1. The first issue is whether the initial 5 items of the complaint paraphrased below are timely under 29 C.F.R. 24.3 (b) requiring that the complaint "shall be filed within 30 days after the occurance of the alleged violation". The complaints filed with DOL alleged that the employer violated the Act by actions consisting of:

(1) failure to provide complainant with adequate and/or accurate computor job descriptions;

(2) failure to provide complainant with adequate and/or sufficient service reviews;

(3) failure to provide complainant with an adequate commendation for computor related work;

(4) failure to reclassify complainant from an SE-6 to an SC-3 or M-5 position based on his performance of computor related duties,

(5) failure to properly compensate complainant for the computor related work he performed;

(6) presentation to the complainant of an investigative report prepared by Watts Bar Human resources office;

(7) Refusal to furnish complainant with a copy of technical information report prepared by Wayne Asylinger concerning CAQR WBN890556.

2. If issue 1, set out in the motion for summary judgment, is found in complainant's favor then there are 7 issues to decide on a substantive basis. If it is decided against complainant, then a decision is required only on items 6 and 7.

3. At the hearing complainant also alleged that Mr. James A. Thompson referred to him as a pipeline to the Nuclear Regulatory commission and that one Gary B. Lubinski harassed him by placing him under surveillance. As to these two items, the question has been raised whether they are also time barred inasmuch as they occurred more than 30 days from the hearing.

   On December 14, 1990, the respondent moved for partial summary judgment, contending that the claimant was time barred inasmuch as he knew of items (1) thru (5) (paragraph 1, supra) more than 30 days prior to the time he filed his complaint. Oral argument on the motion was heard on January 15, 1991. The decision was reserved (Tr.24). The authority for the motion was stated as 42 U.S.C. 5851 (b) (1) (1988) and 29 C.F.R. Sec. 24.3 (b) (1990) as well as 29 C.F.R. Sec. 18.41 (a) (1990) and Rule

56, Fed. Rules of Civil Procedure. In opposition the complainant does not deny that the five acts complained of occurred 30 days prior to filing his complaint. Rather, he argues they are not time barred a there was a continuous pattern and series of acts of discrimination and retaliation against the plaintiff for his involvement in reporting nuclear safety concerns. He places principle reliance on Corbin v. Pan Am World Airways. Inc., 432 F. Supp. 944 (1977). That case states that "Plaintiff's claims of a repeated failure to promote and a denial of equal pay involve ongoing aspects of the employer-employee relationship. Viewing the allegations in the light most favorable to plaintiff, discrimination occurs with the receipt of each paycheck..." Accordingly, on the facts of this case, these acts may be properly classified as acts of a continuing nature.....".

   Other than the unsupported assertion of the complainant, facts have not been presented that would permit one to conclude that the discriminatory conduct of the respondent, if it in fact exists, is of a continuous nature. Further, Corbin indicates that there is a class of discrimination related actions that are not of a continuous nature: job transfers and discontinuance of a particular job assignments. This is clearly what happened in this case. Here complainant was transferred and reassigned from computor to largely non-computor functions in May, 1989 (Fogelman affidavit, December 14, 1990). Complainant's denial that he was not transferred in his affidavit in opposition, does not provide the details of work he was doing and therefore is insufficient to rebut the Fogelman affidavit. The five discrete acts complained of were related to Complainant's employment in such computor functions (ALJ3). These acts, as indicated, admittedly occurred in excess of 30 days from the time of the filing of the complaint. In accordance with Billings v. Tennessee Valley Authority, No. 86-ERA 38 (June 28, 1990), petition for review pending, No. 90-3633 (6th Cir.) They are time barred under the regulation.

    Last, it is noted that complainant raises an equitable toling argument citing English v. Whitfield, 858 F. 2d 9571 962- 964 (4th Cir. 1988). As the Supreme Court indicated in Irwin v. Veterans Admin., 111 S.Ct. 453, 457-58, such an argument is not available unless it can be shown that the complainant was actively pursuing his judicial remedies and filed a defective pleading or was tricked into allowing the filing deadline to pass. No such occurences have been alleged in the instant case. The motion for partial summary judgment is granted.

