Complainant stated at trial that his relationship with his supervisor, Perales, was good until the December, 1999 incident. On December 10, 1999, the plant experienced a water violation. In a subsequent meeting on that day between Commons, Perales, and Complainant, Commons verbally reprimanded Perales and Complainant for not wasting enough. (R. 41). After the meeting, Complainant complained to Perales for allowing Commons to order the wasting. (R. 42). Complainant stated that, thereafter, his relationship with Perales deteriorated and Perales suggested that Complainant begin seeking a new job. (R. 43). Following this incident, Complainant was on leave to Romania for one week. Upon his return, Commons told him he would not pass probation. (R. 42).

   Complainant reported Commons to the Office of Operator Certification on January 4, 2000. Complainant reported that Commons was pressuring Perales to implement operational changes against his own judgment as a certified operator. (Ex. 18). Complainant told Perales what he had done. (R. 54). The next day, Commons ordered Perales to demote Complainant from his supervisor position. (R. 55).

   Prentice thought Commons had improperly influenced plant operations by limiting the parameters of operation. (R. 231, 243-4). Prentice eventually asked for Commons' resignation for improperly influencing plant operations, insubordination, misuse of public property, and failing to report to work on time. (R. 244). Prentice thought Commons had demoted Complainant for retaliatory reasons. (R. 283). Commons resigned on January 10, 2000. (R. 268; Cx. 23). On Friday, January 7, 2000, Prentice reinstated Complainant as a supervisor without a loss of pay. (R. 58).

   While Complainant worked for Respondent he suffered setbacks in his employment record. On May 4, 1999, Commons wrote Complainant a reprimand for using a city vehicle for private purposes. (Cx. 6, Ex. B). This reprimand resulted from a complaint by a citizen who had seen Complainant using the vehicle to go to a store. (R. 186). Despite this reprimand, several months later Complainant used the vehicle again to move a refrigerator and told Perales about it. Perales had previously told Complainant he could not use a city vehicle to move the refrigerator but he had done so anyway. (R. 186-187).

   Perales wrote another reprimand on October 15, 1999, when Complainant's failure to follow proper safety procedure resulted in injury to an operator working under Complainant's supervision. (Cx.13, Ex. C). Perales verbally reprimanded Complainant right after the incident and Complainant tended to blame the operator for the situation. (R. 191). Ernie Perez, Corona's Safety Training Special Projects Officer, testified at trial that Complainant failed to attend a safety training class that he offered after this accident occurred. (R. 175; Cx. 13).

   In addition to these written reprimands, Complainant made mistakes with scheduling operators under his supervision and suffered interpersonal skills deficiencies. Complainant habitually gave people time off without providing for replacements. (R.178, 184-5). Kathy Uhles, who was in charge of Respondent's payroll, noticed a failure to schedule replacements for operators applying for leave. (R.178). Complainant also admitted to speaking roughly to an operator on at least one occasion. (R.102). Several operators testified at trial that Complainant had problems with his interpersonal skills and with scheduling. (R. 149, 154, 156, 162, 168, 169). Perales testified that he saw Complainant yelling at an operator in a public place. (R.250-251). In a performance evaluation issued on September 29, 1999, Perales recommended Claimant meet with his subordinates to discuss "their perception of him" and that he attend an interpersonal skills class. Otherwise the performance evaluation indicated Complainant performed his duties in a satisfactory manner. (R. 187-188, Cx. 11, p.3).

   On November 8, 1999, Commons recommended to Prentice that Complainant be suspended without pay because of Complainant's failure to notify Perales of new reporting procedures as instructed by Commons. Commons recommended the suspension as the next step in progressive discipline. The suspension letter was never served because Prentice was informed by the human resources director that suspension was not appropriate for a probationary employee. (R. 264, 284; Ex. D). Complainant talked to Prentice about the letter that same week. He informed Prentice that he could not work for two supervisors. (R. 36).

