1. Whether the complaint was timely filed.

    2. Whether the complainant proved that the respondent took adverse employment actions against her as a result of protected activities.

    3. Whether the respondent demonstrated legitimate, non-pretextual reasons for its actions.

    4. Provided that a dual motive is found, whether the respondent established that it would have taken the same employment actions absent the complainant's protected activities.

Timeliness

    TVA argued that the complainant failed to meet the time requirements of 29 C.F.R. § 24.3(b) and therefore her claim is untimely. Section 24.3(b) requires that "[a]ny complaint shall be filed within 30 days after the occurrence of the alleged violation." With the exception of the ERA, the whistleblower provisions under which this claim of discriminatory treatment is brought all include a thirty-day statute of limitations for bringing a claim of discrimination. See 15 U.S.C. § 2622(B)(1) (TSCA); 33 U.S.C. § 1367(b) (WPCA); 42 U.S.C. § 300j-9(i)(2) (SDWA); 42 U.S.C. § 6971(b) (SWDA); 42 U.S.C. § 7622(b)(1) (CAA); and 42 U.S.C. § 9610(b) (CERCLA). Thus, only adverse actions taking place on October 5, 1993 or after are timely under the CAA, TSCA, SWDA, CERCLA, WPCA and SDWA. The ERA has a 180 day filing period. 42 U.S.C. § 5851 (b)(1); see Yule v. Burns Int'l Sec. Serv., 93-ERA-12 @ 2 (Sec'y May 24, 1995) (stating that Comprehensive National Energy Policy Act of 1992 (CNEPA) amended ERA by enlarging time for filing from 30 to 180 days).

    Ms. Summey lost her SB-4 job as a Descriptive Indexer in Chemical Traffic Control in November, 1990. She alleged that this action occurred because she reported mislabel- ing of containers to the NRC and internally to TVA. Additional- ly, the complainant contended that her position should have been upgraded to SA-2 but was not because of her protected activities. The last documented consideration of this classification occurred in November 1991 (RX 9). The complainant did not file her ERA complaint until October 4, 1993, clearly more than 180 days after these alleged adverse actions occurred. These incidents and any others occurring prior to 1993 cannot be considered under any of the above statutes because they are time-barred. The complainant concedes that claims based on events occurring in 1988, 1989 and

1990 are untimely (Tr. at 5-6). Thus, the events at issue in this case are only those occurring in 1993 and 1994.

Background

    Darlene Summey began working for TVA at the Sequoyah Nuclear Plant on October 20, 1980 (Tr. at 14). She was working as a Descriptive Indexer (SB-4 classification) in the Chemical Traffic Control Department in 1988. Also in 1988, Ms. Summey discovered mislabeled chemicals and reported this finding to Ed Craigge, the Industrial Safety Staff Manager (Tr. at 32). Shortly thereafter, she reported the presence of asbestos to her supervisor, Tom Leach (Tr. at 33). In 1990, she reported mislabeled chemicals to the NRC who told her the situation was a management problem (Tr. at 37). Consequently, Ms. Summey contacted Employee Concerns within TVA. In May 1990, Ms. Summey applied to have her SB-4 Descriptive Indexer position upgraded and reclassified as SA-2, Information Systems Specialist (RX 5). In November 1990, she was informed that budget cuts required her position in Chemical Traffic Control to be eliminated by a reduction in force (RX 3). Ms. Summey exercised her roll-over rights and took a lower position as a Clerk/Word Processor (SB-3 classification) in Human Resources (Tr. at 40, 59). In January 1991, Ms. Summey continued as a Clerk/Word Processor (SB-3 classification) in Project Controls (Tr. at 40-41). A classification audit was conducted by Human Resources in April, 1991 to decide whether Ms. Summey's position should be upgraded to SA-2. It was determined that the major duties described by the Descriptive Indexer classification no longer were performed by anyone at TVA. Therefore, Ms. Summey's SB-3 Information Systems Clerk classification was appropriate (RX 8). The union reviewer disagreed and classified the position as SB-4. Evaluating both the initial review and the union comments, Human Resources concluded that the initial TVA evaluation of SB-3 was appropriate (RX 9). This evaluation was sent back to the union reviewer but no additional documentation about the outcome of this issue is present in the record. All of the correspondence in the record occurred between May 1990 and October 1991. Neither TVA nor the union reviewer classified Ms. Summey at the requested level of SA-2. Due to a reduction in force, Ms. Summey was moved from Project Controls to Mechanical Maintenance as a Clerk/Word Processor (SB-3) in January 1992 (Tr. at 41).