   There remains the issues as to (1) the propriety of the presentation to the complainant of an Investigative report prepared by Watts Bar human resource office and (2) the refusal to furnish complainant with a copy of technical information report prepared by Wayne Asylinger concerning CAQR WBN890556. In addition, there are the questions of the "pipeline comment" and the alleged Lubinski harassment.

The parties stipulated and I find as follows:

   1. Respondent Tennessee Valley Authority (TVA) is a Federal agency created by the TVA Act of 1933, 16 U.S.C. . 831-831dd (1988). TVA has five licensed nuclear units, two at Sequoyah Nuclear Plant (Sequoyah) and three at Browns Ferry Nuclear Plant. TVA also has four nuclear units under construction, two at Watts Bar Nuclear Plant (WBN) and two at Bellefonte Nuclear Plant.

   2. Frederick J. Evans, Jr. (complainant), a TVA employee in the Nuclear Construction organization of TVA's Nuclear Power group, initiated this proceeding by a March 22, 1990, complaint claiming that TVA had discriminated against him in violation of Section 210 of the Energy Reorganization Act of 1974, 42 U.S.C. 5851 (1988) (ERA). Complainant amended the March 22 complaint on May 18, 1990.

   3. Complainant has a 2-year associate degree in mechanical engineering technology from Chattanooga State Community College (tr. vol. 1, at 51). He does not have a BS degree in any engineering discipline and does not claim to be an engineer (tr. vol. 2, at 139). While in college he took only one computer-related course. He does not have a B.S. or a 2-year degree in computer science (tr. vol. 2, at 140).

   4. Complainant took a computer course in job control language (JCL) at TVA during 1987 that lasted between 9 and 11 hours (tr. vol. 2, at 140-41; CX-7). Complainant took another TVA JCL course beginning on January 11, 1988, which lasted 12 1/2 hours (tr. vol. 1, at 57; tr. vol. 2, at 141-42; CX-5) Complainant took two other TVA computer related training courses: "Easytrieve +: Using It Effectively" in June 1989, and "SAS: Using It Effectively" in July 1989 (tr.

vol. 2, at 112-13, 144-45; CX-18, CX-19).

   5. Complainant has been employed by TVA since 1976 (tr. vol. 1, at 52). Complainant transferred from Sequoyah to WBN in July 1981 (RX-1). At the time of his transfer, complainant was placed in an SE-6, Engineering Associate-Mechanical, position (id.). Complainant holds that same position today.

   6. Technical, nonprofessional positions, such as engineering aides and computer technicians, are classified to TVA's SE-wage schedule. Technical professional positions, such as engineers and systems analysts, are classified to TVA's SC-wage schedule. A BS degree in engineering is generally required for a position on the SC schedule in Nuclear Construction, while technical positions not requiring such degrees are typically on the SE schedule (tr. Vol. 3, at 49-50).

   7. To accommodate a medical restriction of indoor work only, TVA assigned complainant some computer related responsibilities in the early 1980s. On August 6, 1987, complainant was appointed Records Accountability Programs (RAP) Site Coordinator for WBN (RX-2). As RAP Site Coordinator, complainant undertook and was required to perform the computer- related duties described in RX-2. Complainant remained RAP Site Coordinator for WBN until May 1989 (tr. vol. 1, at 86; tr. vol. 2, at 13-15, 173-75; tr. vol. 3, at 145-46).

   8. During the summer of 1988, TVA undertook a massive agency-wide reorganization and reduction-in-force (RIF), which affected every TVA organization including complainant's (tr. vol. 4, at 170). Complainant's organization, Nuclear Construction, lost 50 percent of its personnel (id.).

