DATE: November 2, 1992
CASE NO. 91-ERA-33


IN THE MATTER OF

ANGELA G. HANCOCK,

          COMPLAINANT,

        v.

NUCLEAR ASSURANCE CORPORATION,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                          FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) in this case
arising under the employee protection provision of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C. §
5851 (1988).  At the request of the parties, the ALJ held a
limited hearing on the issue of timeliness, and issued a
Preliminary Timeliness Ruling on August 30, 1991, concluding that
Complainant established grounds for equitable tolling of the ERA
filing period. [1]  After a subsequent hearing on the
merits, the ALJ issued his R.D. and O. on January 7, 1992, finding
that complainant failed to establish a prima facie case of retaliatory
discharge for protected activity in violation of the ERA, and in
the alternative, finding that Complainant failed to rebut
Respondent's legitimate reasons for discharging Complainant.
Accordingly, the ALJ recommended the complaint be denied.
     Both parties have filed briefs before the Secretary. 
[PAGE 2]
Complainant urges that equitable tolling of the ERA filing period
was appropriate, but that the ALJ's findings on the merits should
be reversed.  Complainant asserts that she established a prima
facie case of retaliatory discharge and that Respondent's
proffered reasons for discharge were pretextual.  Respondent
argues that the ALJ incorrectly concluded that Complainant was
entitled to equitable tolling because she "was prevented in an
extraordinary way from asserting her rights."  Alternatively,
Respondent argues that Complainant failed to present credible
evidence that Respondent had knowledge of Complainant's protected
activity at the time of discharge; and that Complainant failed to
show that Respondent's proffered work performance reasons for the
discharge were pretextual.
     Upon review of the record including the submissions of the
parties before me, I accept the ALJ's conclusion that this
complaint should be denied, for the reasons discussed herein.
                             The Merits
     The ALJ thoroughly and accurately reiterated the testimonial
evidence presented on the merits, and his factual findings and
credibility determinations are fully supported by the record.
See R.D. and O. at 3-12; 14-15.  The parties stipulated
that Respondent is subject to the ERA; that Complainant was
employed with Respondent from September 5, 1990, until she was
terminated on January 17, 1991; and that her complaint was dated
March 4, 1991.  It is undisputed that on January 11, 1991,
Complainant reported a co-employee, whom she believed might be a
spy, to the Federal Bureau of Investigation (FBI), and that this
constituted protected activity under the ERA.
     In order to establish a prima facie case, Complainant must
show that she engaged in protected activity, that she was
subjected to adverse action, and that Respondent was aware of the
protected activity when it took the adverse action against her.
She must also present evidence sufficient to at least raise an
inference that the protected activity was the likely motive for
the adverse action.  See Dartey v. Zack Company of
Chicago, Case No. 82-ERA-2, Sec. Dec. and Final Order, April
25, 1983, slip op. at 5-9.  If Complainant establishes a prima
facie case, Respondent has the burden of producing evidence that
the adverse action was motivated by legitimate, nondiscriminatory
reasons. If so produced, then Complainant, as the party bearing
the ultimate burden of persuasion of discrimination, has the
opportunity to show that the proffered reason was not the true
reason, but a pretext for retaliation.  Dartey at 8-9.
    Based on this record and taking into account the ALJ's
credibility determinations, I agree with the ALJ's finding that
Complainant failed to establish one requisite element of her

