1. Whether Complainant's expressions of concern regarding the hardness tester machine on May 29, 1995, and on several dates in June 1995, and his refusal to use this device, constitute protected activity under the ERA.

2. Whether Complainant filed a timely complaint with regard to Respondent's allegedly discriminatory 1995 actions.

3. Whether Respondent's allegedly discriminatory acts violate the ERA.

   Complainant holds a bachelor of science degree in engineering from the Merchant Marine Academy and a master's degree in business administration from Western New

approval of Complainant's request to Lee Wise, the senior human resources consultant at the Pilgrim plant. (TR 581, 583-584). Wise was unable to reach Minihan, and Wise then called Clair Goddard, the plant manager (the next level of management above Minihan). (TR 584) At Wise's request, Goddard approved the tuition reimbursement. (TR 586-587) Wise obtained the necessary approval on the same day that she first learned of Complainant's request. (TR 602)

   Complainant worked in the clerical position until August 1997. At that time, on his physician's advice, Complainant again requested Respondent's approval to cease working due to disability. (TR 243) Complainant testified that he was unable to continue to work at Employer because he was too "depressed and anxious" due to his travails at work, including his clerical job itself and the delay in the approval of tuition reimbursement. Respondent again approved Complainant's disability leave. Complainant has not returned to work for Respondent since August 1997. (CX 9; TR 243-244)

1. Complainant Engaged in Protected Activity

   The initial question to be resolved is whether Complainant's protest about using the RHT and his refusal to use the RHT constitute protected activity under the ERA. Respondent does not dispute the fact that Complainant expressed these concerns. However, Respondent contends that because Complainant did not identify "any illegality for Sullivan" when he raised concerns about the calibration of the RHT, the "plain" requirements of §5851(a)(1)(B) are not met. Respondent's argument is incorrect. The purpose of the Act is to encourage the reporting of matters involving or relating to nuclear safety. The Act must be read broadly because "[a] narrow hypertechnical reading of section 5851 will do little to effect the statute's aim of protecting." Kansas Gas & Electric Company, 780 F.2d 1505 (10th Cir. 1985), cert. denied 478 U.S. 1011 (1986). The Act has a "broad, remedial purpose for protecting workers from retaliation based on their concerns for safety and quality." Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984)

   Courts and the Secretary of Labor have broadly construed the range of employee conduct which is protected by the employee protection provisions contained in environmental and nuclear statutes. S. KOHN, THE WHISTLEBLOWER LITIGATION HANDBOOK, 35-47 (1990). In order to establish a prima facie case of discrimination under the ERA, a complainant's charge must relate to some aspect of nuclear safety. Decresci v. Lukens, 87-ERA-13 ( Sec'y Dec 16, 1993). In Jarvis v. Battelle Pacific NW Laboratory, 97-ERA-15 (ARB Aug. 27, 1998), the Administrative Review Board (the "ARB") held that "[t]he protection afforded whistle-blowers by the ERA extends to employees who, in the course of their work, must make recommendations regarding how best to serve the interest of nuclear safety, even when they do not allege that the status quo is in violation of any specific statutory or regulatory standard."

   In the instant case, I find that Complainant's complaints about the RHT constitute protected activity. An employee's own uncorroborated testimony about an internal safety complaint to a supervisor constitutes evidence of protected activity. Here, Complainant testified without contradiction that he raised his safety concern regarding the calibration of the RHT to management on various occasions: with Sullivan on May 29, 1995 and again on June 13, 1995 (TR 151), Famulari on June 5, 1995 (TR 141), and Venkataraman on June 12, 1995 (TR 147-149). The intent of the Act is to protect employees who report the type of concern Complainant related to his supervisors and to the NRC.

    Respondent also contends that Complainant's refusal to use the RHT is not protected activity. For this contention, Respondent relies on various decisions of the Secretary which have defined when a refusal to work will be considered "protected activity":

A worker [must have] a good faith, reasonable belief that working conditions are unsafe or unhealthful. Whether the belief is reasonable depends on the knowledge available to a reasonable man in the circumstances with the employee's training and experience . . . Refusal to work loses its protection after the perceived hazard has been investigated by responsible management officials . . . and, if found safe, adequately explained to the employee.