   After consulting with Perales, Prentice eventually decided not to pass Complainant through probation. (R.169). Prentice cited Complainant's lack of judgment in the city vehicle incident, yelling fits, and scheduling complaints as reasons for his decision. (R. 270). The final straw was when Complainant failed to order bioxide for the plant upon Perales' request. (R.270, 286). The plant had experienced problems with odors that had been the subject of complaints from the public. The plant needed the bioxide to treat these odors. (R. 93, 259; Exs. R, W). Prentice began discussing Complainant's termination with Perales, Commons and the human resources director in November, 1999. (R. 285). However, Prentice decided to delay Complainant's termination until after the holiday season. (R.282, 286). The decision to dismiss Complainant was made before he reported Commons to the Office of Operator Certification on January 4, 2000. The City of Corona sent Complainant a notice of rejection of probationary period on February 2, 2000. (Cx. 24).

   Complainant contacted OSHA on February 4, 2000, and filed his written discrimination complaint on February 7, 2000. (Cx. 56; Cx.60; Rx. A).

   §1367(a) of the Federal Water Pollution Control Act of 1972 provides in pertinent part:

No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee... by reason of the fact that such employee... has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, ... . 33 U.S.C. §1367(a).

   §1367(b) of the Act and 29 C.F.R. § 24.3(b) provide that complaints alleging violations of environmental whistleblower protection laws shall be filed within thirty days after the occurrence of the alleged violation. The thirty day period begins to run at the time the discriminatory act occurs, not when the employee feels the impact of the discrimination. Chardon v. Fernandez, 454 U.S. 6 (1981). The filing period commences when the employer makes the decision and communicates it or makes it apparent to the employee. Delaware State College v. Ricks, 449 U.S. 250 (1980). The thirty day statute of limitations has been strictly enforced. However the principle of equitable tolling applies and the timeliness of a claim may also be preserved under a continuing violation theory. School District of Allentown v. Marshall, 657 F.2d 16 (3rd Cir. 1981); Gore v. CDI Corp. & Carolina Power & Light Co., 91-ERA-14 (Sec'y July 8, 1992).

   In environmental whistleblower cases, the complainant has the initial evidentiary burden of establishing a prima facie case. This is accomplished by showing (1) the complainant was an employee of the party charged with discrimination; (2) the complainant was engaged in protected activity under the Act; (3) the employer took an adverse action against him; and (4) the evidence is sufficient to raise a reasonable inference that the protected activity was the likely reason for the adverse action. Passaic Valley Sewerage Com'rs v. Dept. of Labor, 992 F.2d 474, 480-481 (3rd Cir. 1993).

   If the complainant presents a prima facie case showing that protected activity motivated the respondent to take an adverse employment action, the respondent then has a burden to produce evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. In other words, the respondent must show it would have taken the adverse action even if the complainant had not engaged in the protected activity. Lockert v. United States Dept. of Labor, 867 F.2d 513 (9th Cir. 1989).

   Where the respondent does present evidence of a legitimate purpose, the final step in the adjudication process is to determine whether the complainant, by a preponderance of the evidence, can establish the respondent's proffered reason is not the true reason for the adverse action. In this final step, the complainant has the ultimate burden of persuasion as to the existence of retaliatory discrimination. The complainant may meet this burden by showing that the unlawful reason more likely motivated the respondent to take the adverse action. Or, the complainant may show the respondent's proffered explanation is not credible. See Zinn v. University of Missouri, 93-ERA-34 and 36 (Sec'y Jan. 18, 1996); Shusterman v. Ebasco Servs., Inc., 87-ERA-27 (Sec'y Jan. 6, 1992); Larry v. Detroit Ediscon Co., 86-ERA-32 (Sec'y Jun. 28, 1991); and, Darty v. Zack Co., 80-ERA-2 (Sec'y Apr. 25, 1983).

The Internal Complaints

   In his post-hearing brief, Complainant alleges he engaged in protected activity in the week of November 8, 1999, when he complained to Prentice in response to the Notice of Intent to Suspend that Complainant received from Commons. Complainant alleges he made a second internal complaint to Perales on December 10, 1999, after Commons gave Perales and Complainant a verbal reprimand for not wasting as he had instructed. (Complainant's Post-Hearing Brief, p. 16).

