prima facie case of disparate treatment. On January 25, 1985, Administrative Law Judge (ALJ) Eric Feirtag issued a decision recommending that summary decision be granted in favor of Duke Power because Complainant had not engaged in protected activity. The ALJ made no recommendation as to any other issues. See Recommended Decision and Order on Motion For Summary Judgment (R.D. and O.).

    After a review of the record in this case, I have concluded that I cannot accept the ALJ's recommendation that I grant Duke Power's motion for summary decision. Accordingly, for the reasons set forth below, I remand this case to the ALJ for further proceedings.

    It appears from the facts set forth in the pleadings that, during his employment, Complainant made several safety related complaints to Catawba's supervisory personnel about the welding and construction of the Catawba plant. Later, on October 3, 1983, Complainant contacted the Palmetto Alliance, which was a legal intervenor in Catawba's ongoing licensing proceeding under the Atomic Energy Act, and discussed with that organization his safety complaints regarding the Catawba facility. Complainant states that he also offered to become a witness at the licensing hearing. Complainant also states that he later testified at this licensing proceeding. See Complainant's Appeal to the Secretary of Labor of the Recommended Decision and Order on Motion for Summary Judgment (Complainant's Appeal) at 2, 12-13. On the same day that he contacted Palmetto, Complainant contacted

the Government Accountability Project (GAP), which is representing Complainant in this proceeding, and solicited its assistance in relating his complaints to the proper authorities. Subsequently, Complainant told fellow employees that he had spoken with GAP and that he was going to take his complaints to the Nuclear Regulatory Commission (NRC). On October 14, 1983, Complainant was informed by Respondent that, in accordance with Duke Power's policy of terminating employees who had an excess of eighteen absences within a twelve-month period, Complainant was "removed from service." Complainant's eighteenth absence had, it appears, occurred on October 13th, the previous day. Complainant contacted the NRC on October 14th but not until after he was informed that he was "removed from service." Subsequent to this removal, Duke Power conducted an investigation of Complainant's absences, and, on October 19, 1983, officially terminated Complainant.

    The ALJ's basis for recommending that summary decision be granted in Duke Power's favor is that Complainant did not engage in any activity protected by section 5851 of the ERA. In reaching this conclusion, the ALJ relied on the decision of the United States Court of Appeals for the Fifth Circuit in Brown & Root, which held that employee conduct, which consists merely of the filing of internal quality control reports and does not involve "contact or involvement with a competent organ of government", 749 F.2d at 1036, is not protected under section 5851, and on the decision of the United States Court of Appeals for the Sixth Circuit in De Ford v. Secretary of Labor, 700 P.2d 28 (6th, 1983), which recognized that employee participation in an NRC proceeding was protected under section 5851. The ALJ recognized that both the Ninth Circuit and the Secretary had taken the position in Mackowiak v. University Nuclear Systems, Inc., Case No. 82-ERA-8, (April 29, 1983), slip op. at 8-11, remanded on other grounds, 735 F.2d 1159 (9th Cir. 1984), that the filing of purely internal quality control reports constitutes a protected activity under section 5851. Accord Wells v. Kansas Gas and Electric Co., 83-ERA-12 (June 14, 1984), aff'd Kansas Gas and Electric Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985), cert. denied, 106 S.Ct 3311 (1986). The ALJ, however, reasoned that, since Mackowiak and Brown & Root involved retaliation against quality control inspectors, neither the Secretary's opinion nor the Ninth Circuit's opinion in Mackowiak were contrary to Brown & Root when applied to the filing of internal reports by other types of employees, such as Complainant who is a welder. The ALJ, thereupon, adopted Brown & Root as the applicable precedent. R.D. and O. at 2-4. The ALJ then went on to find that any safety

complaints, which Complainant may have made to Duke Power management, as well as any contact with Palmetto Alliance and with GAP, did not constitute protected activity because neither the internal complaints nor the contact with Palmetto or GAP had been with a competent organ of government. The ALJ further found that, while Complainant's contact with NRC was with a competent organ of government, Duke Power did not retaliate against Complainant because of this contact since, by Complainant's own admission, he made no attempt to contact NRC prior to Duke Power's decision to remove him from service. R.D. and O. at 4.

    Complainant has filed with me exceptions to the ALJ's recommended decision in which he argues that the applicable precedent is Mackowiak. Complainant also argues that he engaged in a protected activity even under Brown and Root because he contacted the legal intervenor in the Catawba licensing proceeding and agreed to become a witness on behalf of Palmetto, because he contacted GAP which agreed to take his allegations to the NRC, and because he contacted the NRC before he was formally terminated. In addition, Complainant argues that he suffered disparate treatment in the determination of his absences after he contacted the NRC. See Complainant's Appeal at 19-22. Finally, Complainant alleges that Respondent's policy of insisting that workers first take their safety complaints to their supervisors constituted a misrepresentation of a material fact to an adverse party and, consequently, Respondent is estopped from asserting the protection of Brown and Root. See Complainant's Appeal at 42-51.