   In the instant case, I find that Complainant had a reasonable, good faith belief that conditions were unsafe, and that Respondent had not provided sufficient information to dispel these concerns or adequately explain the safety issues raised. Complainant's uncontradicted testimony shows that he had a good faith belief that use of the RHT would be unsafe. Complainant testified that he believed that it was irresponsible to use either scale on a machine that could be out of calibration or be a safety concern, because of the risk that he might "accept a component that could be...unacceptable [for use] in a nuclear power plant." (TR 155, 118) Complainant also testified that he refused to perform the go/no go test requested by Sullivan, because Complainant believed that it would not adequately determine whether the machine was out of calibration. (TR 433-434) Complainant stated that he believed that the go/no go test was not sufficient, and that he "felt it would be irresponsible to perform such a test when in doubt." (TR 432-433) Complainant also stated that when he first raised his concerns about the use of the machine, Sullivan did not explain or address the safety concerns raised. Rather, Complainant was told by Sullivan to "just do it... just perform the inspection of the [RHT]." When Complainant was asked to perform the go/no go test and refused, Sullivan did not explain to Complainant how such a test would resolve Complainant's safety concern. (TR 115, 430-432)

   Based on the foregoing, I find that both Complainant's expressions of concern regarding the RHT and his refusal to use the RHT constitute protected activity under the ERA.

2. The Complaint was Untimely Regarding Respondent's 1995 Actions

Enclosed with the letter was a copy of the DOL's "Procedures for Handling of Discrimination Complaints Under Federal Employee Protection Statutes."

    With regard to the alleged acts of discrimination which occurred in 1995, Respondent notes that a timely written complaint is necessary to satisfy the requirements of the Act and the regulations, and that Complainant's written complaint, filed on July 7, 1997, was filed well after the 180-day limitations period had expired. Respondent also contests the argument that, nevertheless, its 1995 acts are not time-barred under the theories that 1) a "continuing violation" existed, and 2) Complainant's oral communication with the NRC on June 18, 1995, and the NRC's subsequent June 22, 1995 letter to Complainant memorializing that oral communication fulfill the requirement of "filin[g] a complaint with the Secretary of Labor" (42 U.S.C. §5851(b)(1)), and the requirement that the complaint must be in writing (29 C.F.R. §24.3).

   The continuing violation theory with regard to whether a complaint was timely filed has its origin in cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. (1988). Thomas v. Arizona Public Service Co., 89-ERA-19 (Sec'y Sept. 17, 1993), citing Berry v. Board of Supervisors of L.S.U., 715 F.2d 971 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986). The Secretary has held that a complaint of retaliation is timely under the continuing violation theory where there is an allegation of a course of related discriminatory conduct and the complaint is filed within the applicable limitations period. Garn v. Benchmark Technologies, 85-ERA-21, (Sec'y Sept. 25, 1990). To establish a continuing violation, a complainant must show that the employer engaged in a series of related acts, one or more of which fell within the 180-day period. See Berry, 715 F.2d 971 at 979. Courts generally recognize an equitable exception to statutory limitations periods for continuing violations "'[w]here the unlawful employment practice manifests itself over time, rather than as a series of discrete acts.'" McCuistion v. Tennessee Valley Authority, 89-ERA-6 (Sec'y Nov. 13, 1991), citing Waltman v. Intern. Paper Co., 875 F.2d 468, 474 (5th Cir. 1989). Therefore, in order to invoke the exception, the employee must show that an ongoing violation, and not just the effects of a [distinct] previous violation, extended into the statutory period. McCuistion, 89-ERA-6, citing Bruno v. Western Elec. Co., 829 F.2d 957, 960 (10th Cir. 1987).

   The Secretary in McCuistion, quoting Berry, 715 F.2d at 981, identified the following three factors that bear on this determination:

   (1) Subject matter. Do the acts "involve the same type of discrimination, tending to connect them in a continuing violation?" See Graham v. Adams, 640 F. Supp. 535, 538-539 (D.D.C. 1986) (continuing violation allegations must connect remote claims to incidents addressed by claims timely filed).

   (2) Frequency. Are the acts "recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision?" Under this factor, a continuing violation can be established either through a series of discriminatory acts against an individual or by a respondent's policy of discrimination against a group of individuals. McCuistion, citing Green v. Los Angeles Cty. Superintendent of Sch., 883 F.2d 1472, 1480-1481 (9th Cir. 1989). The distinction is between "'sporadic outbreaks of discrimination and a dogged pattern.'" Id., citing Bruno, 829 F.2d at 960.

