in which he elaborated on the original complaint and, in addition, he alleges, in detail, incidents of discrimination covering the period February 19, 1977 to October 20, 1978.

    At the time of the hearing Ray was still employed by Metro as a chemist. He has not suffered any loss of income. His disagreement over his performance evaluation is on appeal and in line with a back log of others for hearing by Metro Civil Service Commission.

    The defendants filed answers to Ray's complaints in which they denied the allegations of violations of the Act.

    Prior to the commencement of trial, the defendants filed a motion to dismiss the complaint on grounds that it was not timely filed.

    The complainant brings his action pursuant to Section 300j-(9)(i)(1) of the Act which raises a cause of action against any employer who discharges any employee or otherwise discriminates against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee commences a proceeding for the administration or enforcement of drinking water regulations, or testifies or is about to testify in such proceeding or assists or participates in such proceeding or any either action to carry out the purposes of the Act. The statute provides relief by way of ordering abatement of the violation, reinstatement of the employee to his former position, compensatory damages, exemplary damages, costs, and attorney fees.

    Section 300j-9(i) (2) (A) provides: "Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation occurs, file (or have any person file on his behalf) a complaint with the Secretary of Labor . . . alleging such discharge or other discrimination."

    The preliminary question addressed by the defendants'

motion to dismiss the complain on grounds that it was not timely filed is dispositive as to all alleged violations stated to have occurred prior to the filing of the original complaint on February 28, 1979.

    Ray was moved to file his complaint based on an unfavorable performance rating given him on November 20, 1978. It was that incident that formed the gist of the complaint which was filed on February 28, 1979. If, indeed, that was a violation within the meaning of the Act, the complaint was filed 100 days after the occurrence. Clearly, the complaint was filed outside the time limitation imposed in the statute.

    Upon receipt of the performance rating, Ray had a choice of filing a complaint under the Act, proceeding to his administrative remedies, or pursuing both actions simultaneously. He elected to proceed by grievance alone. Time on his action, under the Act, began to run on November 20, 1978.

    This statute gives an employee a cause of action independent of his other remedies which must be acted upon within the time prescribed. The Act does not require exhaustion of administrative remedies and the 30 day time limitation for filing a complaint is not tolled by the pursuit of other remedies. International Union of Electrical, Radio and Machine Workers v. Robbins and Myers, 429 U.S. 229, 97 S.Ct. 441 (1976).

    The complainant seeks to re-establish his cause of action based on the refusal of his supervisor on January 18, 1979 to accept the recommendations of the grievance panel regarding his performance evaluation. He incorrectly ascribes to this refusal a new act of discrimination when, in fact, the supervisor was merely acting out a step in the grievance procedure involving the original complaint in 1978. The effect of the view that another act of discrimination occurred on January 18, 1979, would be to toll limitations of the Act at each step of the grivance proceeding. Moreover, each step of the grievance proceeding adverse to Ray would thereby establish a new foundation for a complaint under the Act. Under this theory, a complaint could be made to wait until the conclusion of the administrative remedies therby tolling the statute. This contention does not accord with the International, supra.

    To avoid the foregoing results, Ray contends that since the discrimination is a continuing course of conduct extending into the 30 day limitation period, it is a single violation. This contention is without support in the wording of the Act. The statute speaks of filing a complaint within 30 days after a violation occurs. Each violation provides a cause of action, and time begins to run on the filing of the complaint as soon as the violation occurs. No reasonable interpretation of the Act would permit an employee to accumulate defunct violations, as Ray suggests, and then given them vitality by reliance on a violation within the statutory period. A violation of the Act cannot be grounded on events predating the limitation period. See Local Lodge 1424 v. NLRB, 362 U.S. 411, 80 S.C. 822 (1960).

    Neither of the parties established the filing date of the supplemental complaint, and the file does not show the filing date. Whether by accident or design, the supplemental complaint is attached to the complaint and apparently these documents have been treated as one by the office of the Secretary of Labor. If, indeed, these complaints are one document, filed together, they were received by the office of the Secretary on February 28, 1978 and the complaint relative to Ray's transfer on February 23, 1979 is timely. In view of the foregoing inferences, and in the absence of evidence to the contrary, it is found that the supplemental complaint was timely filed and proper for consideration on the merits.

    The facts relative to Ray's transfer are not in dispute. On February 23, 1979, he was transferred from his job in the laboratory to Project Prevent/Recover. His new position deprived him of supervision over the laboratory and its employees. His salary remained the same. This transfer followed closely upon the receipt by Metro of a copy of his complaint of violations under the Act. On these facts Ray rests his case for discrimination.

    Metro states that Ray was transferred to avoid the conflict and embarrassment between him and his immediate supervisors who are defendants in this suit. It states that he was needed in Project Prevent/Recover for his expertise in chemistry and hazardous material handling.

The job is temporary and at the conclusion of the project, Ray will be returned to his job at the laboratory.

    Metro's evidence furnishes explanation and good reason to justify Ray's transfer. It has a responsibility to provide water and sewer services to 450,000 people irrespective of its engagement in litigation. The smooth operation of the department is dependent upon the compatibility of the employees who carry out the duties of the department. Both sides are vexed by this litigation. Ray's immediate supervisors are defendants in this case, and as such they are both sensitive and vunerable to charges real or imagined, which might interfere with their defenses or the functions of the department.

    This mix of personalities had great potential for adverse effects on the department. Under the circumstances, Metro acted prudently in transferring Ray to avoid compounding existing problems pending the disposition of this litigation.

    In the matter Ray's reassignment, Metro acted within the parameters of its authority as his employer. The Act does not restrict an employer in its operational decisions. Management must be able to adjust employment situations so as to carry out its duties. Bauch v. Joseph W. Landers, Jr., et al., Decision of the Secretary of Labor, May 10, 1979.

    The burden of proof rested on Ray to prove his case against Metro by preponderance of evidence. He has not carried this burden. His charge that he was transferred in retaliation for filing the complaint rests principally on the timing of the transfer which closely followed the filing of the complaint. This strained interpretation of these events is more than offset by Metro's credible explanation of the reasons for Ray's transfer.

    For the reasons stated, it is recommended that the Complaint, Supplemental Complaint, and Amendments to the Complaint, filed by Donald Lee Ray under the Act, be dismissed, and that an order be entered in favor of the

defendants in the matter of Ray's transfer on February 23, 1979.

       GEORGE A. FATH
       Administrative Law Judge

Dated: June 5, 1979
Washington, D.C.