DATE: April 22, 1993
CASE NO: 92-ERA-44

In the Matter of

MICHAEL W. HOLDEN

Complainant

    v.

GULF STATES UTILITIES

Respondent

   This case arises under the employee protection provisions of the Energy Reorganization Act of 1974 (ERA) 42 U.S.C. Section 5851 (1982).

   Michael Holden, Complainant, filed a complaint on March 19, and May 21, 1992 alleging that he had been discriminated against by Gulf States Utilities (GSU).

   There is no factual dispute as to many of the basic facts. On September 24, 1990, Mr. Holden, a contract employee of S&W Technical Services (S&W), commenced employment at GSU's River Bend Nuclear Power Station. He worked directly under the supervision of Rodger Barnes, a GSU employee. Mr. Holden alleges that he witnessed serious nuclear safety

violations and assembled documentation for reporting same to the Nuclear Regulatory Commission (NRC). Mr. Holden testified in his deposition that he believed he was terminated on November 15, 1990 (less than 24 hours later) because Mr. Barnes had intercepted Mr. Holden's envelope containing the documentation. Holden further claims Mr. Barnes withdrew certain of the documents which dealt with safety violations (Holden deposition, Tr. 195, 198, 313). Mr. Holden complained internally to GSU's Quality Concerns Program (QCP) during his exit interview. A QCP employee said "Nothing could be done," and their "hands were tied."

   Mr. Holden next attempted, through Mr. Tom Roark, a S&W employee, to obtain a new contract position in the nuclear industry. Mr. Roark had no success obtaining employment for Mr. Holden. The parties disagree as to what occurred at this point. Mr. Holden alleges that Mr. Roark, a few months later, confided that "somebody at River Bend is putting out bad stuff on you; that you're a troublemaker and an agitator, not to hire you." (Holden deposition, Tr. 208). Again, Mr. Holden contacted a QCP representative and reported this discriminatory conduct. Employer relies on Mr. Roark's affidavit, in which he categorically denies Mr. Holden's description of their conversation regarding GSU's blacklisting. Mr. Holden also alleges that when he asked Mr. Roark to verify these statements to QCP Mr. Roark angrily told him that he would deny it and would "staple" Mr. Holden's file shut if he pursued the GSU's matter (Complainant's Exhibit 2, Holden's affidavit).

   Mr. Holden, for a period of 18 months sent out resumes to nuclear-related employers and received no employment, except for brief work in December 1991, (a second period of work at River Bend) as a machinist for ADA Maintenance a subsidiary for General Electric (GE). When the GE field work ended on January 22, 1992, Mr. Holden's employment was terminated. Mr. Holden claims that near Christmas 1991, a GSU engineer, Garland Mohan, complained to GE about him and attempted to get GE to fire him (EX 2, page 3). Mr. Holden then filed his third complaint with QCP. In this complaint, Mr. Holden reiterated his claim of blacklisting by GSU. He was told that he didn't have a case because he didn't have witnesses.

   The Respondent has filed a Motion to Dismiss and in the alternative for Summary Judgment based on the position that Mr. Holden's claims of retaliation are time barred by the thirty (30) day statute of limitations under Section 210 of the Energy Reorganization Act. Complainant has filed a response thereto, and Respondent a reply.

   In the instant case there are two distinct types of employment actions alleged. First, there is the alleged wrongful termination act which occurred in November 1990, second, there are the alleged continuing violations of blacklisting by GSU.

   In regard to the November 1990 incident, it is abundantly clear that the blacklisting claim cannot resurrect the failure of Complainant to timely file a complaint regarding the 1990 incident. Employer relies on Garn v. Benchmark Technologies, No. 88-ERA-91, DOL Dec. (No. 5) 98 (Sec'y Sept. 25, 1990). In that case also, a Complainant alleged discharge and

blacklisting arguing that they constituted a single continuing violation. The Secretary held that the timeliness of the discharge should be considered separately from the issue of timeliness as to the blacklisting allegations.

It is undisputed that in the instant case, Mr. Holden failed to file a complaint within 30 days of his alleged retaliatory discharge in November 1990. Thus, I find this portion of Mr. Holden's complaint is untimely. Federal courts have agreed with this line of reasoning. See English v. Whitfield, 858 F.2d 957 (4th Cir. 1988); London v. Copper & Lybrand, 644 F.2d 811(9th Cir. 1981).

