Office of Administrative Law Judges Seven Parkway Center - Room
290 Pittsburgh, PA 15220
(412) 644-5754 (412) 644-5005 (FAX)
DATE: January 19, 2001
CASE NO.: 2000-ERA-36
In the Matter of:
ABBAS HONARDOOST
Claimant
v.
PECO ENERGY COMPANY
Employer
RECOMMENDED DECISION AND ORDER GRANTING MOTION TO DISMISS1
This is a proceeding arising under the Energy Reorganization Act ("ERA"), 42 U.S.C. § 5851, and its implementing regulations at 29 C.F.R. Part 24. On June 30, 2000, Abbas Honardoost ("claimant") filed a complaint with the United States Department of Labor, Occupational Safety and Health Administration ("OSHA") claiming that he had been discriminated against by PECO Energy Company ("employer" of "PECO"). The claimant alleged that employer had discriminated against him in retaliation for raising safety concerns regarding the employer's emergency diesel generator air starting system in 1996. The claimant states that the discrimination took the form of the claimant being selected to be a part of the employer's workforce reduction program. The claimant was selected to become a part of the program, in return receiving an enhanced severance benefit package. The program was designed so that the claimant would become a part of the program regardless of whether he voluntarily chose to participate.
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On August 30, 2000, employer was notified by OSHA that an investigation had taken place and that OSHA determined that the claimant had failed to file a timely complaint. On that same day, the claimant was notified by OSHA that a fact finding investigation had been concluded and that the investigation had not verified that discrimination was a factor in the actions complained of by the claimant. The claimant was also notified that the claim was dismissed because of the claimant's failure to file the complaint within the 180 days required by statute. OSHA determined that the date on which the time limit began was October 26, 1999, the date on which the claimant signed the election form that stated the claimant would "separate and retire."
The claimant requested, on September 3, 2000, that a formal hearing be conducted. On October 23, 2000, a conference call was conducted between the undersigned and all interested parties. At that time, the employer informed the undersigned of the intent to submit a motion to dismiss. On November 11, 2000, such motion was received. The employer moves for dismissal based on the claimant's alleged failure to file a timely complaint and the claimant's alleged failure to establish a prima facie case of discrimination. The claimant responded to that motion on November 27, 2000.
Timeliness
The employer argues initially that the claim should be dismissed because the complaint was not timely filed. The employer argues that the election form and subsequent waiver signed by the claimant are more than enough to give the claimant unequivocal notice that on June 30, 2000 the claimant's employment with PECO would end. Thus, October 26, 2000 should be the date on which the time limitation begins to run. The claimant argues in the alternative that the date of his receipt of a revised annuity payment statement should be the proper date for the start of the time limitation period because that is the time at which the claimant felt the effects of the employer's adverse employment action. If this is determined to be the proper date, then the claimant's complaint would have been timely filed.
"Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of subsection (a) of this section may, within 180 days after such violation occurs ..., file a complaint with the Secretary of Labor .... alleging such discharge or discrimination." 42 U.S.C. § 5851(b)(1). The implementing regulations state that "any complaint shall be filed within 180 days after the occurrence of the alleged violation." 29 C.F.R. § 24.3(b)(2). The proper focus when determining the date at which to begin the calculation of the 180 days, is the time of the discriminatory act, not at the time when the effects of that act become most painful. Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). The filing period for a whistleblower complaint begins running on the date that the employee is informed of the challenged employment decision, rather than the time that the effects of the decision are ultimately felt. See Nunn v. Duke Power Co., 84-ERA-27 (Sec'y July 30, 1987). Where the alleged discriminatory act is a reduction in force, the discriminatory act is the communication of notice of the reduction in force to the claimant as opposed to the last date of employment. Riden v. Tennessee Valley Authority, 89-ERA-49 (ALJ Feb. 9, 1990), aff'd (Sec'y July 18, 1990).
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The rule regarding when the time limitation begins to run is premised on an employee's having been given final and unequivocal notice of an employer's decision having delayed consequences. Only upon receipt of such notice does the filing period begin to run. Where the employer's letter giving notice of its decision on a disciplinary hearing indicated that she would be terminated unless she secured other employment with the employer before the end of a temporary assignment, the decision was not equivocal but in form final and unequivocal. Obtaining of other suitable employment would only permit the employee to avoid the termination it would not negate the alleged discriminatory decision itself. Therefore, the notification of the decision rather than the final day of the temporary assignment triggered the statute of limitations with respect to the employee's claim of retaliatory termination of her employment. English v. Whitfield, 858 F.2d 957 (4th Cir. 1988).
The time limitation period runs from the date the employee receives final, definitive and unequivocal notice of the adverse employment action. "Final" and "definitive" notices denotes communication that is decisive or conclusive, i.e. leaving no further chance for action, discussion, or change. Larry v. Detroit Edison Co., 86-ERA-32 (Sec'y June 28, 1991).
The Third Circuit Court of Appeals has placed the focus on the time of the discriminatory act, not the time when consequences of the act becomes "most painful" in cases involving alleged discriminatory employment actions. Watson v. Eastman Kodak Co., ___ F.3d ___, 2000 WL 1864346 (3rd Cir. 2000).
On October 26, 1999, the claimant read and signed a "PSM Election Form" for the "Workforce Reduction Program." The pertinent language of that form states that the claimant understands
"that in exchange for [the employee] receiving enhanced benefits under
the 1998 Workforce Reduction Program ("Program") [the employee] will
be required to sign the attached Full Waiver and Release of Claims. [The
employee] understands that [the employee] will be given 45 days to review
the Full Waiver and Release of Claims, and that if [the employee] chooses
not to sign the Release [the employee] will be terminated without any
retirement or separation benefits."
1 The regulations promulgated to govern the Energy Reorganization Act do not provide for dismissal based on timeliness. An administrative law judge may, however, consider and rule on properly filed motions. 29 C.F.R. § 18.1, 1940, 18.41. See also, Howard v. TVA, 90-ERA-24 (Sec'y July 3, 1991), slip op. at 4; Eisnerv. United States Environmental Protection Agency, 90-SDW-2 (Sec'y Dec. 8, 1992).
2 EX refers to the exhibits submitted by the employer as attachments to the Motion to Dismiss.
3 The employer has made a motion to dismiss the complaint because the claimant has failed to produce evidence establishing a prima facie case of discrimination. I read this motion to be a motion to dismiss based on the claimant's failure to state a claim upon which relief can be granted. Thus, I will treat the motion as if it were so titled.
4 Part 18.41(2) provides that any final decision issued as a summary decision must comply with the requirements for all final decisions. As such, it must include findings of fact and conclusions of law, the reasons for those findings and conclusions, all the issues presented and any terms or conditions of the rule or order.
5 The employer disputes this contention by stating that four other engineers from the Peach Bottom site voluntarily participated in the program, as well as two additional engineers that were separated involuntarily from PECO.