Date: January 4, 1999

Case No.: 1998-ERA-30

File No.: 01-0280-98-020 & 805

In the Matter of:

The Estate of Kenneth Ricketts
   Complainant

    v.

Northeast Utilities Corporation

    and

Connecticut Yankee Atomic Power Plant
   Respondents

   This case arises under the Energy Reorganization Act of 1974 as amended, 42 U.S.C. § 5851 ("the Act" or "the ERA"), and the implementing

regulations found at 29 C.F.R. Part 24. Pursuant to the Act, employees of licensees of or applicants for a license from the Nuclear Regulatory Commission (NRC) and their contractors and subcontractors may file complaints and receive certain redress upon a showing of being subject to discriminatory action for engaging in a protected activity. Complainant, the Estate of Kenneth Ricketts, represented by Sharon Ricketts, Administratrix, has alleged Respondents Northeast Utilities Corporation (NU) and Connecticut Yankee Atomic Power Plant (CY or Connecticut Yankee) retaliated against Kenneth Ricketts, during the last few months of his life.

   By document filed August 6, 1998, Respondent NU submitted a Motion for Summary Decision or, in the alternative, Motion to Dismiss Respondent Northeast Utilities. In support thereof, Respondent argued that summary decision was warranted because Complainant failed to comply with the time requirements for filing a complaint.

   On October 28, 1998, this Judge issued an Order Denying Both Respondent NU's Motion for Summary Decision and Motion to be Dismissed as a Party. In regards to the issue of timeliness, while I noted that Complainant had filed a complaint more than 180 days following Complainant's death, I found and concluded that the circumstances in this matter presented "an exceptional circumstance" that justified the equitable tolling of the filing period. Specifically, I held that since the Connecticut Probate Court took twenty-eight (28) days to issue a Letter of Administration, that Complainant was prevented from filing a Complainant under the Act during that period.

   On November 18, 1998, Respodent CY filed a Motion for Partial Summary Decision, pursuant to 29 C.F.R. §§ 18.40 and 18.41. Connecticut Yankee argues that several of Complainant's claims should be dismissed as untimely. Connecticut Yankee argues that "none of the alleged adverse actions in the Complaint, except the allegations of harassment and intimidation, occurred after August 28, 1998 (208 days before Complainant filed the Complaint)." Connecticut Yankee also argues that two of the allegations fail to establish a prima facie case under the Act. Finally, Connecticut Yankee argues that Complainant's claims for premature death and/or loss of life are barred in this proceeding by the Connecticut Workers' Compensation Act.

   Complainant, in its Brief in Opposition, argues that all claims are timely under the continuing violation doctrine, and that all of Complainant's claims are valid and compensable under the ERA.

   On October 29, 1998, this Judge denied Respondent NU's motion for Summary Decision and Motion to be Dismissed as a party. Concurrently, I issued a Second Notice of Hearing and Pre-Hearing Order and Order Establishing Filing Schedule for Pre-hearing Motions. Said Order provided Respondent CY with twenty (20) days to file a Motion for Summary Decision. Further, I instructed that should Respondent CY file such a motion, then Complainant would have ten (10) days following receipt, to file a reply brief.

   On November 11, 1998, Respondent CY timely filed a Motion for Partial Summary Decision. Thereafter, on December 4, 1998, Complainant filed a "Request for Extension of Time to File Brief of Complainant, Estate of Kenneth Ricketts, In Opposition to the Respondent, CY's Motion for Partial Summary Decision and Brief filed November 18, 1998," together with Complainant's Brief in Opposition. Complainant provided no reason for the delay in filing its motion.

   Respondent CY requested permission to file a reply brief, and on December 9, 1998, this Court granted that request. On December 23, 1998, Respondent CY timely filed its reply brief, which argued, in part, that the Motion for Partial Summary Decision should be granted as unopposed.

   I hereby reject Respondent CY's argument and grant, nunc pro tunc, Complainant's request for an extension to file its brief. The Complainant's filing, while untimely, did not prejudice Respondent CY. Rather Connecticut Yankee was provided an opportunity to file a reply brief in this matter. Accordingly, I find and conclude that Respondent's Motion for Partial Summary Decision is not unopposed, and I shall consider Complainant's brief in Opposition in ruling on this motion.

   The standard for granting summary decision is set forth at 29 C.F.R. § 18.40(d). This section, which is derived from Fed. R. Civ. P. 56, permits an Administrative Law Judge to recommend summary decision for either party where "there is no genuine issue as to any material fact." 29 C.F.R. § 18.40(d). The non-moving party must present affirmative evidence in order to defeat a properly supported motion for summary judgment. Gillilian v. Tennessee Valley Authority, 91-ERA-31 (Sec'y Aug. 28, 1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The determination of whether a genuine issue of material fact exists must be made viewing all the evidence and factual inferences in the light most favorable to the non-movant. Id. (citing OFCCP v. CSX Transp., Inc., 88-OFC-24 (Asst. Sec'y Oct. 13, 1994)).

   This Judge, acknowledging that summary decision is rarely granted, has applied this standard to the case at hand and concludes that Respondent CY's Motion must be GRANTED IN PART.