   (3) Degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate? In considering the third factor, the court in Waltman, 875 F.2d at 476, reasoned:

Acts of harassment that create an offensive or hostile environment generally do not have the same degree of permanence as, for example, the loss of a promotion. If the person harassing a plaintiff leaves his job, the harassment ends; the harassment is dependent on a continuing intent to harass. In contrast, when a person who denies a plaintiff a promotion leaves, the plaintiff is still without a promotion even though there is no longer any intent to discriminate. In this latter example, there is an element of permanence to the discriminatory action, which should, in most cases, alert a plaintiff that her rights have been violated.

   This inquiry, of necessity, turns on the facts of each case. Berry, 715 F.2d at 981. In the instant case, Complainant alleged in his July 7, 1997 complaint (see supplementary letter attached to complaint) that "since 5/29/95 [he has] been continually placed under severe scrutiny and subject to many different forms of harassment/intimidation." Purportedly to illustrate this, Complainant provided a list of alleged occurrences commencing on May 29, 1995 and ending on July 1, 1997. (CX 5) Most of the occurrences took place in 1995 and culminated on November 13, 1995, when Complainant was transferred to a new position with Employer. The most serious of these are: audit of Complainant's work on May 31, 1995; counseling and warnings issued on June 5, 7, and 12, 1995; suspension for 20 days commencing June 14, 1995; removal of Complainant from his desk site and relocating him in a "cubicle" directly outside Famulari's office; suspension of Complainant's certification; and subjecting him to a "subjective and unfair" remediation process in order to regain his certification. The remainder of the alleged occurrences did not take place until 1997. Complainant has made no discernible allegations of discriminatory acts between November 1995 and March 1997, when Complainant was placed in a clerical position.

   After a careful review of Complainant's list, I find that the 1997 actions of Respondent alleged by Complainant to be discriminatory assignment to a "demeaning" clerical position and "delay" in approving tuition assistance for a computer course are separate and distinct from the 1995 acts. Therefore, under the three-factor test utilized in Berry, the 1997 events are not a continuation of the 1995 events.

First, with regard to subject matter, the alleged 1997 acts do not involve the same type of discrimination as the alleged 1995 acts which would tend to connect them in a continuing violation. The reassignment to a clerical position was not to penalize Complainant, but was Respondent's acquiescence in Complainant's own request for a transfer out of the Pilgrim plant. Complainant did not suffer any loss of wages or benefits as a result of this transfer. Indeed, Complainant did not tell Respondent he was dissatisfied with the clerical job until he quit in August 1997. Nor was the delay in the approval of the tuition request an attempt to penalize Complainant but, at worst, resulted from a bureaucratic mix-up within Employer's management. Thus, I find that the 1997 acts are different in kind from the 1995 acts, and do not consistently affect the same singular aspect of complainant's employment. Second, with regard to frequency, the acts did not recur throughout the 1995-1997 period. Rather, the 1997 acts occurred separately, almost two years later. Third, with regard to the degree of permanence, the record indicates that Complainant met with a DOL representative on May 25, 1996, where the two discussed 1) Complainant's alleged protected activity and the perceived retaliation (throughout 1995) that resulted from that activity; and 2) Complainant's desire to file a complaint at that time based on the 1995 discriminatory acts. (TR 199) Therefore, based on Complainant's own actions, it is clear that the 1995 acts identified by Complainant at this meeting (performance evaluation, suspension, harassment and eventual transfer) were sufficiently permanent to alert him to the possibility that Respondent had a discriminatory motivation at that time. See McCuistion v. Tennessee Valley Authority, 89-ERA-6 (Sec'y Nov. 13, 1991), and Eisner v. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992). Consequently, there is no evidence of a series of related acts of discrimination, and the alleged 1995 violations do not carry forward into the 180-day period following the alleged 1997 violations.

