1Trimmer also
claimed violations of the similar employee protection provisions of the Safe Drinking Water
Act, 42 U.S.C. § 300j-9(i); Water Pollution Control Act, 33 U.S.C. § 1367;
Toxic Substances Control Act, 15 U.S.C. § 2622; Solid Waste Disposal Act, 42
U.S.C. § 6971; and Clean Air Act, 42 U.S.C. § 7622.
In response to a motion for Summary Judgment, the ALJ ruled
that the complaint was timely under the ERA, which has a 180-day limitation period, but
was time barred under all of the other acts, which have a 30 day limitation period.
September 29, 1993 Order at 4.
2We will refer
to both Respondents jointly as "the Lab."
3Trimmer does
not allege that events that occurred between 1989 and 1991 form the basis of his complaint.
Sept. 19, 1993 Order at 3. Rather, he complains that a December 9, 1992 letter and
subsequent events, including his discharge, were discriminatory under the ERA. Id.
4Trimmer told
his clinical psychologist that the Lab was discriminating against him because of his
disability and that he was being forced to work beyond his physical abilities. RX 2 p. 9; T.
781-782. He did not mention any suspicion that he was being discriminated against because
of voicing health and safety concerns either to the psychologist, T. 782-783, or in a diary
that he kept. T. 578.
5The complaint
was not timely as to the January 1991 notice that the Lab could not accommodate Trimmer
in his former position. See n. 3 above.
6Also in 1991,
Complainant told the Lab he was going to retire and filed charges against it for
discriminating against him on the basis of age and disability. T. 549-550. Trimmer
abandoned his retirement plans.
7Simmons took
medical leave in January 1993, did not return to work, and retired later that year.
8Ultimately, the
Lab filled five of the positions with Contractor personnel and the sixth position with a Lab
employee on directed transfer. T. 1284-1286, 1824. Purported job vacancies cited by
Trimmer, CX 112, were not true vacancies, but rather represented work that needed to be
performed and that the Lab could achieve without hiring new employees. T. 1479.
9We reject
Trimmer's contention, Brief at 13, that "no individual for the Lab was even acting in
the role of AP coordinator for Mr. Trimmer." The uncontradicted evidence shows that
Roberson continued to search for an alternate placement for Trimmer, whereas Suniga
coordinated the overall program.
10The Lab
asked that we strike the footnotes from Trimmer's brief on the ground that they violate the
applicable page limitation. Resp. Br. at 15. We deny the motion and accept the brief as
submitted.
11We are not
concerned with the purported failure of the Lab to inform Trimmer about sources of
financial support other than the employee's work group to help in accommodating an
employee's disabilities, AM 118.24 and 118.25, because, as far as expenditures are
concerned, Trimmer's work restrictions required only a "special chair meeting specific
recommendations based on [an] ergonomic study." RX 45 p. 31.