   9. During the 1988 RIF, complainant's supervisor, Harrell O. Simpson, was aware that complainant was likely to be RIFed during the reorganization because of his relatively low standing on the SE-6 Engineering Associate-Mechanical retention register. To protect complainant from the RIF, Mr. Simpson drafted a new position description in order to remove complainant from that particular retention register. The draft Position description (RX-3) included complainant's major responsibilities as RAP Site Coordinator (tr. vol. 2, at 151; CX-8). The draft position description was forwarded to the personnel office in Knoxville for processing; however, it was apparently misplaced and never officially issued by TVA. Consequently, complainant's

original position description (RX-2) remains in effect (tr. vol. 1, at 116, 122-30; tr. vol. 4, at 173-74).

   10. Complainant received a copy of the draft position description (RX-3) in July 1988 while on loan to TVA's Sequoyah Nuclear Plant (tr. vol. 2, at 151-53). Although complainant disagreed with the proposed retention of his SE-6 classification in the draft position description, he did not file a grievance about it (tr. vol. 2, at 152-53). Nor did he invoke the provision in the collective bargaining agreement in which he could have challenged the proposed retention of his SE-6 classification (tr. vol. 2, at 153-54). Scott Shaffer testified that under TVA's classification system the draft position description would be properly classified as either an Information Systems Specialist, SA-1, or as Programming Technician, SE-4 (tr. vol. 4, at 148-49). Both are lesser paying positions than complainant's present SE-6 position (RX-24; tr. vol. 4, at 152-53).

   11. During the 1988 RIF, complainant was not placed on the final SE-6 Engineering Associate-Mechanical retention register for his competitive area (RX-4; tr. vol. 1, at 127) Most of the SE-6s on that retention register were RIFed, including some SE-6s who had more service time and retention standing than complainant (tr. vol. 1, at 127). Had complainant been placed on that retention register, he would have been RIFed effective September 30, 1988 (id.; Tr. vol. 4, at 171; RX-4). As a result of the position description drafted by Mr. Simpson, complainant was placed in a different competitive level than other SE 6, Engineering Associate-Mechanical (tr. vol. 1, at 126-28)

   12. Complainant came under James A. Thompson's supervision in October 1988 until March 1990 (tr. vol. 3, at 83-86, 103). During the 1988 reorganization, TVA announced that it was mothballing WBN Unit Two. In the fall of 1988, Mr. Thompson told complainant that TVA would not continue to keep the RAP programs current with respect to Unit Two (tr. vol. 2, at 173-74). However, complainant generated and printed out reports pursuant to Mr. Thompson's instructions when such reports were requested (id.).

   13. On May 11, 1989, Mr. Thompson informed complainant that because WBN was moving from a construction to an operations mode, TVA would not continue to support Nuclear Construction's computer

program entitled Engineering, Construction, Monitoring and Documentation (ECM&D) with respect to either WBN unit. As a consequence complainant's remaining RAP Site Coordinator duties were removed from him the latter part of 1989 (tr. vol 1, at 86; tr. vol. 2, at 113-15, 173-75; tr. vol. 3, at 89, 145-46; tr. vol. 4, at 37-38; CX-26).

   14. The Employee Concerns Program (ECP) is a TVA organization to which employees may identify nuclear safety concerns if they feel uncomfortable with raising such issues with their immediate supervisors. ECP has a provision for employees to maintain their confidentiality (tr. vol. 2, at 133).

   15. Complainant reported concerns to TVA's beginning in 1986 (tr. vol. 2, at 20-21). Between 1986 and November 1989, complainant went to ECP about issues that arose while he was on loan to the Electrical Engineering Unit and before he was assigned to TVA's Corrective Action Program (CAP) (tr. vol. 2, at 46).

   16. On May 11, 1989, complanant expressed a concern to TVA's ECP concerning the removal of his ECM&D duties (tr. vol. 2, at 113-15; CX-26).

   17. On May 22, 1989, complainant was assigned to maintain the outstanding work items list (OWIL) (CX-12; RX-6). Complainant's OWIL duties took 4b to 50 percent of his time and this was primarily clerical data entry, (tr. vol. 2, at 175-77). Mr. Thompson told complainant that he would try to find him some other type of duties because he wanted complainant to perform work commensurate with his position description (id. at 176). In June 1989, complainant's OWIL duties were transferred to TVA's Information Services organization at 177-80).

