Date: SEP 30 1991

Case No. 89-ERA-43

IN THE MATTER OF

SANTIAGO GOMEZ
    Complainant,

    v.

UNIVERSITY OF PUERTO RICO,
    Respondent,

BEFORE: GILES J. McCARTHY
    Administrative Law Judge

    This case arises under the Energy Reorganization Act of 1974 as amended, and regulations set out in 20 C.F.R. Part 24.

    29 C.F.R. 24.3 provides:

(a) Who may file. An employee who believes that he or she has been discriminated against by an employer in violation of any of the statutes listed in SS 24.1(a) may file, or have another person file on his or her behalf, a complaint alleging such discrimination. (b) Time of filing. Any complaint shall be filed within 30 days after the occurrence of the alleged violation. For the purposes of determining timeliness of filing, a complaint filed by mail shall be deemed filed as of the date of mailing.

    29 C.F.R. 24.4(d)(2)(i) provides that:

"if on the basis of the investigation the Administrator determines that the complaint

is without merit, the notice of determination shall include, or be accompanied by notice to the complainant that the notice of determination shall become the final order of the Secretary denying the complaint unless within five calendar days of its receipt the complainant files with the Chief Administrative Law Judge a request by telegram for a hearing on the complaint ..."

    The complainant on April 19, 1989 filed a complaint with the U.S. Department of Labor alleging discrimination.

    On June 30, 1989, the District Director advised complainant that a fact finding investigation did not verify that discrimination was a factor for the following reasons:

"The essence of your complaint is that the University of Puerto Rico discriminated against you by failure to create a permanent Radiation Safety Officer (RSO) position and to appoint you to said position. The RSO position, however, belongs to a class that was not included in the University's Classification and Compensation Plan. The class was officially established on September 21, 1988. The actual creation of the position, however, is contingent on action by the Puerto Rico Legislature to establish a permanent and recurrent budget allocation under Fund 100 for that purpose. Effective April 7, 1989 you resigned to the RSO title and duties. The Puerto Rico Legislature has yet to allocate the necessary funds, which has compelled the University to appoint a replacement under essentially the same arrangement. Therefore, it appears that the University's failure to create the permanent RSO position was dictated by economic considerations, rather than discriminatory intent."

    The certified letter was received by complainant on July 8, 1989. Within five days thereafter, complainant on July 12, 1989,

telegraphed the Chief Administrative Judge that he wanted a formal hearing.

    At the hearing in San Juan, Puerto Rico both complainant and respondent were represented by counsel. The case was left open to receive stipulations of stipulations which were never received, nor were English translations of Spanish documents furnished, despite requests for such and agreements to do so.

    On July 26, 1974, complainant was hired as a Senior Associate at the University with a monthly salary of $1000.00.

    On August 28, 1979, complainant sent a letter to Dr. Heriberto Torres, Director of Physicians that he had been actively engaged in filing license applications with the NRC and noted that the position of RSO needed a special classification and salary.

    On June 21, 1988, complainant filed a petition in the Superior Court of Puerto Rico, San Juan Sector for a temporary and permanent injunction, Declaratory Judgment and Damages, alleging that since 1979, he had been requesting the University of Puerto Rico to create his position RSO, that he was informed that his position was "Assistant Medical Radiation Therapist", that he had requested that he be paid as Radiation Protection Officer a salary commensurate with that of other jurisdictions, that on June 6, 1988, he was required under threat of dismissal, to carry out additional duties without remuneration.

    The Superior Court on June 28, 1988 dismissed the complaint since complainant had not exhausted all administrative steps.

    At the instant hearing, complainant who is 61 years old and possesses two degrees; in physics and radiological safety, testified he was working as a "nuclear physicist" at the MSC with a monthly salary of $1300.00 (Tr-28). In 1978, he gave his qualifications to NRC in order to be evaluated to prepare applications licenses. He further testified that from 1978 until April 1989, he performed duties as an RSO, but admitted

" ... The position was not created. I was performing duties as radiologic safety and approved by the commission as safety officer for that purpose, but the position, the R.S.O. position was not established at the Medical Sciences Campus (Tr-30).

    As early as 1982, he found that his job description at the MSC was "assistant" physicist for medical evaluation", a technical position. It is not a staff position as the RSO position" (Tr-31).

    He further testified that in May 1988 he told NRC that he was not ready to process the renewal application for the license of MSC. When MSC administrators heard about this conversation with NRC, he was advised by the Administrator that they would pay him a bonus of $1500.00 if he prepared the renewal document (Tr-34).

    Complainant also testified that at a meeting on or about March 20, 1989 attended by the NRC inspector, the Assistant Chancellor and Mrs. Guzman, an administrator of the MSC, he alleged that he was not satisfied with the radiation protection at the Medical Science Campus; that Mrs. Guzman told him that "this type of attitude will not help you at all" (Tr-36). He also complained that the MSC did not fix the incinerator for disposing of radioactive wastes for two years (Tr-47).

