DATE: June 28, 1990
CASE NO. 86-ERA-38

IN THE MATTER OF

DOUGLAS E. BILLINGS,
    COMPLAINANT

    v.

TENNESSEE VALLEY AUTHORITY,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    On October 3, 1986, Administrative Law Judge (ALJ) E. Earl Thomas issued a Decision and Order of Dismissal (D. and O.) under the employee protection provision of the Energy Reorganization Act, 42 U.S.C. § 5851 (1982), on the basis that Mr. Billings' complaint against the Tennessee Valley Authority (TVA) was not timely filed. On January 6, 1987, the ALJ issued an order Denying Motion for Reconsideration (2d D. and O.). This case is now before me for review.

    Complainant Billings is a materials clerk at TVA's Watts Bar

Nuclear Plant. On June 20, 1986, he filed the following discrimination complaint with the Office of the Administrator, Wage and Hour Division, United States Department of Labor:

The purpose of this letter is to initiate a complaint of discrimination against the Tennessee Valley Authority.

The basis for the complaint is the intentional harassment and intimidation suffered by myself as a direct result of having expressed safety concerns involving the falsification of documents at Watts Bar Nuclear Plant.

I am not aware of the proper procedures for filing a complaint with the Department of Labor, but the basic facts are as follows:

1. During November of 1984, I was asked by a craftsperson to document that a certain tool was issued for the specific work performed on a critical system. I determined that the tool was not in fact issued for the work as indicated by the document which was a Quality Assurance Document for documenting work performed on critical systems within the Nuclear Plant. I refused to sign the document because of the discrepancy. This led to his foreman asking that I sign the document. I told him that I could not sign the document. This led to the General Foreman ordering me to sign the document, I refused.

2. I notified my supervisor the following day and that was the end as far as I was concerned. Unknown to me, the document was falsified by parties not known to me at this time.

3. During March 1986, another person in my section was terminated from his employment at Watts Bar Nuclear Plant. During a conversation with this person, I was made

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[Page 3]

aware that the documents for the 1984 incident were falsified.

4. This knowledge brought to light the reason behind a management program to document management conceived personnel actions against me which are totally unfounded. These allegations which consist of not calling in when unable to get to work (three times in two years) are designed to give my supervisors a reason to terminate my employment. I am one step away from their requirement, which is not correct, from being fired.

5. My safety concerns have been expressed to the Nuclear Regulatory Commission and they have concurred with my concerns and are at this time investigating.

I have documentation which proves my contentions. I respectfully ask for help from the DOL in maintaining my employment.

(Emphasis added). The most recent of the personnel actions to which Mr. Billings refers in ¶ 4 of his complaint, supra, consists of a January 6, 1986, warning letter from J. Edward Gibbs, Sites Services, Watts Bar Nuclear Plant, disapproving Mr. Billings' absence of December 24-25, 1985, setting forth attendance requirements, and warning that further unapproved absences could be the basis for disciplinary action. Affidavit of Thomas F. Fine, Esq., TVA, August 18, 1986, at 2.

Mr. Gibbs' letter of January 6, 1986, stated as follows:

This is to inform you that your absence from 1555 on December 24, 1985 until 0025 on December 25, 1985 is unapproved. You will not be paid for this period of time. The reason for this action is your failure to obtain the required leave approval for your absence. You did not apply for leave in advance nor did you provide an acceptable excuse for your absence when you returned to work.

On June 20, 1985 you were given an oral warning by John Fischesser, Toolroom Supervisor and Ron Borum, Materials Unit Supervisor regarding your unapproved absence of June 19, 1985. At this time you were given specific instructions to follow to obtain leave approval. Effective immediately, you will be expected to meet the following requirements regarding attendance:

1. For all absences you can plan in advance, apply for leave as soon as you know you will need it, but no later than the end of the day before that on which you desire to be absent. Do this, insofar as possible, for part days of annual leave and for sick leave for medical, dental, or optical examinations or treatments, as well as for other leave. Application for leave must be made to your immediate supervisor, John Fischesser, or your unit supervisor Ron Borum. Leave applied for in advance will be approved if this can be done in view of job needs. If you need to extend the period of leave, contact either of these supervisors as soon as possible and ask for approval of additional leave.