   18. Prior to June 1989, the provision of computer services within TVA was the responsibility of each organization (tr. vol. 2, at 177; Hammon dep. at 5-6). In June of 1989 all of the computer services within TVA were centralized by placing those functions and all of the people who were officially performing those functions in the newly formed Information Services (Hammon dep. at 5-7). Thus all of the positions which officially had computer-related duties were removed from Nuclear Construction at

that time. Complainant was not placed in Information Services because his official position description was for an Engineering Associate-Mechanical and did not reflect that he had such computer-related duties (tr. vol. 2, at 177-78).

   19. Cathy Hammon testified that since the creation of Information Services in June 1989 there have been no computer- related positions in Nuclear Construction (Hammon dep. at 31). Thus, after the creation of Information Services in June 1989, it was not possible to reclassify complainant's SE-6 engineering aide position to a computer-related position because there was no work of that type left in Nuclear Construction (Hammon dep. at 31). Ms. Hammon testified that, after June 1989, the only way that complainant could have been placed into a computer-related position was for him to apply and be selected on a vacant position announcement in accordance with TVA's collective bargaining agreement (Hammon dep. at 31-32). Complainant applied on only one position in information Services. His application for that position was submitted late and as a consequence was not considered (Hammon 53 dep. at 8-12).

   20. Complainant came under the direct supervision of Gary B. Lubinski on a part-time basis in May 1989 and on a full-time basis in the fall of 1989 in CAP at WBN (tr. vol. 2, at 182-83). Since the fall of 1989, complainant has done no work related to computer programming (tr. vol. 3, at 54). Mr. Lubinski testified that he heard from people within TVA that complainant was good with computers (tr. vol. 3, at 64).

   21. A condition adverse to quality report (CAQR) is a document used by TVA to self-report any discrepancies between the plant as-built and as-designed or between the plant design and the technical requirements imposed by TVA's licensing commitments or NRC's regulations. The CAQR procedure was adopted by TVA pursuant to 10 C.F.R. Pt. 50 app. B (1991). Part A of a CAQR defines the problem, part B defines the corrective action needed to fix the adverse condition, and part C states when and how the corrective action was implemented (tr. vol. 2, at 124). Complainant's primary duty in CAP was to define the corrective action that was needed with respect to already identified problems (tr. vol. 2, at 125).

   22. During an inspection in August and September of

1989, the Nuclear Regulatory Commission (NRC) identified use of improper solder and TVA's failure to document the end use of commercially purchased solder as a failure to comply with TVA's own administrative procedures (RX-7). Complainant did not identify either issue and does not claim to have informed the NRC or TVA of the matter (tr. vol. 2, at 120-21). TVA generated CAQR WBN 890412 (CAQR 412) as a result of the NRC's identification of the issues (tr. vol. 2, at 122-23). CAQR 412 originally addressed two issues, the use of improper solder and the traceability of the soldering material (tr. vol. 2, at 25). Complainant's initial responsibility with respect to CAQR 412 was defining the necessary corrective action (tr. vol. 2, at 125-26).

   23. Complainant admitted that since 1981 when he began working at WBN there have been several thousand CAQRS written by other TVA employees, thousands of employee concerns, and numerous notices of violation from the NRC (tr. vol. 2, at 155-56). Although some CAQRs have the potential to impede the licensing of WBN and may require considerable work and expense to resolve, CAQR 412 and CAQR WBN890556 (CAQR 556) have not (tr. vol. 2, at 156-57).

   24. on December 11, 1989, TVA prepared and submitted a response to the NRC's notice of the violation related to the use of solder (RX-7; RX-9). On February 12, 1990f TVA revised its initial response to the NRC due to an error contained in the December 11, 1989, response with respect to the timeframe of the records that had been examined (RX-11). Complainant does not claim to have identified the error (tr. vol. 2, at 159-60).