    On October 27, 1993, TVA notified all employees that each would receive a $905 bonus. However, when Ms. Summey received her check it was for only $438 ($605 before taxes) (RX 10 at 2). When Ms. Summey questioned the accuracy of her bonus, she was told that the amount was reduced because she had taken leave without pay (RX 10 at 2). The calculation of Ms. Summey's bonus was not made by a supervisor or anyone else at the

Sequoyah plant. A person in the payroll department in Knoxville, Tennessee made the calculation (Tr. at 64). I find that Ms. Summey's bonus was reduced because she took leave without pay.

    While employed as a Clerk/Word Processor in Mechanical Maintenance, Ms. Summey experienced a variety of health problems. She underwent knee surgery, required physical therapy at least one day per week, passed multiple kidney stones, and had a heart condition requiring recurrent hospitalization (Tr. at 51). Because of her various medical problems and therapy requirements, Ms. Summey had exhausted all of her accumulated annual leave and sick leave (Tr. at 46). According to Al Black, a human resources officer, Ms. Summey used all annual leave and sick leave, which she had earned, as well as hundreds of hours of leave without pay, during 1993 and 1994 (Tr. at 223). During February 1994, when Ms. Summey was passing kidney stones, she was absent from work without notifying her supervisor and without following company policy on absences (RX 13; Tr. at 175-76). After she returned to work, she requested and was denied leave without pay (Tr. at 47). On February 11, 1994, Ms. Summey received a leave control letter and was the subject of a disciplinary meeting. Ms. Summey's supervisor, Ray Rinehart, along with Marcia Cooper, issued a leave control letter to Ms. Summey, reminding her of company policies about obtaining approval for unpaid leave and citing instances in which Ms. Summey had failed to obtain approval for leave and had been absent from work without notice (RX 13).

    In the spring of 1994, Ms. Summey indicated a willingness to leave TVA and take early retirement, provided an acceptable settlement package was offered (Tr. at 220). In the fall of 1994, Ms. Summey was given paid administrative leave to consider TVA's settlement offer (Tr. at 55-56). After rejecting TVA's offer, she was transferred to the Planning group in October 1994, where she works as a Clerk/Word Processor (SB-3) (Tr. at 60). At the time of the hearing, Ms. Summey was still employed by TVA in the Planning group at the SB-3 level (Tr. at 14).

Discussion

    Following the Secretary's instruction, I will not conduct a detailed analysis of whether the complainant has established a prima facie case. The Deputy Secretary stated in Creekmore v. ABB Power Sys. Energy Servs., Inc. that "[w]here a respondent has introduced evidence to rebut a prima facie case of a violation of the ERA's employee protection provision, it is unnecessary to examine the question of whether the complainant established a prima facie case." 93-ERA-24 @ 5 (Dep. Sec'y Feb. 14, 1996); accord Yule v. Burns Int'l Sec. Serv., 93-ERA-12 @ 3 (Sec'y May 24, 1995). After a case is tried on the merits, the

Administrative Law Judge must weigh all of the evidence and determine whether the complainant has proven by a preponderance of the evidence that the respondent intentionally discriminated against the complainant because of protected activities. Jackson v. Ketchikan Pulp Co., 93-WPC-7, @ 6 n.1 (Sec'y Mar. 4, 1996). The Secretary has held that the complainant's burden of proof under the ERA whistleblower provision is applicable to all environmental whistleblower claims. Wagoner v. Technical Prods., Inc., 87-TSC-4 (Sec'y Nov. 20, 1990). Thus, my analysis will begin with the determination that the complainant has established a prima facie case and that TVA has produced evidence sufficient to rebut the presumption of the prima facie case.

    The complainant engaged in protected activities when she made internal safety complaints in 1988 and 1990, see Jones v. Tennessee Valley Auth., 948 F.2d 258, 264 (6th Cir. 1991), and when she contacted the NRC about mislabeled chemicals in 1990. Additionally, the complainant's filing of this DOL complaint constituted a protected activity. See 42 U.S.C. § 5851(a)(1); Bryant v. Ebasco Servs., Inc., 88-ERA-31 @ 3 (Sec'y Apr. 21, 1994) (stating that filing ERA complaint with DOL is protected activity); McCuiston v. Tennessee Valley Auth., 89-ERA-6 (Sec'y Nov. 13, 1991) (same).