   The second area at issue in Mr. Holden's case relies on alleged blacklisting by GSU. Employer argues and I agree that Mr. Holden, by his own admission knew of GSU's blacklisting activities in early 1991 by virtue of Mr. Roark's statements to him. In December 1991, Mr. Holden re-initiated his internal complaint of blacklisting (Holden deposition at 248). However, Mr. Holden filed no complaint with Department of Labor. The sole instance of blacklisting within 30 days of Mr. Holden's May 1992 complaint is the alleged blacklisting of a GE refueling technician job. I agree with Employer that the case law requires an aggrieved blacklisted employee to file a complaint within 30 days of known or suspected discrimination. In the case of Doyle v. Alabama Power Co., No. 87-ERA-43, 3 DOL Dec. (Mo. 4) 42 (Sec'y Sept. 29, 1989,) aff'd sub nom., Doyle v. Secretary of Labor, 949 F.2d 1161 (11th Cir. 1991) (table), the complainant, like Holden, claimed that he had been blacklisted for a period of several years prior to the filing of his complaint with the Department of Labor. The Secretary observed, "There is no explanation . . . why Complainant waited from January, 1984 until May, 1987 to file a complaint when, on several occasions during that period, he believed he was being blacklisted." (Id at 43). Therefore, specific instances of alleged blacklisting known to Complainant were time barred by failure to file a complaint within 30 days. The purpose of the "continuing violation" theory is to protect an employee who has not learned of the blacklisting practice. But when, as in Mr. Holden's case, an employee has knowledge, then in that event the statute is not tolled.

   In the event that Mr. Holden had no knowledge of GSU's alleged blacklisting until the last GE (May 1992) event, I would have a basis for finding a "continuing violation" and Mr. Holden's blacklisting claims would be timely. However, that is not the fact in this instance. I thus find the earlier blacklisting claims of Mr. Holden untimely.

   The only claim of alleged blacklisting which occurred within the 30 day time period of Mr. Holden's filing of May 1992 was the GE refueling technician job. Employer has submitted two affidavits to disprove blacklisting by GSU. First, Mr. Rodger Barnes, a GSU employee, disavows any contact with GE. Of greater importance is the affidavit of Ms. Jennifer Cameron, a GE Technical Recruiter who states that she had no contact with GSU in regard to Mr. Holden and that no adverse information of any kind is associated with Mr. Holden's resume or file. She also states that she is unaware of anyone with GE discussing Mr. Holden's with Rodger Barnes or any other employee of GSU or the River Bend Station (EX 1 & 3 of Employer's Motion to Dismiss).

   Claimant has furnished no evidence to prove that GSU blacklisted him for this specific GE refueling technician job. His only "proof" consists of a statement by a GE employee who told Mr. Holden that his qualifications were better than those of other candidates (Holden deposition at 436-437). I find that Employer in its Motion to Dismiss has carried its burden of proving that there is no evidence of blacklisting which occurred within the thirty day period prior to Mr. Holden's May 1992 filing. Complainant has no proof that GE had any contact with GSU. I find that Complainant has failed to present sufficient rebuttal to create a genuine issue of material fact as to this last blacklisting allegation at GE.

   Complainant argues in its response that his complaint is timely because Respondent is continuing to engage in retaliation against him. I find no authority to allow untimely claims to be resurrected by post-complainant allegations. The timeliness of a complaint must be based on the facts prior to the date of filing which in this case was March 19, 1992 and May 21, 1992 (second complaint).

   Complainant also argues that the doctrine of equitable tolling applies. Complainant shall be given every benefit of the facts he alleges. Mr. Holden alleges that GSU's quality concerns employees lied to Holden when he asked about his resources. They stated such things as "nothing can be done" and "you have no case without witnesses" and "Our hands are tied." Holden also states that only in April of 1992 did GSU tell him that he could ask for Department of Labor address, but that it "wouldn't do him any good now" because he had "blown the statute of limitations."

   Although it is clear that Respondent failed to advise Claimant of his legal rights, I find that the Respondent's actions do not rise to the level of affirmative misrepresentation. I don't find that GSU actively misled Mr. Holden and is not responsible for his failure to file a timely complaint. Although Mr. Holden may have been ignorant of the law and his rights under Section 210, I find that this does not toll the statute. See Rose v. Dole, 945 F. 2d 1331 (6th Cir. 1991). I thus find no grounds to find equitable tolling in this case.

   It is ORDERED that the complaint of Michael W. Holden be Dismissed for untimeliness.

      RICHARD D. MILLS
      Administrative Law Judge

Dated: APR 22 1993
Metairie, LA

RDM/pyc