On September 17, 2003, Complainant filed a complaint with the Department of Labor alleging that Respondent did not give Complainant his employee and medical records and it did not assign him to a nuclear operator position at Nine Mile Point, Unit 2 because of his past protected activity. On December 2, 2003, the Occupational Safety and Health Administration ("OSHA") issued the Secretary's Findings, in which it found that the complaints regarding the medical and employment records and a transfer to Nine Mile Point, Unit 2 were not timely filed. OSHA found that his complaint that Respondent is continuing to deny him employment was timely filed. However, OSHA found that Complainant did not apply for a position with Respondent, and thus it did not discriminate against him by denying him employment. Complainant appealed the Secretary's Findings on December 17, 2003.

I. Whether a genuine issue of material fact exists with regard to whether Complainant timely filed his complaint with OSHA.

II. Whether a genuine issue of material fact exists with regard to whether the complaint alleges a prima facie case.

   A motion for summary decision in an ERA case is governed by 29 C.F.R. §§ 18.40 and 18.41. A party opposing a motion for summary decision "must set forth specific facts showing there is a genuine issue of material fact for the hearing." § 18.40(c). Under the analogous Federal Rule of Civil Procedure 56(e), the non-moving party "may not rest upon mere allegations or denials of his pleading, but instead must set forth specific facts showing that there is a genuine issue for trial... The party opposing summary judgment must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986). The determination of whether a genuine issue of material fact exists must be made in the light most favorable to the non-moving party. Agristor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987).

Timeliness

   Any complaint under the ERA shall be filed within 180 days after the occurrence of the alleged violation. 42 U.S.C. § 5851(b)(1); 29 C.F.R. § 24.3(b)(2). The time limit is in the nature of a statute of limitations and is not jurisdictional. Doyle v. Alabama Power Co., 1987-ERA-43 (Sec'y Sept. 29, 1989), aff'd sub nom. Doyle v. Secretary of Labor, No. 89-7863 (11th Cir. 1989); School District of City of Allentown v. Marshall, 657 F.2d 16 (3d Cir. 1981). The statute of limitations begins to run from the date an employee receives final, definitive, and unequivocal notice of an adverse employment decision. Overall v. Tennessee Valley Authority, 1997-ERA-53 (ARB Apr. 30, 2001); English v. Whitfield, 858 F.2d 957 (4th Cir. 1988). The statute of limitations begins to run on the date that the complainant is informed of the challenged employment decision rather than at the time the effects of the decision were ultimately felt. Howard v. Tennessee Valley Authority, 1990-ERA-24 (Sec'y July 3, 1991), aff'd sub nom., Howard v. United States Department of Labor, 959 F.2d 234 (6th Cir. 1992). The Administrative Review Board applies a discovery rule in whistleblower cases: limitations periods begin to run on the date when facts which would support a discrimination complaint were apparent or should have been apparent to a person similarly situated to the complainant with a reasonably prudent regard for his or her rights. Overall, slip op. at 35 (citations omitted).

   This complaint presents two different dates from which the statute of limitations could begin to run: the date NMP took ownership of Nine Mile Point (November 7, 2001) or the date Complainant was discharged by Niagara Mohawk (March 18, 2002). According to the Memoranda of Agreement, Constellation agreed "at a mutually agreeable time prior to the date of closing," to offer employment at NMP to the qualified employees of Niagara Mohawk. (RX 1, Attachment B, pp. 3, 12). The Memoranda of Agreement provide that Constellation will assume the collective bargaining agreement between Niagara Mohawk and the Union "as of the date of closing" and that the transitioned employees' pension plan, savings fund plan, and vacation benefits would be handled by Constellation "as of the date of closing." (RX 1, Attachment B, pp. 5-6, 10, 13-14). The record establishes that Niagara Mohawk's employees had been offered employment by NMP as of November 7, 2001. I find that Complainant knew or should have known as of November 7, 2001 that he was not going to be offered a position at Nine Mile Point by NMP. Therefore, the statue of limitations began to run on November 7, 2001, and Complainant had until May 6, 2002 to file his complaint. Complainant did not file his complaint until September 17, 2003, nearly sixteen months after the statute of limitations had expired. Therefore, I find that Complainant did not timely file his complaint.

   The second date from which the statute of limitations could begin to run is March 18, 2002, the date Complainant was discharged by Niagara Mohawk. The statute of limitations begins to run from the date an employee receives final, definitive, and unequivocal notice of an adverse employment decision. In Larry v. Detroit Edison Co., 1986-ERA-32 (Sec'y June 28, 1991), the Secretary stated that "‘final' and ‘definitive' notice denotes communication that is ‘decisive' or ‘conclusive,' i.e., ‘leaving no further chance for action, discussion, or change.' ‘Unequivocal' notice denotes communication that is ‘not ambiguous,' i.e., free of misleading possibilities." Larry, slip op. at 9-10. (citing Webster's New World Dictionary (Third College ed. 1988)). As of March 18, 2002, Complainant had final, definitive, and unequivocal notice that he was not going to be offered a position at Nine Mile Point, and thus the statute of limitations began to run on that date. Complainant had until September 14, 2002 to file his complaint. However, Complainant did not file his complaint until September 17, 2003, one year after the statute of limitations had expired. Therefore, I find that Complainant did not timely file his complaint.