    On March 10, 1989, complainant wrote to the Chancellor of the MSC the following letter:

"Due to the fact that what was promised by the Dean of Administration in his letter of August 22, 1988 has not been fulfilled, I feel obliged to resign from my title and functions as a Radiation Protection Officer (RSO) as of April 7, 1989.

I shall continue to perform the functions assigned to the "Assistant Medical Radiations Physicist" and Ad-honorem Professor in the Department of Radiological C. which is the post and position in which I am currently classified by the Office of Human Resources.

In the event that the post of RSO should be established on the campus with the salary and status it deserves or should it become possible to reach an agreement on classification and salary conditions, I am

quite disposed to go on collaborating in the work of Physics and Radiation Safety with the same efficiency and responsibility on my part and the approval of the NRC as has been the case since 1978..."

    On April 19, 1989, he filed his complaint of discrimination with the U.S. Department of Labor. Claimant further testified that on November 30, 1989, he was offered a job with the NRC at Philadelphia.

    Ilsa Guzman Martinez is Associate Administrative Dean of the Medical Science Campus and was first employed on october 11, 1988. She has known complainant since the end of 1988 or beginning of 1989 (Tr-85). At that time complainant alleged he was carrying out the functions of a radiation protection officer that no position had been created at the campus so he could not be officially named to it (Tr 86).

    She investigated it and found the RSO position did not exist in the U.P.R. Classification Plan (Tr-90 & 91). Complainant was receiving a monthly salary of $1300.00 a month plus $100.00 monthly for carrying out duties as an RSO (Tr-91). After complainant resigned, Dr. Huberto Torres was appointed additional duties and received a basic salary of approximately $2000.00 a month and was given additional duties as a RSO (following complainant's resignation) of 500.00 a month for RSO duties. Dr. Torres has a doctorate degree.

    She attended a meeting in 1989 with an inspector (Mr. Klein) of the NRC, and complainant to discuss procedures between the MSC and the NRC. Among the topics were the administration of phosphorus to one of the patients. She indicated to complainant that administration procedures should be looked to internally and that cordial relationship should be maintained with the NRC (Tr-94 & 95). She specifically stated to complainant that the "administrative matters" related solely to the creation of an RSO position (Tr-107).

    The record reveals that from early 1978 complainant was

dissatisfied that a position of RSO had not been established in the Classification Plan of the MSC. As early as 1983, he knew his official position was assistant physicist and that he was performing additional duties as an RSO - a position not in the plans.

    Every five years, the license for radiation usage at MSC was required to be renewed by the NRC.

    At the hearing claimant testified that when time for renewal of the license arrived 1988, he received a one time bonus to prepare the renewal license, since in his words, absent a license, the use of radioactive equipment would not have been sanctioned by NRC.

    Complainant submitted his letter of resignation on March 10, 1989. A review of this document does not support his claim that the resignation was forced. In fact, it clearly states, that if an RSO position was created, he would be more than happy to perform such duties if the proper status and salary were given him.

    After his resignation, no further additional compensation was given him since he was no longer carrying out any RSO duties.

    The complaint was filed by him with the Department of Labor on April 19, 1989, more than 30 days after he believed he was being discriminated against by failure to name him to a permanent position as RSO. While the resignation was to be effective on April 7, 1989 in his own testimony, he related the date of the alleged discrimination of not naming him to an officially classified position of RSO was when he signed and delivered his letter of resignation of March 10, 1989. Simply stated, this letter was a threat - if you don't give me the official status and salary of an RSO as in other jurisdictions, I am reassigning such additional duties and someone else better prepare the renewal license applications with the NRC (Tr-64).

    Accordingly, it is my recommended decision that the claim be dismissed for untimely filing, since the statute clearly states:

"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 U.S.C. 5851(b)(1), (underscoring supplied). (See also Federal Group Insurance Corporation v. Merrill, 332 U.S. 380 (1987)).

    Since complainant testified that he believed discrimination occurs when he submitted his letter of resignation on March 10, 1989, the 30 day period to file an application began. Since the application to the Department of Labor on April 19, 1989, the application was untimely and it is recommended that the case be dismissed.

    Furthermore the evidence shows that as early as 1982, complainant was aware that the position of RSO was not included in the classification plan. He admitted that he had not filed an internal grievance at that time or thereafter with the University. As pointed out by the U.S. Labor Department investigation, the RSO position; while created in September 1988, the creation of the position was contingent upon the Puerto Rico Legislative finding thereof which was not done.

    There is no evidence that any failure to establish a permanent RSO position was the result of any discriminatory intent by MSC. The latter's hands were tied. There was no discharge of the complainant. He retains his status as physicist, and voluntarily relinquished his additional duties and corresponding compensation as an RSO. This was not dictated by the University.

    Based on all the evidence, there has not been established any discriminatory action on the part of the University, and it is recommended that, even were I to assume timely filing, the claim be denied.

    I also note that the parties agreed to stipulate facts and to submit them post hearing. This was not done. Documents were submitted in Spanish and without translation as requested. Tine was given for briefing, none were ever offered.

       GILES J. McCARTHY
       Administrative Law Judge

GJM/dle
Ft. Lauderdale, FL