    In response to Complainant's exceptions, Duke Power again argues that the complaint was untimely filed, that Complainant did not engage in a protected activity prior to his discharge, and that Complainant cannot establish a prima facie case of disparate treatment. In addition, Duke Power argues that Complainant's estoppel argument is untimely raised and has no merit. See Respondent Duke Power Company's Brief In Support of the Recommended Decision and order of the Administrative Law Judge.

    In reply to Duke Power's arguments, Complainant has filed two requests for Partial Remand to the ALJ requesting that I remand to the ALJ the issues raised in Duke Power's brief but not resolved in the ALJ's recommended decision. Complainant argues that these issues, which include whether the complaint was timely filed and whether there was disparate treatment, are not ripe for review by me since there has been no hearing in

this case and since discovery has not yet been completed. In the alternative, Complainant requests leave to brief these issues. See Motion For Partial Remand; Complainant's Second Motion For Partial Remand or in the Alternative to File a Response Brief. Duke Power opposes any remand which would permit reopening and expansion of the record, arguing that there has been adequate discovery and that the timeliness and disparate treatment issues have been extensively briefed by both parties and are ripe for decision. See Respondent Duke Power Company's Response to Complainant's Motion For Partial Remand; Respondent Duke Power Company's Opposition to Complainant's (Second) Motion For Partial Remand, Etc.

    The standard for awarding summary decision is that there be no genuine issue as to any material fact and that the party in whose favor summary decision is granted be entitled to prevail as a matter of law. 29 CFR 18.40(d) (1986). Neither element

of that standard, however, has been met in this case.

    First, there is a disputed issue of fact as to the date of Complainant's termination which affects the determination of whether Duke Power discriminated against Complainant because he complained to NRC. Complainant asserts that he was not terminated any earlier than October 19th when he was officially terminated by the Project Manager, and Duke Power contends that Complainant was terminated on October 14th when he was "removed from service." If Complainant's termination occurred on October 14th, his subsequent contact with NRC could not be the basis for a finding that this contact, a protected activity, led to his termination. The date of termination, consequently, is crucial to the ultimate issue of whether Duke Power violated section 5851.

    The ALJ found that "the decision to terminate Complainant occurred, for all practical purposes on October 14, 1983." R.D. and O. at 5. The documents constituting the record before the ALJ, however, do not explicitly resolve the issue of whether the "removal from service" constituted the actual termination. On the one hand, Duke Power written management procedures require that, after the removal from service of an employee with 18 occurrences, "[a] review shall then be conducted and if warranted the employee discharged for 'excessive and repeated attendance deficiencies'." See Exhibit 25 at 4, item F, of Exhibits For Complainant's Pre-Trial Brief and Memorandum in Opposition to Respondent's Motion to Dismiss (Complainant's Exhibits). Moreover, these procedures permit the discharge of an employee "only after a thorough investigation of the facts shows just cause for termination", and furthermore, describe "removal from service" as the initial step in the investigative process" and as allowing "time for all the facts to be gathered, documented and considered before a final decision is made." Exhibit 27, at 1, item STATEMENT. Id. Furthermore, Complainant's supervisor testified by deposition that "removal from service' is a suspension pending a decision on whether or not the employee will be terminated. On the other hand, Duke Power argues that: "discharge inexorably follows a verified eighteenth absence," see Respondent's Brief In Support at 44; that Complainant himself was aware that termination would follow his eighteenth absence; and that the investigation required by management procedures was completed by October 14th. See Memorandum In Support of Respondent Duke Power Company's Motion to Dismiss With Prejudice and Motion For Summary Decision at 31-35. Thus, there is a genuine issue of material fact which should not have been resolved by the ALJ but should have been decided only after the parties had an opportunity to present

all relevant evidence. See 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, § 56.15 (2d ed. 1981). Since discovery has not been completed and a hearing has not been held, the parties have not been afforded this opportunity.

    Morever, even if Complainant's contact with NRC cannot be a basis for a finding that Duke Power violated section 5851, Duke Power is not entitled to prevail as a matter of law since Complainant's internal safety complaints are protected under section 5851. The ALJ erred in applying Brown & Root in this case, and thus finding that Complainant's safety related complaints to his supervisors did not constitute an activity protected by the ERA. The applicable precedents are Mackowiak and Kansas Gas and not Brown & Root.