   I note that neither internal complaint is mentioned in the verbal allegations filed by Complainant on February 4, 2000. While the December meeting with Commons is mentioned, the only information provided is that all eight operators disagreed and Perales, who was afraid of Commons, decided to not go against Commons' decision. (Cx. 60). In his written complaint of February 7, 2000, Complainant mentions the November conversation with Prentice but does not allege any adverse action that was taken against him at that time. Likewise for the December incident, Complainant alleges a verbal reprimand was given to Perales and him "for the fact that we did not waste enough." (Rx. A, p. 3). While Complainant alleges he discussed the

illegality of a non-certified person operating a waste treatment plant, nowhere in the February 7, 2000 complaint does he allege any adverse action that was taken against him prior to his demotion from supervisor on January 5, 2000. Even in Complainant's Prehearing Brief, filed just five days before the hearing, there is no mention of any adverse action taken as a result of the internal complaints. The only adverse action prior to the demotion that is even mentioned were two written reprimands. One which is acknowledged to have nothing to do with the Act and the other concerned Commons' recommendation to Prentice that Complainant be suspended without pay. It is uncontroverted that the suspension recommendation was made before Complainant made any complaints, internal or external.

   I find that neither internal complaint was filed within thirty days after the occurance of the alleged violation. However, because the thirty day time limit is not jurisdictional, it may be subject to equitable tolling. Doyle v. Alabama Power Co., 87-ERA-43 (Sec'y Sept. 29, 1989), aff'd sub. nom. Doyle v. Secretary of Labor, No. 89-7863 (11th Cir. 1989). A tolling of the filing time limitation may be appropriate if: (1) the respondent mislead the complainant concerning the cause of action (by fraudulently concealing its actions, see Hill v. U.S. Department of Labor, 65 F.3d 1331, 1335 (6th Cir. 1995)); (2) some extraordinary circumstance prevented a timely assertion (such as a stroke, see Central States, Southeast and Southwest Area Pension Fund v. Slotky, 956 F.2d 1369, 1376 (7th Cir. 1992)); or, (3) the complainant timely raised the precise statutory claim but in the wrong forum. School District of City of Allentown v. Marshall, 657 F.2d 16, 20 (3d Cir. 1981).

   I find none of the three justifications that may lead to a tolling of the thirty day filing requirement are present. As a result, relief from the requirements of 29 C.F.R. § 24.3(b) under the concept of equitable tolling is not applicable.

   A second equitable exception to the thirty day time limit occurs if the complainant is subjected to either a continuing violation or a systematic pattern of discrimination. The justification for this exception is the adverse employment practice becomes apparent only with the passage of time. Paraphrasing the court in Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir. 1991), it would be unreasonable to require a complainant to realize he or she is a victim of discrimination if such discrimination doesn't become apparent until a pattern of discriminatory mistreatment develops. If a continuing violation situation exists and the complaint is filed within thirty days of the last act in the continuing series of events, then that one non-time barred act can save the other previous acts which are time barred. Varnadore v. Secretary of Labor, Nos. 96-3888/4389 (6th Cir. Apr. 6, 1998) (case below 92-CAA-2 et al.) In addition, a systematic, or company-wide, pattern of discrimination may also toll the time limit on the same continuing violation basis. To obtain equitable relief under on this theory, a complainant would have to establish the respondent's policy of discrimination against a group of employees. Green v. Los Angeles Cty. Superintendent of Sch., 883 F.2d 1472, 1480- 1481 (9th Cir. 1989).

   I find that application of the continuing violation theory does not excuse the failure to allege any discrimination resulting from the internal complaints until the day of the hearing. I have considered the factors outlined by the Court in Berry v. Bd. of Supervisors of LSU, 715 F.2d 971 (5th Cir. 1983) and find that while the continuing violation theory might have saved the time barred acts if they had been reported with the non-timed barred act, the failure to bring these acts to the attention of the Department, the Court or Respondent prior to the hearing is inexcusable.

   I find the allegations of discrimination resulting from the filing of internal complaints are untimely and should be dismissed. However, I will consider these acts as relevant background evidence to determine Respondent's later motivation. Malhotra v. Cotter & Co., 885 F.2d 1305 (7th Cir. 1991).

The Demotion

   It is undisputed that Complainant was an employee of Respondent and that Respondent is subject to the Act. It is also undisputed that Complainant engaged in protected activity when he reported Commons to the Office of Operator Certification, that Complainant was demoted from his position as supervisor by Commons and that Prentice reinstated Complainant as supervisor within two days. At trial Prentice admitted that he thought Commons had ordered Complainant's demotion from his position as Supervisor for reporting him to the Office of Operator Certification. There is no evidence that the temporary demotion had any adverse effect on Complainant's compensation, terms, conditions or privileges of employment.

