Date: DEC 09 1988 Case No. 87-ERA-31

IN THE MATTER OF

W. SCOTT MCGARVEY
    Complainant,

    v.

EG & G IDAHO, INC.
    AND
EARL A. BRADFORD
    Respondents,

For the Respondents
E.H. RAYSON, Esq.
THOMAS M. HALE, Esq.

BEFORE: GILES J. McCARTHY
    Administrative Law Judge

   This is a proceeding under the Energy Reorganization Act of 1974, (Whistle Blower) as amended, 42 U.S.C. § 5801 et seq.

   The pertinent provisions of the Act provide:

§ 5851. Employee Protection

   (a) Discrimination against employee. No employer, including a Commission licensee, 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 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 Act or the Atomic Energy Act of 1954, as amended, or a proceeding for the administration or enforcement of any requirement imposed under this Act 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 action to carry out the purposes of this Act or the Atomic Energy Act of 1954, as amended.

   (b) Complaint, filing and notification. (1) Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) may, within thirty days after such violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor (hereinafter in this subsection referred to as the "Secretary") alleging such discharge or discrimination. Upon receipt of such a complaint, the Secretary shall notify the person named in the complaint of the filing of the complaint and the Commission.

(B) If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of subsection (a) has occurred, the Secretary shall order the person who committed such violation to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment, and the Secretary may order such person to provide compensatory damages to the complainant. If an order is issued under this paragraph, the Secretary, at the request of the complainant shall assess against the person against whom the order is issued a sum equal to the aggregate amount of all cost and expenses (including attorneys' and expert witness fees) reasonably incurred, as determined by the Secretary, by the complainant for, or in connection with, the bringing of the complaint upon which the order was issued.

   A hearing was held in Knoxville, Tennessee on August 11th and 12th, 1988. Counsel was given 45 days to submit a brief following receipt of the transcript. Upon request by counsel for both parties, the time for submission of briefs was extended to November 23, 1988. Briefs were received from complainant on November 21, 1988 and from respondents on November 23, 1988.

   Previously, on January 11, 1988, ALJ E. Earl Thomas issued an Order denying respondents' motion for summary judgment, and found complainant did not receive unequivocal notice of employment termination until receipt of the written notice of termination dated January 6, 1987. He further found that complainant's filing of a complaint on February 3, 1987 was timely since received within 30 days from January 6, 1987.

   Tennessee Valley Authority (TVA) was a licensee for the construction and operation of a nuclear power plant in Tennessee. The U.S. Department of Energy, because of some 600 TVA employee concerns relative to welding problems at Watts Bar, entered into a contract with respondent EG & G, an Idaho corporation, to provide a Weld Evaluation Program (WEP). The purpose of the contract was to have EG & G perform an independent third party evaluation of welding complaints previously alleged by TVA employees.

   Complainant, W. Scott McGarvey, was a contract employee hired by EG & G on February 16, 1986 as a quality engineer. The written employment contract initially covered the period February 1, 1986 through July 31, 1986, and provided that EG & G could terminate his employment when in the best interests of the Government and by written notice (CX-1). The contract was extended effective August 1, 1986 to October 30, 1986. On october 20, 1986, his contract was again extended to April 30, 1987.

   A reduction in force (RIF) was announced in the summer of 1986. At the time, complainant's supervisor, Earl A. Bradford, thought of terminating complainant, but did not do so. Rumors of an impending RIF in November 1986 spread through the work force. on November 13, 1986, Bradford advised his superiors that he needed his full complement of workers and did not wish to terminate anyone in his group. Mr. Francis Fogarty, entrusted with the position of on site supervisor of WEP, then met with the various managers and told them to review their manpower because

an across the board RIF was required due to a slow down in work. Accordingly, Bradford went back to the drawing board and submitted the name of complainant for the RIF list. Fogarty then asked the other managers if they would like to take complainant, but nobody did. The number of persons riffed were 22, equally divided between contract employees, regular employees, and employees of other agencies.

   On November 14, 1986, after a discussion between the managers and, Fogarty, Bradford orally advised complainant that he would be terminated effective November 21, 1986. Bradford then advised Fogarty that complainant was very upset, particularly since his contract had been renewed shortly before the RIF. Fogarty was advised by Bradford that complainant was the least productive of his group. Fogarty testified that renewal of contracts was a routine, administrative action.

   On November 20, 1986, Fogarty conducted an exit interview with complainant. Allegations were made that Bradford picked on him, that Bradford had it in for him. He did not allege any cover up by Bradford or a refusal to cover up any kind of safety issue, or any request to falsify information. Fogarty did some investigating and found reasons for putting respondent on the termination list, such as peers feeling he was the least productive. An appointment was then made for complainant to see Mr. Zane, president of EG & G. Finally, on December 15, 1986, the company president, through Bradford, reaffirmed his termination of McGarvey's employment effective November 21, 1986.

