Gorman v. The Consolidated Edison Corp., 2001-ERA-42 (ALJ Nov. 21, 2002)

U.S. Department of Labor

Office of Administrative Law Judges 2 Executive Campus, Suite 450 Cherry Hill, NJ 08002 (856) 486-3800

Issue Date: 21 November 2002

CASE NO.: 2001-ERA-00042

In the Matter of

JAMES H. GORMAN, JR.
    Complainant

    v.

THE CONSOLIDATED EDISON CORPORATION
    Respondent

   The complaint under the Energy Reorganization Act, 42 U.S.C. § 5851 (ERA), which is the subject of this case was filed by Complainant on July 2, 2001. On January 17, 2002, I granted the portion of Respondent's motion for summary decision contending that the pre-2001 acts of Respondent involving Complainant are barred by the 180-day statute of limitations in § 5851(b)(1) of the ERA. In that Order, I rejected Complainant 's contention that there was a "continuing violation" that began before 2001 and continued into the 180-day period. On October 18 Complainant filed a "Memorandum of Law in Support of Complainant's Motion for Reconsideration" (Memorandum) which seeks reconsideration of my January 17 ruling based on the argument that there was a "hostile work environment" that began before 2001 and continued into the 180-day period.

   On November 19 Respondent filed a "Memorandum of Law In Opposition." At the outset, I reject Respondent's argument that Complainant's motion for reconsideration should be denied because he "never previously asserted the hostile work environment theory that he now argues... " (Respondent's Memorandum, p. 2) The Department of Labor has never required specific pleading in whistleblower complaints. Pleading that puts a respondent on notice of the general nature of the allegations of violation is sufficient. The complaint here describes numerous allegedly discriminatory acts by Respondent commencing in July 1994, when Complainant stated he first made the safety complaint that he contends motivated Respondent to take adverse action against him. I find that the complaint provided adequate notice to Respondent of the gravamen of this case. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002), a Title VII case ("a short and plain statement of the claim showing that the pleader is entitled to relief [and] giving the defendant fair notice of ...the grounds upon which it rests [is sufficient]....This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims").

   Complainant relies on the recent Supreme Court decision in National Railroad Passenger Corporation v. Morgan, ___U.S.___, 122 S.Ct. 2061 (2002), a race discrimination case under Title VII. Complainant argues that the pre-2001 conduct of Respondent and its conduct that continued into 2001 resulted in a "hostile work environment" which, under Morgan, is actionable from its inception even though some of the component acts fall outside the statutory time period, so long as one of the constituent acts falls within the time period Morgan stated:

A hostile work environment claim is comprised of a series of separate acts that collectively constitute one "unlawful employment practice" [under Title VII].

Id. at 2074. I agree that Morgan is applicable to the instant case.

   Morgan interpreted the charge-filing provision in Title VII, 42 U.S.C. § 2000e-5e(1), which states: "A charge under this section shall be filed [with the Equal Employment Opportunity Commission] within one hundred and eighty days after the alleged unlawful employment practice occurred." Morgan stated that the word "practice" in the term "unlawful employment practice" does not "convert...related discrete acts into a single unlawful practice for the purpose of timely filing" and rejected the employee's contention that "[p]ractice connotes an ongoing violation that can endure or recur over a period of time." Id. at 2071. In Morgan the Supreme Court held:

A discrete retaliatory or discriminatory act "occurred" on the day that it "happened." A party, therefore must file a charge within [the statutory number of] days of the date of the act or lose the ability to recover for it.

Id. at 2070-71. The Court further stated:

We have repeatedly interpreted the term "practice" to apply to a discrete act or a single "occurrence," even when it has a connection to other acts.

Id. at 2071. The Court provided the following examples of such "discrete" acts that "are easy to identify": "termination, failure to promote, denial of transfer, or refusal to hire." Id. at 2073

   Morgan noted, however, that, "Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct." The Court stated:

The "unlawful employment practice" therefore cannot be said to occur on a particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. (Emphasis supplied.)

Id. at 2073. The Court provided the following example (quoting from an earlier Supreme Court opinion) of an act that might make up a hostile environment claim:

"[M]ere utterance of an ... epithet which engenders offensive feelings of a[n] employee ... does not sufficiently affect the conditions of employment to implicate Title VII." Such claims are based on the cumulative affect (sic) of individual acts.

Id. Finally, the Court stated:

In determining whether an actionable hostile work environment claim exists, we look to all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

Id. at 2074 (internal quotation marks and citations omitted). In assessing the facts in the case, Morgan noted that the claim of hostile environment was based on

evidence that managers made racial jokes, engaged in racially derogatory acts, made negative comments regarding the supervisory ability of blacks and used racial epithets. The Court held, "we cannot say that they are not part of the same actionable hostile work environment claim" and affirmed the Circuit Court's reversal of the District Court's grant of partial summary judgment against the employee. Id. at 2075.

