Comanche Peak Steam Electric Station is a two-unit nuclear

power plant owned and operated by Respondent. The plant is located 45 miles southwest of Fort Worth, Texas. Comanche Peak's Unit 1 is in commercial operation and the construction of Unit 2 is near completion. The construction of Comanche Peak began in late 1974. Unit 1 was completed near the end of 1989. In January of 1990, Respondent received a license from the Nuclear Regulatory Commission ("NRC") to load fuel and commence low power operations of Unit 1. By March of 1990, the Respondent was in the process of low power testing of Unit 1. Unit 1 began commercial operation in August of 1990.

   The construction of Unit 2 was suspended near the end of 1988 so that all efforts could be directed towards the completion of Unit 1. Construction resumed in 1991. It is nearly completed and system testing has begun.

   Complainant was employed at Comanche Peak from October 1987 until March 1988 by Ebasco, a contractor of Respondent, and from January 1989 until November 1989 by Fluor Daniel, also a contractor, as a quality control receiving inspector. He was laid off on November 3, 1989.

   On November 2, 1989 Complainant and Forbee Harper, another quality control inspector, were inspecting "thermo-lag", a material applied to electrical cables and other articles for protection against fire and the heat of a fire. Complainant discovered that a high percentage of the thermo-lag panels were deficient in that they did not meet the minimum thickness requirement. Complainant brought the deficiency to the attention of his lead inspector, Willie Wolf. Wolf instructed Complainant and Harper to write a nonconformance report on the thermo-lag. Greg Bennetzen, a level-3 inspector, disagreed with Wolf's instructions. He instead instructed that an unsatisfactory report or an "Unsat IR" be written. An argument which became "pretty heated" ensued between Complainant and Bennetzen. Approximately one hour later, Complainant was notified that he was being laid off because of a reduction in force.

   Complainant considered his lay off to be in retaliation for identifying the thermo-lag as defective. In December of 1989 he filed a Complaint under Section 210 of the Act with the Department of Labor against the Respondent, Fluor Daniels and Brown & Root, Inc., an onsite contractor of the Respondent, alleging that he was discharged in retaliation for identifying

   Section 210(b)(1) of the Act sets forth time limits within which a complaint must be filed. It provides:

    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 or discrimination 42 U.S.C. § 5851(b)(1).

   Also, §24.3(b) of the DOL regulations provides that "[a]ny complaint shall be filed within 30 days after the occurrence of the alleged violation. 29 C.F.R. § 24.3

   Prior to the hearing, Respondent filed a Motion to Dismiss or in the Alternative for Summary Judgment, moving that the Complainant's action be dismissed because it was not filed within the time period allowed by the Act. Respondent's motion was denied by Order Denying Motion To Dismiss Or For Summary Judgment dated June 21, 1991 for two reasons: (1) The 30-day statue of limitations does not commence running until the employee becomes

that the quality control organization at Comanche Peak solicit bids for the six receiving inspector positions from staff augmentation contractors. Names of candidates for the positions, including that of Complainant, were submitted by staff augmentation contractors. Nevertheless, those holding the positions prior to the staff augmentation program all retained their jobs. It was the manner of filling these positions that Complainant contends constitutes disparate treatment. He argues that his candidacy did not receive fair consideration.

   It is undisputed that the receiving inspector positions were filled prior to the 30-day statute of limitation period. The record also shows that Complainant became aware of the filling of the receiving inspector positions, and that he was not selected for one of the positions, prior to the thirty-day statutory period. Danny Leigh is the procurement supervisor at Comanche Peak and the direct supervisor of the six receiving inspectors. His testimony is relevant on the question of when Complainant became aware that he would not be selected for one of the inspector positions. He testified that Complainant telephoned him during the staff augmentation transition period to inform him that he was submitting an application for the inspector position through one of the staff augmentation contractors, and to request that his application receive fair consideration. Leigh responded that Complainant's application would be considered but that he intended to retain the six incumbents. Leigh testified that Complainant telephoned him a second time after the transition to staff augmentation had been completed to inquire about the position, at which time Leigh informed Complainant that the six receiving inspector positions had been filled by the incumbents. The later conversation took place at the end of July, 1990, well before the commencement of the limitations period.

   The fact that Complainant knew that the six positions had been filled does not mean that he had knowledge that Respondent acted in a discriminatory manner in their selection. In fact, Claimant sought and received a meeting with Susan Palmer, a management employee of Respondent who was involved in Complainant's settlement, to discuss the status of his application for employment and the likelihood of his obtaining employment with Respondent. Complainant questioned Palmer on the hiring policy under staff augmentation; the number of individuals who were hired with the same qualifications as Complainant; and the

asked by Complainant in their August 8, 1990 meeting. The second letter, dated October 30, 1990, was in answer to a September 15, 1990 letter to her from Complainant. Complainant did not testify that the letters included any nonfactual information in response to his questions. In fact, Claimant did not testify that he was in any way misled by the letters.

   The letter from Cahill is addressed to "To Whom It May Concern". It merely states that Complainant "should be fairly considered for employment at CPSES in positions for which he has applied and is qualified" and that Complainant's actions in pursuing his concerns through the NRC were consistent with Respondent's policy and appreciated by management as being taken to assist them in insuring the safety of the facility. Cahill was obligated to write the letter under Respondent's agreement with Complainant settling Complainant's first DOL complaint. Complainant did not testify that he was misled by the letter and there is nothing apparent in the letter which could be considered as misleading Complainant into not filing a complaint.