[PAGE 3]
prima facie case of discriminatory discharge.  Complainant failed
to present credible evidence showing that Respondent was aware of
her protected activity at the time of the termination.  The only
evidence presented to support the allegation that Respondent knew
of Complainant's FBI report, was the December 2, 1991, affidavit
of Complainant's husband, which was accepted into the record
post-hearing.  See CX-3; Order dated Dec. 12, 1991, and
Order of Reconsideration dated Dec. 13, 1991.
    Affiant, Mr. Hancock, stated that he telephoned Respondent's
offices on January 16, 1991, looking for his wife, and spoke to an
unknown individual answering the telephone.  Mr. Hancock testified
that upon learning that his wife was unavailable, he inquired
about the FBI investigation of her co-worker, and then elaborated
on his wife's reporting of the co-worker to the FBI. Complainant's
attached telephone bill in support of the affidavit, verified a
one minute and a two minute telephone call to Respondent's offices
at 5:07 and 5:08 p.m. on January 16.
     The ALJ concluded that Mr. Hancock's affidavit lacked
credibility and did not accord it any weight.  R.D. and O. at 15;
see generally Spencer v. Hatfield Electric
Co., Case No. 86-ERA-33, Sec. Final Dec. and Order, Oct. 24,
1988, slip op. at 3-4 (deference to credibility determinations by
trier-of-fact). Moreover, the ALJ found that even if he credited
the affidavit, Complainant still failed to show that Respondent's
personnel involved in the termination decision had knowledge of
her protected activity.  The ALJ emphasized that the testimony of
the four Respondent employees involved in Complainant's termination,
the two FBI agents involved with her report, and Complainant
herself, supported a conclusion that Respondent did not have
reason to know of the FBI complaint at the time of Complainant's
termination.  R.D. and O. at 15.
    I further agree with the ALJ's alternative conclusion that
Respondent established legitimate, nondiscriminatory reasons for
Complainant's termination.  R.D. and O. at 15-16.  The testimony
of each of Respondent's witnesses was that Complainant had
difficulty taking instructions and working with others, and that
her work contained errors for which she would not accept
responsibility.  Complainant's unusual attitude was also discussed
by each of Respondent's witnesses based on a separate personal
experience.  Complainant has failed to show that Respondent's
proffered work performance reasons for the termination decision
were a pretext for retaliation. [2]  Accordingly, the
complaint must be dismissed.
                              Timeliness
     With respect to the issue of timeliness, it is undisputed 
[PAGE 4]
that the complaint was untimely filed on March 5, 1991, forty-
seven days after Complainant's discharge on January 17, 1991. 
See 42 U.S.C. § 5851(b)(1); 29 C.F.R. § 24.3(b). 
Because I agree with the disposition on the merits herein, I
decline to consider the ALJ's finding that Complainant established
grounds for equitable tolling of the ERA limitations period. 
Generally, the doctrine of equitable tolling is narrowly applied
and focuses on a complainant's excusable ignorance of his/her
statutory rights as a reason to modify the limitations period.[3]
See Kale at 752; Harrison v. Stone &
Webster Engineering Corp., Case No. 91-ERA-21, Sec. Final Dec.
and Order, Oct. 6, 1992, slip op. at 3-5.
     It is unclear on this record, whether Respondent was
obligated to comply with the requirement under 10 C.F.R. §
l9.11(a) (1991), to post NRC Form 3, which provides notice of
employees' rights under the ERA.  I decline to decide the further
issue of whether a respondent's alleged failure to post such
notice, even if not specifically required under the applicable
regulations, is sufficient to establish equitable tolling. 
See generally Rose v. Dole, 945 F.2d 1331,
1333 (6th Cir. 1991) (Court rejected argument that complainant not informed of rights
under ERA and thirty day limitations period because respondent
failed to follow posting requirements under 10 C.F.R. §
l9.11(a), finding evidence established posting by respondent and
applicable



[PAGE 5]
version of NRC Form 3 did not include notice requirement);
Andrews v. Orr, 851 F.2d 146, 150-151 (6th Cir. 1988);
Kale v. Combined Insurance Co. of America, 861 F.2d
746, 752 (lst Cir. 1988); Enqlish, 858 F.2d at 963;
Manning v. Carlin, 786 F.2d 1108, 1109 (llth Cir. 1986);
City of Allentown, 657 F.2d at 19-20; Harrison at
3-4; Carolyn Larry v. The Detroit Edison Co., Case No.
86-ERA-32, Sec. Dec. and Order, June 28, 1991, slip op. at 11-19,
aff'd sub nom. The Detroit Edison Co. v. Secretary U.S.
Department of Labor, No. 91-3737 (6th Cir. 1992).
     For the reasons discussed herein the complaint is dismissed.
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.

[ENDNOTES]

1/ The ALJ's Preliminary Timeliness Ruling was expressly
incorporated into the subsequent R.D. and O. and is now before the
Secretary for review.  See Preliminary Timeliness Ruling at
1, n.l; R.D. and O. at 2.

2/ Complainant did not show that discriminatory motives
played any part in Respondent's decision to terminate her,
consequently, the dual motive analysis is not applicable. 
See Pogue v. United States Department of
Labor, 940 F.2d 1287, 1289-91 (9th Cir. 1991).  In reaching
this conclusion I find, supported by the record, and have
accepted, the ALJ's credibility determinations on Respondent's
proffered testimony concerning the legitimate reasons for
Complainant's termination.  R.D. and O. at 15; Pogue at
1290.

3/ It is well settled that ignorance of the ERA filing
period alone is not sufficient to warrant equitable tolling. 
See Rose v. Dole, 945 F.2d 1331, 1335 (6th
Cir. 1991); English v. Whitfield, 858 F.2d 957, 963 (4th
Cir. 1988); School District of the City of Allentown v.
Marshall, 657 F.2d 16, 21 (6th Cir. 1981).  In her complaint,
Complainant suggests that the tolling period should be extended
because she was ignorant of the law until she contacted the
Government Accountability Project and a labor law attorney in
March 1991.  See JX-l.