   In the present case, Respondent CY argues that Summary Decision is warranted on several of the issues raised by the Complainant. First, Connecticut Yankee argues that Complainant's allegations concerning removal from shift detail, denial of overtime, delay in receiving performance evaluations, and conducting a "secret" investigation, are all untimely. Second, Connecticut Yankee argues that the shift detail and overtime allegations

involved alleged discrimination preceding protected activity and therefore fail to establish a prima facie case. Finally, Connecticut Yankee argues that Complainant's request for damages stemming from loss of life and premature death are barred by the Connecticut Workers' Compensation Act (CWCA). I shall now address each grounds for dismissal individually.

   An employee who believes that he or she has been discharged or otherwise discriminated against in violation of 42 U.S.C. §5851(a) must file a complaint with the Secretary of Labor within 180 days after such discriminatory act. 42 U.S.C. § 5851(b)(1). The time period for administrative filings begins running on the date that the employee is given definite notice of the challenged employment decision. Bonanno v. Northeast Nuclear Energy Co., 92-ERA-40/41 (Sec'y Aug. 25, 1993). The time limits, however, are in the nature of a statute of limitations and are subject to equitable tolling.

   In my October 29, 1998 Order Denying Respondent NU's Motion for Summary Decision, I found that the circumstances and facts in this case justified the equitable tolling of the statute of limitations during the time when Mr. Rickett's Administratrix was awaiting authorization from the Connecticut Probate Court. Specifically, I tolled the filing period for twenty-eight (28) days, and found Complainant's March 25, 1998 Complaint timely. Respondent now notes that in light of this tolling, in order to be timely filed, an alleged adverse action must have occurred after August 28, 1997 208 days prior to Complainant's filing of the Complaint in this matter.

   Respondent CY, in its Motion for Summary Decision, argues that four specific claims raised by Complainant, involve alleged adverse action occurring prior to August 28, 1997, and therefore, must be dismissed as untimely. Specifically, Connecticut Yankee cites to the following alleged actions: (a) removal from shift detail;¹ (b) denial of overtime;² (c) denial of annual performance;³ and (d) a secret investigation of Complainant.⁴ Complainant, on the other hand, has argued that these claims, while originating prior to August 28, 1997, remain valid under the continuing violation doctrine.

   While generally, a claim of adverse action must occur during the time limitation, the continuing-violation doctrine provides an exception to the usual strict application of such time period. In Connecticut Light & Power Co. v. Secretary of United States Dep't of Labor, 85 F.3d 89 (2d Cir. 1996), the Second Circuit held:

Under the continuing violation standard, a timely charge with respect to any incident of discrimination in furtherance of a policy of discrimination renders claims against other discriminatory actions taken pursuant to that policy timely, even if they would be untimely if standing alone. A continuing violation exists where there is a relationship between a series of

   Initially, I note that the issue related to the Connecticut statutes are inapplicable to this claim. First, Respondent CY has presented no caselaw as to how or why the CWCA would bar such damages under a federal statute.⁵ Second, the ERA itself includes a non-preemption clause permitting concurrent causes of action.⁶ The main issue presented does not concern any conflict between the CWCA and the ERA, but rather, whether or not the claims and damages challenged by Respondent CY are recoverable under the ERA.

   In the event that a respondent is found to have violated the ERA, "the Secretary shall order the person who committed such violations to (i) take affirmative action to abate the violation, and (ii) reinstate the complainant to his former position together with the compensation (including back pay), terms, conditions, and privileges of his employment . . ." 42 U.S.C. §5851(b)(2)(B). See generally Wells v. Kansas Gas & Elec. Co., 85-ERA-22 (Sec'y Mar. 21, 1991). In addition, "the Secretary may order such person to provide compensatory damages to the complainant." Id. Finally, the Secretary shall assess costs and expenses, including attorney's fees, reasonably incurred in bringing the complaint. Id.; DeFord v. Secretary of Labor, 700 F.2d 281, 288 (6th Cir. 1983); 29 C.F.R. § 24.6(2).

   Compensatory damages may be awarded in an ERA whistlebloswer complaint for emotional pain and suffering, mental anguish, embarrassment and humiliation. DeFord, 700 F.2d at 283; see also Pillow v. Bechtel Construction, Inc., 87- ERA-35 (Sec'y July 19, 1993). Thus, where appropriate, a complainant may recover for emotional stress and mental anguish that is the 'proximate' result of the unlawful termination. See Busche v. Burkee, 649 F.2d 509, 519 n.13 (7th Cir. 1981). Emotional distress cannot be presumed, and compensatory damages for mental and emotional distress cannot be

   Respondent CY has made clear that it is not challenging any of the claims or allegations related to emotional distress caused by intimidation or harassment.⁷ Rather, Connecticut Yankee challenges the damages for premature death, loss of life, and the companion damages (i.e., loss of earning expectancy and loss of pension).