   In Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 1997-ERA-52 (ARB Feb. 29, 2000), the complainant had been suspended for three days for failing to report a safety breach until six months after it occurred. On the first day back after the suspension, the complainant was informed that her suspension was being rescinded, lost pay restored, and all records of the disciplinary action expunged. These measures were in fact fully completed within days of Griffith's return to work. Griffith was never given any explanation for the recissionary actions.

   The Board found that the complainant failed to establish that the disciplinary action Wackenhut took against her adversely affected her compensation, terms, conditions or privileges of employment. Although the suspension without pay and reprimand caused her three days of anxiety about her employment status, there was no financial harm or negative effect on her employment or earning capacity because of the alacrity and thoroughness of Wackenhut's self-corrections. The Board emphasized that it was the employer itself that almost immediately decided that the suspension was not justified and it corrected the error on its own without any prodding from the NRC or the DOL. The Board dismissed the complaint for lack of an unfavorable personnel action.

   Like the Board in Griffith, I have considered the body of decisional law that holds that the absence of a tangible injury goes only to remedy, not to whether the employer committed a violation of the law. Like the Board, I find those cases inapposite as in those cases identified harm that could come from the employers' retaliatory conduct was shown. In the instant case, even more so than in Griffith, Complainant has shown absolutely no identified harm that resulted from the temporary demotion. I have considered the timing, reasons and nature of Respondent's corrective action. Within hours of learning of Complainant's demotion, Prentice began an investigation. Based upon what he learned, Prentice determined that Commons demoted Complainant from Supervisor for reporting him to the Office of Operator Certification. Once this determination was made the demotion was reversed and Complainant was restored as a supervisor and Commons was forced to resign. Respondent took all these corrective actions on its own initiative.

   Accordingly, I find Complainant has failed to establish a prima facie case as he has failed to show that Respondent took an adverse action against him.

The Dismissal

   As to the dismissal, there is no argument but that Complainant has shown the first three elements of a prima facie case. Considering that the dismissal was within a month of Complainant's report to the Office of Operator Certification, I find the facts are sufficient to raise a reasonable inference that Respondent took this adverse action against Complainant for engaging in protected activity. I find Complainant has established a prima facie case as to the dismissal.

   Respondent has offered evidence that the dismissal was motivated by legitimate, nondiscriminatory reasons. Prentice cited Complainant's lack of judgment in the city vehicle incident, yelling fits, and scheduling complaints as reasons for his decision to dismiss Complainant. The final straw was when Complainant failed to order bioxide for the plant upon Perales' request.

   The final step in the adjudication process is to determine whether the complainant, by a preponderance of the evidence, can establish the respondent's proffered reason is not the true reason for the adverse action.

   There is not even any allegation that Complainant engaged in any protected activity prior to these disciplinary actions being taken. Prentice testified that as early as November, 1999, he had decided not to pass Complainant through his probationary period. He stated his reasons for this decision included Complainant's improper use of government property, yelling at subordinates, and failing to schedule workers properly. I found Prentice to be a credible witness and I believe him. I was impressed by Prentice's swift investigation of Commons and the reversal of the demotion. The testimony of Complainant's coworkers supports Prentice's belief that Complainant lacked the interpersonal and scheduling skills required by the job. The chronology of the disciplinary actions taken combined with Prentice's stated reasons behind his decision, show both a legitimate purpose for dismissing Complainant and that Respondent planned to let him go before he ever engaged in protected activities.

   I find the decision not to keep Complainant past his probationary period was not influenced by his whistle blowing activities. Rather, Respondent presented sufficient evidence to show by a preponderance of the evidence that Complainant did not pass his probationary period for non discriminatory reasons and that the adverse action was motivated by a legitimate, nondiscriminatory reason.

   Accordingly, I find and conclude that Respondent did not violate the employee protection provisions of the Federal Water Pollution Control Act of 1972 and the implementing regulations.

   It is recommended that the complaint of Gabriel Bostan against the City of Corona under the Federal Water Pollution Control Act of 1972 be dismissed with prejudice.

   So ORDERED.

       LARRY W. PRICE
       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, N.W., 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).