    At the hearing, Complainant argued that the acts of discrimination cited in the July 7, 1997 complaint are "still related to the incident on May 29, 1995" and that at the time of the filing "[he]... still had lost wages...still had falsification [charges] (i.e., Respondent's charges against Complainant that he falsified his work records) on [his] record...and still had numerous amounts of discriminatory things that..." continued to affect him. (TR 203-204) It thus appears that Complainant claims that Respondent's actions were related because they all allegedly "continued" to affect his general working conditions and well-being. Gillilan v. Tennessee Valley Authority, 92-ERA-46 (Sec'y Apr. 20, 1995) However, such effects are not sufficient to establish the link that is necessary in order for the various acts to come within the continuing violation concept. Id. Violations are not "continuing" merely because their effects carry forward. See English v. Whitfield, 858 F.2d at 962-963. Based on the foregoing, I again find that the alleged 1995 acts of retaliation are not preserved for Complainant under the continuing violation theory.

   The next question is whether Complainant's oral communication with the NRC on June 18, 1995 constitutes a complaint under the Act and the regulations. It is clear that a complaint under the ERA must be in writing. Mitchell v. EG & G (Idaho), 87-ERA-22 (Sec'y July 22, 1993). However, it has been held that an OSHA agent's written memorandum of his telephone conversation with a complainant satisfies the writing requirement. Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983); see Roberts v. Rivas Environmental Consultants, Inc., 96-CER-1 (ARB Sept. 17, 1997) Thus, the question follows

of whether the NRC's June 22, 1995 letter memorializing Complainant's allegations of discrimination under the Act satisfies the "in writing" requirement. In Dartey, the regulation required that the complaint be filed with the Wage and Hour Division, but the employee had a conversation with OSHA. The administrative law judge's opinion (which was "adopt[ed]" by the Secretary) noted that since "OSHA is not an independent government agency, but is a component part of the Department of Labor, there was literal compliance with paragraph (b)(1) of section 5851 mandating that within thirty days after such violation occurs, one may file... a complaint with the Secretary of Labor.'" Dartey held that under such circumstances, there had been "a filing in the wrong office of the right Department ... and the regulatory limitation [period] is tolled." The instant case does not fall within the Dartey circumstances, as the NRC is not a component of the DOL. Further, in the instant case there has not been literal compliance with the ERA.

   The final question is whether the circumstances of the instant case come within the broad concept of "equitable tolling," wherein the 180-day time limit is considered a statute of limitations which can be tolled where a duly diligent employee is excusably ignorant of his or her rights. See School District of the City of Allentown v. Marshall, 657 F.2d 16, 19-21 (3d Cir. 1981); Lastre v. Veterans Administration Lakeside Medical Center, 87-ERA-42, slip op. at 2-4 (Sec'y Mar. 31, 1988), In School District of City of Allentown, a case involving the Toxic Substances Control Act, 15 U.S.C. §§2601-2629, the court summarized the situations in which equitable tolling is "appropriate": (1) the defendant has actively misled the plaintiff respecting the cause of action, (2) the plaintiff has in some extraordinary way been prevented from asserting his rights, or (3) the plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. 657 F.2d at 19-20 (relying on Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2d Cir. 1978)).

and dismissed. Apparently, Respondent did not learn of the substance of the complaint until sometime after August 8, 1997. See Respondent's Motion for Continuance of Hearing Date, filed on October 21, 1997.)

   Summing up, the instant case involves the application of equitable principles, commonly known as "fairness." I have found only two cases in which the Secretary or the ARB found that the employee had filed "the right claim in the wrong forum" Sawyers v. Baldwin Union Free School District, 85-TSC-1 (Sec'y Oct. 5, 1988), and Immanuel v. Wyoming Concrete Industries, Inc., 95-WPC-3 (ARB May 28, 1987). In neither of these cases were all the equitable considerations weighed. Further, in both cases the adjudicative tribunals were faced with statutes of limitations with very abbreviated time periods of 30 days within which the employee was compelled to file a written complaint. Certainly, fairness to the employees in those circumstances looks quite different than it does in the instant case where Complaint had 180 days to file. Finally, Complainant has offered no exculpatory explanation which I find credible for failing to timely file a complaint with the DOL after this process was clearly explained to him in the NRC's June 1995 letter. Accordingly, I find that Complainant simply "sat on his rights." Under these circumstances, there is no principle of equity which militates in Complainant's favor.

   As noted above, the written complaint Complainant filed with the DOL on July 7, 1997, was timely with respect to Respondent's alleged 1997 acts: placing him in a "demeaning" job, and "delay" in approving tuition reimbursement. I now turn to the consideration of whether those acts violate the ERA.