   I glean from Morgan several differences between "discrete" acts and acts that make up a hostile work environment. First, where an employer's conduct against an employee is actionable in and of itself – i.e., it directly affects his wages, hours or other terms or conditions employment – it constitutes a discrete act for which the statute of limitations begins to run immediately. In such a circumstance, even if subsequent employer discriminatory conduct is related to the earlier conduct the later conduct does not re-start the statute of limitations for the earlier conduct.¹ However, where the discriminatory conduct is less severe – for example, a "mere offensive utterance," such as racial jokes, racial epithets, and race-based negative comments – it is a not a discrete act that would support a cause of action, but it could constitute a portion of the fabric making up a hostile work environment.²

   Complainant's Memorandum recites the entire chronology of alleged events in support of his contention that the pre-2001 actions of Respondent are not time-barred because they constitute a hostile work environment that continued into the statutory time period.

   It appears that the initial instance of Complainant's protected activity under the ERA occurred on July 15, 1994 when Complainant reported to Respondent that its senior watch supervisor John Jawor was acting in a way that affected the safety of the facility. (Memorandum, ¶ 14)³ The alleged discriminatory acts of Respondent that appear to have been in response to this or other protected activity⁴ – and continued through December 2000 (which are barred under the statute of limitations unless they are part of a hostile work environment) are summarized below:

• On February 26, 1994, Complainant refused to open valves because they had not been properly tested, and Jawor physically assaulted him. ¶ 13

• In October 1994 Complainant informed Respondent's operations manager McAvoy that Jawor's behavior was "deteriorating" and McAvoy turned and walked away. ¶ 16

• Sometime in 1995 Jawor gave Complainant a performance evaluation that contained "two marginal ratings." No one at Respondent gave Complainant the opportunity to demonstrate that these ratings were not justified. ¶ 17

• In December 1995 Complainant was moved out of the control room and into the generation support group (GSG). Complainant protested but was not given a reason for this. After one week Complainant was told that he was not computer literate and it would be difficult for him to succeed in GSG. In February 1996 McAvoy told Complainant that he would never be reassigned to the control room because he was "causing problems." Complainant protested and stated that he considered his transfer to GSG to be a demotion because it did not enable him to maintain his skills as a senior nuclear reactor operator (SNRO). Complainant played a tape recording of his earlier conversation with McAvoy about Jawor. Later that day, McAvoy stated to Complainant, "We have a problem" and that Respondent's "Auditors" were being called to investigate. ¶ 18

• About June 4, 1996 Complainant was transferred to Fix-It-Now (FIN) and was told he would not need as much computer skills there. At that time Complainant was given a list of skills he needed to improve in order to be reinstated to his job in the control room, and was told that the transfer to FIN was interim while he demonstrated compliance with the skills list. Operations manager Hugo "enjoined" Complainant not to discuss Jawor's behavior again. ¶ 22

• Despite the fact that Complainant took additional training in July 1996, he was not reinstated to his control room job. ¶ 23

• Until May 1997, Complainant's slot for his badge was the only one that contained a message to "Notify SSS if individual comes in on off shifts or weekends." ¶ 24

• On February 27, 1998, Complainant was told to go to Respondent's medical office for a fitness- for-duty physical examination and was told that he could be discharged if he failed to attend. Complainant 's security clearance was revoked. ¶ 26

• On March 2, 1998, Complainant underwent the medical examination. He was next sent to an examination by a psychiatrist. The psychiatrist said he would have to work under close supervision. ¶ 27

• On March 3, 1998, Complainant was told that he was temporarily transferred to GSG so he could be watched and be under close supervision. ¶ 28

• About March 20, 1998 a union steward told Complainant that an individual from Respondent's human resources department had stated that if Complainant failed to pass the psychiatric examination he could be fired. ¶ 29

• On March 20, 1998, Complainant underwent a second psychiatric examination at the behest of Respondent. The psychiatrist told Complainant that she would have him reinstated if he "would remain quiet." Complainant agreed to remain quiet. ¶ 30

• Complainant "was subjected to on-going insults..." ¶ 33 In response to my letter requesting clarification of this allegation by Complainant's attorney, on November 11, 2002, the latter submitted a "Supplemental Memorandum of Law."⁵ However, almost all of the allegations in this document pertain to Respondent's conduct in the year 2001 which are not barred by the statute of limitations. On the other hand, it appears that Complainant only learned of some of the alleged pre-2001 acts in April 2001. The latter will be discussed below.

