DATE: April 26, 1995
CASE NOS. 91-ERA-40
92 ERA-49
IN THE MATTER OF
ROBERT H. MOODY,
COMPLAINANT,
v.
TENNESSEE VALLEY AUTHORITY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Complainant Robert H. Moody alleges that Respondent,
Tennessee Valley Authority (TVA), discriminated against him in
violation of the employee protection provision of the Energy
Reorganization Act of 1974 (ERA), 42 U.S.C. § 5851 (1988).
Moody's two complaints were consolidated for hearing. In the
first, Moody contends that his safety complaints motivated TVA to
engage in a series of discriminatory acts. The second complaint
alleges that TVA discriminatorily suspended Moody for three days
without pay.
In a Recommended Decision and Order (R. D. and O.), the
Administrative Law Judge (ALJ) recommended dismissal of the
complaints. He found the first complaint untimely and that Moody
did not show that his protected activities motivated the
suspension that was the subject of the second complaint. The
ALJ's findings of fact, R. D. and O. at 3-10, are supported by
the record and I adopt them. The ALJ's R. D. and O. is affirmed,
as modified below.
ANALYSIS
[PAGE 2]
I. Timeliness of the 1990 complaint
At the time Moody filed these complaints, the ERA provided
that an employee has thirty days after a violation of the
employee protection provision to file a complaint with the
Secretary of Labor. 42 U.S.C. § 5851(b)(1) (1988). [1] In
a November 9, 1990 complaint, Moody alleged that TVA engaged in a
continuing pattern of discriminatory actions that included
returning him to his regular position and rate of pay after a
temporary assignment at a higher rate, and rating his performance
marginal on one aspect of his work in three different service
reviews (performance ratings). According to the complaint, the
course of discriminatory actions culminated in one incident that
occurred within 30 days of filing the complaint: requiring Moody
to retake the Nuclear Accreditation Bonus (NAB) examination. [2]
CX (Complainant's Exhibit) 1. The timeliness of an ERA complaint may be preserved under
the continuing violation theory "where there is an allegation of
a course of related discriminatory conduct and the charge is
filed within thirty days of the last discriminatory act."
Thomasv. Arizona Public Service Co., Case No. 89-
ERA-19, Final Dec. and Order, Sept. 17, 1993, slip op. at 13;
Garn v. Benchmark Technologies, Case No. 88-ERA-21, Dec.
and Order of Rem., Sept. 25, 1990, slip op. at 6. See also Berry v. Board of
Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983),
cert. denied, 479 U.S. 868 (1986) (under Title VII of the
Civil Rights Act of 1964).
It is undisputed that all of the electricians in the
maintenance organization, including Moody, were required to be
reexamined in order to continue to receive the NAB. Further,
Moody took the exam, passed it, and continues to receive the NAB.
R. D. and O. at 3-4. Moody complained that a mechanical
instructor administered his exam, whereas an electrical
instructor administered the exam to his coworkers. R. D. and O.
at 3. Moody contends that he was at a disadvantage if he had
needed an explanation of a test question. Id. Moody
conceded that he was on sick leave the day the other workers took
the exam. T. 336; R. D. and O. at 4.
In view of the fact that Moody was treated like all other
electricians in having to retake the exam, that he passed the
exam and that he receives the NAB, I find that requiring him to
retake the NAB examination was not an adverse action. See
R. D. and O. at 11. I therefore find that Moody did not
establish a prima facie case of an ERA violation
concerning the recertification exam. See Carroll v. Bechtel
Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995,
slip op. at 9-10 (to establish a prima facie case, ERA
complainant must show, inter alia, that the employer took
some adverse action against him),
[PAGE 3]
pet. for review docketed, No. 95-1729 (8th Cir. Mar. 27,
1995). The ALJ's [Recommended] Decision and Order on Motion for
Summary Judgment, granting Respondent's motion on the NAB issue,
is accepted.
The only adverse action alleged to have occurred within the
limitation period was the retaking of the NAB exam. The ALJ
found that since Moody did not establish that any adverse action
occurred within the limitation period, the complaint was untimely
as to all of the other acts of alleged discrimination in the 1990
complaint. R. D. and O. at 11. The issue appears to be one of
first impression in a whistleblower case under either the ERA or
analogous statutory employee protection provisions.
In an analogous case alleging a continuing violation of
Title VII of the Civil Rights Act of 1964, a court explained that
whereas "[t]he discriminatory act occurring within the time
period need not constitute a legally sufficient Title VII claim
in itself," it nevertheless "must be an act of discrimination or
it cannot share commonality with the preceding acts on the most
important characteristic of all -- that the acts are related acts
of discrimination." Mascheroni v. Board of Regents of the
Univ. of California, 28 F.3d 1554, 1561-62 (10th Cir. 1994).
[3] In that case, the plaintiff conceded at oral argument that
the one act that occurred within the limitation period was not
based on his national origin and did not violate Title VII.
Id. Accordingly, the court found that the continuing
violation theory did not apply and the complaint was untimely.
In this case, since the NAB recertification was not adverse
to Moody, it could not be an incident of discrimination.
Therefore, no commonality of discrimination with the other
incidents of which Moody complained can be established.
Accordingly, I find that the continuing violation theory does not
make the complaint timely as to any of the alleged incidents of
discrimination that occurred outside the 30-day limitation
period.
The allegation concerning the NAB reexamination is dismissed
for failure to establish a prima facie case of an ERA
violation. The allegations as to the other incidents of
discriminatory actions are dismissed for lack of timeliness.
Accordingly, the entire 1990 complaint is dismissed.
II. The 1992 Complaint
TVA suspended Moody without pay for three days in April
1992. Assuming that Moody established a prima facie case
of an ERA violation, the ALJ found that TVA met its burden of
articulating a legitimate, nondiscriminatory reason for the
suspension -- Moody was found asleep on the job. R. D. and O. at
16. The ALJ further found that Moody did not sustain his burden
of establishing that the reasons TVA articulated for the
[PAGE 4]
suspension were pretextual or that the real reason for the
suspension was his protected activities. The ALJ recommended
dismissal of the 1992 complaint. R. D. and O. at 17.
I agree with the ALJ that Moody did not establish that the
reasons TVA gave for the suspension were a pretext, or that the
real reason was his making safety complaints. [4] R. D. and O.
at 16-17. Rather, I am convinced that TVA suspended Moody for
sleeping on the job. Accordingly, Moody has not prevailed on the
merits of his May 1992 complaint.
CONCLUSION
The complaints are DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
Moody filed his complaints on November 9, 1990 and May 12, 1992.
Section 2902(b) of the Energy Policy Act of 1992, Pub. L. No.
102-486, 106 Stat. 2776, amended the time period for filing a
complaint to 180 days for claims filed on or after its enactment,
October 24, 1992. See Section 1902(i) of Pub. L. No. 102-486.
Therefore, the 30-day limit applies to this case.
[2] The NAB is a monthly bonus paid to eligible electrical
maintenance craftsmen. R. D. and O. at 3.
[3] See also Martin v. Nannie and the Newborns, Inc., 3
F.2d 1410, 1415 (10th Cir. 1993) (under Title VII, continuing
violation theory does not require that the alleged incidents that
occurred within the time limitation be sufficient, standing
alone, to comprise a claim for hostile work environment in a
sexual harassment case).
[4]
Since TVA presented evidence to rebut a prima facie case of an
ERA violation and the ALJ considered the entire record in
reaching his recommended decision, the question whether Moody
established a prima facie case does not merit discussion.
See Carroll, slip op. at 11-12.