    Although the complainant alleged that TVA took adverse employment actions against her in response to her protected activities, TVA has demonstrated non-discriminatory, valid business reasons for the employment actions taken. "An employee's engagement in protected activities does not auto- matically render him or her immune from discharge or discipline for legitimate reasons or from adverse action dictated by non- prohibited considerations." 10 C.F.R. § 50.7(d). TVA has no burden to prove legitimate motives, but has merely a burden of production, which it has met. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981); Dartey v. Zack Co., 82-ERA-2 @ 5 (Sec'y Apr. 25, 1983). After a respondent meets its burden of production, the complainant must demonstrate by a preponderance of the evidence that the articulated reasons for the adverse employment actions are a mere pretext for discrimination. Burdine, 450 U.S. at 256.

    Initially, I wish to dispose of a number of issues raised by the complainant that do not show adverse or discriminatory actions on the part of TVA. Ms. Summey alleged that her coworker, Tammy Roberson, harassed her by using foul language, having a hateful tone in her voice, and giving the complainant nasty looks (RX 10 at 6). Tammy Roberson was not

acting on behalf of TVA when engaging in this alleged conduct. Nor has the complainant shown any connection between Ms. Roberson's actions and Ms. Summey's protected activities. Ms. Summey also contended that coworkers in the Mechanical Maintenance group made derogatory comments about her use of the freight elevator although she was physically unable to use the stairs (RX 10 at 17). Interpersonal conflicts and comments made between coworkers are not compensable under any of the governing environmental statutes in this case. Cf. Crawford v. Medina Gen. Hosp., No. 95-3243, slip op. at 11 (6th Cir. Sept. 24, 1996) (stating that ADEA not intended to remedy minor social slights and resulting hurt feelings).

    Ms. Summey also alleged a failure of TVA to pay her chiropractic bills (RX 10 at 7). Ms. Summey provided no link to show that this action was in any way related to her protected activities. Moreover, unpaid medical bills are not an issue to be decided in this claim, but must be resolved, if at all, under the governing worker's compensation statute.

    The remaining issues in this claim are Ms. Summey's reduced bonus, TVA's issuance of a leave control letter to Ms. Summey on February 11, 1994, and her transfer to the Planning Group after being placed on paid administrative leave. With regard to her bonus, the complainant contended that she received only $438 when she was entitled to $905. TVA informed Ms. Summey that her bonus was reduced because she had taken leave without pay. Although Ms. Summey asserted that another TVA employee who took leave without pay received the full bonus amount, she has provided no documentation of this occurrence, nor did counsel elicit at the hearing any information about potential disparate treatment in the issuance of bonus checks. Thus, the complainant has failed to prove by a preponderance of the evidence that TVA discriminated against her in this instance or had any illegitimate motives for its action.

    The major points of contention at the hearing were the leave control letter and Ms. Summey's transfer to the Planning Group. TVA asserted legitimate, nondiscriminatory business reasons for its actions under the circumstances. Multiple personnel of TVA testified at the hearing that well-founded and verified reasons existed for issuing Ms. Summey a leave control letter. Ray Rinehart, TVA's Mechanical Maintenance Manager and Ms. Summey's supervisor during 1993 and 1994, recorded in his daily planner when Ms. Summey was absent from or late for work and dates on which he counselled her about her leave problems (RX 12; Tr. at 177). TVA issued the leave control letter because Ms. Summey failed to obtain prior approval for unpaid leave as required by company policy and because she failed to notify her supervisors when she would be arriving late to work

or would not be coming to work (RX 13; Tr. at 175). The issuance of a leave control letter under these circumstances comported with company policy and with actions taken in similar circumstances with other employees. (Tr. at 182).

    Marcia Cooper, the Acting Maintenance Manager from November, 1993 to March, 1994, concurred in the issuance of the leave control letter after examining Mr. Rinehart's documentation of Ms. Summey's leave problems (Tr. at 106) and after consulting with human resources personnel and the plant manager on the appropriate course of action under the circum- stances (Tr. at 107-08). Ms. Cooper also drew from her own experience in similar situations, stating that she had issued a leave control letter to an employee in circumstances similar to Ms. Summey (Tr. at 103).