2. If you are unable to work because of unexpected illness or emergency, you must notify Mr. Fischesser or Mr. Borum within the first hour of your scheduled shift and indicate the reason for the absence and when you expect to return to work. Absence because of illness will be approved if the notification described above is given and if, within ten workdays following your return to work, you provide the doctor's certification on the back of form TVA 6, Application for Leave, as evidence of your illness. Absence because of emergency will be approved if the notification described is given; and, if the nature of the emergency justified the absence.

The Division of Medical Services has available an Employee Assistance Program designed to help employees in alleviating problems that may lead to more serious disciplinary actions. The contact person for the Watts Bar Nuclear Plant is Mr. Gene Byrd. Mr. Byrd's telephone number is 8500, and I strongly suggest that you contact him. Your acceptance or rejection of his assistance, however, will not alter my expectations in your performance.

I must emphasize the necessity for you to achieve and maintain regular attendance at work.

This letter serves as a formal warning that any absence which does not meet the above conditions will not be approved. Unapproved absences are a basis for proposing disciplinary action which include suspension and/or termination.

Exhibit 1, attached to Fine Affidavit. Mr. Billings did not report the alleged falsification of the November, 1984, documents to the Nuclear Regulatory Commission until June 17, 1986, three months after he learned of it and more than five months after the alleged discriminatory conduct reflected in the Gibbs' letter. Affidavit of Bruno Uryc, Regional Allegation Coordinator, Nuclear Regulatory Commission, August 19, 1986, at 1.

    On July 28, 1986, Paula V. Smith, Wage and Hour Administrator, rejected Mr. Billings' complaint as untimely and on August 5, 1986, Mr. Billings appealed the Wage and Hour Administrator's finding to the Office of Administrative Law Judges.

    A hearing was scheduled before the ALJ on August 21, 1986. However the ALJ continued the proceeding because Mr. Billings had not received official notice.

JUDGE THOMAS: Our office in Washington yesterday afternoon received a call from Mr. Billings and he advised our office that he had found out about this hearing through some fellow workers, but he did not receive a copy of the Notice of Hearing. It was sent out by telegram last Friday. In looking at the service sheet in this case it does appear that his name was omitted from the service sheet. He asked for a continuance and advised our office that he was going to retain the services of an attorney, Ms. Dorothy Stulberg. So, in view of the situation, I feel I have no choice but to continue the case this morning.

Does the TVA have any motions or anything?

MR. MARQUAND: Your Honor, we would like to file a second motion to dismiss . . . .

JUDGE THOMAS: That will conclude the hearing this morning, Mrs. Reporter.

    (Whereupon, the hearing was adjourned at 9:02 a.m.) Hearing Transcript, August 21, 1986, at 2-4.

    In any event, the ALJ subsequently held in his D. and O. of October 3, 1986, that a hearing on Mr. Billings' discrimination complaint was unnecessary in view of the ALJ's summary judgment ruling¹ that the complaint was barred by the thirty-day statutory period for filing with the Wage and Hour Administrator pursuant to 42 U.S.C. § 5857(b)(1). The ALJ held as follows:

In November 1984, Complainant refused to document that a certain tool had been issued for specific work to be performed on a critical system at the Watts Bar Nuclear Plant after determining that the tool had not been so issued. In March 1986, Complainant discovered that the documents involving the 1984 incident had been falsified. Complainant alleges that discriminatory actions were taken against him as a direct result of the safety concerns which he raised in connection with the 1984 incident.

On August 19, 1986 Respondent filed with this Office a Motion for Judgment on the Pleadings or Summary Judgment arguing that no disputed issues of material fact exist, that no showing has been made by Complainant of protected activity under the Act, and that the Complaint was not timely filed. To date, Complainant has not replied to Respondent's Motion.

A formal hearing was set for August 21, 1986 concerning the above-captioned matter. Due to a clerical error, Claimant's name was omitted from the service sheet and he did not appear at the hearing. It appears clear, however, that a hearing on this matter is unnecessary if the preliminary and dispositive issue concerning whether Complainant's claim is barred by the thirty-day

    On October 10, 1986, Dorothy B. Stulberg, Esq., stating that she had been "recently retained" as counsel for Mr. Billings, filed a Motion to Reconsider and To Grant an Extension of Time for Complainant to File a Response to Respondent's Motion to Dismiss and to Set Aside Decision and Order of Dismissal.² In the absence of further briefing or other responses from Ms. Stulberg, on January 6, 1987, the ALJ issued an Order Denying Motion for Reconsideration, which states, in part:

In November 1984, Complainant refused to document that a certain tool had been issued for specific work to be performed on a critical system at the Watts Bar Nuclear Plant after determining that the tool had not been so issued. In March 1986, Complainant discovered that the documents involving the 1984 incident had been falsified. Complainant alleges that discriminatory actions were taken against him as a direct result of the safety concerns which he raised in connection with the 1984 incident.