   Complainant also alleged that Respondent failed to give him his employee and medical records because of his past protected activity. In his complaint, Complainant stated that after he was discharged by Niagara Mohawk, he contacted Ms. Miles in human resources at NMP to obtain his employee and medical records. He stated that she did not provide him with the records, and so he contacted other people at Constellation in an attempt to obtain his records. He stated that his last communication was with Tiffany Nichols, a human resources representative with Constellation, by letter on March 22, 2003. In that letter, Complainant requested that Ms. Nichols forward his records request to Marc Ugol, the human resources vice president. (RX 2). The record includes a letter from Complainant to Mr. Ugol dated January 7, 2003. (RX 3). Ms. Miles responded to Complainant's letter, on behalf of Mr. Ugol, on January 28, 2003. (RX 1, Attachment C). In that letter, Ms. Miles explained that NMP only had Complainant's occupational exposure records and training record sheets because "[a]t the time of the sale of the station

from Niagara Mohawk, Constellation took receipt of personnel records of those active Nine Mile Point employees who were transitioned to Constellation employment as part of the sale. As you were not part of the transitioned employee group, any of your records, other than those set forth above, were not transferred to Constellation." (RX 1, Attachment C). I find that Complainant had final, definitive, and unequivocal notice on January 28, 2003 that he could not obtain his employee and medical records from NMP. Complainant's attempts to obtain his records after that date does not change the fact that he knew on January 28, 2003 that NMP was not going to give him his employee and medical records (because it did not have his records). Therefore, I find that the statute of limitations began to run on January 28, 2003. Complainant had until July 27, 2003 to file his complaint, yet he did not file it until September 17, 2003. I find that Complainant's complaint is not timely filed.

Prima Facie Case

   In order to survive dismissal under the ERA, the complainant must establish that: he engaged in protected activity, the respondent took an adverse action against him, and the protected activity was a contributing factor in the adverse action that was taken. 42 U.S.C. § 5851(b)(3)(A); see, e.g., Kester v. Carolina Power & Light Co., 2000-ERA-31 (ARB Sept. 30, 2003); Paynes v. Gulf States Utilities Co., 1993-ERA-47 (ARB Aug. 31, 1999); Carroll v. Bechtel Power Corp., 1991-ERA-46 (Sec'y, Feb. 15, 1995), aff'd Carroll v. U.S. Dep't of Labor, 78 F.3d 352 (8th Cir. 1996). In cases involving an alleged discriminatory failure to hire/re-hire, there is an additional pleading requirement to establish the adverse action element. The complainant must show that: he applied for and was qualified for a position for which the respondent was seeking applicants and, despite his qualifications, he was rejected for that position, and that after his rejection, the position vacancy remained open and the respondent continued to seek applicants from persons of the complainant's qualifications. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Samodurov v. General Physics Corp., 1989-ERA-20 (Sec'y Nov. 16, 1993)(applying the McDonnell Douglas framework to ERA cases).

   Complainant alleges that Respondent has denied him employment at Nine Mile Point for engaging in protected activity while employed by Niagara Mohawk. Complainant sent e-mails to Saeed Savar and Richard Mulcahey on June 23, 2003 and July 14, 2003, respectively, inquiring about employment opportunities at Nine Mile Point. (CX 10, p. 1). In an email dated July 18, 2003, Mr. Mulcahey told Complainant to contact John Murphy for assistance in finding the "right person" to contact about potential positions. (CX 10, p. 2). On July 29, 2003, Complainant sent a letter to Joseph Mancinelli at Enercon Services, Inc. "applying for the Nuclear Computer Aide Design project that [Enercon Services] was awarded at Nine Mile Point." (CX 10, p. 3).

   Complainant has not satisfied the special pleading requirement of a failure to hire claim. Complainant's evidence does show that he applied for a position, but his evidence does not include a description of the position to which he applied or his qualifications for that position. Thus, the evidence does not establish that Complainant was qualified for the position. Also, there is no evidence that Complainant was rejected for the position even though he was qualified. Finally, there is no evidence that the position remained open after Complainant was rejected and that Respondent continued to seek applicants for the position. It is unnecessary to consider whether Complainant has established the other elements of his claim because he has failed to establish that Respondent took an adverse action against him.

   In sum, I find that Complainant's complaint is untimely and that there are no issues of material fact regarding whether Complainant has alleged a prima facie case in his failure to hire claim. Therefore, it is recommended that Respondent's Motion to Dismiss be granted. Because I find that the complaint should be dismissed on these grounds, I will not address the other arguments raised by Respondent.

   IT IS RECOMMENDED THAT Constellation Energy Group, Inc.'s Motion to Dismiss be GRANTED and that Jerome Reid's complaint be DISMISSED.

      DANIEL L. LELAND
      Administrative Law Judge

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 petitions for review must be received by the Administrative Review Board within ten (10) 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. §§ 24.7 and 24.8.