I have before me a Recommended Decision (R.D.) issued by
Administrative Law Judge Daniel L. Leland in this case which arises
under the whistleblower provision of the Energy Reorganization Act
of 1974 (ERA), 42 U.S.C. § 5851(a) (1982).1 The ALJ's order recommends as follows:
No employer, including a Commission licensee, an
applicant for a Commission license, or a contractor
or a subcontractor of a Commission licensee or applicant,
may discharge any employee or otherwise discriminate
against any employee with respect to his compensation,
terms, conditions, or privileges of employment because
the employee (or any person acting pursuant to a
request of the employee) --
(1) commenced, caused to be commenced, or is about
to commence or cause to be commenced a proceeding
under this chapter or the Atomic Energy Act of 1954,
as amended, or a proceeding for the administration
or enforcement of any requirement imposed under
this chapter or the Atomic Energy Act of 1954, as
amended;
(2) testified or is about to testify in any such
proceeding or;
(3) assisted or participated or is about to assist
or participate in any manner in such a proceeding
or in any other manner in such a proceeding or in
any other action to carry out the purposes of this
chapter or the Atomic Energy Act of 1954, as amended.
Defendant's contention that plaintiff is time barred
because she felt she was a victim of discrimination in
August, 1980, is not important. The continuing-violation
doctrine recognizes that past discriminatory acts have
occurred outside the limitations period, and plaintiff's
awareness of those acts is irrelevant. The crucial requirement
is that plaintiff file charges within 240 days of the
last--not the first--discriminatory act in a course of
conduct. Plaintiff will be allowed to litigate all claims
that are part of that continuing violation, because she
filed within 240 days of the end of that violation.
624 F.Supp. at 897.
5 Since the case sub
judice arises in the Third Circuit,
that court's ruling on the issue must be considered.
6 Blacklist. A list of persons
marked out for special avoidance,
antagonism, or enmity on the part of those who prepare the
list or those among whom it is intended to circulate; as where
a trades-union "blacklists" workmen who refuse to conform
to its rules, or where a list of insolvent or untrustworthy
persons is published by a commercial agency or mercantile
association.
BLACK'S LAW DICTIONARY 154 (5th ed. 1979).
[Editor's Note: The Slip Opinion does not contain a footnote "7"].
8 In Van Heest v. McNeilab,
Inc., the court applied the continuing
violation theory to a claim brought under the Equal Pay Act of
1963, 29 U.S.C. § 206(d) (1982), as well as to a claim brought
under Title VII of the Civil Rights Act. 634 F. Supp. at 896, 897.
9 The ALJ recommended that the
case be remanded to the Area
Director of the Employment Standards Administration to investigate
whether Respondent's conduct within thirty days of filing the
complaint was in violation of the Act. Neither the ERA, nor
the regulations specifically contemplate a remand for further
investigation. While the initial inquiry should have considered
the continuing violation claim, the parties are entitled to
de novo consideration of this case and all extant issues once
a hearing is requested before the Office of Administrative Law
Judges. Accordingly, under the circumstances of this case,
further review of this matter before the ALJ seems appropriate.