DATE: NOV 26 1991

IN THE MATTER OF

GEORGE M. GILLILAN,
    Complainant

    v.

TENNESSEE VALLEY AUTHORITY,
    Respondent

CASE NOs.: 91-ERA-31
91-ERA-34

   These cases arise under the Employee protection section of the Energy Reorganization Act of 1974 (ERA), as amended, 42 U.S.C. § 5851, and the regulations issued thereunder at 29 C.F.R. Part 24.

   George M. Gillilan (Complainant) is an electrician employed by Tennessee Valley Authority (Respondent) at the Watts Bar Nuclear Plant. By letter dated November 16, 1990, Complainant, by counsel, filed a complaint of discrimination under the ERA with the Wage and Hour Division of the United States Department

of Labor. The November 16, 1990 complaint raised the following claims:

1. Complainant was assigned to the evening shift on October 15, 1990, because of his reporting of nuclear safety concerns and because Respondent failed to honor a previous settlement agreement with Complainant;

2. Respondent failed to properly handle Complainant's service reviews, because of Complainant's reporting of nuclear safety concerns;

3. Respondent failed to reinstate Complainant's seniority and overtime as required by a previous settlement agreement and because of Complainant's reporting of nuclear safety concerns;

4. As part of a continuing pattern, Respondent has failed to provide Complainant with training, such as, courses in elevator repair, crane maintenance, and diesel generators, because of Complainant's reporting of nuclear safety concerns;

5. Respondent failed to pay Complainant a nuclear accreditation bonus (NAB) for the period from January 1990 through June 1990; and

6. Complainant has been subjected on a continuing and regular basis to harassment and intimidation by a supervisor.

   Complainant has also filed another complaint, dated March 8, 1991, which has been consolidated with the November 1990 complaint by order of this office on June 7, 1991. Respondent filed a Motion for Partial Summary Judgment on October 8, 1991. Respondent's Motion is for summary judgment as to all the claims raised in Complainant's November 16, 1990 complaint. On November 7, 1991 Complainant filed his Response to the Motion for Partial Summary Judgment. Although there is no motion with regard to the latter complaint, Complainant's Response to the Motion for Partial Summary Judgment refers to the March 1991 complaint in his attempt to apply a continuing violation theory to the facts in this case.

   By letter dated February 28, 1991 the District Director of the Wage and Hour Division notified Complainant of the results of Wage and Hour's fact-finding investigation as to the November 1990 complaint. The investigation concluded that (1) there was no evidence that Complainant's assignment to the evening shift was due to discrimination for reporting safety issues, (2) issues relating to complainant's previous settlement agreement were not timely under the ERA; and (3) Complainant's allegations of harassment and intimidation by a supervisor could not be substantiated. Complainant requested a hearing on his complaint.

   In its Motion, Respondent argues that the November 1990 complaint should be dismissed on three grounds: (1) the complaint is untimely as to any alleged discriminatory acts which occurred prior to October 17, 1990, (2) this forum has no authority to enforce the previous settlement agreement, and (3) Complainant cannot raise a prima facie case of discrimination. Respondent's Motion is supported by the affidavit of Edwin B. Ditto, electrical maintenance manager at the Watts Bar Nuclear Plant, and the transcript of Complainant's discovery deposition of June 5, 1991.

   In his affidavit Mr. Ditto states that he is Complainant's supervisor and that his affidavit is based on personal knowledge. As to Complainant's reassignment to the evening shift, Mr. Ditto states that due to increased workload it was necessary to staff an evening shift of electricians; that Complainant was notified of the reassignment at a meeting on October 10, 1990 and that the reassignment was based on seniority determined from a June 6, 1989 shop seniority list; that Complainant was given written notice of the reassignment on October 11, 1990; that Complainant reported to work for the day shift on October 15, 1990, at which time Complainant was again notified of the reassignment. As to Complainant's service reviews, Mr. Ditto states that because Respondent has not conducted a reduction in force of annual electricians since before February 1, 1990, there has been no need to compile a new retention register or to calculate Complainant's Federal service date. As to the alleged failure to provide training, Mr. Ditto states that Complainant was scheduled for a class in crane maintenance on October 22, 1990, but Complainant missed this class while he was on sick leave; that Complainant was later rescheduled for and attended the crane maintenance class; that due to a reorganization of corporate training, Respondent ceased providing training in elevator repair in March 1990; and that Respondent also ceased providing training for diesel generators in November 1990. As to Complainant's NAB

bonus, Mr. Ditto states that Complainant has been receiving the bonus since May 1990. Finally, Mr. Ditto states that electrical maintenance records show that Complainant and Complainant's foreman, Mr. Brown, attended electrical Update training during January 1990.