    Before agreeing to issue the leave control letter, Al Black, a human resources officer and labor relations specialist, spoke with Ms. Cooper and Mr. Rinehart to verify the dates and times mentioned in the letter and to make sure that Mr. Rinehart had verbally counselled Ms. Summey in the past about her leave problems (Tr. at 210, 212). Mr. Black testified that Ms. Summey was not treated any differently than other employees who were denied leave without pay (Tr. at 211). Moreover, Mr. Black concurred that TVA's standard business practice was to first counsel employees about leave issues verbally and to follow the verbal counselling with a written warning or leave control letter if the problem did not improve (Tr. at 211).

    The union representative also agreed that issuing a leave control letter to Ms. Summey was consistent with normal company practice even though Ms. Summey alleged that she was being treated unfairly by TVA (Tr. at 113).

    Although Mr. Rinehart, Ms. Cooper and Mr. Black all were aware of Ms. Summey's contact with the NRC and her complaint to DOL, none of them considered her protected activities factors in the decision to issue the leave control letter (Tr. at 113-15, 186, 217). Additionally, as promised, the letter was removed from Ms. Summey's personnel file after six months without further leave problems (RX 14; Tr. at 219).

    A meeting to discuss the leave control letter and Ms. Summey's leave problems also occurred on February 11, 1994, in conformance with company practice (Tr. at 213). Mr. Black described the purpose of the meeting. "It was a session where we were trying to assist Ms. Summey, to get her back in the work environment. It was clearly noted to her that nobody was trying to adversely affect Ms. Summey or terminate her employment, it was simply to get her back in the fold because she

was a very vital part of the Sequoyah organization" (Tr. at 216).

    I find that TVA had valid business reasons for issuing the leave control letter to Ms. Summey and for holding a disciplinary meeting with her. Various TVA employees testified that TVA handled Ms. Summey's discipline in accordance with company policy and procedure. Moreover, I find Mr. Black's testimony about the purpose of the February 11, 1994, meeting to be credible. TVA has produced evidence showing not only legitimate, nondiscriminatory reasons for its actions but also concern for Ms. Summey and a willingness to assist her despite her violations of company policy and frequent absence from work. It is Ms. Summey's burden to prove by a preponderance of the evidence that TVA's proffered explanation is mere pretext. Ms. Summey has failed to meet that burden. Ms. Summey offers only her testimony that she "feels" TVA was motivated by improper reasons. At the hearing, Ms. Summey stated "I feel like that it all goes back because I raised the safety concerns. I honestly feel that. . .[a]nd then because of the knee surgery and then the kidney stones and the heart problem." (Tr. at 52-53). On the other hand, TVA has provided evidence and documentation from several sources that the actions taken by TVA were not discriminatory or adverse. Rather, the actions resulted from Ms. Summey's own physical and occupational needs and her neglect of proper administrative procedures. Ms. Summey has failed to prove that TVA acted with improper motives.

    The other major issue in this case is Ms. Summey's transfer to Planning after being placed on paid administrative leave in 1994. I first note that Ms. Summey failed to specifically raise this issue in her DOL complaint (See generally RX 10). However, time and effort was spent on this issue at the hearing and I will address its merits. In 1992, Ms. Summey was working in Mechanical Maintenance at a SB-3 level. In the spring of 1994, Ms. Summey informed the Human Resources Department that she was interested in leaving TVA, provided an acceptable settlement package was developed (Tr. at 220). Ms. Summey was considering the possibility of taking disability retirement. In order for Ms. Summey to acquire the necessary medical documentation and to study TVA's proposed offer, Ms. Summey was given paid administrative leave from September 1994 to October 1994 (Tr. at 221-22). Upon Ms. Summey's rejection of TVA's offer, Mr. Black analyzed each department's needs and available positions and found a suitable position for Ms. Summey available only in the Planning group (Tr. at 225). Ms. Summey did not return to her previous Mechanical Maintenance SB-3 position because of that department's need for a full time weekday clerk and Ms. Summey's inability to fulfill that role (Tr. at 162, 224-25). Although Ms. Summey stated that

she felt ostracized from the Planning group because her cubicle was on the first floor and the rest of the group was on the second floor, she admitted on cross-examination that the group had tried to accommodate her (Tr. at 70).