   To establish a prima facie case of retaliation or discriminatory motivation under the whistleblower provision invoked in this case, a complainant must show that (1) the complainant engaged in protected activity, (2) the employer was aware of that protected activity, and (3) the employer took some adverse action against the complainant. The complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan 18 1996); Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983). However, as will be discussed below, in the instant case Complainant has failed to establish took adverse action against him.

   The courts have held in similar contexts that, "An adverse action is simply something unpleasant, detrimental, even unfortunate, but not necessarily (and not usually) discriminatory." Stone & Webster Engineering Corp. v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997). Clear examples of adverse employment actions include dismissal, demotion, or an involuntary transfer to a less desirable position. Mandreger v. Detroit Edison Co., 88-ERA-17 (Sec y March 30, 1994); Nichols v. Bechtel Constructors, Inc., 87-ERA-44 (Sec y Oct. 26, 1992); English v. General Electric Co., 85-ERA-2 (Sec y Feb. 13, 1992). Monetary loss is not required. Boytin v. Pennsylvania Power and Light Co., 94-ERA-32 (Sec y Oct. 20, 1995).

   I find that there is no evidence of record that indicates that Complainant's transfer to a clerical position was an "adverse action" by Respondent. To the contrary, the evidence, including Complainant's own testimony, reveals that Complainant requested a transfer out of the Pilgrim plant and that Respondent merely reasonably accommodated that request.

   Based on my earlier discussion regarding Complainant's tuition reimbursement request, I find that there is no evidence of record to suggest that the "delay" in approving the request constitutes an adverse action by Respondent. Rather, I find that there was no extraordinary delay and that Complainant's application was approved relatively promptly in the ordinary course of business.

   Complainant's request was originally denied because his former manager, Stu Minihan, erroneously believed that Complainant was still employed at the Pilgrim plant and that a computer course would not enhance his current job skills or current level of performance. (CX 6) Upon receipt of Minihan's recommendation, Complainant contacted Sandra Stracqualursi, a tuition administrator at Employer, who immediately disagreed with Minihan and sent him an E-mail message to that effect. (TR 224) Straqualursi was unable to reach Minihan because he was in the process of leaving Employer (or had already left) (TR 583-584). Therefore, she called Lee Wise of human resources. Wise immediately attempted to contact Minihan, but also was unsuccessful. (TR 584) Because Minihan was not available, Wise contacted Claire Goddard, who was the "next higher level of management" above Minihan. (TR 584) Wise asked Goddard if he would consider signing the tuition reimbursement approval. Goddard said that he would, and that he would also immediately send an E-mail to Straqualursi to that effect. (TR 585-586) Goddard immediately sent Straqualursi the E-mail message which stated that the reimbursement was recommended for approval. (CX 6) Wise secured the necessary approval on the same day that she learned of Complainant's request. (TR 602) The entire period of time from Complainant's request for tuition aid until it was approved was thirty-three days.

   Wise testified that the "delay" in this case was "not unusual" "because the policy [for approving tuition requests] is applied so broadly, it's not unusual for a manager to question why they were approving a tuition reimbursement if they can't see that it adds value...it's not unusual to have to get some concurrence." (TR 607) Wise also testified that "it's not unusual to take a month" to have a tuition reimbursement approved. (TR 607) (It appears that, ultimately, Complainant was unable to take advantage of the tuition reimbursement because he left his employment with Employer in August 1997 prior to the start of the computer course.)

   Accordingly, I find that Complainant has not established that the "delay" he experienced in having his tuition reimbursement approved was an adverse action. Thus, this conduct by Respondent did not violate the ERA.

   I have found that Complainant's expressed concerns about the RHT and his refusal to use this device constitute protected activity under the ERA. However, the outcome of this case has been resolved by my findings that (1) Complainant's contact with the NRC in June 1995 does not constitute the filing of a complaint under the ERA, (2) Respondent's alleged pre-1997 acts of retaliation are time-barred under the ERA because the complaint filed on July 7, 1997 was not timely with regard to those acts, and (3) Respondent's 1997 acts were not discriminatory nor adverse to Complainant, and therefore those acts do not violate the ERA.

   Based on my findings of fact and conclusions of law, the complaint must be denied.

   The complaint of Douglas W. Foley is denied.

      Robert D. Kaplan
      Administrative Law Judge

Date: December 2, 1998
Camden, New Jersey

NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. §24.8, a petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. Such a petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).