   In the Response to the Motion for Partial Summary Judgment, Complainant argues that the November 16, 1990 complaint alleged a continuous pattern of discriminatory acts by Respondent, at least one of which occurred within thirty days of the filing of the November 16, 1990 complaint. Complainant thus seeks to characterize his complaint in terms of a continuing violation theory. In addition, Complainant argues that the March 8, 1991 complaint regarding alleged abusive treatment by Respondent's psychologists, as to which there is no motion for summary judgment, is inextricably related to the claims of harassment in the November 16, 1990 complaint. Complainant argues that the claims in both complaints constitute one continuing violation. In support of his motion Complainant filed his own affidavit.

   In the affidavit, Complainant states that Respondent was obligated by a previous settlement to issue a Better Than Fully Adequate Employee Service Report for the period March 30, 1987, to May 2, 1988; that the service report was not issued until October 23, 1990, at which time Complainant became aware of the delay in issuing the report; and that Complainant believes that the delay in issuing the report caused him to be denied training opportunities. Complainant alleges that the handling of his service reviews has not been properly carried out because of his reporting of nuclear safety concerns. Complainant further alleges that Respondent continues to harass him by failing to schedule him for appropriate training in accordance with proper seniority lists; and that Complainant was harassed by the presence of his foreman, Mr. Brown, at a training course. Finally Complainant argues that his claim as to reassignment to the evening shift should be considered timely for two reasons: (1) the alleged mental incapacity of the attorney representing him at that time should excuse a two day delay in filing, and (2) that this claim is intertwined with Complainant's March 8, 1991 complaint concerning abusive treatment by psychologists employed by Respondent, and constitutes part of a continuing violation.

   Under the Employee protection section of the ERA, and the implementing regulations, a complaint must be filed within thirty days after the occurrence of the alleged violation. 42 U.S.C. SS 5851(b)(1); 29 C.F.R. § 24.3(b). Here, Complainant concedes that his first claim, relating to his assignment to the evening shift, was filed at least thirty-two days after Complainant received notice of the reassignment. Complainant urges that the mental incapacity of the attorney who represented him at that time should excuse the delay in filing. No evidence has been presented as to the mental state of Complainant's former attorney at the time of the filing of the complaint in November 1990. In addition, Complainant cites no authority for his position that such alleged mental incapacity of counsel should excuse the delay in filing the November 1990 complaint. This office can find no authority supporting Complainant's position. Complainant's third claim, relating to failure to reinstate seniority and overtime, was filed thirty-seven days after Complainant became aware on October 10, 11090 that Respondent was using the 1989 seniority list. Complainant offers no defense to summary judgment as to this claim. The elevator repair course specified in Complainant's fourth claim was cancelled in June 1990, so that this charge in Complainant's fourth claim is approximately five months late. The fifth claim, regarding payment of the NAB bonus prior to May 1990, is at least five months late. The sixth claim, relating to harassment in January 1990 by Complainant's foreman, Mr. Brown, is nearly ten months late.

   Accordingly, I find that Complainant's first, third, fifth, and sixth claims, contained in the November 16, 1990 complaint, are untimely. Additionally, I find that the portion of Complainant's fourth claim relating to the elevator repair course is untimely. Untimely claims are subject to dismissal under the ERA. See English v. General Electric Company, Case No. 85-ERA-2 Dep. Sec. Final Decision and Order, January 13, 1987, slip op. at 4-11, aff'd sub nom. English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); Nunn v. Duke Power Company, Case No. 84-ERA-27, Dep. Sec. Decision and Order of Remand, July 30, 1987, slip op. at 13-17.

   Complainant urges that the claims in his November 1990 complaint are timely, based on a continuing violation theory. It is correct that a complaint filed after the thirty day deadline may be preserved where the Complainant can successfully argue either that equitable tolling of the time limitation should apply, or that there has been a continuing course of

discriminatory conduct and that the complaint was filed within thirty days of the last discriminatory act. Complainant has alleged no facts which would support a conclusion that the thirty day time period should be tolled for equitable reasons. Furthermore, I find that Complainant has failed to allege facts supporting a continuing violation theory in this case.