    The record is replete with examples of TVA's attempts to accommodate Ms. Summey's physical limitations and medical requirements. TVA transferred the complainant to Planning so that she could work in a department that did not require her presence during the normal shift period of 7:30 a.m. to 4:00 p.m. Monday through Friday. Rather, in Planning many employees are on a schedule of four ten-hour workdays (Tr. at 199). With this schedule, Ms. Summey is able to attend doctor's appointments and therapy sessions on Wednesdays without taking leave without pay. TVA had a legitimate business interest in its decision to transfer the complainant to Planning because the demands of the transferring department, Mechanical Maintenance, required the presence of employees Monday through Friday from 7:30 a.m. to 4:00 p.m. (Tr. at 198). Additionally, Ms. Summey was given a cubicle on the first floor of the building while the rest of the employees of the Planning group were on the second floor in order to accommodate her physical limitations. Ms. Summey told Mr. Ridge, a human resources officer, that she could not walk up the flight of stairs to the second floor (Tr. at 166). Thus, TVA's placement of the complainant on the first floor was not an act of retaliation, but rather an act of kindness to Ms. Summey and a recognition of her physical limitations.

    I have considered the complainant's argument that TVA's motives were improper, but I find her argument unpersuasive. Ms. Summey has not shown that TVA's proffered reasons are pretextual. She has failed to show that TVA's given reasons are not the true reasons or that a discriminatory reason is the more likely motive. Thus, the complainant has failed to meet her ultimate burden of persuasion.

    Moreover, the complainant has produced no direct evidence that shows the use of an illegitimate criterion in the challenged decisions. "Direct evidence means evidence showing a specific link between an improper motive and the challenged employment decision." Carroll v. United States Dep't of Labor, 78 F.3d 352, 357 (8th Cir. 1996). Dual motive analysis is necessary only when the complainant provides direct evidence linking adverse employment actions to protected activities. Id. In this case, Ms. Summey has failed to provide any direct evidence of a connection between her protected activities and adverse employment actions.

    However, assuming arguendo that TVA did act with a dual motive, under the ERA, TVA must show by clear and convincing evidence that it would have taken the same employment actions absent Ms. Summey's protected activities. See 42 U.S.C. § 5851(b)(3)(D); Yule v. Burns Int'l Sec. Serv., 93-ERA-12 @ 4 (Sec'y May 24, 1995). No precise definition of clear and convincing evidence exists, but "the courts recognize that it is a higher burden than 'preponderance of the evidence' but less than 'beyond a reasonable doubt.'" Yule, 93-ERA-12 @ 4; see Pacific Mutual Life Ins. Co. v. Haslipi, 499 U.S. 1, 22 n.11 (1991); Grogan v. Garner, 498 U.S. 279, 282 (1991). Under the other environmental statutes involved in this case, TVA's burden is only a preponderance of the evidence. Obviously, if TVA meets the clear and convincing standard of the ERA it also satisfies its burden of proof under the remaining statutes.

    TVA has shown through the testimony of Ms. Summey's supervisors and members of the human resources department, as well as through documentary evidence, that TVA was justified in the employment actions taken with regard to Ms. Summey. TVA has proven by clear and convincing evidence that it was Ms. Summey's absence from, and tardiness to, work and her disregard of company leave policies that necessitated the issuance of the February 11, 1994 leave control letter and meeting. Moreover, it was Ms. Summey's inability to work Monday through Friday during the normal business day that necessitated her transfer from Mechanical Maintenance to Planning. TVA has shown that it has treated Ms. Summey the same as other employees with leave problems who did not engage in protected activities. TVA's decisions were based on legitimate business concerns and accommodations of Ms. Summey. TVA has met its burden of proof in showing that it would have taken the same employment actions absent Ms. Summey's protected activities.

    IT IS RECOMMENDED that the complaint filed by Rebecca Darlene Summey be DISMISSED.

      J. MICHAEL O'NEILL
      Administrative Law Judge

NOTICE: This Recommended Decision and Order and the adminis- trative file in this matter will be forwarded for final decision to the Administrative Review Board, United States Department of

Labor, Room S-4309, Francis Perkins Building, 200 Constitution Ave., N.W., Washington, DC 20210. See 61 Fed. Reg. 19978 and 19982 (1996).