   25. In November 1989 james Thompson assigned David Graham, who in turn assigned complainant, to remove the issue of end use traceability from CAQR 412 and to write a new CAQR (CAQR 556) to deal separately with that issue (tr. vol. 2, at 27-28). Mr. Thompson said that he wanted to send the issue in CAQR 556 to another organization to be handled because it was their program (tr. 5 vol. 2, at 31). Mr. Thompson later asked complainant to draft the CAQR so that it would cite the specific procedures that were volated and to remove the more general references to upper-tier documents (tr. vol. 2, at 40-42, 127-28). Complainant did not think that Mr. Thompson had engaged in any improper actions with respect to any CAQRs

or any regulatory requirements Prior to November 1989 Although complainant now claims that he thought that Mr. Thompson's direction to write a new CAQR, CAQR 556, was improper when an existing CAQR addressed the problem, he did not bring this issue to the attention of his supervisors at the time (tr. vol. 2, at 27, 45, 203).

   26. CAQR 556 as written by complainant stated that specified requisition forms for solder were not traceable (tr. vol. 2, at 126-29). In November 1989 complainant signed the closure of CAQR 556 upon being shown that there was no traceability requirement with respect to the particular forms he had identified (tr. vol. 2, at 128-30). Complainant now claims that he felt pressure to sign the closure of CAQR 556 because he had no evidence to support keeping it open (tr. vol. 2, at 130). The same day that CAQR was closed, complainant went to ECP and raised a concern about its closure, claiming that the scope of the sample that he had written into the CAQR was too narrow. However, he did not raise an allegation to ECP that he had been pressured into closing the CAQR (tr. vol. 2, at 28, 31- 33).

   27. On the day that CAQR 556 was closed, complainant went to the NRC office at the site and raised his concern about the closure of the CAQR with the NRC resident inspector. However, when he returned from the NRC office, complainant informed Mr. Thompson that the NRC had called him with a question about CAQR 556. Mr. Thompson was quizzical about the fact that the NRC knew of the closure of CAQR 556 earlier that day and made a comment to the effect that it seemed as though the NRC had a pipeline to Nuclear Construction (tr. vol. 2, at 87-88, 92-93, 194-97).

   28. In the fall of 1989, complainant also raised four allegations of intimidation and harassment (I&H) to ECP. Those four allegations were: (1) his position description did not adequately describe his previous computer-related duties; (2) he had not received a service review when he changed supervisors in 1988 and 1989 and the annual service reviews he had received did not reflect all of his computer-related duties; (3) his position was improperly classified as an SE-6 rather than an SC-3 or SC 4 and thus inadequately compensated; and (4) Mr. Thompson's accusation that complainant was a "pipeline" to the NRC (RX-10; tr. vol. 3, at 243). During the same time, complainant met with Dan Robertson from TVA's Human

Resources organization and raised his concerns that his Position description did not reflect his computer-related duties, that he had received inadequate service reviews, and that his position should be reclassified (tr. vol. 2, at 62-63).

   29. As a result of complainant's ECP concerns about I&H and the closure of CAQR 556, David W. Stewart was instructed in December 1989 by TVA Vice President Richard Wilson to oversee an investigation of whether that CAQR had been properly closed and whether complainant had been sublected to I&H by TVA management (tr. vol. 4, at 112-13). Wayne Aslinger, a Quality Assurance specialist from another plant, was selected to conduct the investigation about the closure of CAQR 556, and Keith Fogleman, a Human Resources officer with experience in investigating employee grievances, was selected to investigate the allegations of I&H (tr. vol. 4, at 113).

   30. During Mr. Fogleman's investigation, complainant informed Mr. Fogleman that he wanted to work in a computer- related position. When Mr. Fogleman learned of a vacancy in Information Services in Chattanooga, he informed complainant who refused to apply on the position because it was a lower graded position than the one he held and because he would forfeit the right to any project life severance pay he might be entitled to if he was RIFed from his position in Nuclear Construction (tr. vol. 2, at 64-65).

