DATE: April 19, 1995
CASE NO. 85-ERA-35
IN THE MATTER OF
RUDOLF A. NORMAN,
COMPLAINANT,
v.
NIAGARA MOHAWK POWER
CORPORATION
RESPONDENT. [1]
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under the employee protection provision of the Energy
Reorganization Act of 1974 as amended, (ERA), 42 U.S.C. §
5851 (1992). Complainant charges that Respondent (NIMO)
discriminatorily "docked" him two days of compensation, as
reflected in Norman's April, 1985 paycheck (received by him
during the first week of May, 1985), in retaliation for the
conscientious performance of certain safety/auditing
responsibilities as a member of Respondent's Quality Assurance
Program.
Complainant was charged with being absent without leave for
the days of March 26th and 27th, 1985. The ALJ found that the
evidence presented failed to establish that the two-day pay
reduction was motivated by any protected activity. However, the
ALJ disposed of the complaint by dismissing it as untimely filed.
BACKGROUND
The facts are thoroughly summarized in the ALJ's decision.
[PAGE 2]
R.D. and O. at 3-7. During the 1983-84 period, Complainant was
transferred from his regular duties as a nuclear engineer in
order to participate as a member of Respondent's internal safety
audit team. The subsequent audit, referred to by all parties
herein as Audit No. 4, resulted in a draft report containing 29
major findings of non-conformance or deficiencies on the part of
Respondent NIMO in the construction of a nuclear power plant
facility in Oswego, New York. Following several so called "exit
critiques" of the audit report it was, at the direction of NIMO's
Vice President, referred to a consultant/contractor, Management
Analysis Company (MAC). The audit report was rewritten by MAC,
resulting in the total number of findings of non-conformance or
deficiencies being reduced from 29 to 8.
Complainant alleges that he and the other members of the
Audit 4 team were harassed because of their participation in the
unfavorable audit. In response to that alleged harassment complainant took the action which forms the basis for the instant
complaint.
On the morning of March 25, 1985, Complaint made use of a
NIMO company car which had been checked out on March 22, 1985, by
Mr. John Ryan for an ostensible job related purpose, identified
as a "#4 Audit follow-up-QIP." Respondent's Ex. E. [2] Ryan
kept the car over the weekend and on March 25th both Ryan and
Complainant notified their respective departments that they would
be away from work that day to consult with their attorney. The
discussion with the attorney led to a decision by the three men
to travel to Washington, D.C. (a round trip of 1120 miles) in
order to "confer" with the special counsel for the Congressional
committee with oversight responsibilities for the energy industry
and the Nuclear Regulatory Commission (NRC). R.D. and O. at 4.
This trip to Washington was neither expressly disclosed to their
respective supervisors, nor approved by NIMO management.
Further, the use of the company car for this purpose was not
approved.
In addition, the oversight discussions pursued by the three
men in Washington apparently focused entirely on their civil
suit. At no point during this unauthorized trip did Complainant,
or his counsel, have any contact with a representative of the
NRC. Moreover, complainant did not formally appear before any
congressional committee in response to subpoena, invitation or
otherwise. R.D. and O. at 12.
Upon return to work and the company's discovery of the
nature and extent of this trip, Complainant was informed that he
violated company policy regarding unauthorized leave and the use
of the company car. The two days of missed work was subsequently
interpreted and treated by NIMO as an unexcused absence. The
parties engaged in a series of discussions and employee relations
[PAGE 3]
meetings over this issue. The ALJ's decision thoroughly notes
the precise chronology of events. R.D. and O. at 5-6. NIMO
decided that Complainant would not be docked pay for any time
which was devoted to either NRC or Department of Labor matters.
But, time off which was solely directed to the furtherance of a
private lawsuit would not be compensated. R.D. and O. at 5.
Complainant was notified of Respondent's final decision on
the docking of pay issue by memorandum dated April 10, 1985, and
informed therein that his April paycheck would be reduced by two
days pay to reflect his unauthorized trip to Washington, D.C.
The record is not clear as to when the paycheck was received by
Mr. Norman, the ALJ notes that Complainant "observed" a $418.54
reduction in his paycheck on May 1, 1985. Norman filed the
complaint in this matter on June 12, 1985. DISCUSSION
During the time at issue, an ERA complaint was required to
be filed within thirty (30) days after the occurrence of the
alleged violation. 42 U.S.C. § 5851(b), 29 C.F.R.
§ 24.3(b)(1994). The ALJ concluded that, on the record
before him, Complainant failed to satisfy this requirement. This
determination was based on the finding that Complainant was
clearly aware of the final, definitive and unequivocal decision
to reduce his pay by no later than May 1, 1985, yet failed to
file the complaint before the 12th of June.
After a thorough review of the record, I agree with the ALJ
that this complaint was not timely filed and that none of the
recognized conditions for the waiver or tolling of the statutory
limitation period have been sufficiently established. [3]
Norman's argument that the complaint was timely filed based upon
a continuing violation theory is without merit because the
complaint was not filed "within thirty days of the last
discriminatory act." Garn v. Benchmark Technologies, Case
No. 88-ERA-21, Dec. and Order of Remand, Sept. 25, 1990, slip op.
at 6; Egenrieder v. Metropolitan Edison Co./G.P.U., Case
No. 85-ERA-23, Order of Remand, Apr. 20, 1987, slip op. at 4.
Further, Norman's argument that the limitation period for filing
this complaint was equitably tolled is not valid because there is
no allegation that he was "misled" by NIMO, or somehow prevented
by NIMO from exercising his rights. See, e.g., School
District of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d
Cir. 1981).
ORDER
For the forgoing reasons, the Recommended Decision and Order
of the ALJ is adopted and the complaint in this case is
dismissed.
SO ORDERED.
[PAGE 4]
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Because their complaints raised precisely the same issues the
ALJ consolidated this case with the case of Mr. John E. Ryan,
Case No 85-ERA-36, at the outset of the September 6, 1985
hearing. Subsequently, Mr. Ryan settled his portion of the case,
see Sec. Order Approving Settlement, Case No. 85-ERA-36,
issued Jan. 25, 1990, and the caption is accordingly modified.
[2]
Previously, on March 22nd, Complainant and Mr. Ryan used the
company car to serve appropriate parties with copies of a civil
complaint against NIMO filed by Norman and Ryan in the United
States District Court for the Northern District of New York.
This suit was subsequently dismissed on May 20, 1985. The
district court held that the comprehensive administrative
procedure established under § 5851 of the ERA created no
private right of action for individuals which would allow for
separate jurisdiction to be asserted by the federal courts. R.D.
and O. at 6.
[3]
Moreover, although it is unnecessary to reach the issue of
protected activity because of the ruling on timeliness, I also
agree with the ALJ's analysis on this question. See,
e.g., Delaney v. Massachusetts Correctional
Industries, Case No. 90-TSC-2, Sec. Dec. and Ord., March 17,
1995 (an employer may take action against employees who engage in
conduct which may properly be characterized as improper or
disruptive, even when they are engaged in activity which is
otherwise protected under the ERA).