   Moreover, it appears that, as a matter of law, the letters from Palmer and Cahill do not constitute sufficiently deliberate conduct by Respondent to toll the statute. In Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir. 1982), the Court held that the statute of limitations could not be equitably tolled by letters to the plaintiff from the respondent/employer stating that the employer was attempting to find plaintiff another job in the company and detailing additional job opportunities. The Court reasoned:

[t]he statute of limitations will not be tolled on the basis of equitable estoppel unless the employee's failure to file in timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge. An employee's hope for rehire, transfer, promotion, or a continuing employment relationship - which is all that plaintiff asserts here - cannot toll the statute absent employer conduct likely to mislead an employee into sleeping on his rights." Id. 694 F.2d at 965-966

   Accordingly, it is determined that the evidence of record

shows that Complainant's complaint was not timely filed and the Complainant has not shown that he was misled by Respondent's conduct to the extent that the thirty-day statute of limitations should be tolled by equitable considerations.

   Assuming, arguendo, that the complaint was timely filed, the record does not show that the Respondent engaged in disparate treatment toward Complainant, that is, the Complainant has not shown that the Respondent blacklisted him from a job at the Comanche Peak Power Plant.

Prima Facie Case

   The requirements for establishing a prima facie case under Section 210 were set out by the Sixth Circuit Court of Appeals in DeFord v, Secretary of Labor et al, 700 F.2d 281 (6th Cir. 1983). They are: (1) that the party charged with discrimination is an employer subject to the Act; (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions, or privileges of employment; and (3) that the alleged discrimination arose because the employee participated in an NRC proceeding under either the Energy Reorganization Act or the Atomic Energy Act of 1954. Id. at p. 286.

   Initially, Respondent does not contest that it is subject to the Act by virtue of its ownership and operation of the Comanche Peak Nuclear Power Plant in Glen Rose, Texas.

Protected Activity

the March 30, 1990 settlement agreement. Complainant's complaints to the NRC and DOL as well as his cooperation with their subsequent investigations constitute protected activity.

Failure To Be Rehired

   Complainant has shown that he engaged in protected activity and that he subsequently was not rehired at the Comanche Peak plant, even though Respondent agreed in the March 30, 1990 settlement to fairly consider Complainant for any openings that he applied for. To establish a prima facie case. Complainant must present evidence sufficient to raise the inference that the protected activity was the reason that he has not been rehired. Dean Dartey v. Zach Company of Chicago, Case No. 82-ERA-2, slip op., Secretary of Labor, (April 25, 1983). Stack v. Preston Trucking Co., Case No. 86-STA-22, slip op., Secretary of Labor, February 26, 1987), and Haubold v. Grand Island Express, Inc., Case No. 90-STA-10, slip op., Secretary of Labor, (April 27, 1990).

   During the period relevant to this complaint, employment at Comanche Peak was in steep decline. A dramatic reduction in the number of workers at the plant was caused by the suspension of construction on Unit 2 in late 1988, and the completion of construction on Unit 1 in late 1989. In January, 1988, there were approximately 11,000 workers on both units. By March 1990 the number of workers had decreased to 3,100. Of the 3,100 workers at Comanche Peak in March of 1990, approximately 1,300 were employees of Respondent and 1,800 were employed by contractors. When Complainant was laid off on November 2, 1989, he was one of approximately 8,000 workers whose employment was ended in a reduction of force at that time.

   Notwithstanding the decline in employment at the plant, Complainant contends that vacancies did occur in the position of receiving inspector and that he did not receive fair consideration when those positions were filled.

   The staff augmentation program was implemented throughout the Comanche Peak plant during late 1989 and 1990. Its purpose was to reduce the cost of loaned employees by having their employers competitively bid to be staff augmentation contractors. Conceptually, Respondent believed that by limiting the number of staff augmentation contractors to those with bidding rates

approved by Respondent, more control could be exercised over the cost of loaned employees and ultimately, the cost of labor would be reduced. In April 1990, every Comanche Peak organization which utilized contractor personnel to augment its permanent staff was requested to submit a staff augmentation plan. The quality control organization's plan identified six receiving inspector positions which had to be filled by staff augmentation.

   Under the staff augmentation plan, applications were solicited from the approved staff augmentation contractors for the six receiving inspector positions. The contractors submitted the names of thirty-two applicants, including the incumbents and the Complainant. The six incumbents were offered the positions. They all accepted.

discrimination against them.

   Complainant's contention that these letters show a discriminatory intent by broadcasting Complainant's protected activity or by soliciting information on future whistleblower activity is rejected. Rather, the letters appear to constitute a positive effort by the Respondent to guard against harassment of employees by keeping itself informed at an early time of allegations of discrimination.

   1. The Energy Reorganization Act of 1974 governs the parties and the subject matter.

   2. The complaint in this matter was not timely filed in that it was not filed within thirty days after the occurrence of the alleged violation as required by 29 CFR § 24.3.

   3. The thirty-day statute of limitations at 29 CFR § 24.3 was not tolled by equitable considerations in that Complainant has not shown that his failure to file a timely complaint was caused by him being misled by Respondent's conduct.

   4. Complainant has not established a prima facie case under the Energy Reorganization Act in that Complainant has not met his burden of showing that he was discriminated against because he engaged in protected activity.

   AND NOW, this 31st day of January, 1992, IT IS HEREBY RECOMMENDED that the Complaint of Frank Bausemer be dismissed.

       THOMAS M. BURKE
       Administrative Law Judge

TMB/bac