   To preserve the timeliness of a claim under a continuing violation theory, the Complainant must allege a course of related discriminatory conduct and must file a charge within thirty days of the last discriminatory act. Egenrieder v. Metropolitan Edison Co., Case No. 85-ERA-23, Sec. Order of Remand, April 20, 1987. Thus, at least one claim of discrimination must be alleged in a timely fashion. Here, two claims were filed within the thirty day limit, Complainant's second claim, which relates to the handling of his service reviews, and the part of Complainant's fourth claim that relates to training in crane maintenance and diesel generators. However, in order to preserve the timeliness of the other claims under the continuing violation doctrine, these timely claims must allege facts which support a rational inference of discriminatory action on the part of Respondent. I cannot find that Complainant has raised a prima facie case of discrimination with regard to either the handling of his service reviews, or the failure to provide training in crane maintenance and diesel generators.

   To make a prima facie case of discrimination under the ERA, an employee must prove:

1. he engaged in protected conduct;

2. the employer was aware of such conduct; and

3. the employer took some action adverse to the employee which was more likely than not the result of the protected conduct.

See Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Decision and Final Order, April 25, 1983.

    Complainant claims that his service reviews were not properly handled because he engaged in protected activity under the ERA. However, Complainant provides no facts in support of this allegation. Complainant states that under a previous

settlement, still pending before the Secretary, Respondent was obligated to reissue his service report with a higher rating. I agree with Respondent's contention that this forum has no authority to enforce a settlement under the ERA. 42 U.S.C. § § 5851(d), (e). The mere fact that Complainant believes that Respondent acted with discriminatory motive in delaying the reissuance of the service report, does not convert this dispute from a breach of settlement claim to a discriminatory act under the ERA. Complainant argues that the delay in reissuing his service report constituted adverse action because it resulted in denial of training opportunities. However, Complainant fails to state any facts which would give rise to a rational inference that he was not treated the same, with regard to training, as similarly situated persons who had not engaged in protected activity. Complainant does not dispute that he was scheduled for a crane maintenance course, but that he missed the course while on sick leave, or that Respondent cancelled courses in elevator repair and diesel generators, and that these cancellations affected other similarly situated employees equally.

   At the point of summary judgment, the non-moving party may not defeat a supported motion for summary judgment by resting on allegations or denials. 29 C.F.R. § 18.40(c); Foster v. Arcata Assoc., Inc., 772 F.2d 1453, 1459 (9th Cir. 1985), cert. denied, 475 U.S. 1048 (1986). Additionally, the non-moving party may not defeat a motion for summary judgment where the evidence presented, if accepted as true, does not support a rational inference that the substantive evidentiary burden of proof could be met. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-252 (1986); Helmstetter v. Pacific Gas & Electric Co., Case No. 86-SWD-2, Sec. Decision and Order of Remand, June 15, 1989, slip op. at 9. Because I find that Complainant has not stated facts which would support a rational inference of discriminatory action as to either of the timely claims in the November 1990 complaint, I must also find that these two claims may not be used to preserve the timeliness of the other claims in the November 1990 complaint under a continuing violation theory. Finally, Complainant argues that he March 1991 complaint states a timely discriminatory act, which should be considered together with the November 1990 claims to form one continuing violation. Complainant states that but for the distress caused him by Respondent's harassment as alleged in the November 1990 complaint, Complainant would not have been required by Respondent

to see a psychologist in February 1991, and that this requirement led to abusive conduct by the psychologist which resulted in the filing of the March 1991 complaint. The relationship between the claims in the November complaint and alleged abusive treatment by psychologists in the March 1991 complaint is not that of a series of related discriminatory acts. The continuing violation theory cannot resurrect claims about discrimination concluded in the past, even though the effects of discrimination persist. Delaware State College v. Ricks, 449 U.S. 250 (1980). I find that the claims raised in Complainant's two consolidated complaints alleged separate and discrete acts which cannot be considered as one continuing violation.

   For the foregoing reasons, I find that Complainant has failed to state that there is a genuine issue as to any material fact with regard to the claims raised in the November 1990 complaint, and that Respondent is entitled to dismissal of the claims raised in the November 1990 complaint as a matter of law. 29 C.F.R. § 18.40(d).

    Respondent's Motion for Partial Summary Judgment is hereby, GRANTED. Complainant's November 16, 1990 complaint is DISMISSED.

       JOHN M. VITTONE
       Deputy Chief Judge

JMV/rd/sms