   Returning to Complainant's Supplemental Memorandum, paragraph 19 of that document refers to a memorandum dated June 21, 1996 – in evidence as Complainant 's Exhibit 13 – from operations manager Hugo to Respondent's assistant vice president for occupational health. At the hearing before me on January 29, 2002, Complainant testified that the first time he saw this memorandum was on April 5, 2001. The memorandum states that Complainant exhibited aberrant behavior related to his raising "the issue with Mr. Jawor,"and should be given a "Job Fitness Evaluation." It also appears that on April 5, 2001 Complainant saw for the first time Complainant's Exhibits 14, 15, and 16. (See Supplemental Memorandum paragraphs, 20, 21, and 22, and Hearing Transcript at 95-98.) Complainant's Exhibit 14 is a June 25, 1996 form appraisal for Complainant signed by Hugo which states, inter alia, that Complainant "continues to dwell on" his prior working relationship with Jawor. Complainant's Exhibit 15 is a June 25, 1996 memorandum from Hugo to Dr. Schwayri submitting a "Job Fitness Evaluation form" (apparently referring to Complainant's Exhibit 14). Complainant's Exhibit 16 is a memorandum dated July 31, 1996, in which Dr. Schwayri stated that he had discussed the matter five times with Hugo and Pisiak but found "no clear justification to perform a job fitness evaluation on this employee." The physician also stated that he would grant permission to do an evaluation of Complainant, "If the [Respondent's] Department is willing to elaborate on the request to clearly indicate aberrant behavior or poor work performance..." Although Complainant's Exhibits 13 - 16 were created long before 2001, it appears that Complainant was unaware of their existence until April 5, 2001. For this reason, I find that this conduct of Respondent is not barred by the statute of limitations. Overall v. Tennessee Valley Authority, ARB Case Nos. 98-111, 98-128; ALJ Case No. 97-ERA-53, slip op. at 34-35 (ARB Apr. 30, 2001)("Claim accrual is the date a statute of limitations begins to run, i.e., the date a complainant discovers he has been injured." Citing Delaware State College v. Ricks, 449 U.S. 250 (1980)).⁶

¹Morgan involved an appeal from a determination of the 9th Circuit. In a subsequent Title VII case, the 9th Circuit acknowledged that Morgan "invalidated our previous application of the continuing violation doctrine to discrete acts of discrimination and retaliation." Lyons v. England, 307 F.3d 1092, 2002 WL 31254934 slip op. at 12 (9th Cir., Oct. 9, 2002)

²As the alleged discrimination occurred in the state of New York, this case arises in the juris-diction of the U.S. Court of Appeals for the Second Circuit. The most recent Second Circuit case that considered the question of what constitutes a hostile work environment is Alfano v. New York State Dept. of Correctional Services, 294 F.3d 365 (2d Cir. 2002), a Title VII sex discrimination case. Although Alfano issued two weeks after the Morgan decision, the Second Circuit opinion makes no reference to Morgan. Further, Alfano used a contrary standard for determining what acts constitute a hostile work environment than did Morgan in that Alfano stated that "the plaintiff must show that the workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment were thereby altered." 294 F.3d at 373 (emphasis sup-plied). Further, Alfano stated that "even a single act can meet the [hostile work environment] threshold if, by itself, it can and does work a transformation of the plaintiff's workplace." Id. at 375. This is contrary to Morgan which held that each serious discriminatory act that affects an employee's terms or conditions of employment is a discrete act which triggers the running of the statute of limitations. I therefore find that Alfano is of doubtful validity and is inapplicable to the instant case.

³All subsequent references to ¶ are to paragraphs of Complainant's Memorandum.

⁴I do not list the acts of Respondent that do not reasonably appear to have been a discrimina-tory or retaliatory response to Complainant's protected activity — for example, the allegations that McAvoy called Complainant to the former's office to "gloat that Bagwell's report had exonerated" McAvoy (¶ 19); that McAvoy stated he was upset that Jawor's behavior had not been reported earlier (¶ 20); that Hugo exhibited "negative body language" and walked away from Complainant when Complainant requested reinstatement ¶ 25.

⁵In Complainant's transmittal letter dated November 11, 2002, he requested permission to file a reply to Respondent's response. I find that a reply by Complainant is unwarranted.

⁶I find that all the acts of Respondent which herein have been determined not to be barred by the statute of limitations are not conduct that would constitute part of a hostile work environment. Rather — if they are acts of discrimination — they are discrete acts or conduct. On the other hand, since it is not clear that Respondent accepted Hugo's 1996 recommendation or that his written recommendation or the other 1996 documents in any way affected the terms or conditions of Complainant's employment, at this time I make no determination as to whether they can constitute adverse employment action or discriminatory acts under § 5851(a)(1) of the ERA.