   The ERA is an employee protection statute, and the remedial scope of the Act is limited to the statute's general mission: assuring that employees who participate in protected activity are not discriminated against. In my October 29, 1998 Order, I held that the Estate of Kenneth Ricketts had standing to bring a so-called whistleblower complaint under the Act. In making that determination I stressed that the Estate was assuming the rights of the employee, and as such, the Estate should be entitled to no more and no less, than Mr. Ricketts had he pursued the action during his lifetime. Accordingly, since Mr. Ricketts, obviously, could not recover death benefits before his death, so too, his Estate must be denied recovery of those same damages.

   The Secretary of Labor has previously highlighted the difference between wrongful-death damages and the recoverable damages in a whistleblower action. In Willy v. The Coastal Corp., 85-CAA-1 (Sec'y June 1, 1994) a complainant was terminated from employment, and at the hearing sought to introduce evidence of his projected loss of earnings over his entire working life. The Secretary rejected the projected earnings evidence because such evidence is "more relevant to a wrongful death action, than a retaliatory discharge case such as this." Id.

   The damages stemming from loss of life, premature death, and the like are, in essence, a workers' compensation action, not a whistleblower action. Further, I note that it is entirely permissible for the Complainant to pursue the ERA claim, based on alleged retaliatory conduct, concurrently with its CWCA claim. While alleged workplace intimidation may have contributed to an emotional distress claim, the ERA is not the proper forum for a wrongful-death action. See Willy. Accordingly, I hereby grant Respondent CY's Motion for Summary Decision with regard to Complainant's claims for damages stemming from loss of life and premature death.

   Based upon the foregoing reasons, I hereby GRANT Respondent CY's Motion for Partial Summary Decision, in part. Specifically, I grant Summary Decision in regard to any claim and damages for loss of life, premature death, loss of wage expectancy and loss of pension.

¹ Complainant asserts that Mr. Ricketts was discriminated against when he "was removed from the shift detail, which was a status on which Health Physics employees would gain significantly larger pay because of the premium for evening and weekend shift duty." Suppl. Facts for Complaint, ¶ 8. Mr. Ricketts filed a union grievance regarding this allegation on July 14, 1997. Id. at ¶ 9; Respondent CY's Motion for Partial Summary Decision, Exh. B.

   Connecticut Yankee argues that filing the grievance indicated awareness of an isolated and discrete adverse employment action, and that the filing limitation should begin on that date. As such, Connecticut Yankee argues that since the cause of action accrued before August 28, 1997, the claim is untimely. Complainant, however, argues that this violation is part of a continuous violation, and not an isolated issue. Specifically, Complainant argue that this violation was continuous since each week that Complainant was kept off shift detail was an on- going violation. Complainant also alleges that this action was part of a general pattern of discrimination. Respondent, on the other hand, argues that shift detail assignment was not done weekly, but rather reassignment is done for an indefinite period of time, usually until completion of the assignment.

² Complainant alleges that Mr. Ricketts was discriminated against when he was "reduced or eliminated from the pool of employees receiving overtime assignments." Suppl. Facts to Complainant, ¶ 10. On July 1, 1997, Complainant filed a union grievance concerning this issue. Respondent CY's Motion, Exh. C.    Respondent CY argues that the removal was an isolated and discrete action, which triggered the limitation period to prior to August 28, 1997. Complainant argues that the violation was continuous as it was part of a general pattern of discrimination, and also because it continued on a weekly basis.

³ The parties briefs tend to confuse this issue, nevertheless, apparently Complainant alleges that the 1997 Performance Review which was to be completed by August 14, 1997, was not completed. Complainant views this as part of a continuing violation as a pattern of discrimination. Respondent, however, argues that the delay was an isolated action, of which Mr. Ricketts had knowledge prior to August 28, 1997, and as such the claim is untimely.

⁴ An Equal Employment Opportunity investigation was commenced in June of 1997 stemming from allegations that Mr. Ricketts improperly harassed a co-worker. Mr. Ricketts learned of the investigation on or about August 8, 1997. Respondent CY's Motion for Partial Summary Decision, Exh. E at 4-5,35-36).

   Respondent argues that this was an isolated and discrete action, and that the filing limitation should begin no later than August 8, 1997, when Mr. Ricketts became aware of the investigation. Accordingly, Respondent CY argues that this claim is untimely. Complainant, on the other hand, argues that this action was part of a general pattern of discrimination that continued into September of 1997.

⁵ I note that all of the cases cited by Respondent CY in its Reply brief on page 11 are easily distinguished, especially, as most involve internal state law issues, not involving federal law at all.

⁶ Section (h) of the Act provides: "This section may not be construed to expand, diminish, or otherwise affect any right otherwise available to an employee under Federal or State law to redress the employee's discharge or other discriminatory action taken by the employer against the employee." 42 U.S.C. § 5851(h).

⁷ Specifically, Respondent CY states: "[N]owhere does Respondent CY argue that the [Connecticut Workers' Compensation Act] is the exclusive remedy for all injuries arising out of Ricketts' employment, and nowhere does it seek to dismiss the specific claims for damages attributed to lost wages, emotional distress, lost employment, and attorney's fees." Respondent CY's Reply Brief at 12.