    I do not agree with the ALJ's conclusion that Mackowiak and Brown & Root are inconsistent only when applied to employees who are quality control inspectors. Although both of these cases, as well as Kansas Gas, involved quality control personnel, it is my view that Mackowiak and Kansas Gas are applicable to other employees as well. It is not only quality control personnel who play a part in NRC's regulatory scheme. All employees of NRC licensess are advised in Form NRC-3, a "Notice to Employees", which NRC requires each licensee to post at the workplace, that violations of NRC rules should be reported immediately to the employee's supervisor and, if adequate corrective action is not taken, then to N.R.C. See 10 C.F.R. S 19.11(c). Moreover, Section 5851 already has been applied where internal safety complaints were made by a mechanic who, although a member of the union's Nuclear Safety Committee, is not reported as having any quality control functions. Consolidated Edison Co. of N.Y., Inc. v. Donovan, 673 F.2d 61 2d Cir. (1982). See also Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, issued April 27, 1987, amended May 6, 1987, and Willy v. Coastal Corp., Case 85-CAA-1, issued June 4, 1987, where internal complaints were made by employees who were not quality control personnel. Furthermore, like the Tenth Circuit in Kansas Gas, 780 F.2d at 1513, and unlike the ALJ, I am more persuaded by the rationale of Mackowiak than that of Brown & Root. if, therefore, Complainant were to establish that he reported numerous safety related problems to Duke Power supervisory personnel, he would have established that he had engaged in an activity protected by section 5851 regardless of when he contacted the NRC.

    Additionally, if Complainant establishes that he was going

    As noted earlier, Duke Power's motion for summary decision was alternative to its motion to dismiss for untimeliness of the complaint. The ALJ should have decided the motion to dismiss before deciding Duke Power's motion for summary decision. Only if the ALJ had found the complaint timely was it necessary to determine whether Complainant had engaged in an activity protected by section 5851 of the ERA.

    Section 5851(b)(1) requires that a complaint be filed within

thirty days after the violation has occurred. Complainant was removed from service on October 14, 1983 and was officially terminated on October 19, 1983. The complaint was in the form of a letter from Complainant to the Wage and Hour Division, U.S. Department of Labor. See Exhibit A to Respondent's Motion For Summary Decision. This letter was dated November 18, 1983 and is stamped as having been received on November 22, 1983. Section 24.3 of the regulations implementing section 5851 of the ERA, 29 C.F.R. § 24.3, provides that "a complaint filed by mail shall be deemed filed as of the date of mailing." Thus, if the complaint in this case was mailed after November 18th, it is without question untimely. Complainant alleges that he mailed the complaint on November 18th. Duke Power contends that there is no evidentiary support for this contention. The record sheds no light on this question.

    Duke Power further argues that, even assuming that the complaint was mailed on November 18th, the complaint is untimely because the violation of section 5851 occurred on October 14th when, as found by the ALJ, the decision to terminate occurred and Complainant recognized that he would be terminated. In support of this argument, Duke Power cites to Supreme Court and Fourth Circuit decisions in termination cases arising under other discrimination statutes. Chardon v. Fernandez, 454 U.S. 6 (1981) (termination in violation of 42 U.S.C. § 1983); Delaware State College v. Ricks, 449 U.S. 250 (1980) (denial of tenure in violation of Title VII, Civil Rights Act of 1964 and of 42 U.S.C. S 1981); and Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir. 1982) (termination in violation of the Age Discrimination in Employment Act of 1967). These cases stand for the proposition that the applicable limitation period begins to run not from the date on which the termination is implemented but from the date on which the operative decision to terminate or to deny tenure is made and communicated to the employee. In each case, the court focused on the time of the allegedly discriminatory action and communication of that action to the employee, regardless of when the effects of the action were felt. Thus, where a decision to deny tenure or to terminate was made, the limitation period ran from that date the employee was given notice of that decision rather than from a subsequent date on which the employment actually ceased.

    I find these cases persuasive, and, therefore, find their holdings applicable to determining when the thirty-day limitation

    It is necessary that I rule on Complainant's outstanding motions. By virtue of my remand, I have, in effect, granted Complainant's motion for partial remand. I, however, deny Complainant's motions to amend the record. Those motions seek to reopen the evidentiary record in this case in order to admit the June 4, 1985 decision of NRC's Office of Inspection and Enforcement, which decision apparently proposed enforcement action and a fine against Duke Power. Complainant contends that the evidence and findings set forth in that decision are relevant to establishing Duke Power's animus toward Complainant, and were not available when the record in this case was made. Duke Power opposes Complainant's request, arguing that the factual findings were previously available to and known by the parties, and, moreover, that they are not material to Complainant's case. In view of my remand of this case for further proceedings, Complainant will have an opportunity, if a hearing is held, to introduce his evidence and to, at that time, establish its relevancy.