   On January 6, 1987, a written notice of termination signed by Bradford was delivered to McGarvey.

   Previously, on December 29, 1986, a letter was received by EG & G from complainant's counsel setting out a claim for damages for breach of contract which was denied on January 5, 1987.

   On February 3, 1987, counsel for McGarvey filed a written complaint under the provisions of ERA. In the complaint, it was alleged that Bradford indicated complainant should falsely report groups to be ready to close, that Bradford closed groups in violation of procedures, that respondents developed a hostile attitude toward him and began a course of intimidation, harassment and coercion aimed at forcing him to close groups. Prayer was for reinstatement of his job, back pay with interest,

compensatory damage, damage for pain and suffering and attorney fees.

   On May 11, 1987 the U.S. Department of Labor notified respondent that (1) EG & G was an employer subject to the Act (2) McGarvey was discriminated against by his termination from employment at Watts. The discrimination arose because McGarvey had raised issues under ERA; and that the complaint was filed within 30 days following his formal letter of termination.

   The parties have stipulated to the following:

   1. Complainant, McGarvey, as a subcontractor to EG & G Idaho, Inc., ("EG & G Idaho"), was engaged by contract in February, 1986 to work on a project which EG & G Idaho was performing pursuant to its contract with the Department of Energy ("DOE"). DOE had undertaken to assist the Tennessee Valley Authority ("TVA") in performing an evaluation of certain welding work in the construction to TVA's Watts Bar Nuclear plant. TVA is a licensee and/or applicant for the construction of the plant.

   2. WEP began as a response to questions raised about the welding work performed during construction. Questions about the welding still existed after much of the construction was completed. EG & G Idaho undertook to perform a re-evaluation of a portion of the welding at Watts Bar which included an independent analysis of concerns reported by people working on construction. This was the part of the project on which the complainant worked.

   3. The complainant worked pursuant to a written agreement. The agreement had an initial term from February 1, 1988 through July 31, 1986. The contract was extended until October 31, 1986 and then to April 30, 1987.

   4. In April 1986, complainant was assigned to the group of persons supervised by Earl Bradford known as the Employee Concerns/Quality Indicator Assessment group ("EC/QIA"). While working for Bradford during approximately April, May and June, 1986 complainant was preparing written assessment plans with another employee, Gary Joseph. The assessment plans addressed previously documented employee concerns and outlined steps to be done by WEP personnel to assess the concern. The complainant worked for another manager during approximately July and August, 1986.

   5. After returning to work for Bradford in approximately September 1986, he was assigned five (5) groups which were the subject of evaluation pursuant to assessment plans for which he was to prepare Closure Statement/Evaluation Reports. These reports were to summarize and evaluate the employee concerns addressed in and pursuant to the steps outlined in the assessment plans. Each report was to set forth the facts and a conclusion and the basis for the conclusion.

   6. During the period the complainant was preparing drafts of closure reports he and Bradford had discussions about problems with the groups which were keeping him from finishing his work on some of the groups. It was the complainant's responsibility to see that information necessary to the completion of the reports was gathered and to draft the text of the report. The discussions between complainant and Bradford about the problems he found in the group resulted in disagreements as to how best to handle the problem.

   7. On November 14, 1986 complainant was advised by Bradford that he was being terminated effective November 21, 1986.

   8. During the week following November 14, 1986 complainant and Project Manager Fogarty had discussions about his termination in an exit interview.

   9. During the week following November 21, complainant contacted EG & G President Jim Zane, and requested a meeting. The following week (December 1), Zane came to Sweetwater, Tennessee and met with complainant, Fogarty, and Robert Tiller, a Department of Energy official, on issues related to complainant's termination.

   10. Around December 29, 1986 a letter dated December 24, 1986 from Mr. Vowell was received by M.C. Stone, EG & G Subcontract Administrator claiming damages related to the termination. On January 5, 1987, by letter, Stone responded to the demand, denying any contract violation on the part of EG & G. A letter dated January 6, 1987 was sent from Bradford to McGarvey about the termination.

   The issues in this case are: 1) was complainant engaged in

a protected activity under the Act; 2) was his complaint timely filed; 3) was his termination violative of the Act.

   As pointed out in Mackowiak v. University Nuclear Systems Inc., 735 F.2d 1150, at 1163 (9th Cir. 1984):

"Quality control inspectors play a crucial role in the NRC's regulatory scheme --- and are given the authority and organizational freedom required to fulfill their role --- At times, the inspector may come into conflict with his employer by identifying problems --- inspectors must be free from the threat of retaliatory discharge for identifying safety and quality problems.

    Further, the 10th Circuit in Kansas City Gas & Electric Company v. Brock, 780 F.2d 1505; cert. denied 106 S.Ct. 3331 (1986) found that the quality assurance personnel "serve the eyes and ears of the NRC --- "

   Thus personnel such as complainant are entrusted with an independence from their employer to carry out the purpose of the Act --- to assure the public health and safety as well as that of employees at nuclear plants.