   31. Mr. Stewart informed Nuclear Construction that there was a concern about CAQR 556 and directed Nuclear Construction to look into the matter also (tr. vol. 2, at 134). Nuclear Construction formed a task force, headed by Harrell O. Simpson, to look into the matter, but they were not informed of the specific issue, that complainant had raised the issue, or the results of Mr. Aslinger's investigation (tr. vol. 2, at 134-35).

   32. Mr. Aslinger completed his investigation about the closure of CAQR 556 in early January 1990 and prepared a report (RX-18; tr. vol. 3, at 217). Mr. Fogleman completed his investigation of the alleged I&H on February 8, 1990, and also prepared a report (RX-10). Complainant was given a copy of Mr. Fogleman's investigative report on February 26, 1990, by his supervisor, Paul Scanlan, who asked him to review it and give him any comments (tr. vol. 2, at 74-75). Complainant told

Mr. Scanlan that he had comments on the report but could not get them done that day. Although Mr. Scanlan told him to take more time, complainant never provided any comments (RX-15, at 2; tr. vol. 2, at 86, 205).

   33. As a result of the investigations by Mr. Aslinger and Mr. Simpson's task force, TVA determined that CAQR 556 1 should be reopened. Complainant was assigned to include the task force information in the CAQR (tr. vol. 2, at 134-35). At complainant's reguest, on April 19, 1990, Gerald Brantley from ECP and Lynn Nolan, Mr. Thompson's supervisor, briefed complainant on the results of the Aslinger investigation into the closure of CAQR 556. They told him that the report concluded that the CAQR should not have been closed but that the report was confidential and could not be released to him (tr. vol. 2, at 117-19). Mr. Simpson's task force, Mr. Thompson, and Mr. Brantley were also denied access to the report. Mr. Nolan was required to return the report after reading it tr. vol. 2, at 137-38).

   34. TVA's Office of Inspector General (OIG) is statutorily authorized and reports directly to TVA's Board of Directors and to Congress (Inspector General Act of 1978 § § 5, 8E, 5 U.S.C. app. at 1186, 1194 (1988)). The OIG investigated and reported on the I&H allegations contained in complainant's ERA complaint (RX-16). The OIG's report concluded that complainant had not been subjected to I&H. The OIG's special agent in charge of investigating complainant's allegations had 16 to 17 years experience as a special agent with the Federal Bureau of Investigation (FBI) (Hickman dep. at 7). The investigation was supervised by another former FBI special agent (Hickman dep. at 4).

   35. Prior to November 1989 I&H allegations were investigated by TVA's Office of Inspector General (OIG) and/or by ECP (Hammon dep. at 15-16, 38-39). In November 1989 Nuclear Power changed its policy to provide for the investigation of I&H concerns by line management to overcome misunderstandings, to take corrective action, if necessary, with respect to management, and to communicate back to the employee (Hammon dep. at 20-21, 23, 38-39). That policy change was explained to the NRC on December 12, 1989 (RX-20; RX-21). Mr. Fogleman's investigation of complainant's I&H concerns was done pursuant to that policy. I&H concerns raised by other employees during that

time frame were similarly investigated by line management (Hammon dep. at 24-25).

   36. Complainant's most recent annual service review Prior to his March 22, 1990, complainant in this matter was for the period October 1, 1988, to October 1, 1989 (RX-8; tr. vol. 2, at 171-72). TVA management issued and discussed the service review with complainant on November 14, 1989 (RX-8). Complainant admitted that he received it before January 1990 (tr. vol. 2, at 171).

   37. On May 2, 1988, complainant was assigned to serve on the WBN records issue team as the Division of Nuclear Construction representative (CX-11). Complainant was loaned to Sequoyah during July and August of 1988 and when he returned to WBN the records issue team had been dissolved (tr. vol. 1, at 98).

