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DATE: APR 16 1993
CASE NO: 93-ERA-18

IN THE MATTER OF

JEAN DEVERAUX,
   Complainant

    vs.

WYOMING ASSOCIATION OF RURAL WATER,
   Respondent.

Appearances:
    Jean Deveraux,
      Pro Se

    James A. Hardee, Esq.
      For the Respondent

Before: Edward C. Burch,
    Administrative Law Judge

   This matter was brought pursuant to the provisions of the Energy

Reorganization Act of 1974, as amended, 42 USC 5851, (the ERA), and the applicable regulations, 29 CFR Part 24.

   Complainant Jean Deveraux alleged her employer, the Wyoming Association of Rural Water, was guilty of waste, mismanagement and record inaccuracies. She contended she was discriminated against because of her complaints, and was terminated on October 10, 1992.

   The District Director, Wage and Hour Division of the Employment Standards Administration, conducted an investigation. December 29, 1992, the Acting District Director dismissed the complaint of Ms. Deveraux, concluding (1) the matters she raised did not constitute a protected activity under the Act and (2) her complaint was not timely for the reason it was not filed within 30 days of her termination.

   Upon receipt of the denial of her claim, complainant requested a formal hearing before an Administrative Law Judge of the Department of Labor.

   Pursuant to notice sent January 20, 1993, a formal hearing was convened in Casper, Wyoming March 2, 1993. Respondent was represented by counsel. Complainant represented herself, with the assistance of her father.

   At the commencement of the proceeding Ms. Deveraux moved for a continuance. The basis of her motion was that she had consulted with an attorney who could not be present on the date of the scheduled hearing.

   Complainant's request was denied as not timely. No request for continuance had been received by the San Francisco Office of Administrative Law Judges (which sent out the Notice of Hearing) prior to commencement of the hearing. Respondent had not been provided a copy of the request. No counsel, on behalf of the complainant, requested a continuance.

   The disagreement that developed post hearing between Ms. Deveraux and the counsel to whom she spoke, is irrelevant. (He contends he was never retained as her counsel in this matter). The request by Ms. Deveraux was not timely and was properly denied.

   November 17, 1992 complainant wrote to Senator Alan Simpson, and others, complaining that respondent maintained inaccurate records, and was guilty of mismanagement and waste. She had been terminated by respondent October 10, 1992, and

contends the termination resulted from earlier complaints to respondent. These complaints apparently related to alleged improper expense vouchers submitted by the program manager.

   Complainant's Exhibits C through C-6 were admitted.

   Exhibit C-1 is a letter from complainant to the Chief Executive Officer of the National Rural Water Association, dated September 22, 1992. This letter complained of voucher inaccuracies and inaccurate recording of training. Ms. Deveraux further stated she had previously expressed her concerns to respondent's board of directors and stated that her wages and hours had been reduced as a result, resulting in a loss of fringe benefits.

   Exhibit C-3 is a copy of complainant's November 17, 1992 letter to Senator Simpson, previously discussed, advising Senator Simpson she had been terminated October 10, 1992.

   Exhibit C-4 is a copy of a letter dated December 22, 1992 from the U.S. Equal Employment Opportunity Commission to Congressman Craig Thomas, advising the Congressman's office how Ms. Deveraux might obtain employment discrimination information.

    Exhibit C-5 is the December 29, 1992 letter from the Wage and Hour Division, denying Ms. Deveraux's complaint under the Energy Reorganization Act.

   To be actionable, the activities complained of must affect the safety of employees or others. As was stated by the Supreme Court in English v. General Electric, 110 S.Ct. 2270, 2271, the Whistleblower provisions encourage "employees to report safety violations and provides a mechanics for protecting them against retaliation."

   The activities of which Ms. Deveraux complained were not concerned with safety or pollution. Rather, the violations alleged were bookkeeping or voucher inaccuracies. These are not protected activities under the Act or regulations.

   Secondly, the discrimination of which Ms. Deveraux complained, at the latest, occurred at her termination, October 10, 1992. There is a 30 day time limitation which runs from the time of the discriminatory act. 29 CFR 24.6. 42 USC 5851. Here, the time limitation expired November 10, 1992. It was not until November 17, 1992 that Ms. Deveraux wrote her representatives. At no time did she directly file a complaint herself. It was only after November 17, 1992, that her complaints found their way to the Department of Labor. Thus, under any interpretation of the evidence more than 30 days expired from the time of the discriminatory action until the complaint. Hence, the complaint must be dismissed as not timely.

   The complaint of complainant is dismissed (1) as not timely filed and (2) no violation of the Energy Reorganization Act or related acts is here presented.

      EDWARD C. BURCH
      Administrative Law Judge

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