DATE: September 25, 1990
CASE NO. 87-ERA-5

IN THE MATTER OF

DOUGLAS E. BILLINGS,
    COMPLAINANT,

    v.

TENNESSEE VALLEY AUTHORITY,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   On April 20, 1989, the Administrative Law Judge (ALJ) it this case arising under the employee protection provision of the Energy Reorganization Act, as amended, 42 U.S.C. § 5851 (1981, submitted a Recommended Decision and Order (R.D. and O.) (copy appended) finding that Respondent had not discriminated against Complainant for engaging in protected activity. As summarized by the ALJ:

    Douglas E. Billings, the Complainant, is a former toolroom attendant of the Tennessee Valley Authority's Watts Bar Nuclear Plant.[¹ ] He alleges that he engaged in protected activity when he complained of record keeping procedures in the toolrooms of the Watts bar Nuclear Plant. Specifically, Mr. Billings made allegations concerning falsification of records missing records, and destruction of records. The records in question relate to calibration of critical systems, control and measuring of test equipment, control of safeguards and control of quality assurance records. These allegations expressed safety concerns within the purview of the Nuclear Regulatory commission. They are protected activity. (Findings 10, 17).

    TVA, moreover, has conceded that complainant has engaged in protected activity. The record also shows that Mr. Billings' supervisors were aware of his exercise of protected activity. (Findings 11-15, 18).

    Mr. Billings alleges that Respondent violated the employee protection provisions of the ERA by discriminating and retaliating against him for the exercise of protected activity. TVA denies engaging in retaliatory or discriminatory activity with respect to Mr. Billings.

    Complainant's charges may be summarized as follows. He alleges he was discriminated against for his exercise of protected [activity] in the following areas:

Denial of promotion.

Elimination of job duties.

Controversion of his workmen's compensation claim and denial of continuation of pay.

Removal from his job under the guise of applying medical restrictions (Complainant's term "enforced leave").

Failure to accommodate Complainant's medical restrictions, and to place him in a position consistent with his restrictions.

Failure to take action against authors of a poem holding Complainant up to derision.

Blacklisting from toolrooms other than from the one where he was assigned.

Denial of training which would make him promotable.

Requirement to work an extra 1/2 hour without pay not applicable to other employees.

Loss of overtime.

    At the outset, it may be noted that the issue in this case is not whether TVA violated NRC regulations, but rather whether it retaliated against Complainant for raising safety concerns.

R.D. and O. at 22-23 (footnote omitted).

   The record, including the parties' briefs, has been reviewed closely and it fully supports the ALJ's comprehensive and detailed findings set forth in his thirty-two page, single-spaced R.D. and O., which I adopt. Under Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Secretary's Decision, April 25, 1983, which sets forth the burdens of proof applicable in environmental whistleblower cases under 29 C.F.R. Part 24, I agree with the ALJ's conclusion that Complainant has not proven that the challenged actions taken against him were motivated by his protected activity.² Accordingly, this case is DISMISSED.³

   SO ORDERED.

       ELIZABETH DOLE

       Secretary of Labor

Washington, D.C.

¹ On December 12, 1988, Respondent notified Complainant that he was being terminated from employment because he had been unavailable for work since October 16, 1986, because of a service- connected injury and continued to be unavailable for work. See ALJ Order Receiving Complainant's Letter of Termination by Respondent, December 27, 1988.

² In addressing Complainant's allegations that his job duties were eliminated or diminished, R.D. and O. at 28-29, the ALJ concluded in part:

    Complainant further alleges that his job duties were eliminated when Heidi Caldwell, a data entry clerk, already working with these records, was assigned the additional function of putting actual calibration data from the cards onto the computer. This allegation should be dismissed. Ms. Caldwell assumed these duties in March of 1986. (Findings 50-52). This allegation is clearly untimely and should be dismissed for that reason.

Id. at 28. Since Mr. Billings' complaint was filed more than five months after the action was taken, the ALJ was correct in finding this allegation untimely under the statute's thirty-day filing requirement. Moreover, this allegation cannot be preserved as part of "a 'continuing violation' extending into the charge period so that [he] may challenge that earlier [reassignment] decision as an element of the 'continuing violation.'" English v. Whitfield, 858 F.2d 957, 962 (4th Cir. 1988). To do so, Complainant would have had to show a series of related discriminatory acts, one or more of which fell within the limitations period. Bruno v. Western Electric Company, 829 F.2d 957, 961 (10th Cir. 1987) and cases cited; Billings v. Tennessee Valley Authority, Case No. 86-ERA-38, Secretary's Decision, slip op. at 10-12 and cases cited. Complainant has not shown such a series of related discriminatory acts. Moreover, such a consummated act "may not be treated as merely an episode in a 'continuing violation' because its effects necessarily carry over on a 'continuing' basis. So to hold would . . . effectively scuttle all timeliness requirements with respect to any discrete violation having lasting effects -- as presumably all do to some extent." English v. Whitfield, 858 F.2d at 962-63. See Delaware State College v. Ricks, 449 U.S. 250, 257 (1980). In any event, even assuming, arguendo, that Complainant's challenge was timely, Respondent's action was lawful because it was made for a nondiscriminatory, business purpose. R.D. and O. at 12-13; Tr. at 794-802, 841-43, 1040-49. (Similarly on the merits, the elimination of Complainant's parking space was not predicated upon retaliation for his safety concerns, cf. R.D. and O. at 27, but was based upon Complainant's failure to apply for a renewal after the alloted six months, whereupon it was automatically removed under routine procedures for alloting handicapped parking spaces. R.D. and O. at 17-18; Tr. at 1766-67.)

³ Complainant has made ancillary allegations regarding harassment of witnesses which have been certified to the Secretary for processing, if appropriate. R.D. and O. at 23. No further investigation of these allegations is warranted since the record does not show that the charges have arguable merit or that Complainant was prejudiced by any inability to call witnesses. R.D. and O. at 18-20, 23.