Complainant's Brief at 2-3 (emphasis added). Mr. Billings' asserted continuing violation claim cannot be considered at this time because counsel has provided no factual evidence, through affidavits or otherwise, which would indicate a factual issue precluding dismissal on the basis of TVA's summary judgment motion. Mack v. Great Atlantic & Pacific Tea Company, Inc., 871 F.2d 179, 183-84 (1st Cir. 1989); O'Malley v. GTE Service Corporation, 758 F.2d 818, 820-22 (2d Cir. 1985). See also Chapman v. Homco, Inc., 886 F.2d 756, 758 (5th Cir. 1989); Dillman v. Combustion Engineering, Inc., 784 F.2d 57, 61 (2d Cir. 1986); Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 49 (2d Cir. 1985); Taylor v. General Telephone Company of the Southwest, 759 F.2d 437, 442 (5th Cir. 1985); Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 595 (5th Cir. 1981). Under the continuing violation doctrine, "[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination." Delaware State College v. Ricks, 449 U.S. 250, 257 (1980). Billings has offered nothing besides the conclusory phrase "continuing violation" to justify a tolling of the statute. Pertinent factual information of a discriminatory act or acts during the limitations period has not been submitted to buttress this theory.³ Accordingly, the ALJ was correct in dismissing Billings' action on the basis of summary judgment. Janikowski v. Bendix Corporation, 823 F.2d 945, 946-48 (6th Cir. 1987).⁴

¹ The Rules of Practice and Procedure for Administrative Hearings before the Office of Administrative Law Judges state: "The administrative law judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision." 29 C.F.R. § 18.40(d).

² On October 27, 1986, Mr. Billings' counsel filed a motion for time to file an answer to TVA's Memorandum in Opposition to Complainant's Motion to Reconsider based on eye problems necessitating surgery and that "she finds it necessary to request a continuance in all trials at least through November 7, 1986." Affidavit of Dorothy B. Stulberg, Esq., October 27, 1986.

³ 29 C.F.R. § 18.40(c) states in part:

When a motion for summary decision is made and supported as provided in this section, a party opposing the motion may not rest upon the mere allegations or denials of such pleading. Such response must set forth specific facts showing that there is a genuine issue of fact for the hearing.

(emphasis added).

⁴ The Secretary's Briefing Order of March 26, 1987, stated that the parties may file "briefs in support of or in opposition to the decisions below, including issues concerning complainant's lack of formal notice of and non-appearance at the August 21, 1986 proceeding and his legal representation or lack thereof on that date or subsequently." Id. at 1. I do not believe Mr. Billings' case was prejudiced by these factors. Mr. Billings' counsel states:

The complainant recognizes that his failure to receive notice of the hearing on August 21, 1986, is not directly relevant to failure to file within the thirty days of the various incidents. However, he believes that if he had had the opportunity to appear before the administrative law judge, he could have made arguments which would have supported his position that the statute of limitations should not be applied to him in this case.

Plaintiff's Response Pursuant to the Secretary's [Briefing] Order at 3. However, as indicated above, the ALJ did not use the abbreviated hearing of August 21, 1986, as the basis of summary judgment decisions. See Hearing Transcript at 2-4; D. and O. at 1. Rather, the ALJ pretermitted the hearing and no arguments on the merits of the motion were presented. Further, I agree with TVA that Mr. Billings "was dilatory in retaining counsel . . . . He filed his complaint under the Act in June 1986, some two months before the hearing date. Not until he was notified about the hearing did he mention an attempt to retain counsel, and the record shows no appearance of counsel for him until after [the ALJ] had ruled against him in October 1986." TVA's Brief at 12, n.2. Then, Billings' counsel filed motions for time and for reconsideration which the ALJ considered prior to issuing his 2d D. and O. denying the motion for reconsideration. Accordingly, Mr. Billings had ample opportunity to avail himself of counsel before the ALJ and the Secretary of Labor.