   38. On March 7, 1990, complainant was researching an issue on cable inspections and learned that ECP had issued a related report. Complainant informed Paul Scanlan of the existence of the report. Later that day Mr. Thompson told complainant that he would prefer for him to obtain the information from RIMS, TVA s microfilmed files, rather than ECP. Mr. Scanlan asked his secretary to obtain a copy of the report from RIMS for complainant's use (tr. vol. 2, at 24, 36-39, 108-10, 192-93; CX-17, CX-29, Cx-30).

   39. Complainant testified that he was not sure that he sustained any adverse Personnel action at any time between November of 1989 and March of 1990 (tr. vol. 2, at 199-200).

   40. Interrogatory No. 3 of TVA's interrogatories to complainant asked him to identify the nature, date, time, and location of each alleged reported nuclear safety concern and the identity of all persons to whom complainant reported such concerns. Complainant's answers to interrogatories, which he signed under oath, did not state that he had reported any nuclear safety concerns to the NRC (tr. vol. 2, at 201-02).

   41. The minimum educational requirement for an SC-3, Systems Analyst, position is a "Bachelor's degree from an accredited college or university in computer science or related discipline that includes a specialty in computer science.

Education or documented work experience and technical training may be evaluated as synonymous attributes" (RX-22, at 10).

The complainant in his March 22, 1990 complaint alleges: "The most recent act of discrimination which has occurred within thirty (30) days prior to the filing of this complaint of discrimination herein, as well as other acts of discrimination within said thirty (30) day period, is the manner in which an investigative report was given and presented to Mr. Evans by Paul Scanlon, on February 26, 1990, at the TVA Watts Bar Nuclear Plant. On that occasion, an investigative report which had allegedly been in preparation for many months was given to Mr. Evans, and he was instructed to examine the report and provide Paul Scanlon with his written comments by the end of the work day. Upon reading the report Mr. Evans claimed that it was incomplete, inaccurate, and prejudiced against Mr. Evans in a number of different specific areas. Mr. Evans further claimed that the report as well as the manner in which it was presented to him on Febrary 26, 1990, to be an adverse action against him in violation of the Act. He contends that the report tends to distort and erroneously state many of the concerns raised by Mr. Evans over a considerable period of time and on a fairly regular basis as early as November 18, 1986. (ALJ3)

   The report covers 4 issues: (1) his position description did not adequately describe his previous computer-related duties; (2) he has not received a service review when he changed supervisors in 1988 and 1989 and the annual service reviews he had received did not reflect all of his computor related duties; (3) his position was improperly classified as SE-6 rather than an SC-3 or SC-4 and thus inadequately compensated; and (4) Mr. Thompson's accusation that complainant was a "pipeline" to NRC (T28) (C1). Items 1 through 3 have already been discussed in connection with the motion for summary judgment and are time barred.

   Assuming arguendo that the above items 1 through 3 are not time barred, the parties fact stipulation incorporating portions of the record as well as the record itself reflect that these items are without merit: Complainant was not qualified for the higher grade engineering position as he had not received his engineering degree (S3, 6, 41). The testimony of what complainant did when he was working at computor type functions

did not demonstrate that he was performing at a level of an engineer. True enough he had substantial experience as a computor technician but the evidence does not permit one to equate that experience to that of an engineer with a computor specialty. Additionally, the record indicates that the computor functions complainant worked at were either phased out or reassigned to other organizational components (S12,13,18,19). There has been no showing that complainant was either intimidated or organizational changes were made with the intent of discriminating against complainant (S39). Nor has it been shown that his failure to received proper or any service reviews nor the failure to finalize a new job description was in the nature of I and H. Further,it is noted that the reclassification instrument complainant feels he entitled to would not have produced increased compensation for him and he would in fact receive less pay than he presently receives if the new description had been finalized (S10).

   In summary, it is noted that complainant had computor skills and would have preferred to be classified as an engineer and be assigned to computor functions for TVA. However the failure of TVA to accomplish complainant's preferences has not been shown to be the result of any kind of animus or I & H steming from complainant's protected activity. Rather, they originate from the complainant's insufficient professional qualifications and TVA's organization changes that do not appear, as indicated, to have been undertaken with the complainant in mind.