   It is also the position of the Secretary of Labor that an employee's actions in processing internal documents are a protected activity under the Act See Mackowiak, supra.

   Here, complainants allegations of failure to have procedures in evaluating welding complaints filed by TVA workers constitutes a protected activity and comes within the provisions of the law.

   Accordingly, I find that complainant's activities as a quality assurance engineer was a protected activity under the Act.

   The next issue, and a difficult hurdle for complainant to overcome, is whether the complaint was timely filed.

   The Act and Regulations provide that a complaint must be filed within thirty days after the occurrence of the alleged violation (42 U.S.C. § 5851 and 29 C.F.R. § 24.1).

   When, then, did the violation triggering the 30 day period to file a complaint occur?

   As pointed out above, complainant was hired as a contract employee, quality assurance engineer by EG & G in February 1986. The contract of employment drawn by EG & G was initially for a period extending to July 31, 1986 and provided that it could be terminated when

"... in the best interest of the government and by written notice."

   The contract was extended in writing on August 1, 1986 to october 31, 1986. Subsequently, on October 20, 1986, the contract was again extended in writing to April 30, 1987. (CX-2)

   Background revealed reduction in force (RIF) was carried out in June 1986. The record shows that Earl Bradford, complainant's supervisor, initially was of the opinion that complaint should be riffed, but did not so recommend after talking with another temporary supervisor of complainant.

   In early November 1986, rumors abounded of another RIF. Mr. Fogerty on November 13, 1986 asked the managers, including Bradford, for a list of potential lay offs. Bradford advised that he could not afford to lose any personnel and Bradford indicated to complainant that he would not be riffed. That same day, Fogarty called back all the managers, told them that because of the delay in obtaining documentation on welding concerns from TVA, the program would slow down and more time with less. personnel could accomplish the aims of WEP. He asked all managers to again review their personnel to determine what employees could be laid off based upon productivity. Bradford then re-assessed his group, decided that complainant was the least productive and submitted his name for the reduction in force. On November 14, 1986, Bradford orally notified complainant that he would be terminated effective November 21, 1986.

   On November 20, 1986, an exit interview with complainant was conducted by Mr. Fogarty who re-affirmed the discharge date of November 21, 1986. Complainant then called Zane, president of EG & G in Idaho, in reference to the discharge. Zane came down to Watts Bar, met with complainant, Fogerty, and Bradford; and

Zane promised an investigation to determine the subsistence of complainant's allegation.

   On December 15, 1986, Zane and Fogarty affirmed the November 21, 1986 discharge and complainant was orally notified of this the same day by Bradford.

   In December 1986, complainant filed in state court an action for breach of contract against EG & G.

   On January 6, 1987, Bradford issued a written notice to complainant advising him he was terminated as of November 21, 1986. Complainant did not work for EG & G after November 21, 1986.

   On February 3, 1987, complainant filed a written complaint with the Department of Labor.

    The Act provides that:

"Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of Subsection (a) may, within thirty days after such violation occurs, file a complaint with the Secretary of Labor alleging such discharge as discrimination" (42 USC § 5851)(b)(1) (underscoring supplied).

   Under these circumstances, I find that when complainant was first notified of his discharge on November 21, 1986, the triggering of the thirty day period to file, occurred.

   When Congress spells out a strict time limit on filing a complaint, failure to adhere thereto is fatal. Federal Crop Insurance Corporation V. Merrill, 332 U.S. 380 (1987).

   In Delaware State College v. Ricks, 449 U.S. 250 (1980), cited by respondent in his brief, tenure was denied a facility member. The Court found that,

"discrimination occurred --- and the filing period therefrom commenced at the time the tenure decision was communicated to Ricks. This is so, even though the eventual loss of a teaching position did not occur until later." See also, Abramson v. University of Hawaii 594 F.2d 202 (1979).

   Accordingly, I find that the triggering violation was the clear announcement to complaint on November 14, 1986 that he was terminated effective November 21, 1986. Claimant's release upon the January 6, 1987 written notice of discharge was preorderd by the oral action taken on November 14, 1986. Consequently, since he did not file his complaint until February 3, 1987, the complaint was untimely and must be dismissed.

   I have also considered whether equitable tolling may be relied upon by complainant, but find it inapplicable. The action taken by EG & G on November 14, 1986 was followed through to the end. Even claimant in his testimony recognized that he was advised by Mr. Fogerty that "his investigation revealed that the lay off would stand" (TR 105). By his resume, which reflects employment by EG & G from 112/68-11/8611, the complainant further acknowledges the November 21, 1986 discharge date. Complainant's contention that the written notice of dismissal is the triggering point is untenable. This was merely affirming what had previously been known to complainant.

   For the above reason, it is recommended that the complaint filed on 2/3/87 by W. Scott McGarvey, be dismissed as untimely.

      GILES J. McCARTHY
      Administrative Law Judge