The complainant filed complaints with the Nuclear Regulatory Commission (NRC) in November 1989 to the effect that he was caused to sign off prematurely by his supervisor Jim Thompson on CAQR 556.

Complainant states:

   "I told him I had come from the NRC office, and they asked me about the solder issue. And I told them it was invalidated. And he said, he thought about it, he says how they knew that or something, like there was a pipeline to NRC." (Tr. vol. 2, 92).

   Assuming for the purposes of argument that this statement

was a response to complainant's protected activity, there has been no showing in this records that the statement impacted complainant in any manner. Complainant has not said that his job was affected or that he was prevented from making complaints to NRC or any other official organization by reason of the remark. Further, respondent argues, and properly so, that the pipeline remark occured more than thirty days prior to the filing of the complaint and is therefore time barred.

   The last question to be considered is the propriety of the presentation to the complainant of the report. Complainant appears to be arguing that the report was presented to him replete with inaccuracies and he was given only a portion of the day to correct the report. Claimant's contentions in this regard must be balanced against the stipulation of the parties that complainant was offered additional time to respond to the report but failed to avail himself of it and never filed any response (S 32) Though the report makes a number of findings which disputes the complainant's contentions, it does not question the complainant's competency. The report states, " Management has not developed a bad opinion of Mr. Evans because he has identified problems. They spoke well of his work performance .... Discussions with Mr. Evans reveal him to be an employee that is interested in the future of Watts Bar and who has a great deal of pride in the computor work he performed." Nor does it suggest that the complainant be prevented from obtaining and holding a suitable job at TVA (C1).

   Complainant also argues that the investigative report (C1), which discusses a number of time barred items has the effect of reviving these items. There has been no authority cited for such a proposition and it is considered that an employer should be encouraged to take up time barred items in attempt to adjust employee grievences without fear that its actions will revive such claims.

   As noted in the stipulation (S21-25), the NRC identified that the TVA had misinformed it in an area relating to soldering on nuclear equipment. The complainant was then assigned to a task force to help write a corrective as related to CAQR 412 and 556. In November 1989, the complainant closed out CAQR 556 indicating there was no traceability requirement (S26). At the same time he

filed a complaint with NRC and TVA's ECP about the improper closure of CAQR 556 (S27) and the complainant's contentions that he was subjected to I & H when he was compelled to close CAQR 556. TVA asked Wayne Aslinger to look into the contentions (S29). Mr. Ayslinger's report was completed in January, 1990 (S32). Among its conclusions was that CAQR 556 should be reoppened. However, the complainant was not afforded a copy of the report nor were several other TVA people (S33). Complainant contends that he should have been shown the report in order for him to complete his work (Tr. vol 2, 119). However, there has not been any showing of any adverse personnel action flowing from the refusal of TVA to disclose the report and complainant himself, as to the period between November 1989 and March 1990, would appear to confirm this (S39).

   Complainant testified, in effect, that Mr. Gary Lubinski, his supervisor from November 1989 through March of 1990, harassed him by constantly giving him new things to do and monitoring his absences from his duty station (Tr. vol. 2-47). The credible evidence supports the view that Mr. Lubinski treated other employees in the same fashion (Tr. vol. 3, p.17, 22). The respondent argues that both the problems with Mr. Lubinski and the pipeline comment items were not set out in any filed complaint with DOL and they should therefore be ignored citing to 42 U.S.C. Sec. 5851 (b) (2) and (1). These sections require both the written filing and the investigation by DOL of the specific complaint. The point is well taken and cognizance of these two items in this hearing would be appear to be barred by the statute inasmuch there has been no filing with DOL specifying the complainant's claims with respect to Mr. Lubinski or the pipeline comment.

   Upon consideration of the foregoing, it is recommended that complaint be dismissed.

It is therefore, ORDERED that the complaint of Frederick J. Evans be dismissed with prejudice.

Glenn Robert Lawrence
Administrative Law Judge